<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1998
REGISTRATION NO. 333-53553
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TIME WARNER TELECOM LLC
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 4813 84-1465464
(STATE OR JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
5700 S. QUEBEC STREET, GREENWOOD VILLAGE, CO 80111
(303) 566-1000
(ADDRESS, INCLUDING EACH ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
TIME WARNER TELECOM INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 4813 84-1452416
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
5700 S. QUEBEC STREET, GREENWOOD VILLAGE, CO 80111
(303) 566-1000
(ADDRESS, INCLUDING EACH ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DAVID J. RAYNER
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
TIME WARNER TELECOM LLC
5700 S. QUEBEC STREET, GREENWOOD VILLAGE, CO 80111
(303) 566-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
<TABLE>
<CAPTION>
COPIES TO:
<S> <C> <C>
WILLIAM P. ROGERS, JR. PETER R. HAJE FAITH D. GROSSNICKLE
CRAVATH, SWAINE & MOORE EXECUTIVE VICE PRESIDENT, SECRETARY SHEARMAN & STERLING
WORLDWIDE PLAZA AND GENERAL COUNSEL 599 LEXINGTON AVENUE,
825 EIGHTH AVENUE, TIME WARNER INC. NEW YORK, N.Y. 10022-6069
NEW YORK, N.Y. 10019-7415 75 ROCKEFELLER PLAZA, (212) 848-4000
(212) 474-1270 NEW YORK, N.Y. 10019
(212) 484-8000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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(c)
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 number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED JULY 15, 1998
$400,000,000
[LOGO]
TIME WARNER TELECOM LLC
TIME WARNER TELECOM INC.
% SENIOR NOTES DUE 2008
------------------------
Interest payable January 15 and July 15
------------------------
TIME WARNER TELECOM LLC (THE 'COMPANY') AND TIME WARNER TELECOM INC., A WHOLLY
OWNED SUBSIDIARY OF THE COMPANY ('TWT' AND, TOGETHER WITH THE COMPANY, THE
'OBLIGORS'), ARE OFFERING $400.0 MILLION OF % SENIOR NOTES DUE 2008.
THE NOTES ARE REDEEMABLE AT THE OPTION OF THE OBLIGORS, IN WHOLE OR IN PART, AT
ANY TIME ON OR AFTER JULY 15, 2003 AT THE REDEMPTION PRICES SET FORTH HEREIN,
PLUS ACCRUED INTEREST, IF ANY, TO THE DATE OF REDEMPTION. IN ADDITION, AT
ANY TIME PRIOR TO JULY 15, 2001, UP TO 35% OF THE AGGREGATE PRINCIPAL
AMOUNT OF THE NOTES MAY BE REDEEMED BY THE OBLIGORS OR THEIR SUCCESSORS
FROM THE NET PROCEEDS OF ONE OR MORE SALES OF ITS COMMON STOCK OR
EQUIVALENT INTERESTS, AT THE REDEMPTION PRICE SET FORTH HEREIN, PLUS
ACCRUED INTEREST TO THE DATE OF REDEMPTION; PROVIDED, HOWEVER, THAT
AFTER ANY SUCH REDEMPTION AT LEAST 65% OF THE AGGREGATE PRINCIPAL
AMOUNT OF NOTES ORIGINALLY ISSUED REMAINS OUTSTANDING.
THE NOTES WILL BE GENERAL, UNSECURED SENIOR OBLIGATIONS OF THE OBLIGORS, RANKING
PARI PASSU IN RIGHT OF PAYMENT WITH ALL EXISTING AND FUTURE UNSECURED
UNSUBORDINATED OBLIGATIONS, AND SENIOR IN RIGHT OF PAYMENT TO ALL EXISTING
AND FUTURE SUBORDINATED INDEBTEDNESS OF THE OBLIGORS. THE NOTES WILL ALSO
BE SUBORDINATED TO ALL EXISTING AND FUTURE SECURED INDEBTEDNESS OF THE
OBLIGORS TO THE EXTENT OF SUCH SECURITY. AT MARCH 31, 1998, ON A PRO
FORMA BASIS AFTER GIVING EFFECT TO THE OFFERING (AS DEFINED), THE
OBLIGORS WOULD HAVE HAD OUTSTANDING APPROXIMATELY $517.5 MILLION OF
INDEBTEDNESS, $117.5 MILLION OF WHICH WOULD HAVE BEEN EXPRESSLY
SUBORDINATED IN RIGHT OF PAYMENT TO THE NOTES. IN ADDITION, THE
COMPANY IS A HOLDING COMPANY AND THE NOTES WILL BE EFFECTIVELY
SUBORDINATED TO ALL EXISTING AND FUTURE LIABILITIES (INCLUDING
TRADE PAYABLES) OF THE COMPANY'S SUBSIDIARIES OTHER THAN TWT. ON
MARCH 31, 1998, ON THE SAME PRO FORMA BASIS, THE SUBSIDIARIES
OF THE COMPANY OTHER THAN TWT WOULD HAVE HAD $57.3 MILLION
OF LIABILITIES, NONE OF WHICH IS INDEBTEDNESS. THE
OBLIGORS WILL BE JOINTLY AND SEVERALLY LIABLE,
FULLY AND UNCONDITIONALLY, WITH
RESPECT TO THE NOTES.
------------------------
SEE 'RISK FACTORS' BEGINNING ON PAGE 11 FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
PRICE % AND ACCRUED INTEREST, IF ANY
------------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC (1) COMMISSIONS (2) COMPANY (1) (3)
------------------------ ------------------------ ------------------------------
<S> <C> <C> <C>
Per Note................................. % % %
Total.................................... $ $ $
</TABLE>
- ------------
(1) Plus accrued interest, if any, from , 1998.
(2) The Obligors have agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
See 'Underwriters.'
(3) Before deducting estimated expenses of $1,500,000, payable by the
Company.
------------------------
The Notes are offered, subject to prior sale, when, as and if accepted by
the Underwriters named herein and subject to approval of certain legal matters
by Shearman & Sterling, counsel for the Underwriters. It is expected that
delivery of the Notes will be made on or about , 1998 at the
office of Morgan Stanley & Co. Incorporated, New York, NY, against payment
therefor in immediately available funds.
------------------------
JOINT BOOK - RUNNING MANAGERS
MORGAN STANLEY DEAN WITTER LEHMAN BROTHERS
, 1998
<PAGE>
<PAGE>
NETWORK MAP OF TIME WARNER TELECOM LOCATIONS
------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE NOTES.
SPECIFICALLY, THE UNDERWRITERS MAY OVER-ALLOT IN CONNECTION WITH THIS OFFERING,
AND MAY BID FOR, AND PURCHASE, NOTES IN THE OPEN MARKET. FOR A DESCRIPTION OF
THESE ACTIVITIES, SEE 'UNDERWRITERS.'
<PAGE>
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY SECURITY OTHER THAN THE NOTES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE ANY
SUCH OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREBY SHALL UNDER ANY CIRCUMSTANCE IMPLY THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE
HEREOF.
------------------------
UNTIL , 1998 (90 DAYS AFTER THE COMMENCEMENT OF THE OFFERING),
ALL DEALERS EFFECTING TRANSACTIONS IN THE NOTES, WHETHER OR NOT PARTICIPATING IN
THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS DELIVERY
REQUIREMENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
------------------------
FOR INVESTORS OUTSIDE THE UNITED STATES: NO ACTION HAS BEEN OR WILL BE
TAKEN IN ANY JURISDICTION BY THE COMPANY OR BY ANY UNDERWRITER THAT WOULD PERMIT
A PUBLIC OFFERING OF THE NOTES OR POSSESSION OR DISTRIBUTION OF THIS PROSPECTUS
IN ANY JURISDICTION WHERE ACTION FOR THAT PURPOSE IS REQUIRED, OTHER THAN IN THE
UNITED STATES. PERSONS INTO WHOSE POSSESSION THIS PROSPECTUS COMES ARE REQUIRED
BY THE COMPANY AND THE UNDERWRITERS TO INFORM THEMSELVES ABOUT AND TO OBSERVE
ANY RESTRICTIONS AS TO THE OFFERING OF THE NOTES AND THE DISTRIBUTION OF THIS
PROSPECTUS.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary............................... 4
Risk Factors..................................... 11
Use of Proceeds.................................. 22
The Reorganization............................... 23
Capitalization................................... 24
Selected Combined Financial and Other Operating
Data........................................... 25
Management's Discussion and Analysis of Financial
Condition and Results of Operations............ 27
Business......................................... 35
Management....................................... 50
Certain Relationships and Related Transactions... 60
<CAPTION>
PAGE
----
<S> <C>
Principal Members................................ 66
Description of the Notes......................... 67
Description of Interests......................... 92
Description of Capital Stock..................... 94
Certain United States Federal Tax Consequences to
Holders of Notes............................... 96
Underwriters..................................... 98
Legal Matters.................................... 98
Experts.......................................... 99
Additional Information........................... 99
Glossary......................................... 100
Index to Combined Financial Statements........... F-1
</TABLE>
------------------------
Certain statements contained herein under 'Prospectus Summary,' 'Risk
Factors,' 'Management's Discussion and Analysis of Financial Condition and
Results of Operations' and 'Business' including, without limitation, those
concerning the Company's business and operating strategy, contain certain
forward-looking statements concerning the Company's operations, economic
performance and financial condition. Because such statements involve risks and
uncertainties, actual results may differ materially from those expressed or
implied by such forward-looking statements. Factors that could cause such
differences include, but are not limited to, those discussed under 'Risk
Factors.'
3
<PAGE>
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and the Company's financial
statements, including the notes thereto, appearing elsewhere in this Prospectus.
As used herein, the term 'Company' refers to Time Warner Telecom LLC, its
consolidated and unconsolidated subsidiaries, including TWT, and all operations
of the Company that were historically conducted by the Members (as defined
herein). The term 'Members' refers to Time Warner Inc. and certain of its
subsidiaries (collectively, 'TW'), MediaOne Group, Inc. and certain of its
subsidiaries (collectively, 'MediaOne'), and Advance/Newhouse Partnership
('Newhouse'). TW and MediaOne, through certain subsidiaries, are partners in
Time Warner Entertainment Company, L.P. ('TWE'). TWE and Newhouse are partners
in Time Warner Entertainment-Advance/Newhouse Partnership ('TWE-A/N'). The term
'TW Cable' refers collectively to the cable systems owned by subsidiaries and
divisions of TWE, TWE-A/N and TW. The Company was recently formed in connection
with a reorganization (the 'Reorganization') of the assets and liabilities of
its business, which were previously owned by subsidiaries and divisions of TWE,
TWE-A/N and TW (together, the 'Parent Companies'). The Reorganization was
consummated on July 14, 1998. In connection with the Reorganization, TW,
MediaOne and Newhouse received 61.95%, 18.88%, and 19.17% respectively, of the
limited liability company interests in the Company. See 'The Reorganization' and
'Principal Members.' Unless otherwise indicated, the information set forth in
this Prospectus gives effect to the transactions described herein under 'The
Reorganization.' See 'Glossary' for definitions of certain other terms used in
this Prospectus.
THE COMPANY
The Company is a leading facilities-based competitive local exchange
carrier ('CLEC') in selected metropolitan areas across the United States,
offering a wide range of business telephony services, primarily to medium- and
large-sized business customers and other carriers. The Company's customers are
principally telecommunications-intensive business end-users, long distance
carriers ('IXCs'), Internet service providers ('ISPs'), wireless communications
companies and governmental entities. Such customers are offered a wide range of
integrated telecommunications services, including dedicated transmission, local
switched, data and video transmission services and certain Internet services.
The Company has deployed switches in 16 of its 19 service areas as of March 31,
1998, and management expects that a growing portion of the Company's revenues
will be derived from providing switched services. In addition, the Company
benefits from its strategic relationship with TW Cable both through network
facilities access and cost-sharing. As a result, the Company's networks have
been constructed primarily through licensing the use of fiber capacity from TW
Cable. As of March 31, 1998, the Company operated networks in 19 metropolitan
areas that spanned 6,239 route miles, contained 244,894 fiber glass miles and
offered service to 2,711 buildings. Consolidated revenues for the Company, which
have historically been primarily derived from private line services, grew by
117.2% for the three months ended March 31, 1998 as compared to the same period
in 1997.
The business of the Company was commenced in 1993 by TW Cable, originally
to provide certain telephony services together with cable television. In January
1997, the Company put in place a new management team that is implementing a
business strategy focused on exclusively serving business customers, rapidly
providing switched services in all the Company's service areas and expanding the
range of business telephony services offered by the Company.
The Company believes that the Telecommunications Act of 1996 (the '1996
Act') and certain state regulatory initiatives provide increased opportunities
in the telecommunications marketplace by opening all local service areas to
competition and requiring incumbent local exchange carriers ('ILECs') to provide
increased direct interconnection. According to the Federal Communications
Commission (the 'FCC'), in 1996 the total revenues for the telecommunications
industry amounted to approximately $222 billion, of which approximately $122
billion was local service and approximately $100 billion was long distance.
BUSINESS STRATEGY
The Company's primary objective is to be a leading CLEC in its existing and
future service areas, offering medium- and large-sized businesses superior
telecommunications services through advanced networks. The key elements of the
Company's business strategy include the following:
4
<PAGE>
<PAGE>
Leverage Existing Fiber Optic Networks. The Company has designed and
built its networks to serve geographic locations where management believes
there are large numbers of potential customers. As of March 31, 1998, the
Company operated networks that spanned 6,239 route miles and contained
244,894 fiber miles. The Company's highly concentrated networks have yet to
be fully exploited and provide the capacity to serve a substantially larger
base of customers. Management believes that the Company's extensive fiber
network capacity allows it to: (i) increase orders substantially from new
and existing customers without incurring significant additional capital
expenditures and operating expenses; (ii) emphasize its facilities-based
services rather than resales of network capacity of other providers; and
(iii) exert greater control over its services than the Company's
competitors that are dependent upon off-net facilities, thereby providing
better customer service.
Expand Switched Services. The Company provided a broad range of
switched services in 16 of its service areas as of March 31, 1998, and
plans to provide switched services in all of its current service areas by
the end of 1999. For the three months ended March 31, 1998, consolidated
revenues from switched service grew by 187.0% as compared to the same
period in 1997. Because the demand for switched services is greater than
for dedicated transport services, and the Company has been rapidly
installing switches in its markets, Management expects the Company to
derive a growing portion of its revenues from switched services.
Target Medium- and Large-Sized Business Customers. The Company
operates networks in metropolitan areas that have high concentrations of
medium- and large-sized businesses. Such businesses tend to be
telecommunications-intensive and are more likely to seek the greater
reliability provided by an advanced network such as the Company's. Thus,
management believes that significant economies of scale may be achieved by
focusing and intensifying its sales and marketing efforts on such
businesses as they are potentially high volume users of the Company's
services. To drive revenue growth in these markets, the Company is
aggressively expanding its direct sales force to focus on such business
customers.
Interconnect Service Areas within Clusters. The 19 service areas in
which the Company currently operates are grouped in six geographic clusters
across the United States. The Company plans to interconnect each service
area within a cluster with broadband, fiber optic facilities of its own or
licensed from TW Cable and/or third parties. Interconnecting the service
areas within a cluster will enable the Company to increase its revenue
potential by addressing customers' regional long distance voice, data and
video requirements. In 1998, management plans to begin interconnecting
service areas within the Company's Midwest, Southwest and Southeast
clusters.
Utilize Strategic Relationships with TW Cable. The Company has
benefited from and continues to leverage its relationships with TW Cable,
the second largest multiple system cable operator in the U.S., by licensing
and sharing the cost of digital fiber optic facilities. This licensing
arrangement allows the Company to benefit from TW Cable's access to
rights-of-way, easements, poles, ducts and conduits. By leveraging its
existing relationship with TW Cable, the Company believes that it can
increase revenues, benefit from existing regulatory approvals and licenses,
derive economies of scale in network costs and extend its existing networks
in a rapid, efficient and cost-effective manner. Furthermore, management
believes that the strong awareness and positive recognition of the 'Time
Warner' brand name significantly contributes to its marketing programs and
sales efforts by distinguishing it from its competitors.
Expand Product Offerings. The Company intends to increase revenues and
cash flows by developing and tailoring diversified bundles of telephony
services for its customers. The services currently offered by the Company
include a wide range of dedicated transmission, local switched, data and
video transmission services and certain Internet services. The Company
intends to offer additional services including long distance service and
other high speed data transport services. The Company generally develops
its customer base by first offering basic telecommunications services to
its new customers. As the needs of such customers change and develop, the
Company selectively bundles and offers more sophisticated, higher margin
products and services to them.
Enter into New Geographic Areas. The Company's strategy is to target
metropolitan areas possessing demographic, economic and telecommunications
demand profiles that it believes provide it with the potential to generate
an attractive economic return. Currently, the Company operates networks in
a total of 19 metropolitan areas. Management plans to have networks in
operation or under construction in several
5
<PAGE>
<PAGE>
additional service areas by the end of 1999, most of which will be in
service areas where TW Cable has already made substantial infrastructure
investments. By licensing capacity from TW Cable's existing fiber optic
networks, the Company can develop new networks quickly and
cost-effectively, thereby giving it a competitive advantage over other
CLECs. See 'Certain Relationships and Related Transactions -- Certain
Operating Agreements.'
Continue Disciplined Expenditure Program. The Company increases
operational efficiencies by pursuing a disciplined approach to capital
expenditures. This capital expenditure program requires that prior to
making any expenditure on a project, the project must be expected to meet
stringent financial criteria such as minimum recurring revenue, cash flow
margins and rate of return. In addition, to control capital expenditures
and share the risks of developing costly new networks, management is
considering establishing strategic alliances with other telecommunications
providers in the form of joint ventures and possible co-branding marketing
programs.
FINANCING PLAN
The Company expects that the net proceeds of the Offering, together with
internally generated funds, will provide sufficient funds for the Company to
expand its business as currently planned, pay interest on the Notes and fund its
currently expected losses through the end of 1999. Thereafter, the Company
expects to require additional financing. See 'Use of Proceeds.'
THE REORGANIZATION
The Company was recently formed in connection with the Reorganization of
the assets and liabilities of its business, which were previously owned by
subsidiaries and divisions of the Parent Companies. In connection with the
Reorganization, the Members received all the outstanding limited liability
company interests in the Company. The interests in the Company are divided into
Class A limited liability company interests (the 'Class A Interests') and Class
B limited liability company interests (the 'Class B Interests' and, together
with the Class A Interests, the 'Interests'). The holders of the Class A
Interests have virtually no voting or approval rights, except with respect to an
amendment of the LLC Agreement (as defined) which is adverse to the interests of
the holders of such class, and the holders of the Class B Interests have the
voting rights set forth in the LLC Agreement. The Company has not issued any
Class A Interests and the Members hold 100.0% of the Class B Interests. See 'The
Reorganization' and 'Principal Members.'
TWT has no operations or assets and was formed solely for the purpose of
serving as co-obligor of the Notes. The Company and TWT will be jointly and
severally liable, fully and unconditionally, with respect to the Notes.
Accordingly, a claimant in respect of the Notes will be entitled to proceed
against the Company in respect of the Notes without first proceeding against
TWT.
The Amended and Restated Limited Liability Company Agreement of the Company
(the 'LLC Agreement') provides that if the Members unanimously agree to do so,
the Company will be reconstituted (either by merger, exchange, contribution of
assets or a similar type of transaction) as a Delaware corporation (the
'Reconstitution') so that an initial public offering of the Class A Common Stock
of such corporation (an 'Initial Public Offering') may be effected. Upon the
Reconstitution, the Company will have authorized two classes of common stock,
Class A Common Stock ('Class A Common Stock'), which will carry one vote per
share, and Class B Common Stock ('Class B Common Stock', and together with Class
A Common Stock, 'Common Stock') which will carry ten votes per share. Pursuant
to the Reconstitution, holders of Class B Interests will receive shares of Class
B Common Stock and holders of Class A Interests, if any, will receive shares of
Class A Common Stock. As used herein, the term 'Existing Stockholders' means the
Members who become holders of Common Stock following the Reconstitution. In
connection with the Reconstitution, the Existing Stockholders will enter into a
Stockholders' Agreement (the 'Stockholders Agreement') which will provide for
the election of directors designated by the Existing Stockholders, and will
govern transfers of Common Stock by the Existing Stockholders. See 'Certain
Relationships and Related Transactions -- LLC Agreement' and ' -- Stockholders
Agreement.' There can be no assurances that the Members will unanimously agree
to the Reconstitution or that an Initial Public Offering will be effected.
The Company was organized as a limited liability company in the State of
Delaware in 1998 and TWT was incorporated in the State of Delaware in 1998. The
Company's and TWT's principal executive offices are located at 5700 S. Quebec
Street, Greenwood Village, CO 80111, and their telephone number is (303)
566-1000.
6
<PAGE>
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Securities Offered..................... $400.0 million aggregate principal amount of % Senior Notes due 2008
(the 'Offering').
Maturity............................... July 15, 2008
Yield and Interest..................... Interest on the Notes is payable semiannually in cash on January 15 and
July 15 of each year, commencing on January 15, 1999.
Optional Redemption.................... The Notes are redeemable prior to maturity, in whole or in part, at the
option of the Obligors at any time on or after July 15, 2003, initially
at % of their principal amount, plus accrued interest, declining to
100% of their principal amount, plus accrued interest, on or after July
15, 2006. In addition, at any time prior to July 15, 2001, up to 35% of
the aggregate principal amount of the Notes may be redeemed by the
Obligors from the net proceeds of one or more sales of the common stock
or equivalent interests of the Company or any successor thereto at %
of their principal amount plus accrued interest to the date of
redemption; provided, however, that after any such redemption at least
65% of the aggregate principal amount of the Notes originally issued
remains outstanding. See 'Description of the Notes.'
Change of Control...................... Upon a Change of Control (as defined), the Obligors will be required to
make an offer to purchase the Notes at a purchase price equal to 101% of
the principal amount thereof, plus accrued interest. There can be no
assurance that the Obligors will have sufficient funds available at the
time of any Change of Control to make any required debt repayment
(including repurchases of the Notes). See 'Description of the
Notes -- Repurchase of Notes upon a Change of Control.'
Ranking................................ The Notes will be general, unsecured senior obligations of the Obligors,
ranking pari passu in right of payment with all existing and future
unsecured unsubordinated obligations, and senior in right of payment to
all existing and future subordinated indebtedness of the Obligors. The
Notes will also be subordinated to all existing and future secured
indebtedness of the Obligors to the extent of such security. At March
31, 1998, on a pro forma basis after giving effect to the Offering, the
Obligors would have had outstanding approximately $517.5 million of
indebtedness, approximately $117.5 million of which would have been
expressly subordinated in right of payment to the Notes. At March 31,
1998, on the same pro forma basis, the Obligors would not have had any
indebtedness ranking senior to the Notes. In addition, the Company is a
holding company and the Notes will be effectively subordinated to all
existing and future liabilities (including trade payables) of the
Company's subsidiaries other than TWT. At March 31, 1998, on the same
pro forma basis, the subsidiaries of the Company other than TWT would
have had $57.3 million of liabilities, none of which is indebtedness.
Neither the Company's subsidiaries nor any other entity has guaranteed
the Notes. The Obligors will be jointly and severally liable, fully and
unconditionally, with respect to the Notes. See 'Description of the
Notes -- Ranking.'
Certain Covenants...................... The Indenture (as defined) will contain certain covenants, including,
but not limited to, covenants with respect to the following matters: (i)
limitation on indebtedness; (ii) limitation on restricted payments;
(iii) limitation on dividend and other payment restrictions affecting
</TABLE>
7
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<PAGE>
<TABLE>
<S> <C>
restricted subsidiaries; (iv) limitation on the issuance and sale of
capital stock of restricted subsidiaries; (v) limitation on issuances of
guarantees by restricted subsidiaries; (vi) limitation on transactions
with shareholders and affiliates; (vii) limitation on liens; (viii)
limitation on sale-leaseback transactions; and (ix) limitation on asset
sales. See 'Description of the Notes -- Certain Covenants' and
'Description of Certain Indebtedness.'
Use of Proceeds........................ The net proceeds to the Obligors from the Offering will be used to
expand and develop existing and new networks and for general corporate
and working capital purposes, which may include payment of interest on
the Notes and acquisitions of and joint ventures with other
telecommunications service providers. See 'Use of Proceeds.'
</TABLE>
RISK FACTORS
Prospective investors should consider all of the information contained in
this Prospectus before making an investment in the Notes. In particular,
prospective investors should consider the factors set forth herein under 'Risk
Factors.'
8
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SUMMARY COMBINED FINANCIAL AND OTHER OPERATING DATA
The summary statement of operations data for the years ended December 31,
1995, 1996 and 1997 are derived from the audited financial statements of the
Company, including the notes thereto, appearing elsewhere in this Prospectus.
The summary statement of operations data for the year ended December 31, 1994
has been derived from audited financial statements of the Company not included
herein. The summary statement of operations data for the year ended December 31,
1993 and for the three months ended March 31, 1998 and 1997 and the summary
balance sheet data as of March 31, 1998 has been derived from the Company's
unaudited internal financial statements, which in the opinion of management,
have been prepared on the same basis as the audited financial statements and
reflect all adjustments (consisting of normal recurring adjustments), necessary
for a fair presentation of the Company's results of operations and financial
position. Operating results for the three months ended March 31, 1998 are not
necessarily indicative of results that may be expected for the full year. The
summary other operating data have been derived from the accounting records of
the Company and have not been audited. The financial statements of the Company
reflect the 'carved out' historical financial position, results of operations,
cash flows and changes in members' equity of the commercial telecommunications
operations of the Parent Companies, as if they had been operating as a separate
company. The summary financial and other operating data set forth below should
be read in conjunction with the information contained in 'Management's
Discussion and Analysis of Financial Condition and Results of Operations' and
the Company's financial statements, including the notes thereto, appearing
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
--------------------------------------------------------------- ---------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- --------- --------- --------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
Dedicated transport services...... $ 1,913 $ 2,169 $ 6,505 $ 20,362 $ 44,529 $ 8,301 $ 16,733
Switched services................. -- -- 350 3,555 10,872 1,852 5,315
-------- -------- --------- --------- --------- -------- --------
Total revenues................ 1,913 2,169 6,855 23,917 55,401 10,153 22,048
-------- -------- --------- --------- --------- -------- --------
Costs and expenses:
Operating (1)..................... 3,219 10,454 15,106 25,715 40,349 8,384 13,519
Selling, general and
administrative (1).............. 7,035 26,066 34,222 60,366 54,640 11,985 16,316
Depreciation and amortization
(1)............................. 578 1,213 7,216 22,353 38,466 8,842 11,932
-------- -------- --------- --------- --------- -------- --------
Total costs and expenses...... 10,832 37,733 56,544 108,434 133,455 29,211 41,767
-------- -------- --------- --------- --------- -------- --------
Operating loss........................ (8,919) (35,564) (49,689) (84,517) (78,054) (19,058) (19,719)
Gain on disposition of investment
(2)................................. -- -- -- -- 11,018 -- --
Equity in losses of unconsolidated
affiliates.......................... (392) (1,611) (1,391) (1,547) (2,082) (593) (58)
Interest expense, net (1)............. (81) (3) (25) (52) (1,538) -- (2,011)
-------- -------- --------- --------- --------- -------- --------
Net loss.............................. $ (9,392) $(37,178) $ (51,105) $ (86,116) $ (70,656) $(19,651) $(21,788)
-------- -------- --------- --------- --------- -------- --------
-------- -------- --------- --------- --------- -------- --------
Deficiency in coverage of fixed
charges by earnings before fixed
charges (3)......................... $ (9,392) $(37,178) $ (51,075) $ (86,076) $ (70,629) $(19,641) $(21,788)
-------- -------- --------- --------- --------- -------- --------
-------- -------- --------- --------- --------- -------- --------
OTHER OPERATING DATA:
EBITDA (4)............................ $ (8,341) $(34,351) $ (42,473) $ (62,164) $ (39,588) $(10,216) $ (7,787)
EBITDA Margin (5)..................... (436.0)% (1,583.7)% (619.6)% (259.9)% (71.5)% (100.6)% (35.3)%
Capital expenditures.................. $ 7,154 $ 50,293 $ 141,479 $ 144,815 $ 127,315 $ 14,261 $ 24,961
Cash used in operations............... (3,100) (14,873) (35,605) (52,274) (29,419) (28,694) (15,103)
Cash used in investing activities..... (10,656) (52,632) (145,293) (149,190) (120,621) (14,233) (24,961)
Cash provided by financing
activities.......................... 13,756 67,505 180,898 201,464 150,040 42,927 40,064
Pro forma interest expense, net
(6)(7).............................. (43,058) (12,391)
Pro forma net loss (6)................ (112,176) (32,168)
Pro forma deficiency in coverage of
fixed charges by earnings before
fixed charges (3)(6)................ (113,829) (32,588)
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF
----------------------------------------------------- MARCH 31,
1993 1994 1995 1996 1997 1998
----- ------- -------- ------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA (8):
Operating Networks................................... 3 8 15 18 19 19
Route miles.......................................... 168 880 3,207 5,010 5,913 6,239
Fiber miles.......................................... 5,820 24,995 116,286 198,490 233,488 244,894
Voice grade equivalent circuits...................... -- 39,002 158,572 687,001 1,702,431 1,904,420
Digital telephone switches........................... -- -- 1 2 14 16
Employees............................................ 78 239 508 673 714 739
Access lines......................................... -- -- 493 2,793 16,078 23,702
</TABLE>
(footnotes on next page)
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<TABLE>
<CAPTION>
AS OF MARCH 31, 1998
----------------------------
AS ADJUSTED
FOR THE
REORGANIZATION
AND THE
ACTUAL OFFERING (9)
-------- --------------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents............................................................... $ -- $388,000
Property, plant and equipment, net...................................................... 428,319 428,319
Total assets............................................................................ 453,475 853,475
Long-term debt (10)..................................................................... 117,547 517,547
Total members' equity................................................................... 278,602 278,602
</TABLE>
- ------------
(1) Includes expenses resulting from transactions with affiliates of $168,000
in 1993, $1,901,000 in 1994, $6,507,000 in 1995, $11,023,000 in 1996 and
$15,306,000 in 1997 and $3,486,000 and $5,479,000 in the three months ended
March 31, 1997 and 1998, respectively.
(2) In September 1997, the Company completed a series of transactions related
to its interests in the Hyperion Partnerships, a group of unconsolidated
telecommunication partnerships serving the New York area, whereby it sold
its interests in the partnerships serving the Buffalo and Syracuse markets
in exchange for $7.0 million of cash and all of the minority interests in
the partnerships serving the Albany and Binghamton markets that were not
already owned by the Company. In connection with these transactions, the
Company recognized a gain of approximately $11.0 million.
(3) For purposes of this calculation, earnings were calculated by adding (i)
net loss; (ii) interest expense, including the portion of rents
representative of an interest factor and (iii) the amount of undistributed
losses of the Company's less than 50%-owned companies. Fixed charges
consist of interest expense and the portion of rents representative of an
interest factor.
(4) EBITDA consists of operating income (loss) before depreciation and
amortization ('EBITDA'). Industry analysts generally consider EBITDA to be
an important measure of comparative operating performance for the
telecommunications industry, and when used in comparison to debt levels or
the coverage of interest expense, as a measure of liquidity. However,
EBITDA should be considered in addition to, not as a substitute for,
operating income, net income, cash flow and other measures of financial
performance and liquidity reported in accordance with generally accepted
accounting principles. EBITDA as defined herein may not be comparable to
similarly titled measures reported by other companies. Additionally,
certain covenants contained in the Indenture are based on EBITDA. See the
Combined Statements of Cash Flows contained elsewhere in this Prospectus.
(5) EBITDA Margin represents EBITDA as a percentage of revenues.
(6) The pro forma data for the three months ended March 31, 1998 and the year
ended December 31, 1997 give effect to the Offering as if it occurred at
the beginning of 1997. Specifically, such pro forma data only take into
account the pro forma interest expense associated with the Offering as of
such dates. See footnote 7 below. Such pro forma amounts are presented for
informational purposes only and are not necessarily indicative of the
actual amounts that would have been reported if the transaction had been
consummated at such date, nor are they necessarily indicative of future
results.
(7) Pro forma interest expense gives effect to the issuance of $400.0 million
principal amount of the Notes, assuming an interest rate of 10.5% on the
Notes, as if such transaction had occurred at the beginning of 1997,
assuming approximately 4% of the interest on the Notes would have been
capitalized under FASB Statement No. 34 'Capitalization of Interest Costs.'
In addition, pro forma interest expense includes $1.2 million and $300,000
for the year ended December 31, 1997 and the three months ended March 31,
1998, respectively, relating to the amortization of an estimated $12.0
million of debt issuance costs over a ten-year period. A change of .125% in
the interest rate would change pro forma interest expense by $480,000 for
the year ended December 31, 1997 and $120,000 for the three months ended
March 31, 1998.
(8) Includes all managed properties including unconsolidated affiliates
(MetroComm AxS, L.P. in Columbus, Ohio and the Albany and Binghamton, New
York networks). Albany and Binghamton were wholly owned at December 31,
1997.
(9) Adjusted to give effect to the Reorganization and the issuance of $400.0
million principal amount of the Notes, net of $12.0 million of estimated
debt issuance costs. See 'Use of Proceeds' and 'Capitalization.'
(10) As of March 31, 1998, $117,547,000 of long-term debt consisted of
subordinated loans payable to the Parent Companies. All such indebtedness
to the Parent Companies pays interest in kind at an annual rate equal to
The Chase Manhattan Bank's prime lending rate as in effect from time to
time, is expressly subordinated to the Notes and matures one month
following the maturity of the Notes.
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RISK FACTORS
Prior to purchasing any of the Notes offered hereby, prospective investors
should consider carefully the following factors in addition to the other
information contained in this Prospectus.
LIMITED HISTORY OF OPERATIONS; NEGATIVE CASH FLOW AND OPERATING LOSSES
The Company was formed in 1998 pursuant to the Reorganization to continue
the business telephony services commenced by TW Cable in 1993. TWT has no
operations or assets and was formed in 1998 solely for the purpose of serving as
co-obligor of the Notes. Accordingly, prospective investors have limited
historical financial information upon which to base an evaluation of the
Company's performance and an investment in the Notes. The Company's prospects
must be considered in light of the risks, expenses and difficulties frequently
encountered by companies in their early stage of development and growth.
The Company has incurred operating losses and negative cash flow since
inception, and expects to continue to incur operating losses and negative cash
flow while it installs, develops and expands its existing and future
telecommunications networks and builds its customer base. For the years ended
December 31, 1996 and 1997, on a consolidated basis, the predecessor entities of
the Company operating the commercial telecommunications operations of the Parent
Companies sustained combined operating losses of $84.5 million and $78.1
million, respectively, and negative EBITDA of $62.2 million and $39.6 million,
respectively. EBITDA consists of operating income (loss) before depreciation and
amortization ('EBITDA'). Industry analysts generally consider EBITDA to be an
important measure of comparative operating performance for the
telecommunications industry, and when used in comparison to debt levels or the
coverage of interest expense, as a measure of liquidity. However, EBITDA should
be considered in addition to, not as a substitute for, operating income, net
income, cash flow and other measures of financial performance and liquidity
reported in accordance with generally accepted accounting principles. EBITDA as
defined herein may not be comparable to similarly titled measures reported by
other companies. The capital expenditures of the Company associated with the
installation, development and expansion of its existing networks and possible
acquisitions of future networks are substantial, and a significant portion of
these expenditures generally are incurred before any related revenues are
realized. These expenditures, together with associated initial operating
expenses, will generally result in negative cash flow and operating losses from
a network until an adequate customer base and revenue stream for the network
have been established. Accordingly, the Company expects that each network will
generally produce negative cash flow for at least two and a half years after
operations commence in such network. The Company expects to incur net losses for
the foreseeable future as it continues to acquire, install, develop and expand
its existing and new telecommunications networks and build its customer base.
There can be no assurance that an adequate revenue base will be established from
each of the Company's networks or that the Company will achieve or sustain
profitability or generate sufficient positive cash flow, if any, to meet its
working capital requirements and to service its indebtedness.
HOLDING COMPANY STRUCTURE; EFFECTIVE SUBORDINATION OF THE NOTES TO INDEBTEDNESS
OF SUBSIDIARIES
The Company is a holding company and, following the Offering, its only
material assets will consist of the equity interests of its operating
subsidiaries. TWT, a wholly owned subsidiary of the Company, has no operations
or assets and was formed solely for the purpose of serving as co-obligor of the
Notes. The Company will be required to rely upon dividends and other payments
from its subsidiaries or the proceeds of future debt or equity financings to
generate the funds necessary to pay the principal of and interest on the Notes.
There can be no assurance that such financing will be available on terms
acceptable to the Company or at all. The subsidiaries, however, are legally
distinct from the Company and, other than TWT, have no obligation, contingent or
otherwise, to pay amounts due pursuant to the Notes or to make funds available
for such payment. The Company and TWT will be jointly and severally liable,
fully and unconditionally, with respect to the Notes. Neither the Company's
subsidiaries nor any other entity has guaranteed the Notes. The ability of the
Company's subsidiaries to make such dividends and other payments to the Company
is subject to, among other things, the availability of funds, the terms of such
subsidiaries' indebtedness and applicable state laws. Claims of creditors of the
Company's subsidiaries, including trade creditors, will generally have priority
as to the assets of such subsidiaries over the claims of the Company and the
holders of the Company's indebtedness, including the Notes. Accordingly, the
Notes are and will be effectively subordinated to all liabilities (including
trade payables) of the subsidiaries of the Company other than TWT. If the
Company negotiates a bank credit agreement to
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provide it with working capital and enhanced financial flexibility, the Notes
will be effectively subordinated to such credit agreement to the extent it is
incurred at a subsidiary level. At March 31, 1998, after giving effect to the
issuance of the Notes, the subsidiaries of the Company other than TWT had
approximately $57.3 million of liabilities, none of which is indebtedness. See
'Description of the Notes.'
SIGNIFICANT CAPITAL REQUIREMENTS
The development and expansion of the Company's existing and future networks
and services will require significant capital to fund capital expenditures,
working capital and debt service. The Company's principal capital expenditure
requirements over the next two years are expected to consist of approximately
(i) $290.0 million to purchase and install switches, electronics, fiber and
other additional technologies in existing networks and in additional networks to
be constructed in new service areas and (ii) $30.0 million for capital
expenditures with respect to the Company's management information system
infrastructure. The Company's expected expenditures for general corporate and
working capital purposes include $68.0 million for operating and administrative
expenses, including debt service. The Company will continue to evaluate
additional revenue opportunities in each of its service areas and, as
opportunities develop, the Company plans to make the additional capital
investments in its networks that are required to pursue such opportunities. The
Company, from time to time, evaluates potential acquisitions of, and joint
ventures relating to, networks currently owned and operated by other companies,
including affiliates of the Members, and expects to continue to do so. In the
event the Company enters into a definitive agreement with respect to any
acquisition or joint venture, it may require additional financing or it may
elect to use a portion of the proceeds of the Offering not theretofore expended
for other purposes. While the Company intends to continue to leverage its
relationship with TW Cable in pursuing expansion opportunities, to the extent
the Company seeks to expand into service areas where TW Cable does not conduct
cable operations, the Company may incur significant additional costs in excess
of those historically incurred by the Company when expanding into existing TW
Cable service areas. In addition, TW Cable is not obligated to construct or
provide additional fiber optic capacity in excess of what is already licensed to
the Company under the Capacity License (as defined). Accordingly, if the Company
is unable to lease such additional capacity at the same rates as are currently
provided for under the Capacity License, the Company may be required to obtain
additional capacity on more expensive terms. See 'Certain Relationships and
Related Transactions -- Certain Operating Agreements.'
The Company sustained significant working capital deficits in each year
since inception. The Company has historically been funded by capital
contributions and advances from the Parent Companies. As of March 31, 1998, the
Company had outstanding approximately $117.5 million of indebtedness to the
Parent Companies which is subordinated in right of payment to the Notes, bears
interest (payable in kind) at an annual rate equal to The Chase Manhattan Bank's
prime lending rate as in effect from time to time (which was 8.5% at March 31,
1998) and matures on August 15, 2008, one month after the maturity of the Notes.
Such indebtedness to the Parent Companies was approximately $180.0 million at
July 14, 1998. The Indenture provides that such indebtedness may be repaid with
the net proceeds of any offering of common stock or equivalent interests of the
Company. See 'Certain Relationships and Related Transactions -- Intercompany
Subordinated Debt.' The Parent Companies do not have any obligation to make
additional equity investments in or loans to the Company.
The Company expects that the net proceeds of the Offering, together with
internally generated funds, will provide sufficient funds for the Company to
expand its business as currently planned, pay interest on the Notes and fund its
currently expected losses through the end of 1999. Thereafter, the Company
expects to require additional financing. However, in the event that the
Company's plans or assumptions change or prove to be inaccurate, or the
foregoing sources of funds prove to be insufficient to fund the Company's growth
and operations, or if the Company consummates acquisitions or joint ventures,
the Company may be required to seek additional capital sooner than currently
anticipated. The Company's revenues and costs are dependent upon many factors
that are not within the Company's control, such as regulatory changes, changes
in technology and increased competition. Due to the uncertainty of these and
other factors, actual revenues and costs may vary from expected amounts,
possibly to a material degree, and such variations are likely to affect the
level of the Company's future capital expenditures and expansion plans. Sources
of financing may include public or private debt or equity financing by the
Company or its subsidiaries, vendor financing or other financing arrangements.
There can be no assurance that the Company will be successful in generating
sufficient cash flow or raising additional financing in sufficient amounts on
terms acceptable to it or within the limitations contained in its
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financing arrangements, or that the terms of any such additional financing will
not impair the Company's ability to develop its business. The failure to
generate sufficient cash flow or to raise sufficient funds may require the
Company to modify, delay or abandon some or all of its development and expansion
plans, which could have a material adverse effect on the Company's growth, its
ability to compete in the telecommunications services business and its ability
to service its debt. See 'Use of Proceeds' and 'Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources.'
SUBSTANTIAL LEVERAGE; INSUFFICIENCY OF EARNINGS TO COVER FIXED CHARGES
The Company will be highly leveraged after the consummation of the
Offering. As of March 31, 1998, after giving pro forma effect to the Offering,
the Company would have had approximately $517.5 million of consolidated total
debt, including $117.5 million of debt to the Parent Companies, and $278.6
million of consolidated members' equity. Such indebtedness to the Parent
Companies is subordinated in right of payment to the Notes, bears interest
(payable in kind) at The Chase Manhattan Bank's prime lending rate as in effect
from time to time (which was 8.5% at March 31, 1998) and matures on August 15,
2008, one month after the maturity of the Notes. Such indebtedness to the Parent
Companies was approximately $180.0 million at July 14, 1998. The degree to which
the Company is leveraged could have a material adverse effect upon the Company,
including: (i) the Company's ability to obtain additional financing in the
future for capital expenditures, acquisitions, joint ventures, working capital
or general corporate or other purposes may be limited; (ii) a substantial
portion of the Company's cash flow from operations will be dedicated to the
payment of the principal of, and interest on, its debt; and (iii) the Company's
substantial leverage may make it more vulnerable to economic downturns, limit
its ability to withstand competitive pressures and reduce its flexibility in
responding to changing business and economic conditions. A failure by the
Company to comply with the covenants and other provisions of financing documents
to which the Company is a party, including the Indenture, or other debt
instruments to which the Company may become party in the future, could permit
acceleration of the debt under such instruments and, in some cases, acceleration
of debt under other instruments that contain cross-default or cross-acceleration
provisions. The Indenture contains certain restrictive covenants. Such
restrictions will affect, and in many respects will significantly limit or
prohibit, among other things, the ability of the Company to incur indebtedness,
make prepayments of certain indebtedness, pay dividends, make investments,
engage in transactions with shareholders and affiliates, issue capital stock of
subsidiaries, create liens, sell assets and engage in mergers and
consolidations.
After giving pro forma effect to the Offering as if such transaction had
occurred at the beginning of the respective periods, the Company's earnings
would have been insufficient to cover its fixed charges by $32.6 million and
$113.8 million for the three months ended March 31, 1998 and the year ended
December 31, 1997, respectively. The ability of the Company to meet its debt
service obligations will be dependent upon the future performance of the
Company, which, in turn, will be subject to the Company's successful
implementation of its strategy, as well as to financial, competitive, business,
regulatory, technical and other factors, including factors beyond the control of
the Company. In general, the Company expects that the rate at which it
implements its expansion plans will be driven by the rate of growth in its cash
flow. Although the Company believes that it will be able to generate sufficient
cash flow from operations to meet its debt service obligations as they become
due, if it is unable to do so, it could face liquidity problems and be forced to
modify, delay or abandon some or all of its development and expansion plans. In
such circumstances, the Company may be required to renegotiate the terms of the
instruments governing its long-term debt or to refinance all or a portion of its
long-term debt. There can be no assurance, however, that the Company will be
able to renegotiate such terms or refinance its indebtedness successfully on
terms acceptable to it. If the Company were unable to refinance its indebtedness
or obtain new financing under these circumstances, the Company would have to
consider various other options such as the sale of certain assets to meet its
required debt service, the sale of additional equity, negotiations with its
lenders to restructure applicable indebtedness or other options available to it
under law.
RISKS OF EXPANSION; AND POSSIBLE INABILITY TO MANAGE GROWTH
Although the Company commenced operations in 1993, to date its business has
consisted primarily of offering dedicated point-to-point services. With the
adoption of the 1996 Act, the Company accelerated the implementation of switched
services in its markets. The Company expects that switched services will in the
future become the predominant source of its revenues. Switched services support
both analog and digital
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equipment compatible with the TDMA, FDMA and CDMA forms of digital telephone
technology. In addition to this transition to switched services, the Company
intends to enter into new geographic markets, expand its operations in existing
markets, interconnect its existing markets and offer additional
telecommunications services, when and if it becomes economically desirable to do
so. The Company's ability to manage the transition to switched services and the
continued expansion of its business will depend on, among other things, the
Company's ability to assess markets, design fiber optic network backbone routes,
acquire and install facilities, obtain and utilize rights-of-way and building
access, obtain any required governmental authorizations and permits and
implement interconnection with local exchange carriers, all in a timely manner,
at reasonable costs and on terms and conditions acceptable to the Company. A
substantial portion of the Company's network build-out plans are dependent upon
its continuing relationship with TW Cable. See ' -- Relationship with TW Cable.'
The successful implementation of the Company's expansion strategy will be
subject to a variety of risks, including operating and technical problems,
regulatory uncertainties, competition and the availability of capital. There can
be no assurance that any existing networks will be successfully expanded or any
new networks will be developed or, if developed, that such new networks will be
completed on schedule, at commercially reasonable costs or within the Company's
specifications. In addition, there can be no assurance that any new or expanded
networks will become profitable or generate positive cash flow at any time in
the future. The Company's inability to expand its existing networks and
operations or install new networks or manage effectively such expansion and
installation could have a material adverse effect upon the Company's business
operations, financial conditions and results of operations. In addition, the
expansion of the Company's business may involve acquisitions or joint ventures
which, if made or entered into, could divert the resources and management time
of the Company and could require integration with the Company's operations. See
' -- Acquisition Related Risks.'
The Company's future performance will depend, in part, upon its ability to
manage its growth effectively. The Company's rapid growth has placed, and in the
future may continue to place, a significant strain on its administrative,
operational and financial resources. The Company's ability to continue to manage
its growth successfully will require the Company to further enhance its
operations, management, financial and information systems and controls and to
expand, train and manage its employee base. In addition, as the Company
increases its service offerings and expands its targeted markets, there will be
additional demands on the Company's customer support, sales, marketing, and
administrative resources and network infrastructure. There can be no assurance
that the Company's administrative, operating and financial resources, systems
and controls will be adequate to manage the Company's growth effectively. The
Company's inability to manage its expansion effectively, including the emergence
of unexpected expansion difficulties, could have a material adverse effect on
the Company's business, results of operations and financial condition.
RELATIONSHIP WITH TW CABLE
The Company is largely dependent upon TW Cable's governmental licenses,
permits and rights-of-way to operate and expand the Company's current business.
TW Cable is principally managed by a management committee that includes
representatives of MediaOne and TW. The Company presently licenses pursuant to
the Capacity License, and may enter into future licenses for, the capacity of
significant numbers of optical fibers from TW Cable; however, TW Cable is not
obligated to license any additional fiber optic capacity not covered by the
Company's current licenses. See 'Certain Relationships and Related
Transactions -- Certain Operating Agreements.' Historically, the Company has
relied on TW Cable's fiber optics in constructing its own networks. In addition,
most of the new service areas in which management is considering operating or
constructing networks are located in areas where TW Cable has already made
substantial infrastructure investments. The inability of the Company to license
additional fiber optic capacity from TW Cable could materially affect the
Company's expansion plans, future business and operations. Any adverse changes
in the ability of TW Cable to obtain and maintain all necessary permits,
licenses, conduit agreements or pole attachment agreements from governmental
authorities or private rights-of-way providers necessary to effectuate such
license transactions may have a material adverse effect on the Company's
business and financial condition.
The Capacity License expires in 2028. Although TW Cable has agreed to
negotiate renewal or alternative provisions in good faith at that time, there
can be no assurance that the parties will agree on the terms of any renewal or
that the terms of any renewal or alternative provisions which may be agreed upon
by the parties will be favorable to the Company. If the Capacity License is not
renewed in 2028, the Company will have no residual interest in the capacity
under the Capacity License and may need to build, lease or otherwise obtain
transmission
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capacity in order to service its customers in the service areas covered by the
Capacity License. The terms of such arrangements could have a material adverse
effect on the Company's business, financial condition and results of operations.
The Capacity License also provides that the license of fiber optic capacity
by the Company may be terminated by TW Cable upon (i) a material impairment or
termination of TW Cable's ability to provide such license under relevant law,
(ii) the Company's material breach of the terms and conditions of the Capacity
License or (iii) the institution of any proceedings to impose any public utility
or common carrier status or obligations on TW Cable or any other proceedings
challenging TW Cable's operating authority as a result of the services provided
to the Company under the Capacity License. In addition, under the terms of the
Capacity License, the Company is restricted from utilizing such capacity for
Residential Services (as defined) and Content Services (as defined) during the
term of such license. Although management does not believe that the restrictions
contained in the Capacity License will materially affect its business and
operations in the immediate future, the effect of such restrictions in the
rapidly changing telecommunications industry cannot be predicted. See 'Certain
Relationships and Related Transactions -- Certain Operating Agreements.' The
termination of a Capacity License would terminate the Company's ability to serve
its customers in the applicable market and would have a material adverse effect
on the Company's business, financial condition and results of operations.
RISKS RELATING TO LONG DISTANCE
Currently, the Company offers primarily local telecommunications services.
However, the Company continues to examine opportunities to expand into other
related telecommunications services. If the Company were to expand into new
categories of telecommunications services, it could incur certain additional
demands and risks in connection with such expansion, including demands on its
ability to manage growth, technological compatibility risks, legal and
regulatory risks and possible adverse reaction by some of its current customers.
The Company expects to increase its revenues by providing long distance
services. The long distance business is extremely competitive and prices have
declined substantially in recent years and are expected to continue to decline.
In addition, the long distance industry has historically had a high average
churn rate, as customers frequently change long distance providers in response
to the offering of lower rates or promotional incentives by competitors. The
Company intends to market its long distance services to smaller businesses, a
market segment that has not been a principal focus of the Company's business in
the past and thus one to which the Company has limited experience marketing. The
Company will rely on other carriers to provide transmission and termination
services for a majority of its long distance traffic. The Company will negotiate
resale agreements with long distance carriers to provide it with transmission
services. Such agreements typically provide for the resale of long distance
services on a per minute basis and may contain minimum volume commitments.
Negotiation of these agreements involves estimates of future supply and demand
for transmission capacity as well as estimates of the calling pattern and
traffic levels of the Company's future long distance customers. If the Company
were to fail to meet any minimum volume commitments, it could be obligated to
pay underutilization charges and in the event it underestimates its need for
transmission capacity, the Company may be required to obtain capacity through
more expensive means.
DEPENDENCE UPON INTERCONNECTION WITH ILECS; COMPETITION
The Company operates in an increasingly competitive environment. Services
substantially similar to those offered by the Company are also offered by ILECs
serving the markets currently served or intended to be served by the Company.
ILECs have long-standing relationships with their customers, have financial and
technical resources substantially greater than those of the Company, have the
potential to subsidize services of the type offered by the Company from service
revenues not subject to effective competition and currently benefit from certain
existing regulations that favor the ILECs over CLECs such as the Company in
certain respects. While recent regulatory initiatives, which allow CLECs such as
the Company to interconnect with ILEC facilities, provide increased business
opportunities for the Company, such interconnection opportunities have been
accompanied by increased pricing flexibility for and relaxation of regulatory
oversight of the ILECs.
To the extent the Company interconnects with and uses ILEC networks to
service its customers, the Company will be dependent upon the technology and
capabilities of the ILECs to meet certain telecommunications needs of the
Company's customers and to maintain its service standards. The Company will
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become increasingly dependent on interconnection with ILECs as switched services
become a greater percentage of the Company's business. The 1996 Act imposes
interconnection obligations on ILECs; however, such interconnection requires the
negotiation of interconnection and collocation agreements with the ILECs, which
can take considerable time, effort and expense and are subject to Federal and
state regulation. There can be no assurance that the Company will be able to
obtain the interconnection it requires at rates, and on terms and conditions,
that permit the Company to offer switched services at rates that are both
competitive and profitable. In the event that the Company experiences
difficulties in obtaining high quality, reliable and reasonably priced service
from the ILECs, the attractiveness of the Company's services to its customers
could be impaired.
In addition, the 1996 Act allows the Regional Bell Operating Companies
('RBOCs') and others such as electric utilities to enter the long distance
market. Certain of the RBOCs have begun providing out-of-region long distance
services across Local Access and Transport Areas ('interLATA'). When an RBOC
obtains authority to provide in-region interLATA services, it will be able to
offer customers both local and long distance telephone services. Given the
market power the RBOCs currently possess in the local exchange market, the
ability to provide both local and long distance services is expected to make the
RBOCs very strong competitors. Certain RBOCs are actively working to satisfy
prerequisites for entry into the in-region long distance business. Formal
applications by the RBOCs to provide long distance service have been denied by
the FCC and are being appealed. It is anticipated that new applications will be
filed by the RBOCs in coming months. In addition, in a decision that is
currently being appealed, a U.S. District Court in Texas held that the
provisions of Section 271 of the 1996 Act limiting the RBOCs' entry into the
long distance business violate the U.S. Constitution. In addition, two RBOCs,
Ameritech and U S WEST Communications, Inc. ('U S WEST'), recently have entered
into agreements with a long distance carrier, Qwest Communications Corp., under
which they plan to jointly market Qwest long distance service to local telephone
service consumers in their operating territories. Those agreements have been
challenged by several long distance carriers and competitive local exchange
carriers before U.S. District Courts and before the FCC. Those challenges are
pending. Further, a continuing trend toward consolidation, mergers, acquisitions
and strategic alliances in the telecommunications industry could also give rise
to significant new competitors to the Company or to the Company's customers. See
'Business -- Government Regulation.'
In most of the areas in which the Company operates, at least one (and in
many markets several) other CAP or CLEC offers many local telecommunications
services similar to those provided by the Company, generally at similar prices.
Potential and actual new market entrants in the local telecommunications
services business include other CAPs and CLECs, ILECs entering new geographic
markets, cable television companies, electric utilities, long distance and
international carriers, microwave carriers, wireless telephone system operators
and private networks built by large end users. Many of these potential
competitors have financial, personnel and other resources substantially greater
than those of the Company. In addition, the current trend of business
combinations and alliances in the telecommunications industry, including mergers
between RBOCs, may create significant new competitors for the Company. For
example, on January 8, 1998, AT&T Corp. ('AT&T') announced that it had agreed to
acquire Teleport Communications Group Inc. ('TCG'), a competitor of the Company.
The 1996 Act has increased and will continue to increase competition in the
local telecommunications business. The 1996 Act requires all local exchange
providers, including new entrants, to offer their services for resale and
requires ILECs to offer their network facilities on an unbundled basis. Further,
pursuant to the 1996 Act, ILEC services provided to end users are required to be
made available to other telecommunications carriers for resale at wholesale
rates. There can be no assurance that any unbundled rates or facilities offered
by ILECs to the Company will be available in a timely manner or will be
economically attractive or technically viable. See 'Business -- Government
Regulation -- Telecommunications Act of 1996.' These requirements facilitate
entry by new competitors with reduced capital risk or investment. See
'Business -- Competition.'
The recent World Trade Organization ('WTO') agreement on basic
telecommunications services could increase the Company's competition for
telecommunications services both domestically and internationally. Under this
agreement, which became effective in 1998, the United States and other members
of the WTO committed themselves to opening their telecommunications markets to
competition and foreign ownership and to adopting regulatory measures to protect
competitors against anticompetitive behavior by dominant telephone companies. As
part of the U.S. government's implementation of the WTO Agreement, the FCC has
established
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new rules making it easier for foreign carriers to enter the U.S.
telecommunications market. See 'Business -- Competition' and ' -- Government
Regulation.'
DEPENDENCE ON INFORMATION BILLING SYSTEMS
Sophisticated information and processing systems are vital to the Company's
growth and its ability to monitor costs, bill customers, provision customer
orders and achieve operating efficiencies. Information systems for the Company's
business have historically been operated internally with limited reliance on
third party vendors. As the Company continues to grow, the need for more
sophisticated information systems will increase significantly. The Company has
recently entered into agreements with certain vendors providing for the
development and/or operation of back office systems including ordering,
provisioning and billing systems. The failure of such vendors to perform their
services in a timely and effective manner at acceptable costs could have a
material adverse effect on the Company's business, financial condition and
results of operations.
DEPENDENCE ON SIGNIFICANT CUSTOMERS
The Company has substantial business relationships with a few large
customers, including the major long distance carriers. For the three months
ended March 31, 1998, the Company's top 10 customers accounted for 40.6% of the
Company's consolidated revenues. The top three customers, which are IXCs or
other telecommunications providers, accounted for 26.1% of the consolidated
revenues, and no other customer accounted for 5% or more of revenues. A
significant reduction in the level of services the Company performs for any of
these customers could have a material adverse effect on the Company's business,
results of operations or financial condition. Some of the Company's customer
arrangements are subject to termination on short notice and do not provide the
Company with guarantees that service quantities will be maintained at current
levels, and there can be no assurance that such customers will continue to
purchase the same service quantity levels. The Company believes that certain
IXCs are pursuing alternatives to their current practices with regard to
obtaining local telecommunications services, including acquisition or
construction of their own facilities. For example, on January 8, 1998, AT&T, a
customer of the Company, announced that it had agreed to acquire TCG, which is a
CLEC that operates in several of the Company's service areas. This type of
activity has accelerated as a result of the 1996 Act, which limits the authority
of states to impose legal restrictions that have the effect of prohibiting a
company, including an IXC, from providing any telecommunications service. In
addition, the 1996 Act requires ILECs to unbundle their network facilities and
to offer their services for resale by other companies at wholesale discounts.
Accordingly, long distance carriers soon will be able to provide local service
by reselling the facilities or services of an ILEC, which may be more
cost-effective for an IXC than using the services of the Company or another CAP
or CLEC. See 'Business -- Customers and Sales and Marketing.'
FEDERAL AND STATE REGULATION
The Company is subject to Federal and state regulation. In most states, the
Company is subject to certification and tariff filing requirements with respect
to intrastate services. Although many restrictions on the services that may be
provided by the Company were eliminated as a result of the 1996 Act, which
prohibits states from imposing legal restrictions that effectively prohibit the
provision of any telecommunications service, states retain authority under the
1996 Act to impose on the Company and other telecommunications carriers
competitively neutral requirements to preserve universal service, protect public
safety, ensure quality of service and protect consumers. States are also
responsible under the 1996 Act for mediating and arbitrating interconnection
arrangements between CLECs and ILECs if the carriers fail to agree on such
arrangements.
In the past, the Company had been required to offer its interstate services
pursuant to rates, terms, and conditions set forth in tariffs filed with the
FCC. However, on June 19, 1997, the FCC issued a memorandum opinion and order
granting the Company's request that the FCC forbear from imposing on the Company
the tariff filing requirements of the Communications Act of 1934 (the
'Communications Act'). Following that favorable ruling on the Company's request,
the Company has withdrawn its interstate tariff and will now offer its
interstate access services pursuant to contracts with each of its customers. The
Company is still required to offer any interstate services other than interstate
access services, including, for example, interstate and international long
distance telephone service, pursuant to tariffs filed with the FCC.
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Under the 1996 Act, the Company is subject to certain Federal regulatory
obligations when it provides local exchange service in a market. All local
exchange carriers, including CLECs, must interconnect with other carriers, make
their services available for resale by other carriers, provide nondiscriminatory
access to rights-of-way, offer reciprocal compensation for termination of
traffic and provide dialing parity and telephone number portability. The Company
is subject to requirements that the rates, terms, classifications and practices
with respect to its interstate access service be just and reasonable and may not
be unreasonably discriminatory. However, as a nondominant carrier, the Company's
rates, terms, classifications and practices are presumed to be lawful. The
Company's intrastate services, including local service and intrastate access,
are subject to similar requirements under state laws. In addition, as a
telecommunications carrier, the Company will be required to contribute to a fund
to preserve universal service and to enable schools, libraries and rural health
care centers to have access to telecommunications services and advanced
information services at discounted prices.
Prior to June 12, 1998, MediaOne was an affiliate of U S WEST, an RBOC. As
a result, pursuant to the 1996 Act, the Company was restricted from offering
originating interLATA service in the 14 states in which U S WEST provides local
exchange telecommunications services. On June 12, 1998, MediaOne and U S WEST
were separated into two independent companies. Accordingly, the Company is no
longer an affiliate of an RBOC under the 1996 Act. As a result, the Company is
no longer restricted from offering its services in the 14 states in which U S
WEST currently operates. Any determination of whether or not to operate in any
of those states will be made based on, among other things, demographic, economic
and regulatory criteria. However, TW Cable does not currently own any cable
systems in 9 of such 14 states. See 'Business.'
In addition, no assurance can be given that changes to current regulations
or the adoption of new regulations by the FCC or state regulatory authorities or
legislative initiatives would not have a material adverse effect on the Company.
See 'Business -- Government Regulation.'
GOVERNMENTAL AND OTHER AUTHORIZATIONS
The development, expansion and maintenance of the Company's networks will
depend on, among other things, its ability to obtain rights-of-way and any other
required governmental authorizations and permits, all in a timely manner, at
reasonable costs and on satisfactory terms and conditions. In certain of the
cities or municipalities where the Company provides network services, it pays
license or franchise fees, usually based on a percentage of gross revenues or a
rate per circuit. The 1996 Act permits municipalities to charge such fees only
if they are competitively neutral and nondiscriminatory, but there can be no
assurance that municipalities that presently favor a particular carrier,
typically the ILEC, will conform their practices to the requirements of the 1996
Act in a timely manner or without legal challenge. Furthermore, there can be no
assurance that certain cities or municipalities that do not now impose such fees
will not seek to impose fees, nor can there be any assurance that, following the
expiration of existing franchises, fees will remain at their current levels or
that the franchises will be renewed. Some of the Company's franchise agreements
also provide for increases or renegotiation of fees at intervals prior to the
expiration thereof.
In addition, the Company currently licenses capacity of, and plans in the
future to enter into similar arrangements for, significant numbers of optical
fibers from TW Cable. See 'Certain Relationships and Related
Transactions -- Certain Operating Agreements.' There can be no assurance that
municipalities which regulate TW Cable will not seek to impose additional
franchise fees or otherwise charge TW Cable (subject to reimbursement by the
Company) in connection with such licenses. There can also be no assurance that
TW Cable or the Company will be able to obtain all necessary permits, licenses,
conduit agreements or pole attachment agreements from governmental authorities
or private rights-of-way providers necessary to effectuate future license
transactions. As a result, there can be no assurance that the Company will be
able to expand its existing networks or develop new networks successfully, which
would have a material adverse effect on the Company's growth and financial
condition.
There can be no assurance that the Company will be able to utilize TW
Cable's existing licenses, permits and rights-of-way or that it will be able to
obtain the governmental licenses and permits and rights-of-way required to enter
new markets on acceptable terms. The cancellation or non-renewal of existing
permits, licenses or rights-of-ways, or the inability to obtain the permits,
licenses or rights-of-ways to expand in accordance with its plans, could have a
material adverse effect on the Company's business, results of operations and
financial condition.
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ACQUISITION RELATED RISKS
The Company may, as part of its business strategy, acquire other businesses
that will complement its existing business. Management is unable to predict
whether or when any prospective acquisitions will occur or the likelihood of any
material transactions being completed on favorable terms and conditions. The
Company's ability to finance acquisitions may be constrained by, among other
things, its high degree of leverage following the Offering. The Indenture
significantly limits the Company's ability to make acquisitions and to incur
indebtedness in connection with acquisitions. Such transactions commonly involve
certain risks, including, among others: the difficulty of assimilating the
acquired operations and personnel; the potential disruption of the Company's
ongoing business and diversion of resources and management time; the possible
inability of management to maintain uniform standards, controls, procedures and
policies; the risks of entering markets in which the Company has little or no
prior experience; and the potential impairment of relationships with employees
or customers as a result of changes in management or business. There can be no
assurance that any acquisition will be made, that the Company will be able to
obtain additional financing needed to finance any acquisition and, if any
acquisitions are made, that the acquired business will be successfully
integrated into the Company's operations so that the acquired business will
perform as expected. The Company has no definitive agreement with respect to any
acquisition, although from time to time it has discussions with other companies,
including affiliates of the Members, and assesses opportunities on an ongoing
basis.
The Company may also enter into joint venture transactions. These
transactions present many of the same risks involved in acquisitions and may
also involve the risk that other joint venture partners may have economic,
business or legal interests or objectives that are inconsistent with those of
the Company. Joint venture partners may also be unable to meet their economic or
other obligations, thereby forcing the Company to fulfill these obligations.
VARIABILITY OF QUARTERLY OPERATING RESULTS
As a result of the limited revenues and significant expenses associated
with the expansion and development of its networks and services, the Company
anticipates that its operating results could vary from period to period. In
addition, the Company's revenues are, and may continue to be, dependent upon
certain significant customers and contracts and as a result, may vary from
quarter to quarter. See ' -- Dependence on Significant Customers.'
CONTROL BY MEMBERS; CONFLICTS OF INTEREST; POSSIBLE COMPETITION
The Members hold all the limited liability company interests in the Company
and have the collective ability to control all matters requiring member
approval, including the appointment of representatives (the 'Representatives')
to the Management Committee of the Company (the 'Management Committee'). See
'Principal Members' and 'Certain Relationships and Related Transactions -- LLC
Agreement.'
All of the Members are in the cable television business and may, now or in
the future, provide services which are the same or similar to those provided by
the Company. There is no restriction on the Members' ability to compete with the
Company and no assurance can be given that the Members will not compete with the
Company in its service areas or in the provision of certain telecommunications
services. The Company is subject to certain restrictions on offering Residential
Services (as defined) and Content Services (as defined). See ' -- Limitations on
Business Activity.' Representatives of the Company who are also directors,
officers or employees of the Members or any of their respective affiliates are
in positions that may create conflicts of interest with respect to certain
business opportunities available to and certain transactions involving the
Company. The Members have not adopted any special voting procedures to deal with
such conflicts of interest, and there can be no assurance that any such conflict
will be resolved in favor of the Company.
LIMITATIONS ON BUSINESS ACTIVITY
The Company is currently restricted from offering telecommunications
services to residences and from providing content services to its customers. The
LLC Agreement provides that the Company may not, directly or indirectly (through
a subsidiary or affiliate of the Company), (i) engage in the business of
providing, offering, packaging, marketing, promoting or branding (alone or
jointly with or as an agent for other parties) any wireline telecommunications
services or other services (including data services) to residences
(collectively, 'Residential Services') or (ii) engage in the business of
producing, packaging, distributing, marketing, hosting, offering,
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promoting, branding or otherwise providing entertainment, information or any
other content services, whether fixed or interactive, or any services incidental
thereto (but excluding acting solely as a carrier of video, audio or data of
unaffiliated third parties by providing transport services, so long as the
Company has no other direct or indirect pecuniary interest in the transmitted
information or content) (collectively, 'Content Services'), in each case,
without the affirmative vote of all the Members. If the Reconstitution occurs,
the Certificate of Incorporation of the Company will continue the foregoing
restrictions for a maximum period of five years from the date of the
Reconstitution. See 'Description of Capital Stock.' Similar restrictions against
using fiber capacity licensed from TW Cable under the Capacity License for
Residential Services and Content Services extend for the 30 year term of such
license. Accordingly, the Capacity License restrictions will apply after the
restrictions in the Certificate of Incorporation have terminated. See 'Certain
Relationships and Related Transactions -- Certain Operating Agreements.'
Violations of the limitations on business activities of the Company contained in
the LLC Agreement, the Certificate of Incorporation or the Capacity License may,
subject to the cure period provided in the Capacity License, result in a
termination of the Capacity License. Although management does not believe that
the restrictions contained in the LLC Agreement, the Certificate of
Incorporation or the Capacity License will materially affect its business and
operations in the immediate future, the effect of such restrictions in the
rapidly changing telecommunications industry cannot be predicted.
DISCONTINUANCE OF USE OF 'TIME WARNER' NAME
Pursuant to a License Agreement (as defined) with TW, the Company is
required to discontinue use of the 'Time Warner' name upon expiration of the
initial four year term or any renewal term of such agreement or (i) TW's owning
Interests having an aggregate participation percentage of less than 30%, (ii) TW
having the right to appoint less than three Representatives to the Management
Committee of the Company, (iii) the Company's non-compliance with the
restrictions in the LLC Agreement regarding Residential Services and Content
Services or (iv) the transfer by a Member of its Class B Interests together with
its rights to appoint Representatives to the Management Committee under the LLC
Agreement. See 'Certain Relationships and Related Transactions -- LLC
Agreement.' Substantially equivalent provisions will apply if the Reconstitution
occurs. Under such circumstances, the Company may change its name to TW Telecom
LLC or TW Telecom Inc., as applicable, and the Company will no longer have the
right to use the 'Time Warner' name. Such name change, and the inability to use
the 'Time Warner' name could have an adverse effect on the Company's ability to
conduct its business and on its financial condition and results of operations.
See 'Certain Relationships and Related Transactions -- Certain Operating
Agreements.'
NEED TO ADAPT TO TECHNOLOGICAL CHANGES
The telecommunications industry has experienced, and is expected to
continue to experience, rapid and significant changes in technology. While the
Company believes that, for the foreseeable future, these changes will neither
materially affect the continued use of fiber optic cable or digital switches and
transmission equipment nor materially hinder the Company's ability to acquire
necessary technologies, the effect of technological changes on the Company's
business and operations cannot be predicted. The Company believes that its
future success will depend, in part, on its ability to anticipate or adapt to
such changes and to offer, on a timely basis, services that meet customer
demands on a competitive basis. There can be no assurance that the Company will
obtain access to new technologies on a timely basis or on satisfactory terms.
Any failure by the Company to obtain new technologies could have a material
adverse effect on the Company's business, financial condition and results of
operations. Also, alternative technologies may develop for the provision of
services to customers. The Company may be required to select in advance one
technology over another, but it will be impossible to predict with any
certainty, at the time the Company is required to make its investment, which
technology will prove to be the most economic, efficient or capable of
attracting customer usage.
DEPENDENCE ON KEY PERSONNEL; EXPERIENCE OF MANAGEMENT
The Company's business is managed by a small group of key executive
officers. The loss of the services of any of these key individuals could have an
adverse impact on the Company. Although the senior executives of the Company
have considerable experience in the telecommunications industry, they have not
previously operated a public company. Moreover, Ms. Herda was appointed chief
executive officer in June 1998, having previously served as Senior Vice
President, Sales prior to that time. The Company has employment agreements
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with each of Ms. Herda, Messrs. Jones, Powers, Rayner, Blount and Whinery and
Ms. Rich. See 'Management -- Employment Agreements.' The Company does not carry
key man life insurance on any of such personnel. The Company believes that its
future success will depend in large part on its continued ability to attract and
retain highly skilled and qualified personnel. The competition for qualified
personnel in the telecommunications industry is intense and, accordingly, there
can be no assurance that the Company will be able to hire or retain necessary
personnel. See 'Management.'
PAYMENT UPON A CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each holder of the Notes may
require the Obligors to repurchase all or a portion of such holder's Notes at
101% of the principal amount of the Notes, together with accrued and unpaid
interest to the date of repurchase. If a Change of Control were to occur, the
Obligors may not have the financial resources to repay the Notes and any other
indebtedness that would become payable upon the occurrence of such Change of
Control. In such event, if the maturity of the Notes were accelerated, the
maturity of the subordinated indebtedness to the Parent Companies may be
similarly accelerated. See 'Description of the Notes -- Certain
Covenants -- Change of Control' and ' -- Events of Default' and 'Certain
Relationships and Related Transactions -- Intercompany Subordinated Debt.'
POTENTIAL LIMITED PUBLIC MARKET
The Notes are a new issue of securities for which there is currently no
trading market. The Company does not intend to apply for the listing of the
Notes on any securities exchange or any inter-dealer automated quotation system.
The Underwriters have advised the Company that they currently intend to make a
market in the Notes, although the Underwriters are not obligated to do so, and
any market making with respect to the Notes may be discontinued at any time
without notice. See 'Underwriters.' There can be no assurance as to the
liquidity of any market that may develop for the Notes, the ability of the
holders of the Notes to sell their Notes or the price at which such holders
would be able to sell their Notes. If a market were to exist, the Notes could
trade at prices that may be lower than the initial offering price thereof
depending on many factors, including prevailing interest rates and the markets
for similar securities, general economic conditions and the financial condition
and performance of, and prospects for, the Company.
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS
This Prospectus contains forward-looking statements, including statements
regarding the Company's expected financial position, business and financing
plans. These forward-looking statements reflect the Company's views with respect
to future events and financial performance. The words, 'believe,' 'expect,'
'plans' and 'anticipate' and similar expressions identify forward-looking
statements. Although the Company believes that the expectations reflected in
such forward-looking statements are reasonable, it can give no assurance that
such expectations will prove to have been correct. Important factors that could
cause actual results to differ materially from such expectations (the
'Cautionary Statements') are disclosed in this Prospectus, including, without
limitation, in conjunction with the forward-looking statements included in this
Prospectus and under 'Risk Factors.' All subsequent written and oral
forward-looking statements attributable to the Company, its subsidiaries or
persons acting on the Company's behalf are expressly qualified in their entirety
by the Cautionary Statements. Readers are cautioned not to place undue reliance
on these forward-looking statements, which speak only as of their dates. The
Company undertakes no obligations to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
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USE OF PROCEEDS
The net proceeds to be received by the Obligors from the sale of the Notes
in the Offering are estimated to be approximately $388.0 million after deducting
estimated underwriting discounts and commissions and other expenses payable by
the Obligors.
The Company intends to use the net proceeds of the Offering to expand and
develop existing and new networks and for general corporate and working capital
purposes, which may include acquisitions and joint ventures. The Company intends
to use approximately (i) $290.0 million to purchase and install switches,
electronics, fiber and other additional technologies in existing networks and in
additional networks to be constructed in new service areas, (ii) $30.0 million
for capital expenditures with respect to the Company's management information
system infrastructure and (iii) $68.0 million for operating and administrative
expenses, including debt service. Pending such uses, the net proceeds of the
Offering will be invested in short-term, money market instruments.
The Company, from time to time, evaluates potential acquisitions of, and
joint ventures relating to, networks currently owned and operated by other
companies, including affiliates of the Members, and expects to continue to do
so. In the event the Company enters into a definitive agreement with respect to
any acquisition or joint venture, it may require additional financing or it may
elect to use a portion of the proceeds of the Offering not theretofore expended
for other purposes.
The Company expects that the net proceeds of the Offering, together with
internally generated funds, will provide sufficient funds for the Company to
expand its business as currently planned, pay interest on the Notes and fund its
currently expected losses through the end of 1999. Thereafter, the Company
expects to require additional financing. However, in the event that the
Company's plans or assumptions change or prove to be inaccurate, or the
foregoing sources of funds prove to be insufficient to fund the Company's growth
and operations, or if the Company consummates acquisitions or joint ventures,
the Company may be required to seek additional capital sooner than currently
anticipated. The Company's revenues and costs are dependent upon factors that
are not within the Company's control, such as regulatory changes, changes in
technology and increased competition. Due to the uncertainty of these and other
factors, actual revenues and costs may vary from expected amounts, possibly to a
material degree, and such variations are likely to affect the Company's future
capital requirements. Sources of financing may include public or private debt or
equity financing by the Company or its subsidiaries or other financing
arrangements.
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THE REORGANIZATION
The Company was recently formed in connection with the Reorganization of
the assets and liabilities of its business, which were previously owned by
subsidiaries and divisions of the Parent Companies. The business of developing
and operating local telecommunications networks in the Company's 19 service
areas has been conducted through its 22 subsidiaries which will be consolidated
into fewer entities. In connection with the Reorganization, the Members received
Class B Interests having an aggregate participation percentage of 100%.
TWT has no operations or assets and was formed solely for the purpose of
serving as co-obligor of the Notes. The Company and TWT will be jointly and
severally liable, fully and unconditionally, with respect to the Notes.
The Company has two authorized classes of limited liability interests,
designated as Class A and Class B. The Company has not issued any Class A
Interests and the Members hold 100% of the Class B Interests. Pursuant to an
option plan expected to be adopted by the Company, the Company expects to grant
to its employees options to purchase Class A Interests. See 'Management -- LLC
Option Plan.' The holders of the Class A Interests have virtually no voting or
approval rights, except with respect to an amendment of the LLC Agreement which
is adverse to the interests of the holders of such class, and the holders of the
Class B Interests have the voting rights set forth in the LLC Agreement. Each
Class B Interest is convertible under certain circumstances into a Class A
Interest. See 'Certain Relationships and Related Transactions -- LLC Agreement.'
Set forth below is the organizational structure of the Company immediately
following the Reorganization:
[GRAPH]
- ------------
(1) Excludes Class A Interests expected to have a maximum aggregate
participation percentage of up to approximately 10% issuable upon the
exercise of options, expected to be granted under an option plan expected to
be adopted by the Company, which will not be immediately exercisable. See
'Management -- LLC Option Plan.'
23
<PAGE>
<PAGE>
CAPITALIZATION
The following table sets forth the cash position and capitalization of the
Company as of March 31, 1998, as adjusted to reflect the issuance of the Notes
in the Offering and the Reorganization. See 'Use of Proceeds.' This table should
be read in conjunction with 'Selected Financial and Other Operating Data,'
'Management's Discussion and Analysis of Financial Condition and Results of
Operations,' and the Company's financial statements, including the notes
thereto, appearing elsewhere in this Prospectus.
<TABLE>
<CAPTION>
AS OF MARCH 31, 1998
----------------------------
AS ADJUSTED
FOR THE
REORGANIZATION
ACTUAL AND THE OFFERING
-------- ----------------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C>
Cash and cash equivalents(1)......................................................... $ -- $388,000
-------- ----------------
-------- ----------------
Long-term debt:
Senior Notes Due 2008........................................................... $ -- $400,000
Subordinated loans payable to the Parent Companies (2).......................... 117,547 117,547
-------- ----------------
Total long-term debt.................................................. 117,547 517,547
-------- ----------------
Members' equity:
Class A Interests having an aggregate participation percentage of 0% (3)........ -- --
Class B Interests having an aggregate participation percentage of 100%:
Contributed capital........................................................ 555,807 555,807
Accumulated deficit prior to Reorganization (4)............................ -- (277,205)
-------- ----------------
Total Class B Interests............................................... 555,807 278,602
Accumulated deficit (4)......................................................... (277,205) --
-------- ----------------
Total members' equity........................................................... 278,602 278,602
-------- ----------------
Total capitalization.................................................. $396,149 $796,149
-------- ----------------
-------- ----------------
</TABLE>
- ------------
(1) Historically, the Company has not maintained cash balances since all the
Company's cash receipts and funding requirements were provided to or from
the Parent Companies.
(2) As of March 31, 1998, the Company had outstanding approximately $117.5
million of indebtedness to the Parent Companies, all of which is
subordinated in right of payment to the Notes. This subordinated
indebtedness bears interest (payable in kind) at The Chase Manhattan Bank's
prime rate (which was 8.5% at March 31, 1998) and matures on August 15,
2008, one month after the maturity of the Notes. The Indenture provides that
such subordinated indebtedness may be repaid prior to maturity with the net
proceeds of any offering of common stock or equivalent interests of the
Company. Such indebtedness was approximately $180.0 million at July 14,
1998.
(3) Excludes Class A Interests expected to have a maximum aggregate
participation percentage of up to approximately 10% issuable upon the
exercise of options, expected to be granted under an option plan expected to
be adopted by the Company, which will not be immediately exercisable. See
'Management -- LLC Option Plan.'
(4) The As Adjusted column reflects the reclassification of the accumulated
deficit of the Company to reduce the amounts of the Class B Interests, which
reduction will be recorded in connection with the Reorganization.
24
<PAGE>
<PAGE>
SELECTED COMBINED FINANCIAL AND OTHER OPERATING DATA
The selected statement of operations data for the years ended December 31,
1995, 1996 and 1997, and the selected balance sheet data as of December 31, 1996
and 1997, are derived from, and are qualified by reference to, the financial
statements of the Company, including the notes thereto, audited by Ernst & Young
LLP, independent auditors, appearing elsewhere in this Prospectus. The selected
statement of operations data for the year ended December 31, 1994 and the
selected balance sheet data as of December 31, 1994 and 1995 have been derived
from audited financial statements of the Company not included herein. The
selected statement of operations data for the year ended December 31, 1993 and
for the three months ended March 31, 1998 and 1997, and the selected balance
sheet data as of December 31, 1993 and as of March 31, 1998 have been derived
from the Company's unaudited internal financial statements, which in the opinion
of management, have been prepared on the same basis as the audited financial
statements and reflect all adjustments (consisting of normal recurring
adjustments) necessary for a fair presentation of the Company's results of
operations and financial position. Operating results for the three months ended
March 31, 1998 are not necessarily indicative of results that may be expected
for the full year. The selected other operating data have been derived from the
accounting records of the Company and have not been audited. The financial
statements of the Company reflect the 'carved out' historical financial
position, results of operations, cash flows and changes in members' equity of
the commercial telecommunications operations of the Parent Companies, as if they
had been operating as a separate company. The selected financial and other
operating data set forth below should be read in conjunction with 'Management's
Discussion and Analysis of Financial Condition and Results of Operations' and
the Company's financial statements, including the notes thereto, appearing
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
----------------------------------------------------------- --------------------
1993 1994 1995 1996 1997 1997 1998
-------- -------- --------- --------- --------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues:
Dedicated transport
services................ $ 1,913 $ 2,169 $ 6,505 $ 20,362 $ 44,529 $ 8,301 $ 16,733
Switched services......... -- -- 350 3,555 10,872 1,852 5,315
-------- -------- --------- --------- --------- -------- --------
Total revenues........ 1,913 2,169 6,855 23,917 55,401 10,153 22,048
-------- -------- --------- --------- --------- -------- --------
Costs and expenses:
Operating (1)............. 3,219 10,454 15,106 25,715 40,349 8,384 13,519
Selling, general and
administrative (1)...... 7,035 26,066 34,222 60,366 54,640 11,985 16,316
Depreciation and
amortization (1)........ 578 1,213 7,216 22,353 38,466 8,842 11,932
-------- -------- --------- --------- --------- -------- --------
Total costs and
expenses............ 10,832 37,733 56,544 108,434 133,455 29,211 41,767
-------- -------- --------- --------- --------- -------- --------
Operating loss................ (8,919) (35,564) (49,689) (84,517) (78,054) (19,058) (19,719)
Gain on disposition of
investment (2).............. -- -- -- -- 11,018 -- --
Equity in losses of
unconsolidated affiliates... (392) (1,611) (1,391) (1,547) (2,082) (593) (58)
Interest expense, net (1)..... (81) (3) (25) (52) (1,538) -- (2,011)
-------- -------- --------- --------- --------- -------- --------
Net loss...................... $ (9,392) $(37,178) $ (51,105) $ (86,116) $ (70,656) $(19,651) $(21,788)
-------- -------- --------- --------- --------- -------- --------
-------- -------- --------- --------- --------- -------- --------
Deficiency in coverage of
fixed charges by earnings
before fixed charges (3).... $ (9,392) $(37,178) $ (51,075) $ (86,076) $ (70,629) $(19,641) $(21,788)
-------- -------- --------- --------- --------- -------- --------
-------- -------- --------- --------- --------- -------- --------
OTHER OPERATING DATA:
EBITDA (4).................... $ (8,341) $(34,351) $ (42,473) $ (62,164) $ (39,588) $(10,216) $ (7,787)
EBITDA Margin (5)............. (436.0)% (1,583.7)% (619.6)% (259.9)% (71.5)% (100.6)% (35.3)%
Capital expenditures.......... $ 7,154 $ 50,293 $ 141,479 $ 144,815 $ 127,315 $ 14,261 $ 24,961
Cash used in operations....... (3,100) (14,873) (35,605) (52,274) (29,419) (28,694) (15,103)
Cash used in investing
activities.................. (10,656) (52,632) (145,293) (149,190) (120,621) (14,233) (24,961)
Cash provided by financing
activities.................. 13,756 67,505 180,898 201,464 150,040 42,927 40,064
Pro forma interest expense,
net (6)(7).................. (43,058) (12,391)
Pro forma net loss (6)........ (112,176) (32,168)
Pro forma deficiency in
coverage of fixed charges by
earnings before fixed
charges (3)(6).............. (113,829) (32,588)
</TABLE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF
------------------------------------------------------- MARCH 31,
1993 1994 1995 1996 1997 1998
------- ------- -------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
OPERATING DATA (8):
Operating Networks............ 3 8 15 18 19 19
Route miles................... 168 880 3,207 5,010 5,913 6,239
Fiber miles................... 5,820 24,995 116,286 198,490 233,488 244,894
Voice grade equivalent
circuits.................... -- 39,002 158,572 687,001 1,702,431 1,904,420
Digital telephone switches.... -- -- 1 2 14 16
Employees..................... 78 239 508 673 714 739
Access lines.................. -- -- 493 2,793 16,078 23,702
</TABLE>
(footnotes on next page)
25
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
AS OF DECEMBER 31, AS OF
------------------------------------------------------- MARCH 31,
1993 1994 1995 1996 1997 1998
------- ------- -------- -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents..... $ -- $ -- $ -- $ -- $ -- $ --
Property, plant and equipment,
net......................... 5,364 53,139 199,005 323,161 415,158 428,319
Total assets.................. 10,129 60,604 214,963 341,480 438,077 453,475
Long-term debt (9)............ -- -- -- -- 75,475 117,547
Total members' equity......... 4,856 33,749 179,589 294,937 300,390 278,602
</TABLE>
- ------------
(1) Includes expenses resulting from transactions with affiliates of $168,000 in
1993, $1,901,000 in 1994, $6,507,000 in 1995, $11,023,000 in 1996 and
$15,306,000 in 1997 and $3,486,000 and $5,479,000 in the three months ended
March 31, 1997 and 1998, respectively.
(2) In September 1997, the Company completed a series of transactions related to
its interests in the Hyperion Partnerships, a group of unconsolidated
telecommunication partnerships serving the New York area, whereby it sold
its interests in the partnerships serving the Buffalo and Syracuse markets
in exchange for $7.0 million of cash and all of the minority interests in
the partnerships serving the Albany and Binghamton markets that were not
already owned by the Company. In connection with these transactions, the
Company recognized a gain of approximately $11.0 million.
(3) For purposes of this calculation, earnings were calculated by adding (i) net
loss; (ii) interest expense, including the portion of rents representative
of an interest factor and (iii) the amount of undistributed losses of the
Company's less than 50%-owned companies. Fixed charges consist of interest
expense and the portion of rents representative of an interest factor.
(4) EBITDA consists of operating income (loss) before depreciation and
amortization. Industry analysts generally consider EBITDA to be an important
measure of comparative operating performance of the telecommunications
industry, and when used in comparison to debt levels or the coverage of
interest expense, as a measure of liquidity. However, EBITDA should be
considered in addition to, not as a substitute for, operating income, net
income, cash flow and other measures of financial performance and liquidity
reported in accordance with generally accepted accounting principles. EBITDA
as defined herein may not be comparable to similarly titled measures
reported by other companies. Additionally, certain covenants contained in
the Indenture are based on EBITDA. See the Combined Statements of Cash Flows
contained elsewhere in this Prospectus.
(5) EBITDA Margin represents EBITDA as a percentage of revenues.
(6) The pro forma data for the three months ended March 31, 1998 and the year
ended December 31, 1997 give effect to the Offering as if it occurred at the
beginning of 1997, with respect to statement of operations data.
Specifically, such pro forma data only take into account the pro forma
interest expense associated with the Offering as of such dates. See footnote
7 below. Such pro forma amounts are presented for informational purposes
only and are not necessarily indicative of the actual amounts that would
have been reported if the transactions had been consummated at the dates
indicated, nor are they necessarily indicative of future results.
(7) Pro forma interest expense gives effect to the issuance of $400.0 million
principal amount of the Notes, assuming an interest rate of 10.5% on the
Notes, as if such transaction had occurred at the beginning of 1997,
assuming approximately 4% of the interest on the Notes would have been
capitalized under FASB Statement No. 34 'Capitalization of Interest Costs.'
In addition, pro forma interest expense includes $1.2 million and $300,000
for the year ended December 31, 1997 and the three months ended March 31,
1998, respectively, relating to the amortization of an estimated $12.0
million of debt issuance costs over a ten-year period. A change of .125% in
the interest rate would change pro forma interest expense by $480,000 for
the year ended December 31, 1997 and $120,000 for the three months ended
March 31, 1998.
(8) Includes all managed properties including unconsolidated affiliates
(MetroComm AxS, L.P. in Columbus, Ohio and the Albany and Binghamton, New
York networks). Albany and Binghamton were wholly owned at December 31,
1997.
(9) As of March 31, 1998, $117,547,000 of long-term debt consisted of
subordinated loans payable to the Parent Companies. All such indebtedness to
the Parent Companies pays interest in kind at an annual rate equal to The
Chase Manhattan Bank's prime lending rate as in effect from time to time, is
expressly subordinated to the Notes and matures one month following the
maturity of the Notes.
26
<PAGE>
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. Certain information contained in the discussion
and analysis set forth below and elsewhere in this Prospectus, including
information with respect to the Company's plans and strategy for its business
and related financing, includes forward-looking statements that involve risk and
uncertainties. See 'Risk Factors' for a discussion of important factors that
could cause actual results to differ materially from the results described in or
implied by the forward-looking statements contained herein.
OVERVIEW
The Company is a leading facilities-based CLEC in selected metropolitan
markets across the United States, offering a wide range of business telephony
services, primarily to medium- and large-sized business customers. The business
of the Company was commenced in 1993 by TW Cable and reflects the combined
commercial telecommunications operations under the ownership or management
control of TW Cable. These operations consist of the commercial
telecommunication operations of TW and TWE-A/N that were each acquired or formed
in 1995, as well as the pre-existing commercial telecommunication operations of
TWE. All intercompany accounts and transactions between the combined entities
have been eliminated.
In connection with the Reorganization, the Members contributed the assets
and liabilities of the Company's business to the Company in exchange for Class B
Interests having an aggregate participation percentage of 100%. The Company
accounted for the Reorganization at each of the Members' historical cost basis
of accounting and accordingly, the Reorganization had no effect on the Company's
total Members' equity which has been presented on a consistent basis. The
primary change to the Company's operating structure following the Reorganization
was that the Company became directly accountable to the Management Committee,
instead of to TW Cable.
To date, the majority of the Company's revenues have been derived from the
provision of 'private line' and 'direct access' telecommunications services.
Because the Company has deployed switches in 16 of its 19 service areas as of
March 31, 1998, management expects that a growing portion of its revenues will
be derived from providing switched services. The Company's customers are
principally telecommunications-intensive business end-users, IXCs, ISPs,
wireless communications companies and governmental entities. Such customers are
offered a wide range of integrated telecommunications products and services,
including dedicated transmission, local switched, data and video transmission
services and Internet services. In addition, the Company benefits from its
strategic relationship with TW Cable both through network facilities access and
cost-sharing. As a result, the Company's networks have been constructed
primarily through the use of fiber capacity licensed from TW Cable. As of March
31, 1998, the Company operated networks in 19 metropolitan service areas that
spanned 6,239 route miles, contained 244,894 fiber glass miles and offered
service to 2,711 buildings. The Company's 19 service areas include 18 networks
that are wholly owned and one that is owned through a 50% joint venture and is
not consolidated into the Company's financial results. The Company's
consolidated revenues were $55.4 million for the year ended December 31, 1997
and $22.0 million for the 3 months ended March 31, 1998. As of March 31, 1998,
the Parent Companies had invested $555.8 million in the Company.
To date, the Company's revenues have been derived primarily from end user
to end user private line connections and from a variety of services including:
(i) access between IXCs, (ii) access between end users and IXCs, (iii)
collocated special access, (iv) collocated points of presence ('POP') to LECs
switched access transport and (v) local switched services. Since its inception
in 1993, the Company has experienced significant growth in revenues and in the
geographic scope of its operations. Management believes an increasing portion of
the Company's future growth will come from the provision of local switched
services as a result of the 16 switches deployed as of March 31, 1998. The
Company believes that switched services provide the opportunity for higher
profit margins than those expected from transport services, however the shift of
the revenue growth to switched services may cause the Company's revenues to
become less predictable since a portion of such services are billed to customers
on a usage basis. Dedicated transport customers are typically billed a flat
monthly rate which produces a less variable stream of revenues for the Company.
Furthermore, it is expected that the growth in the switched services offerings
will expand the Company's customer base by making more services available to
customers that are generally smaller than those who purchase dedicated transport
27
<PAGE>
<PAGE>
services. These smaller customers are also expected to be the principal users of
the Company's long distance service. The Company expects to experience a higher
churn rate for these customers than it has traditionally experienced with
transport services. The Company intends to minimize this churn for long distance
service to smaller customers by offering such service under minimum one year
contracts.
The Company plans to expand its revenue base by fully exploiting available
network capacity in its existing markets and by continuing to develop and
selectively tailor new services in competitively-priced packages to meet the
needs of its medium- and large-sized business customers. The Company plans on
selectively entering new markets and intends to have networks under construction
or operational in several additional cities by the end of 1999.
Operating expenses consist of costs directly related to the operation and
maintenance of the networks and the provision of the Company's services. This
includes the salaries and related expenses of operations and engineering
personnel as well as costs from the ILECs and other competitors for facility
leases and interconnection. These costs have increased over time as the Company
has increased its operations and revenues. It is expected that these costs will
continue to increase, but at a slower rate than revenue growth.
Selling, general and administration expenses consist of salaries and
related costs for employees other than those involved in operations and
engineering. Such expenses also include costs related to non-technical facility,
sales and marketing, regulatory and legal costs. These costs have increased over
time as the Company has increased its operations and revenues. The Company
expects these costs to continue to increase as the Company's revenue growth
continues, but at a slower rate than revenue growth.
In the normal course of conducting its businesses, the Company has various
transactions with the Parent Companies, generally on terms resulting from
negotiation between the affected units that, in management's view, result in
reasonable allocations. The Company's selling, general and administrative
expenses include an allocation of certain general and administrative expenses,
primarily including office rent and overhead charges for various administrative
functions performed by TW Cable. These allocations were required to reflect all
costs of doing business and have been based on various methods, which management
believes results in reasonable allocations of such costs that were necessary to
present the Company's operations as if they had been operated on a stand alone
basis. In addition, the Company licenses the right to use the majority of its
fiber optic cable capacity from TW Cable and reimburses it for facility
maintenance and pole rental costs. Finally, effective July 1, 1997, all of the
Company's financing requirements began to be funded with loans from the Parent
Companies. This indebtedness is subordinated in right of payment to the Notes,
bears interest (payable in kind) at an annual rate equal to The Chase Manhattan
Bank's prime lending rate as in effect from time to time (which was 8.5% at
March 31, 1998) and matures on August 15, 2008, one month after the maturity of
the Notes. See 'Certain Relationships and Related Transactions.' The Company
believes that this rate is comparable to rates which could have been obtained
from unrelated third parties during such nine month period.
The Company has not historically, and does not currently, generate positive
operating cash flow. However, for the year ended December 31, 1997, twelve of
the Company's nineteen service areas generated positive operating cash flow and
the Company, as a whole, expects to begin generating positive operating cash
flow by the second quarter of 1999. The following comparative discussion of the
results of financial condition and results of operations of the Company includes
an analysis of changes in revenues and operating income (loss) before
depreciation and amortization. Industry analysts generally consider EBITDA to be
an important measure of comparative operating performance for the
telecommunications industry, and when used in comparison to debt levels or the
coverage of interest expense, as a measure of liquidity. However, EBITDA should
be considered in addition to, not as a substitute for, operating income, net
income, cash flow and other measures of financial performance and liquidity
reported in accordance with generally accepted accounting principles. EBITDA as
defined herein may not be comparable to similarly titled measures reported by
other companies.
The Company has had and will continue to have significant capital
expenditures. These expenditures pertain to the historical construction and
expansion of the networks and to the future expansion of the existing networks
as well as the construction of new networks.
28
<PAGE>
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth certain consolidated statement of operations
data of the Company, in thousands of dollars and expressed as a percentage of
net revenues, for each of the periods presented. This table should be read in
conjunction with the Company's financial statements, including the notes
thereto, appearing elsewhere in this Prospectus:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEARS ENDED DECEMBER 31, MARCH 31,
------------------------------------------------------------- ---------------------------------------
1995 1996 1997 1997 1998
----------------- ----------------- ----------------- ----------------- -----------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Revenues:
Dedicated transport
services.......... $ 6,505 94.9% $ 20,362 85.1% $ 44,529 80.4% $ 8,301 81.8% $ 16,733 75.9%
Switched services... 350 5.1 3,555 14.9 10,872 19.6 1,852 18.2 5,315 24.1
-------- ------ -------- ------ -------- ------ -------- ------ -------- ------
Total
revenues...... 6,855 100.0 23,917 100.0 55,401 100.0 10,153 100.0 22,048 100.0
Costs and expenses:
Operating (1)....... 15,106 220.4 25,715 107.5 40,349 72.8 8,384 82.6 13,519 61.3
Selling, general and
administrative
(1)............... 34,222 499.2 60,366 252.4 54,640 98.6 11,985 118.0 16,316 74.0
Depreciation and
amortization
(1)............... 7,216 105.3 22,353 93.5 38,466 69.4 8,842 87.1 11,932 54.1
-------- ------ -------- ------ -------- ------ -------- ------ -------- ------
Total costs and
expenses...... 56,544 824.9 108,434 453.4 133,455 240.9 29,211 287.7 41,767 189.4
Operating loss.......... (49,689) (724.9) (84,517) (353.4) (78,054) (140.9) (19,058) (187.7) (19,719) (89.4)
Gain on disposition of
investment (2)........ -- -- -- -- 11,018 19.9 -- -- -- --
Equity in losses of
unconsolidated
affiliates............ (1,391) (20.3) (1,547) (6.5) (2,082) (3.8) (593) (5.8) (58) (.3)
Interest, net (1)....... (25) (.3) (52) (.2) (1,538) (2.8) -- (2,011) (9.1)
-------- ------ -------- ------ -------- ------ -------- ------ -------- ------
Net loss (3)............ $(51,105) (745.5)% $(86,116) (360.1)% $(70,656) (127.5)% $(19,651) (193.5)% $(21,788) (98.8)%
-------- ------ -------- ------ -------- ------ -------- ------ -------- ------
-------- ------ -------- ------ -------- ------ -------- ------ -------- ------
</TABLE>
- ------------
(1) Includes expenses resulting from transactions with affiliates of $6,507,000
in 1995, $11,023,000 in 1996 and $15,306,000 in 1997 and $3,486,000 and
$5,479,000 in the three months ended March 31, 1997 and 1998, respectively.
(2) In September 1997, the Company completed a series of transactions related to
its interests in a group of unconsolidated telecommunication partnerships
serving the New York area (the 'Hyperion Partnerships'), whereby it sold its
interests in the partnerships serving the Buffalo and Syracuse markets in
exchange for $7.0 million of cash and all of the minority interests in the
partnerships serving the Albany and Binghamton markets that were not already
owned by the Company (collectively, the 'Hyperion Transactions'). In
connection with these transactions, the Company recognized a gain of
approximately $11.0 million.
(3) The Company is a limited liability company that has operated as a
partnership for tax purposes during the periods presented herein.
Accordingly, the Company is not subject to Federal and state income
taxation.
THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
Revenues. Revenue increased $11.9 million, or 117.2%, to $22.0 million for
the three months ended March 31, 1998, from $10.2 million for the same period in
1997. Revenues from the provision of dedicated transport services increased $8.4
million, or 101.6%, to $16.7 million in 1998, from $8.3 million in 1997.
Revenues from dedicated transport service increased 97.4% in those markets in
which dedicated transport services were offered as of March 31, 1997. Switched
service revenue increased $3.5 million, or 187.0%, to $5.3 million in 1998, from
$1.9 million in 1997. Switched services revenue increased 298.6% in those
markets in which switched services were offered as of March 31, 1997. The
increase in revenues from dedicated transport services primarily reflects growth
of services offered in existing markets. The increase in switched services
resulted from the offering of services in new markets and the growth of services
in existing markets. At March 31, 1998 the Company offered dedicated transport
services in 18 consolidated markets (excluding MetroComm AxS, L.P., which is a
50% owned entity of the Company) and switched services in 15 markets, as
compared to offering dedicated transport services in 15 markets and switched
services in 3 markets at March 31, 1997.
Operating Expenses. Operating expenses increased $5.1 million, or 61.2%, to
$13.5 million for the three months ended March 31, 1998, from $8.4 million for
the same period in 1997. As a percentage of revenues,
29
<PAGE>
<PAGE>
operating expenses decreased to 61.3% in 1998 from 82.6% for the same period in
1997. The increase in operating expenses was primarily attributable to the
Company's expansion of its business, principally switched services, and the
ongoing development of existing markets resulting in higher LEC charges for
circuit leases and interconnection, higher technical personnel costs, and higher
data processing costs.
Selling, General and Administrative. Selling, general and administrative
expenses increased $4.3 million, or 36.1%, to $16.3 million for the three months
ended March 31, 1998, from $12.0 million for the same period in 1997. As a
percentage of revenues, selling, general and administrative expenses decreased
to 74.0% in 1998 from 118.0% for the same period in 1997. The increase in
selling, general and administrative expenses was primarily attributable to an
increase in consulting expenses relating to local regulatory matters and
implementing new billing and system software, and higher direct sales costs
associated with the increase in revenues.
Depreciation and Amortization Expense. Depreciation and amortization
expense increased $3.1 million, or 34.9%, to $11.9 million for the three months
ended March 31, 1998, from $8.8 million for the same period in 1997. As a
percentage of revenues, depreciation and amortization expenses decreased to
54.1% in 1998, from 87.1% for the same period in 1997. The increase in
depreciation and amortization expense was primarily attributable to higher
capital expenditures related to the ongoing construction and expansion of the
Company's telecommunications networks in both 1997 and 1998.
EBITDA. The EBITDA loss for the three months ended March 31, 1998 decreased
$2.4 million, or 23.8%, to $7.8 million in 1998, from a loss of $10.2 million
for the same period in 1997. This improvement was primarily the result of
increased revenue due to the Company's expansion of local telecommunications
networks in new and existing markets and growth of the Company's customer base,
partially offset by higher operating expenses in support of the larger customer
base, and higher selling, general and administrative expenses required to
support the expansion.
Interest Expense. Effective July 1, 1997, all of the Company's financing
requirements began to be funded with loans from the Parent Companies. Interest
expense relating to these loans totaled $2.0 million for the three months ended
March 31, 1998.
Net Loss. Net loss increased $2.1 million, or 10.9%, to $21.8 million for
the three months ended March 31, 1998, from a net loss of $19.7 million for the
same period in 1997. This increase resulted from higher operating, selling,
general and administrative and depreciation and amortization expenses relating
to the Company's expansion of telecommunications networks in new and existing
markets, as well as interest expense on the loans payable to the Parent
Companies, partially offset by the increase in revenues generated by the
Company's expansion.
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996
Revenues. Revenues increased $31.5 million, or 131.6%, to $55.4 million in
1997, from $23.9 million in 1996. Revenues from the provision of dedicated
transport services increased $24.1 million, or 118.7%, to $44.5 million in 1997,
from $20.4 million in 1996. Revenue from dedicated transport service increased
115.9% in those markets in which dedicated transport services were offered as of
December 31, 1996. Switched service revenue increased $7.3 million, or 205.8%,
to $10.9 million in 1997, from $3.6 million in 1996. Switched services revenue
increased 183.9% in those markets in which switched services were offered as of
December 31, 1996. The increase in revenues from dedicated transport services
primarily reflected growth of services offered in existing markets. The increase
in switched services resulted from the offering of services in new markets and
the growth of services in existing markets. At December 31, 1997, the Company
offered dedicated transport services in 18 consolidated markets and switched
services in 14 markets, as compared to offering dedicated transport services in
15 markets and switched services in 2 markets at December 31, 1996.
Operating Expenses. Operating expenses increased $14.6 million, or 56.9%,
to $40.3 million in 1997, from $25.7 million in 1996. As a percentage of
revenues, operating expenses decreased to 72.8% in 1997 from 107.5% in 1996. The
increase in operating expenses was primarily attributable to the Company's
expansion of its business, principally switched services, and the ongoing
development of existing markets resulting in higher technical personnel costs,
higher LEC charges for circuit leases and interconnection and higher data
processing costs.
Selling, General and Administrative. Selling, general and administrative
expenses decreased $5.8 million, or 9.5%, to $54.6 million in 1997, from $60.4
million in 1996. As a percentage of revenues, selling, general and
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administrative expenses decreased to 98.6% in 1997 from 252.4% in 1996. The
decrease in selling, general and administrative expenses was primarily
attributable to the absence of a $5.5 million charge recorded in 1996 to
terminate certain employees as well as the on-going cost reduction due to lower
employee headcount, partially offset by higher direct sales costs associated
with the increase in revenues.
Depreciation and Amortization Expense. Depreciation and amortization
expense increased $16.1 million, or 72.1%, to $38.5 million in 1997, from $22.4
million in 1996. As a percentage of revenues, depreciation and amortization
expenses decreased to 69.4% for 1997 from 93.5% for the same period in 1996. The
increase in depreciation and amortization expense was primarily attributable to
higher capital expenditures related to the ongoing construction and expansion of
the Company's telecommunications networks in both 1997 and 1996.
Gain on Disposition of Investments. In September 1997, the Company
completed the Hyperion Transactions. In connection with these transactions, the
Company recognized a gain of approximately $11.0 million.
EBITDA. The EBITDA loss in 1997 decreased $22.6 million, or 36.3%, to $39.6
million, from a loss of $62.2 million in 1996. This improvement was primarily
the result of increased revenues due to the Company's expansion of local
telecommunications networks in new and existing markets and growth of the
Company's customer base, partially offset by higher operating expenses in
support of the larger customer base.
Interest Expense, Net. Effective July 1, 1997 all of the Company's
financing requirements began to be funded with loans from the Parent Companies.
Interest expense relating to these loans totaled approximately $1.5 million in
1997.
Net loss. Net loss decreased $15.4 million, or 18.0%, to $70.7 million in
1997, from a net loss of $86.1 million in 1996. This improvement principally
resulted from the one-time $11.0 million gain resulting from the Hyperion
Transactions and from increased revenues generated by the Company's expanded
networks, partially offset by increased operating and depreciation and
amortization expenses relating to the Company's expansion of telecommunications
networks in new and existing markets.
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Revenues. Revenues increased $17.0 million, or 248.9%, to $23.9 million in
1996, from $6.9 million in 1995. This increase reflected increased sales of
services in existing and new markets and growth of the Company's customer base.
Revenues from the provision of dedicated transport services increased $13.9
million, or 213.0%, to $20.4 million, in 1996, from $6.5 million in 1995.
Switched service revenue increased $3.2 million, or 915.7%, to $3.6 million in
1996, from $0.4 million in 1995. The increase in revenues from dedicated
services reflected growth in the existing markets and the commencement of
services in new markets. The increase in switched services reflected growth in
the existing markets. At December 31, 1996, the Company offered dedicated
transport services in 15 consolidated markets and switched services in 2
markets, as compared to offering dedicated transport services in 12 markets and
switched services in 1 market at December 31, 1995.
Operating Expenses. Operating expenses increased $10.6 million, or 70.2%,
to $25.7 million in 1996, from $15.1 million in 1995. As a percentage of
revenues, operating expenses decreased to 107.5% in 1996 from 220.4% in 1995.
The increase in operating expenses was primarily attributable to higher
technical personnel costs, LECs charges for circuit leases and interconnection,
data processing costs associated with the Company's expansion into new markets
and the ongoing development of existing markets.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $26.2 million, or 76.4%, to $60.4 million in
1996, from $34.2 million in 1995. As a percentage of revenues, selling, general
and administrative expenses decreased to 252.4% in 1996 from 499.2% in 1995. The
increase in selling, general and administrative expense was primarily due to
higher personnel compensation costs necessary to support the continued expansion
of the Company's telecommunications networks and customer base. In addition, the
Company incurred a $5.5 million charge to terminate certain employees. See
'Business.'
Depreciation and Amortization Expense. Depreciation and amortization
expense increased $15.2 million, or 209.8%, to $22.4 million in 1996, from $7.2
million in 1995. As a percentage of revenues, depreciation and amortization
expense decreased to 93.5% in 1996 from 105.3% in 1995. The increase in
depreciation and amortization expense was primarily attributable to the ongoing
construction and expansion of the Company's telecommunications networks in both
1995 and 1996.
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EBITDA. The EBITDA loss for 1996 increased $19.7 million, or 46.4%, to
$62.2 million, from a loss of $42.5 million in 1995. Overall, increased
operating and selling, general and administrative expenses resulting from the
Company's development of local telecommunications networks in new and existing
markets more than offset increased revenues.
Net loss. Net loss increased $35.0 million, or 68.5%, to $86.1 million in
1996, from $51.1 million in 1995. This increase resulted principally from
increased expenses relating to the Company's expansion of telecommunications
networks in new and existing markets. These increased expenses were partially
offset by increased revenues generated by the Company's expanded networks.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows
For the first three months of 1998, the Company's cash used in operations
decreased to $15.1 million from $28.7 million for the first three months of
1997. This decrease in cash used in operations of $13.6 million principally
resulted from lower EBITDA losses and working capital requirements in the first
three months of 1998. The Company expects to continue to have operating cash
flow deficiencies for the near future as it develops and expands its business.
For the year ended December 31, 1997, the Company's cash used in operations
decreased to $29.4 million from $52.3 million for the year ended December 31,
1996. This decrease in cash used in operations of $22.9 million principally
resulted from lower EBITDA losses during 1997. Cash used in operations increased
$16.7 million in 1996 from $35.6 million in 1995, primarily as a result of
increased EBITDA losses partially offset by other balance sheet changes.
Cash used in investing activities increased $10.8 million to $25.0 million
for the first three months of 1998, as compared to $14.2 million for the first
three months of 1997, principally as a result of higher capital expenditures.
Cash used in investing activities decreased $28.6 million to $120.6 million
in 1997, as compared to $149.2 million in 1996. This decrease resulted
principally from lower capital expenditures due to a slower rate of expansion
and $7.0 million of cash proceeds received in 1997 relating to the Hyperion
Transactions. Cash used in investing activities in 1996 increased $3.9 million
to $149.2 million from $145.3 million in 1995, principally as a result of higher
capital expenditures used to build the Company's networks. As discussed more
fully above, the Company has made substantial capital expenditures in order to
develop and expand its business.
For the first three months of 1998, net cash provided by financing
activities reflects the receipt of interest bearing loans from the Parent
Companies amounting to $40.1 million. Prior to July 1, 1997, the Company's cash
flow deficiencies were entirely funded by non-interest bearing capital
contributions from the Parent Companies. For the first three months of 1997, net
capital contributions amounted to $42.9 million. This decrease of $2.8 million
was primarily due to lower cash funding requirements principally due to
operating cash flow associated with the Company's expansion of its customer base
and services in new and existing markets and lower working capital requirements,
partially offset by higher capital expenditure requirements for the first three
months of 1998.
Net cash provided by financing activities reflects the receipt of
non-interest bearing capital contributions from the Parent Companies to fund the
Company's cash flow deficiencies through June 30, 1997. Effective July 1, 1997,
all of the Company's financing requirements were funded with interest bearing
loans from the Parent Companies. This indebtedness is subordinated in right of
payment to the Notes, bears interest (payable in kind) at an annual rate equal
to The Chase Manhattan Bank's prime lending rate as in effect from time to time
(which was 8.5% at March 31, 1998) and matures on August 15, 2008, one month
after the maturity of the Notes. The aggregate of net capital contributions and
loans from the Parent Companies decreased $51.5 million to $150.0 million in
1997 as compared to $201.5 million in 1996. This decrease was primarily due to
lower cash funding requirements principally due to operating cash flow
associated with the Company's expansion of its customer base and services in new
and existing markets and lower capital expenditure requirements. Net capital
contributions in 1996 increased to $201.5 million from $180.9 million in 1995.
The increase in net capital contributions is primarily due to higher cash
funding requirements principally due to an increase in cash used in operations
associated with the Company's expansion of its customer base and services in new
and existing markets and higher capital expenditures requirements.
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FINANCING
Historically, the Company has not maintained cash balances since all the
Company's cash receipts and funding requirements were provided to or from the
Parent Companies. The proceeds from the Offering, cash flow from operations and
future financings are expected to fund the Company's future cash requirements
through the end of 1999. Upon completion of the Offering, the Parent Companies
and the Members will not be under any obligation to make any additional equity
investments in or loans to the Company. At a future date, the Company may
negotiate a bank credit facility to provide it with working capital and enhance
its financial flexibility. There can be no assurance that such financing will be
available on terms acceptable to the Company or at all.
The development of the Company's business and the installation and
expansion of the Company's communications networks, combined with the
development and operation of the Company's network operations center ('NOC'),
have resulted in substantial capital expenditures. These capital expenditures,
as well as the Company's historical operating losses, have resulted in
substantial negative cash flow for the Company since inception in 1993. Funding
of this historical cash flow deficiency has been primarily accomplished through
the receipt of capital contributions from the Parent Companies through June 30,
1997. From July 1, 1997, the deficiency has been funded through interest bearing
loans from the Parent Companies. This indebtedness is subordinated in right of
payment to the Notes, bears interest (payable in kind) at an annual rate equal
to The Chase Manhattan Bank's prime lending rate as in effect from time to time
(which was 8.5% at March 31, 1998) and matures on August 15, 2008, one month
after the maturity of the Notes. Indebtedness to the Parent Companies was
approximately $180.0 million at July 14, 1998. The net balance of amounts due to
the Parent Companies, including interest accrued thereon, under this funding
arrangement was $117.5 million and $75.5 million as of March 31, 1998 and
December 31, 1997, respectively. The average net capital contributions from the
Parent Companies were $517.8 million for the six months ended June 30, 1997 and
$379.0 million and $179.8 million for the years ended December 31, 1996 and
1995, respectively. Additional paid-in capital balances, which include all
capital contributions from the Parent Companies have remained at $555.8 million
since June 30, 1997 and totaled approximately $479.7 million and $278.2 million
at December 31, 1996 and 1995, respectively.
The net proceeds to the Company from the sale of the Notes are estimated to
be approximately $388.0 million. The Company intends to use the net proceeds of
the Offering to expand and develop existing and new networks and for other
general corporate and working capital purposes, which may include payment of
interest on the Notes and acquisitions and joint ventures. Pending the foregoing
uses, the net proceeds of the Offering will be invested in short-term, money
market instruments. While the primary use of such proceeds will be to fund
ongoing business operations of the Company's subsidiaries which own and operate
its networks, the Company intends to continue to evaluate potential acquisitions
and joint ventures. The Company has no definitive agreement with respect to any
acquisition or joint venture, although from time to time it may discuss and
assess opportunities with other companies, including affiliates of the Members,
on an ongoing basis.
The Company expects that its future cash requirements will principally be
for working capital, capital expenditures and to fund its operating losses. The
Company expects that the net proceeds of the Offering, together with internally
generated funds, will provide sufficient funds for the Company to meet the
Company's expected capital and liquidity needs to expand its business as
currently planned, pay interest on the Notes and fund its currently expected
losses through the end of 1999. Thereafter, the Company expects to require
additional financing. However, in the event that the Company's plans or
assumptions change or prove to be inaccurate, or the foregoing sources of funds
prove to be insufficient to fund the Company's growth and operations, or if the
Company consummates acquisitions or joint ventures, the Company may be required
to seek additional capital sooner than currently anticipated. The Company's
revenues and costs are dependent upon factors that are not within the Company's
control, such as regulatory changes, changes in technology and increased
competition. Due to the uncertainty of these and other factors, actual revenues
and costs may vary from expected amounts, possibly to a material degree, and
such variations are likely to affect the level of the Company's future capital
expenditures and expansion plans. Sources of financing may include public or
private debt or equity financing by the Company or its subsidiaries or other
financing arrangements.
CAPITAL EXPENDITURES
The facilities-based telecommunications service business is a capital
intensive business. The Company's operations have required and will continue to
require substantial capital investment for: (i) the purchase and installation of
switches, electronics, fiber and other technologies in existing networks and in
additional networks
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to be constructed in new service areas; and (ii) the acquisition and expansion
of networks currently owned and operated by other companies. The Company's
expected capital expenditures for general corporate and working capital purposes
include (i) expenditures with respect to the Company's management information
system and corporate service support infrastructure and (ii) operating and
administrative expenses with respect to new networks and debt service. The
Company plans to make substantial capital investments in connection with the
deployment of switches in all of its existing networks, and plans to construct
and develop new networks. Expansion of the Company's networks will include the
geographic expansion of the Company's existing operations and will consider the
development of new markets. In addition, the Company may acquire existing
networks in the future.
During the first three months of 1998, capital expenditures were $25.0
million, an increase of $10.7 million from the first three months in 1997. This
increase resulted from unusually low capital expenditures for the first three
months of 1997, principally due to the Company's new management team put into
place in January 1997, which required time to formulate the Company's current
business strategy focusing exclusively on business customers. During the year
ended December 31, 1997, capital expenditures were $127.3 million, a decrease of
$17.5 million from $144.8 million in 1996. The decrease was principally due to a
slower rate of expansion into new markets in 1997. Capital expenditures in 1996
increased $3.3 million from $141.5 million in 1995. Based on expansion plans
comparable to the historical expansion of the Company and the continuation of
the Company's relationship with TW Cable with respect to additional fiber
capacity, the Company estimates it will require $147.7 million in 1998 and
$152.8 million in 1999 to fund its capital expenditures. See 'Certain
Relationships and Related Transactions -- Certain Operating Agreements.'
YEAR 2000
The Company is currently working to resolve the potential impact of the
year 2000 on the processing of time-sensitive information by its computerized
information systems. Year 2000 issues may arise if computer programs have been
written using two digits (rather than four) to define the applicable year. In
such case, programs that have time-sensitive logic may recognize a date using
'00' as the year 1900 rather than the year 2000, which could result in
miscalculations or system failures. Management is in the process of completing a
review of significant software and equipment used in the Company's operations
and, to the extent practicable, in the operations of its key business partners,
in order to determine if any year 2000 risks exist that may be material to the
Company as a whole. This process includes an assessment of year 2000 risks on an
ongoing basis and the identification of practical remediation measures that
could be taken on a timely basis to alter, validate or replace time-sensitive
software and equipment. Management has already begun implementing certain of
these measures and intends to complete its remediation efforts prior to any
anticipated material impact on its computerized information systems. Costs of
addressing potential problems have not been material to date and, based on
preliminary information from the Company, its customers and vendors, are not
currently expected to have a material adverse impact on the Company's financial
position, results of operations or cash flows in future periods. However, if the
Company, its customers or vendors are unable to resolve such processing issues
in a timely manner, it could result in a material financial risk. Accordingly,
management plans to devote the resources it concludes are appropriate to resolve
all significant year 2000 issues in a timely manner.
EFFECTS OF INFLATION
Historically, inflation has not had a material effect on the Company.
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BUSINESS
OVERVIEW
The Company is a leading facilities-based CLEC in selected metropolitan
areas across the United States, offering a wide range of business telephony
services, primarily to medium- and large-sized business customers and other
carriers. The Company's customers are principally telecommunications-intensive
business end-users, IXCs, ISPs, wireless communications companies and
governmental entities. Such customers are offered a wide range of integrated
telecommunications services, including dedicated transmission, local switched,
data and video transmission services and certain Internet services. The Company
has deployed switches in 16 of its 19 service areas as of March 31, 1998, and
management expects that a growing portion of the Company's revenues will be
derived from providing switched services. In addition, the Company benefits from
its strategic relationship with TW Cable both through network facilities access
and cost-sharing. As a result, the Company's networks have been constructed
primarily through licensing the use of fiber capacity from TW Cable. As of March
31, 1998, the Company operated networks in 19 metropolitan areas that spanned
6,239 route miles, contained 244,894 fiber glass miles and offered service to
2,711 buildings. Consolidated revenues for the Company, which have historically
been primarily derived from private line services, grew by 117.2% for the three
months ended March 31, 1998 as compared to the same period in 1997.
The business of the Company was commenced in 1993 by TW Cable, originally
to provide certain telephony services together with cable television. In January
1997, the Company put in place a new management team that is implementing a
business strategy focused exclusively on serving business customers, rapidly
providing switched services in all the Company's service areas and expanding the
range of business telephony services offered by the Company.
The Company believes that the 1996 Act and certain state regulatory
initiatives provide increased opportunities in the telecommunications
marketplace by opening all local service areas to competition and requiring
ILECs to provide increased direct interconnection. According to the FCC, in 1996
the total revenues for the telecommunications industry amounted to approximately
$222 billion, of which approximately $122 billion was local service and
approximately $100 billion was long distance. To capitalize on these significant
opportunities, the Company has accelerated its deployment of high capacity
digital switches in its service areas and is aggressively marketing switched
services to medium- and large-sized businesses.
BUSINESS STRATEGY
The Company's primary objective is to be a leading CLEC in its existing and
future service areas offering medium- and large-sized businesses superior
telecommunications services through advanced networks. The key elements of the
Company's business strategy include the following:
Leverage Existing Fiber Optic Networks. The Company has designed and built
its networks to serve geographic locations where management believes there are
large numbers of potential customers. As of March 31, 1998, the Company operated
networks that spanned over 6,239 route miles and contained over 244,894 fiber
miles. The Company's highly concentrated networks have yet to be fully exploited
and provide the capacity to serve a substantially larger base of customers.
Management believes that the Company's extensive fiber network capacity allows
it to: (i) increase orders substantially from new and existing customers without
incurring significant additional capital expenditures and operating expenses;
(ii) emphasize its facilities-based services rather than resales of network
capacity of other providers; and (iii) exert greater control over its services
than the Company's competitors that are dependent upon off-net facilities,
thereby providing better customer service.
Expand Switched Services. The Company provided a broad range of switched
services in 16 of its service areas as of March 31, 1998, and plans to provide
switched services in all of its current service areas by the end of 1999. For
the three months ended March 31, 1998, consolidated revenues from switched
service grew by 187.0% as compared to the same period in 1997. Because the
demand for switched services is greater than for dedicated transport services
and the Company has been rapidly installing switches in its markets, management
expects the Company to derive a growing portion of its revenues from switched
services. The Company utilizes high capacity digital 5-ESS switches manufactured
by Lucent.
Target Medium- and Large-Sized Business Customers. The Company operates
networks in metropolitan areas that have high concentrations of medium- and
large-sized businesses. Such businesses tend to be
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telecommunications-intensive and are more likely to seek the greater reliability
provided by an advanced network such as the Company's. Thus, management believes
that significant economies of scale may be achieved by focusing and intensifying
its sales and marketing efforts on such businesses as they are potentially high
volume users of the Company's services. To drive revenue growth in these
markets, the Company is aggressively expanding its direct sales force to focus
on such business customers.
Interconnect Service Areas within Clusters. The 19 service areas in which
the Company currently operates are grouped in six geographic clusters across the
United States. See ' -- Telecommunications Networks and
Facilities -- Telecommunications Networks.' The Company plans to interconnect
each service area within a cluster with broadband, fiber optic facilities of its
own or licensed from TW Cable and/or third parties. Interconnecting service
areas within a cluster will enable the Company to increase its revenue potential
by addressing customers' regional long distance voice, data and video
requirements. In 1998, management plans to begin interconnecting service areas
within the Company's Midwest, Southwest and Southeast clusters.
Utilize Strategic Relationships with TW Cable. The Company has benefited
from and continues to leverage its relationships with TW Cable, the second
largest multiple system cable operator in the U.S., by licensing and sharing the
cost of digital fiber optic facilities. This licensing arrangement allows the
Company to benefit from TW Cable's access to rights-of-way, easements, poles,
ducts and conduits. See 'Certain Relationships and Related
Transactions -- Certain Operating Agreements.' By leveraging its existing
relationship with TW Cable, the Company believes that it can increase revenues,
benefit from existing regulatory approvals and licenses, derive economies of
scale in network costs and extend its existing networks in a rapid, efficient
and cost-effective manner. Furthermore, management believes that the strong
awareness and positive recognition of the 'Time Warner' brand name significantly
contributes to its marketing programs and sales efforts by distinguishing it
from its competitors.
Expand Product Offerings. The Company intends to increase revenues and cash
flows by developing and tailoring diversified bundles of telephony services for
its customers. The services currently offered by the Company include a wide
range of dedicated transmission, local switched, data and video transmission
services and certain Internet services. The Company intends to offer additional
services including long distance service and other high speed data transport
services. The Company generally develops its customer base by first offering
basic telecommunications services to its new customers. As the needs of such
customers change and develop, the Company selectively bundles and offers more
sophisticated, higher margin products and services to them.
Enter into New Geographic Areas. The Company's strategy is to target
metropolitan areas possessing demographic, economic and telecommunications
demand profiles that it believes provide it with the potential to generate an
attractive economic return. Currently, the Company operates networks in a total
of 19 metropolitan areas. Management plans to have networks in operation or
under construction in several additional service areas by the end of 1999, most
of which will be in service areas where TW Cable has already made substantial
infrastructure investments. By licensing capacity from TW Cable's existing fiber
optic networks, the Company can develop new networks quickly and
cost-effectively, thereby giving it a competitive advantage over other CLECs.
See 'Certain Relationships and Related Transactions -- Certain Operating
Agreements.'
Continue Disciplined Expenditure Program. The Company increases operational
efficiencies by pursuing a disciplined approach to capital expenditures. This
capital expenditure program requires that prior to making any expenditure on a
project, the project must be expected to meet stringent financial criteria such
as minimum recurring revenue, cash flow margins and rate of return. In addition,
to control capital expenditures and share the risks of developing costly new
networks, management is considering establishing strategic alliances with other
telecommunications providers in the form of joint ventures and possible
co-branding marketing programs.
MARKET OPPORTUNITY
The Company believes that the 1996 Act and certain state regulatory
initiatives provide increased opportunities in the telecommunications market
place by opening all local markets to competition and requiring ILECs to provide
increased direct interconnection. According to the FCC, in 1996 the total
revenues for the telecommunications industry amounted to approximately $222
billion, of which approximately $122 billion was local service and approximately
$100 billion was long distance. To capitalize on these significant
opportunities, the Company accelerated its deployment of high capacity digital
switches in its markets and is aggressively marketing switched services to its
customers.
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SERVICES
The Company provides its customers with a wide range of telecommunications
services, including dedicated transmission, local switched, data and video
transmission services and certain Internet services. The Company's dedicated
services, which include private line and special access services, use
high-capacity digital circuits to carry voice, data and video transmissions from
point-to-point in multiple configurations. Switched voice services offered by
the Company use high-capacity digital switches to route voice transmissions
anywhere on the public switched telephone network. In offering its dedicated
transmission and switched services, the Company also provides private network
management and systems integration services for businesses that require
combinations of various dedicated and switched telecommunications services. Data
services provided by the Company allow customers to create their own internal
computer networks and access external computer networks and the Internet. The
Company can provide its customers, including companies in the media industry,
with advanced video transport services such as point-to-point, broadcast-quality
video channels for video transmissions between two or more locations, including
video links to all the major television networks as well as to advertising
agencies and other customers. Internet services provided by the Company include
dedicated Internet access, website hosting, access and upstream transport for
local ISPs and electronic commerce services.
Dedicated Transport Services
The Company currently provides a complete range of dedicated transport
services with transmission speeds from 2.4 Kbps to 2.488 Gbps to its IXC and
end-user customers. All products and services can be used for voice, data, image
and video transmission.
The Company offers the following dedicated transport links:
POP-to-POP Special Access. Telecommunications lines linking the POPs
of one IXC or the POPs of different IXCs in a market, allowing the POPs to
exchange transmissions for transport to their final destinations.
End-User/IXC Special Access. Telecommunications lines between an end
user, such as a large business, and the local POP of its selected IXC.
Private Line. Telecommunications lines connecting various locations of
a customer's operations, suitable for transmitting voice and data traffic
internally.
Transport Arrangement Service. Provides dedicated transport between
LEC central offices and customer designated POPs of an IXC for transport of
LEC provided switched access or LEC provided special access. This
point-to-point service is available at DS1 or DS3 interfaces at both ends.
The Company's Broadcast Video TV-1, STS-1 and Private Network Transport
services use high-capacity digital circuits to carry voice, data and video
transmissions from point-to-point in flexible configurations involving different
standardized transmission speeds and circuit capacities, including analog voice
grade, DS0, DS1, DS3 and Sonet OC-N.
Switched Services
The Company's switched services provide business customers with local
calling capabilities and connections to their IXCs. The Company owns, houses,
manages and maintains the switch used to provide the services. The Company's
switched services include the following:
Business Access Line Service. This service provides voice and data
customers quality analog voice grade telephone lines for use at any time.
Business Access Line Service provides customers with flexibility in network
configurations because lines can be added, deleted and moved as needed.
TW Access Trunks. TW Access Trunks provide communication lines between
two switching systems. These trunks are utilized by PBX users to provide
access to the local, regional and long distance telephone networks. PBX
customers may use either the Company's telephone numbers or their
ILEC-assigned telephone numbers. Customer access to the Company's local
exchange services is accomplished by a DS1 digital connection or DS0 analog
trunks between the customer's PBX port and the Company's switching centers.
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TW Local Toll Service. This service provides customers with a
competitive alternative to ILEC service for intraLATA toll calls. It is a
customized, high-quality local calling plan available to Business Access
Line and TW Access Trunk customers. The Company works with customers to
devise cost-saving programs based on actual usage and calling patterns.
Local Telephone Service. Local telephone service is basic local
exchange service which can be tailored to a customer's particular calling
requirements. Local telephone service includes operator and directory
assistance services, as well as an optional intraLATA toll plan.
Switched Access Service. Switched Access Services provide IXCs with a
switched connection to their customers for the origination and termination
of long distance telephone calls.
Other services offered by the Company include telephone numbers,
listings, customized calling features, voice messaging, hunting, blocking
services and ISDN.
Data Transmission Services
The Company offers its customers a broad array of data transmission
services that enable customers to create their own internal computer networks
and access external computer networks and the Internet. In 1996, the Company
introduced its native speed LAN inter-networking data service which is used to
connect workstations and personal computer users on one or more LANs. Native
speed services avoid the bottleneck problems that are frequently encountered
with customary DS1 connections by providing the customer with a circuit that
matches the transmission speeds of its LAN. The Company's LAN service provides
dedicated circuits, guaranteed transmission capacity and guaranteed bandwidth
for virtually all LAN applications. Users can share files and databases as if
they were all working on the same computer, or within the same LAN.
As companies and communications become more sophisticated, there is an
increased need for customer access to superior traffic management of sensitive
data, video and voice transmission within a single metropolitan area, or between
various company operations. The Company's switched data services offer
sophisticated switching technology and provide high standards in reliability and
flexibility while enabling users to reduce the costs associated with
interconnecting architecturally diverse information systems. The Company's data
service offerings support evolving high-speed applications, such as multimedia,
desktop video conferencing and medical imaging. The Company offers native speed
connections to both end-users as well as interexchange data carriers. The
Company's services allow users to interconnect both high speed and low speed LAN
environments and to benefit from flexible billing, as well as detailed usage
reports.
Video Transmission Services
The Company provides broadcast quality digital and analog video link
services to its video services customers, including media industry customers,
such as television networks, and advertising agencies. The Company's video
services include offering broadcast quality, digital channel transmissions that
can be provided on a point-to-point or point-to-multipoint basis.
Internet Services
In most of its service areas, the Company currently offers Internet
services such as dedicated Internet access, access and upstream transport for
local ISPs and for electronic commerce services. The Company believes that these
services will continue to be an important component of the Company's overall
product offerings and intends to continue to expand the offering of Internet
services within its service areas.
PLANNED/FUTURE SERVICES
Long Distance Services
The Company intends to offer basic and enhanced long distance services,
such as toll free, calling card and international gateways to Europe and the
Pacific, targeting medium- and small-size business customers. Generally, large
businesses tend to obtain their long distance needs directly from the major
IXCs. The Company believes medium- and small-size businesses are more likely to
obtain their long distance services from CLECs rather than the major IXCs. As a
result, management believes that such medium- and small-sized end-users
represent a potential customer base for developing a market for the Company's
long distance services. The
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Company will purchase long distance capacity under agreements, currently in
negotiation, with major IXCs that provide the Company capacity at competitive
rates for resale and all support and billing services. Management believes that
the offering of long distance services will contribute to revenue growth with
profitable margins and will also add strategic sales and marketing value as a
bundled product.
Road Runner 'Work at Home' Services
TW Cable operates a high speed online content service, currently branded
'Road RunnerTM,' primarily to residential customers in a number of its cable
operating areas. There are currently active Road Runner operations in Albany,
Binghamton, San Diego, Memphis, Columbus, Tampa and Honolulu. As of June 30,
1998, TW Cable's Road Runner subscribers totaled over 50,000. The Company
expects that it and TW Cable will cooperate in providing services to or on
behalf of each other where advantageous Road Runner-related business
opportunities arise. See 'Certain Relationships and Related
Transactions -- Certain Operating Agreements.' For example, the Company may have
the first opportunity to provide network facilities to TW Cable for transport of
the Road Runner service where facilities are not internally available. Further,
the Company may be able to act as a sales agent for (or otherwise team with) TW
Cable for the Road Runner residential services as part of an overall 'work at
home' solution for the Company's large business customers. However, in light of
the restrictions in the LLC Agreement on Residential Services and Content
Services, any sales agent services provided by the Company will require a waiver
by the Members of the Content Services and the Residential Services restrictions
in accordance with the LLC Agreement provisions. As these services are in the
developmental stage, it is not possible to predict how significant the Road
Runner teaming arrangements with TW Cable will become.
TELECOMMUNICATIONS NETWORKS AND FACILITIES
Overview
The Company uses the latest technologies and network architectures to
develop a highly reliable infrastructure for delivering high-speed, quality
digital transmissions of voice, data and video telecommunications. The Company's
basic transmission platform consists primarily of optical fiber equipped with
high capacity SONET equipment deployed in fully redundant, self-healing rings.
These SONET rings give the Company the capability of routing customer traffic in
both directions around the ring, thereby eliminating loss of service in the
event of a cable cut. The Company's networks are designed for remote automated
provisioning, which allows the Company to meet customers' real time service
needs. The Company extends SONET rings or point to point links from rings to
each customer's premises over its own fiber optic cable and unbundled facilities
obtained from ILECs. The Company also installs diverse building entry points
where a customer's security needs require such redundancy. The Company then
places necessary customer-dedicated or shared electronic equipment at a location
near or in the customer's premises to terminate the link.
The Company serves its customers from one or more central offices or hubs
strategically positioned throughout its networks. The central offices house the
transmission and switching equipment needed to interconnect customers with each
other, the IXCs and other local exchange networks. Redundant electronics, with
automatic switching to the backup equipment in the event of failure, protects
against signal deterioration or outages. The Company continuously monitors
system components from its NOC and proactively focuses on avoiding problems
rather than upon merely reacting upon failure.
The Company adds switched, dedicated and data services to its basic fiber
optic transmission platform by installing sophisticated digital electronics at
its central offices and nodes and at customer locations. The Company's advanced
Lucent 5-ESS digital telephone switches are connected to multiple ILEC and long
distance carrier switches to provide the Company's customers access to
telephones in the local market as well as the public switched telephone network.
Similarly, in certain markets, the Company provides ATM switched and LAN
multiplexers at its customers' premises and in its central offices to provide
high speed LAN interconnection services.
The Company's strategy for adding customers is designed to maximize the
speed and impact of its marketing efforts while maintaining attractive rates of
return on capital invested to connect customers directly to its networks. To
initially serve a new customer, the Company may use various transitional links,
such as reselling a portion of an ILEC's network. Once the new customer's
communications volume and product needs
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are identified, the Company may build its own fiber optic connection between the
customer's premises and the Company's network to accommodate: (i) the customer's
needs; and (ii) the Company's efforts to maximize return on network investment.
Telecommunications Networks
The following chart sets forth information regarding each of the Company's
telecommunications networks as of March 31, 1998:
<TABLE>
<CAPTION>
Network Switch Commercial
Commercially Commercially Fiber Route Buildings MSA Business
Metropolitan Area Available Available(1) Miles(2) On-Net Lines(3)
- ------------------------------- ------------- ------------- ----------- ---------- ------------
<S> <C> <C> <C> <C> <C>
NEW YORK REGION
Albany, New York............... Jul. 95 TBD 42 8 178,332
Binghamton, New York........... Jan. 95 TBD 73 16 70,301
Manhattan, New York............ Feb. 96 Feb. 96 157 52 2,375,192
Rochester, New York............ Dec. 94 Feb. 95 275 38 260,423
SOUTHWEST REGION
Austin, Texas.................. Sep. 94 Apr. 97 242 75 321,030
Houston, Texas................. Jan. 96 Sep. 97 418 96 1,133,864
San Antonio, Texas............. May 93(4) Nov. 97 481 145 394,536
SOUTHEAST REGION
Charlotte, N. Carolina......... Sep. 94 Dec. 97 672 160 372,714
Greensboro, N. Carolina........ Jan. 96 TBD 94 7 265,080
Memphis, Tennessee............. May 95 May 97 467 105 225,342
Raleigh, N. Carolina........... Oct. 94 Sep. 97 430 102 224,596
MIDWEST REGION
Cincinnati, Ohio............... Jul. 95 Nov. 97 271 66 493,850
Columbus, Ohio(5).............. Mar. 91(4) Jul. 97 339 112 393,791
Indianapolis, Indiana.......... Sep. 87(4) Dec. 97 224 105 370,621
Milwaukee, Wisconsin........... Feb. 96 Sep. 97 376 71 399,555
SOUTH REGION
Tampa, Florida................. Dec. 97 Jan. 98 228 7 626,709
Orlando, Florida............... Jul. 95 Jul. 97 859 131 439,238
WESTERN REGION
Honolulu, Hawaii............... Jun. 94 Jan. 98 398 173 197,823
San Diego, California.......... Jun. 95 Jul. 97 193 74 1,005,994
----------- ---------- ------------
Total.......................... 6,239 1,543 9,748,991
----------- ---------- ------------
----------- ---------- ------------
</TABLE>
- ------------
(1) Date of switch commercially available is the first date on which switched
services were provided to a customer of the Company.
(2) Licensed and owned fiber optic route miles.
(3) Metropolitan Statistical Areas ('MSA') business lines data are from ABI 1996
Business Data.
(4) The networks in Columbus, Ohio, San Antonio, Texas and Indianapolis, Indiana
were built by certain predecessor companies prior to the commencement of the
Company's business.
(5) The Columbus market is operated under a partnership, MetroComm AxS, L.P.,
which is a 50% owned entity of the Company. However, the switch is owned by
the Company.
Information Systems Infrastructure
The Company uses advanced technology in its information systems
infrastructure. The Company also uses an integrated, nationwide client server
platform and coherent relational databases to increase employee productivity,
link itself electronically to its customers and develop real time data and
information. The
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architecture also enables the Company to rapidly re-engineer its processes and
procedures to lower its costs and to respond rapidly to changing industry
conditions. The Company's information systems deliver data at the network,
regional or corporate level, and also by customer and vendor. The Company's
information systems assist in the delivery of superior customer service and real
time support of network operations. The systems, which were developed by an
outside vendor but are operated internally, utilize open system standards and
architecture. As a result, the Company is positioned to either purchase from
third parties or develop in-house supplementary information support systems as
its needs arise.
Network Monitoring and Management
The Company provides a single point of contact for all of its customers and
consolidates all of its systems support, expertise and technical training at its
NOC in Greenwood Village, Colorado. With over 365 technicians, customer service
representatives and administrative support staff dedicated to providing superior
customer service, the Company is able to quickly correct, and often anticipate,
any problems that may arise in its networks. The Company provides 24 hour-a-day,
7 days-a-week surveillance and monitoring of networks to achieve the Company's
99.98% network reliability and performance. Network analysts monitor real-time
alarm, status and performance information for each circuit and the network
equipment and react swiftly to repair network failures.
Network Development and Application Laboratory
The Company's Network Development and Application Laboratory is a
comprehensive telecommunications technology, applications and services
development laboratory, equipped with advanced systems and equipment, including
those used by the Company in the operation of its local digital networks. The
center is designed to provide a self-contained testing and integration
environment, fully compatible with the Company's digital networks, for the
purposes of: (i) verifying the technical and operational integrity of new
equipment prior to installation in the networks; (ii) developing new services
and applications; (iii) providing a realistic training environment for
technicians, engineers and others; and (iv) providing a network simulation
environment to assist in fault isolation and recovery.
Billing Systems
The Company has historically developed its back office support functions
internally with limited reliance on outside vendors. Recently, the Company
entered into agreements with outside vendors for the development, operation and
maintenance of its billing systems. See 'Risk Factors -- Dependence on
Information Billing Systems' and 'Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Year 2000.'
Agreements with TW Cable
The Company has entered into several agreements with TW Cable for the
license of fiber optic networks and certain facilities, administrative and
operating services, residential telephony support services and high speed online
transport services. See 'Certain Relationships and Related
Transactions -- Certain Operating Agreements.'
NETWORK DESIGN AND CONSTRUCTION
In order to leverage its relationship with TW Cable, the Company has
constructed its existing networks in selected metropolitan areas served by TW
Cable's fiber optic infrastructure. This has allowed the Company to develop, in
a cost-efficient way, an extensive network in each of its service areas. As of
March 31, 1998, the Company's networks spanned 6,239 route miles, contained
244,894 fiberglass miles and offered service to 2,711 buildings with 1,904,420
VGE circuits and 23,702 access lines in service.
Before deciding to construct or acquire a network in a particular city, the
Company's corporate development staff reviews the demographic, economic,
competitive and telecommunications demand characteristics of the city, including
its location, the concentration of potential business, government and
institutional end-user customers, the economic prospects for the area, available
data regarding IXC and end-user special access
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and switched access transport demand and actual and potential CAP/CLEC
competitors. Market demand is estimated on the basis of market research
performed by Company personnel and others, utilizing a variety of data including
estimates of the number of interstate access and intrastate private lines in the
city based primarily on FCC reports and commercial databases. This process has
enabled the Company to reduce its start-up costs and expedite lead times.
If a particular city targeted for development is found to have sufficiently
attractive demographic, economic, competitive and telecommunications demand
characteristics, the Company's network planning and design personnel design a
network targeted to provide access to the major IXC, POPs and the ILEC's
principal central office(s) in the city. Consistent with the Company's
disciplined capital expenditure program, distribution rings are designed to
cover strategic or highly concentrated business parks and downtown metropolitan
areas, and build-out to 100% of the identified end users is generally not
considered to be cost-effective since a portion of the end-users are located in
low density areas.
Based on the data obtained through the foregoing process, in connection
with either the construction or an acquisition of a network, the Company
develops detailed financial estimates based on the anticipated demand for the
Company's current services. If the financial estimates meet or exceed the
Company's minimum rate of return thresholds using a discounted cash flow
analysis, the Company's corporate planning personnel prepare a detailed business
and financial plan for the proposed network.
Prior to commencing construction, the Company's local staff, working
together with TW Cable, where applicable, obtains any needed city franchises,
permits, or other municipal requirements to initiate construction and operate
the network. In some cities, a construction permit is all that is required. In
other cities, a license agreement or franchise may also be required. Such
licenses, agreements and franchises are generally for a term of limited
duration. In addition, the 1996 Act requires that local governmental authorities
treat all telecommunications carriers in a competitively neutral,
non-discriminatory manner. The Company's current licenses and franchises expire
in years ranging from 1999 to 2015. City franchises often require payment of
franchise fees which in some cases can be directly passed through on customers'
invoices. The Company's local staff also finalizes arrangements for needed
rights-of-way. Rights-of-way are typically licensed from TW Cable under
multi-year agreements with renewal options and are generally non-exclusive. See
'Certain Relationships and Related Transactions -- Certain Operating
Agreements.' The Company leases underground conduit and pole space and other
rights-of-way from entities such as LECs and other utilities, railroads, long
distance providers, state highway authorities, local governments and transit
authorities. The 1996 Act requires most utilities, including most LECs and
electric companies, to afford CAPs/CLECs access to their poles, conduits and
rights-of-way at reasonable rates on non-discriminatory terms and conditions.
The Company's networks are constructed to cost-effectively access areas of
significant commercial end-user telecommunications traffic, as well as the POPs
of most IXCs and cellular companies and the principal LEC central offices in a
city. The Company establishes general requirements for network design, and
internally engineers the contemplated network and the required deployment.
Construction and installation services are provided by independent contractors,
including TW Cable, selected through a competitive bidding process. Company
personnel provide project management services, including contract negotiation
and supervision of the construction, testing and certification of all
facilities. The construction period for a new network varies depending upon the
number of route miles to be installed, the initial number of buildings targeted
for connection to the network, the general deployment of the network and other
field conditions. Networks that the Company has installed to date generally have
become operational within six to nine months after the beginning of
construction.
EQUIPMENT SUPPLY
The Company acquires Lucent 5-ESS digital switches pursuant to an exclusive
vendor agreement (the 'Lucent Agreement'), which provides for discounted
pricing. The Lucent Agreement expires in June of 1999 and is renewable for up to
three additional years upon the parties' mutual agreement. The Lucent Agreement
provides that if the Company purchases digital switches from a vendor other than
Lucent during the term of such agreement, Lucent, among other things, may
discontinue the agreed upon discounted pricing on all future orders, renegotiate
higher prices for digital switches and may not be liable for failures to meet
certain delivery and installation schedules on future orders.
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CUSTOMERS AND SALES AND MARKETING
The Company's customers are principally telecommunications-intensive
medium- and large-sized businesses, long distance carriers, ISPs, wireless
communications companies and various government entities. Historically, the
Company's customers were primarily long distance carriers. While the Company's
carrier business has continued to grow in absolute numbers, it has declined as a
proportion of total business such that in 1997 end user customers accounted for
47.8% of the Company's revenues. For the three months ended March 31, 1998, the
Company's top 10 customers accounted for 40.6% of the Company's total revenues.
The top three customers, which are IXCs or other telecommunications providers,
accounted for 26.1% of total revenues, and no other customer accounted for 5% or
more of revenues. See 'Risk Factors -- Dependence on Significant Customers.'
The Company's marketing emphasizes its: (i) reliable, facilities-based
networks, (ii) flexibly priced, bundled products and services; (iii) responsive
customer service orientation; and (iv) integrated operations, customer support
and network monitoring and management systems. The Company's centrally managed
customer support operations are designed to facilitate the processing of orders
for changes and upgrades in customer services. To reduce the inherent risk in
bringing new and untested telecommunications products and services to a
dynamically changing market, the Company introduces its products and services
once market demand develops and offers them in diversified, competitively-priced
bundles, thereby increasing usage among its existing customers and attracting
new customers. The services offered by the Company are typically priced at a
discount to the prices of the ILECs.
With a direct sales force in each of its service areas along with regional
and national sales support, the Company targets medium- and large-sized
telecommunications-intensive businesses in the areas served by its networks.
Compensation for the Company's sales representatives is based primarily on
commissions that are tied to sales generated. The Company's customers include
financial services firms, health care, media, telecommunications services and
high tech companies and various governmental institutions. In addition, the
Company markets its services through sales agents, landlords, advertisements,
trade journals, media relations, direct mail and participation in trade
conferences.
The Company also targets long-distance carriers, ISPs, large, strategic
business accounts and wireless telephone companies through its national sales
organization. The Company has master services agreements (which generally set
forth technical standards, ordering processes, pricing methodologies and service
grade requirements, but do not guarantee any specified level of business for the
Company) with a significant number of the long-distance carriers, including
AT&T, MCI Communications Corporation, Sprint Corporation, WorldCom, Inc. and
LCI, Inc. By providing long-distance companies with a local connection to their
customers, the Company enables them to avoid complete dependence on the ILECs
for access to customers and to obtain a high quality and reliable local
connection. The Company provides a variety of transport services and
arrangements that allow long distance carriers to connect their own switches in
both local areas (intra-city) and in wide areas (inter-city). Additionally, long
distance companies may purchase the Company's transport services that allow them
to connect their switch to an ILEC switch and to end user locations directly.
The Company's advanced networks allow it to offer high volume business customers
and long-distance carriers uniformity of services, pricing, quality standards
and customer service.
CUSTOMER SERVICE
With over 365 expert technicians, customer service representatives and
administrative support staff, the Company provides its customers with continuous
support and superior service. To serve its customers, account representatives
are assigned to the Company's customers to act as effective liaisons with the
Company. Technicians and other support personnel are available in each of the
Company's markets to react to any network failures or problems. In addition, the
NOC provides 24 hour-a-day, 7 days-a-week surveillance and monitoring of
networks to maintain the Company's network reliability and performance. See
' -- Telecommunications Networks and Facilities -- Network Monitoring and
Management.'
COMPETITION
The Company believes that the principal competitive factors affecting its
business are, and will continue to be, (i) the availability of proven support
systems for the Company's back office systems, including provisioning
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and billing, (ii) competition for skilled, experienced personnel, and (iii)
regulatory decisions and policies that promote competition. The Company believes
that it competes favorably with other companies in the industry or is impacted
favorably with respect to each of these factors. The technologies and systems
which provide back office support for the CLEC industry are nascent and may not
keep pace with the growth of order volume, integration with other systems, and
production of required information for systems managers. The best personnel in
all areas of the Company's operations are in demand by the numerous participants
in the highly specialized CLEC industry. While the Company's employee base is
very stable, it is anticipated that others in the industry will continue to
demand high quality personnel and will thus drive pressure to maintain extremely
competitive compensation and benefits packages in addition to an attractive work
environment. Regulatory environments at both the state and Federal level differ
widely and have considerable influence on the Company's market and economic
opportunities and resulting investment decisions. The Company believes it must
continue monitoring regulatory developments and remain active in its
participation in regulatory issues.
Services substantially similar to those offered by the Company are also
offered by the ILECs, which include Ameritech Corporation, Bell Atlantic
Corporation, BellSouth Corporation, SBC Communications Inc. ('SBC') and GTE
Corporation. The Company believes that ILECs generally benefit from their
long-standing relationships with customers, substantial technical and financial
resources greater than those of the Company, have the potential to subsidize
services of the type offered by the Company from service revenues not subject to
effective competition and currently benefit from certain existing regulations
that favor the ILECs over CLECs such as the Company in certain respects. In
addition, in most of the metropolitan areas in which the Company currently
operates, at least one, and sometimes several, other CAPs or CLECs offer
substantially similar services at substantially similar prices to those of the
Company. Other CLECs, CAPs, cable television companies, electric utilities, long
distance carriers, microwave carriers, wireless telephone system operators and
private networks built by large end users currently do, and may in the future,
offer services similar to those offered by the Company.
The Company believes that the 1996 Act will provide increased business
opportunities by opening all local markets to competition and requiring ILECs to
provide increased direct interconnection. However, under the 1996 Act, the FCC
and some state regulatory authorities may provide ILECs with increased
flexibility to reprice their services as competition develops and as ILECs allow
competitors to interconnect to their networks. In addition, some new entrants in
the local market may price certain services to particular customers or for
particular routes below the prices charged by the Company for services to those
customers or for those routes, just as the Company may itself underprice those
new entrants for other services, customers or routes. If the ILECs and other
competitors lower their rates and can sustain significantly lower prices over
time, this may adversely affect revenues of the Company if it is required by
market pressure to price at or below the ILECs' prices. If regulatory decisions
permit the ILECs to charge CAPs/CLECs substantial fees for interconnection to
the ILECs' networks or afford ILECs other regulatory relief, such decisions
could also have a material adverse effect on the Company. However, the Company
believes that the negative effects of the 1996 Act may be more than offset by
(i) the increased revenues available as a result of being able to address the
entire local exchange market, (ii) mutual reciprocal compensation with the ILEC
that results in the Company terminating its local exchange traffic on the ILEC's
network at little or no net cost to the Company, (iii) obtaining access to off-
network customers through more reasonably priced expanded interconnection with
ILEC networks and (iv) a shift by IXCs to purchase access services from
CAPs/CLECs instead of ILECs. There can be no assurance, however, that these
anticipated results will offset completely the effects of increased competition
as a result of the 1996 Act.
Historically, the Company has been able to build new networks and expand
existing networks in a timely and economical manner through strategic
arrangements such as leasing fiber optic cable from TW Cable, which already
possesses rights-of-way and has facilities in place. The Company intends to use
its experience and presence in the telecommunications industry to fully exploit
its available capacity, further develop and expand its existing
telecommunications infrastructure and offer a diversified range of products and
services in competitively priced bundles.
GOVERNMENT REGULATION
Historically, interstate and foreign communication services were subject to
the regulatory jurisdiction of the FCC, and intrastate and local
telecommunications services were subject to regulation by state public service
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commissions. With the enactment of the 1996 Act, competition in all
telecommunications market segments, including interstate and intrastate, local
and long distance, became matters of national policy. As described below, the
respective roles of Federal and state regulators to establish rules and pricing
requirements to implement that policy remain the subject of litigation.
Nonetheless, the Company believes that the national policy fostered by the 1996
Act should contribute to an increase in the market opportunities for the
Company. Because these developments require numerous actions to be implemented
by individual Federal and state regulatory commissions, and are subject to
particular legal, political and economic conditions, it is not possible to
predict the pace at which regulatory liberalization will occur.
Telecommunications Act of 1996
In early 1996, President Clinton signed the 1996 Act, the most
comprehensive reform of the nation's telecommunications laws since the
Communications Act. The 1996 Act prohibits state and local governments from
enforcing any law, rule or legal requirement that prohibits or has the effect of
prohibiting any person from providing any interstate or intrastate
telecommunications service. This provision of the 1996 Act should enable the
Company to provide a full range of local telecommunications services in any
state. States retain jurisdiction under the 1996 Act to adopt competitively
neutral regulations necessary to preserve universal service, protect public
safety and welfare, ensure the continued quality of telecommunications services
and safeguard the rights of consumers. States are also responsible for mediating
and arbitrating CLEC-ILEC interconnection arrangements if voluntary agreements
are not reached. Therefore, the degree of state regulation of local
telecommunications services may be substantial.
The 1996 Act imposes a number of access and interconnection requirements on
all local exchange providers, including CLECs, with additional requirements
imposed on ILECs. The 1996 Act requires CLECs and ILECs to attempt to resolve
interconnection issues through negotiations for at least 135 days. During these
negotiations, the parties may submit disputes to state regulators for mediation
and, after the negotiation period has expired, the parties may submit
outstanding disputes to state regulators for arbitration. As of December 31,
1997, the Company has executed 33 definitive interconnection agreements with
ILECs, covering 18 of its markets. The Company has executed interconnection
agreements with the ILECs in each of its markets in which it offers switched
services and has negotiated, or is negotiating, secondary interconnection
arrangements with carriers whose territories are adjacent to the Company's for
intrastate intraLATA toll traffic and extended area services.
Under the 1996 Act, the FCC was required to establish rules and regulations
to implement the local competition provisions of the 1996 Act within six months
of enactment. In August 1996, the FCC issued two reports and orders. In the
First Report and Order, the FCC promulgated rules to govern interconnection,
resale, unbundled network elements, and the pricing of those facilities and
services, as well as the negotiation and arbitration procedures to be utilized
by states to implement those requirements. In the Second Report and Order, the
FCC adopted rules to govern the dialing parity requirements of the 1996 Act.
In July 1997, the Eighth Circuit Court of Appeals issued a decision in
which it affirmed certain portions of the FCC's rules and vacated others. It
vacated the FCC rules governing the pricing of interconnection, resale, and
unbundled network elements on the basis that the FCC lacks jurisdiction to
establish pricing rules for intrastate service. It also vacated rules allowing
requesting carriers to select from among various provisions of individual
interconnection agreements between ILECs and other carriers, and rules
permitting the combining of network elements. In a subsequent decision, the
court vacated the FCC's dialing parity rules with respect to intraLATA service.
In October 1997, the Eighth Circuit Court of Appeals issued an order on
rehearing in which it vacated one additional FCC rule. The vacated rule
prohibited ILECs from separating network elements that they currently combine,
except upon request. Although the FCC's rules governing the pricing of
interconnection, unbundled network elements, and resale have been vacated by the
Eighth Circuit Court of Appeals, interconnection and arbitration proceedings at
the state level have continued with the states implementing their own pricing
standards.
Several entities, including the United States government, have submitted
petitions for certiorari asking the U.S. Supreme Court to review the orders of
the Eighth Circuit Court of Appeals. Those petitions ask the Supreme Court to
review the Court of Appeals' ruling that the FCC lacks jurisdiction to establish
pricing rules for intrastate services and facilities as well as to establish
dialing parity requirements for intrastate (including most intraLATA) service.
In addition, the petitions ask the Supreme Court to review the Court of Appeals'
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decision to vacate the so-called 'pick and choose' rule established by the FCC.
That rule required LECs to make available to requesting carriers (including the
Company) any provision from any interconnection, unbundled network element or
resale agreement between an ILEC and any requesting carrier approved by a state
commission. Finally, several of the petitions (including that of the U.S.
government) have asked the Supreme Court to review the October 1996 rehearing
order vacating the FCC rule which required ILECs to make available combined
packages of network elements.
On January 26, 1998, the Supreme Court issued an order granting all of the
petitions for certiorari seeking its review of the order of the Eighth Circuit
Court of Appeals. The case will not be heard until autumn 1998, and may not be
decided until 1999. Unless the Supreme Court reverses the rulings of the Eighth
Circuit Court of Appeals, interconnection, resale and unbundled network element
pricing questions will continue to be determined solely by state commissions
based upon each state's own pricing rules and standards. The obligation to
provide dialing parity for intrastate services will remain a requirement of the
1996 Act, although it will be left to the states to establish rules to implement
that requirement. In addition, there will be no Federal obligation for ILECs to
offer combined platforms of network elements, although state commissions may
impose such a requirement. The Company believes that the availability of
combined platforms of network elements could create economic incentives for new
competitors to enter local markets through acquisition of ILEC network element
platforms rather than by investing in their own network facilities as the
Company does.
The 1996 Act provides a detailed list of items which are subject to these
interconnection negotiations, as well as a detailed set of duties for all
affected carriers. All local exchange carriers, including CLECs, have a duty to
(i) not unreasonably limit the resale of their services, (ii) provide number
portability if technically feasible, (iii) provide dialing parity to competing
providers, (iv) provide access to poles, ducts and conduits and (v) establish
reciprocal compensation arrangements for the transport and termination of
telecommunications.
Under the 1996 Act and rules established by the FCC in 1996 (and modified
on reconsideration in 1997), LECs, including the Company, are required to make
available number portability. Number portability refers to the ability of users
of telecommunications services to retain, at the same location, existing
telecommunications numbers without impairment of quality, reliability, or
convenience when switching from one telecommunications carrier to another. Under
the schedule for number portability implementation established by the FCC, LECs
are required to implement number portability in the 100 largest Metropolitan
Statistical Areas ('MSAs') over a 5-phase period which begins on October 1, 1997
and concludes December 31, 1998. Thereafter, in areas outside the 100 largest
MSAs, LECs are required to make available number portability within 6 months of
receipt of a specific request from another telecommunications carrier.
The 1996 Act and the FCC's rules also require LECs to implement dialing
parity. Dialing parity refers to the ability of a person that is not an
affiliate of a LEC to be able to provide telecommunications services in such a
manner that customers have the ability to route automatically without the use of
any access code, their telecommunications to the telecommunications service
provider of the customer's designation from among 2 or more telecommunications
service providers (including such LEC). Under rules promulgated by the FCC in
1996, all LECs, including the Company, are required to provide intraLATA and
interLATA dialing parity not later than February 8, 1999. However, if a LEC also
provides interLATA service as the Company does, that LEC was required to provide
dialing parity by August 8, 1997. LECs unable to comply with that August 8, 1997
deadline were required to have notified the FCC by May 8, 1997. As indicated
above, the Eighth Circuit Court of Appeals has vacated the FCC's dialing parity
rules with respect to intraLATA dialing.
In addition to those general duties of all LECs, ILECs have additional
duties to (i) interconnect at any technically feasible point and provide service
equal in quality to that provided to their customers or the ILEC itself, (ii)
provide unbundled access to network elements at any technically feasible point,
(iii) offer retail services at wholesale prices for the use of competitors, (iv)
provide reasonable public notice of changes in the network or the information
necessary to use the network and (v) provide for physical collocation. The 1996
Act further imposes various pricing guidelines for the provision of certain of
these services. Both the ILECs and the requesting carriers have a statutory duty
to negotiate in good faith regarding these arrangements, and the RBOCs, in
particular, must successfully achieve agreements, leading to the development of
facilities based competition for business and residential users, in order to
enter the long distance markets within their regions. The Company has
successfully concluded agreements governing interconnection arrangements in all
of the states in which it holds CLEC authority. A number of the Company's
competitors are arbitrating issues governing interconnection. The Company's
agreements may be replaced by arrangements which will reflect the
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outcome of arbitration and utility commission proceedings concerning pricing and
other terms of interconnection. The Company cannot predict the outcome of such
arbitration and utility commission proceedings.
As noted above, the Company, in those states in which it is a CLEC, is
subject to five obligations under the 1996 Act. Specifically, the Company must
(i) not unreasonably limit the resale of its services, (ii) provide number
portability if technically feasible, (iii) provide dialing parity to competing
providers, (iv) provide access to poles, ducts and conduits owned by it and (v)
establish reciprocal compensation arrangements for the transport and termination
of telecommunications. The Company does not restrict the resale of its services,
engages in reciprocal compensation arrangements, and provides dialing parity,
satisfying three of the five requirements. The Company generally licenses poles,
ducts and conduits, and therefore owns few such rights-of-way subject to the
requirement to make them available to other carriers. Finally, the Company now
provides interim number portability and is prepared to provide full number
portability in 1998, in compliance with FCC requirements.
The 1996 Act establishes procedures under which BOCs may apply to the FCC
for authority to provide interLATA service from states within their operating
regions. A BOC seeking in-region interLATA authority must demonstrate that it is
subject to competition from a competitor in the state with whom it has entered
into an interconnection agreement and which is providing service to business and
residential customers within the state exclusively or predominantly over its own
facilities. Alternatively, the BOC may seek in-region interLATA authority if no
provider has requested access and interconnection, and the BOC has in place a
state commission-approved statement of generally available terms and conditions
for access and interconnection which is available to competitors. Further,
access and interconnection agreements must comply with each point of a 14 point
competitive checklist. To date, four applications by BOCs for in-region
interLATA authority have been filed with the FCC. An application filed by SBC
for authority in Oklahoma was denied by the FCC in June 1997. In March of 1998,
SBC's appeal was denied. In addition, in a decision that is currently being
appealed, SBC recently prevailed in a civil lawsuit in U.S. District Court that
challenged the constitutionality of the provisions of the 1996 Act governing BOC
entry into the long distance market. Ameritech applied for authority to provide
interLATA service in Michigan. That application has been denied. The Company
anticipates that the RBOCs will eventually comply with the competitive
checklists and that their applications to provide interLATA service will
ultimately be approved. BellSouth applied for authority to provide in-region,
interLATA services in both Louisiana and South Carolina. Those applications were
denied and are currently being appealed.
If the BOCs become authorized to provide in-region interLATA service, they
will be able to offer customers a full range of local and long distance
services. BOC entry into the interLATA services markets may reduce the market
shares held by major IXCs, which are among the Company's largest customers.
However, the Company believes that BOC entry into the interLATA market will
encourage IXCs to increase their use of exchange access services offered by the
Company and by other CLECs rather than the exchange access services of the BOCs.
When BOCs provide long distance services outside their local telephone service
areas, they will be potential customers of the Company's services as well as
services of other CLECs and CAPs.
The 1996 Act obligates the FCC to establish mechanisms for ensuring that
consumers, including low income consumers and those located in rural, insular
and high cost areas, have access to telecommunications and information services
at rates reasonably comparable to those charged for similar services in urban
areas. The 1996 Act also requires the FCC to establish funding mechanisms to
make available access to telecommunications services, including advanced
services, to schools, libraries and rural health care centers. These
requirements are generally referred to as the universal service requirements of
the 1996 Act. In May 1997, the FCC adopted rules to implement the universal
service requirements. Under those rules, all telecommunications carriers,
including the Company, are required to contribute to support universal service.
If the Company offers to provide local exchange service to all customers within
certain geographic areas, it may be deemed to be an 'Eligible Carrier' and
therefore entitled to subsidy funds under the program established by the FCC.
Certain aspects of universal service, including the formulas to be used to
quantify local service costs remain under study by the FCC.
FEDERAL REGULATION
Through a series of regulatory proceedings, the FCC has established
different levels of regulation for 'dominant carriers' and 'nondominant
carriers.' For domestic interstate telecommunications purposes, the
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ILECs are generally classified as dominant carriers, and all other carriers,
including the Company and other CLECs are classified as nondominant carriers. As
a nondominant carrier, the Company has been required to file tariffs and
periodic reports with the FCC concerning the Company's interstate circuits and
deployment of network facilities. The FCC has proposed eliminating this
reporting requirement for IXCs, and the Company and another CAP have filed
petitions with the FCC asking that it permit CAPs to dispense with filing of FCC
tariffs, at the option of the carrier. On June 19, 1997, the FCC issued a
memorandum opinion and order granting the Company's petition that the FCC
forbear from requiring it and other nonincumbent LECs to file tariffs for their
interstate access services. Thus, the Company now provides interstate access
service to customers pursuant to contracts. This will improve the Company's
flexibility in implementing changes to its interstate access service prices in
response to competition and will reduce the Company's regulatory compliance
costs. Tariffs must still be filed with respect to other interstate services,
such as long distance services.
The FCC's action does not, however, impact the Company's state public
utility commission tariff requirements. Whether or not the Company is subject to
a tariff filing requirement, the Company must offer its interstate services on a
nondiscriminatory basis, at just and reasonable rates, and it is subject to the
complaint provisions of the Communications Act. For its current offering of
interstate services as a nondominant carrier, the Company is not subject to rate
of return or price cap regulation by the FCC and may install and operate digital
facilities for the transmission of interstate communications without prior FCC
authorization. Pursuant to the 1996 Act, the Company will become subject to
additional Federal regulatory obligations when it provides local exchange
service in a market, such as the access and interconnection requirements that
are imposed on all local exchange providers. See ' -- Telecommunications Act of
1996.'
STATE REGULATION
The Company has acquired all state government authority needed to conduct
its business as currently contemplated to be conducted. Most state public
service commissions require carriers that wish to provide local and other
jurisdictionally intrastate common carrier services to be authorized to provide
such services. The Company's operating subsidiaries and affiliates are
authorized as common carriers in ten states. This certification covers the
provision of switched services including local basic exchange service, point to
point private line, competitive access services, and in five states long
distance services. The certification process has become fairly routine since the
passage of the 1996 Act.
LOCAL GOVERNMENT AUTHORIZATIONS
The Company may be required to obtain from municipal authorities street
opening and construction permits and other rights and other rights-of-way to
install and expand its networks in certain cities. In some cities, the Company's
affiliates or subcontractors may already possess the requisite authorizations to
construct or expand the Company's networks.
In some of the metropolitan areas where the Company provides network
services, the Company pays license or franchise fees based on a percent of gross
revenues. There can be no assurance that municipalities that do not currently
impose fees will not seek to impose fees in the future, nor is there any
assurance that, following the expiration of existing franchises, fees will
remain at their current levels. Under the 1996 Act, municipalities are required
to impose such fees on a competitively neutral and nondiscriminatory basis.
There can be no assurance, however, that municipalities that currently favor the
ILECs will conform their practices in a timely manner or without legal
challenges by the Company or another CAP or CLEC.
If any of the Company's existing franchise or license agreements for a
particular metropolitan area were terminated prior to its expiration date and
the Company were forced to remove its fiber optic cables from the streets or
abandon its network in place, even with compensation, such termination could
have a material adverse effect on the Company's operation in that metropolitan
area and could have a material adverse effect on the Company.
The Company is party to various regulatory and administrative proceedings,
however, subject to the discussion above, the Company does not believe that any
such proceedings will have a material adverse effect on its business.
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COMPANY NAME
The use of the 'Time Warner' name by the Company is subject to a certain
license agreement with TW. See 'Risk Factors -- Discontinuance of Use of `Time
Warner' Name' and 'Certain Relationships and Related Transactions -- Certain
Operating Agreements.'
EMPLOYEES
As of March 31, 1998, the Company employed approximately 739 full-time
employees, none of whom are represented by a union or covered by a collective
bargaining agreement. The Company believes that its relations with its employees
are good. In connection with the construction and maintenance of its networks
and the conduct of its other business operations, the Company uses third party
contractors, some of whose employees may be represented by unions or collective
bargaining agreements. The Company believes that its success will depend in part
on its ability to attract and retain highly qualified employees and maintain
good working relations with its current employees.
PROPERTIES
The Company leases network hub sites and other facility locations and sales
and administrative offices, substantially all of which are leased from TW Cable,
in each of the cities in which it operates networks. During 1996 and 1997,
rental expense for the Company's facilities and offices totaled approximately
$3.9 million and $4.7 million, respectively. The Company owns no material real
estate. Management believes that its properties, taken as a whole, are in good
operating condition and are suitable and adequate for the Company's business
operations. The Company currently leases approximately 130,000 square feet of
space in Greenwood Village, Colorado, where its corporate headquarters are
located.
LEGAL PROCEEDINGS
The Company is a party to various claims and legal and regulatory
proceedings arising in the ordinary course of business. The Company does not
believe that such claims or proceedings, individually or in the aggregate, will
have a material adverse effect on the Company's business, financial condition or
results of operations.
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MANAGEMENT
REPRESENTATIVES, EXECUTIVE OFFICERS AND KEY EMPLOYEES
The following table sets forth certain information (as of July 14, 1998)
with respect to the persons who are Representatives on the Management Committee,
executive officers or key employees of the Company (each of such officers holds
a similar position at TWT and Messrs. Bressler, Miron and Williams are the
directors of TWT):
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------------------ --- ----------------------------------------------------------------------
<S> <C> <C>
Larissa L. Herda.................... 40 President and Chief Executive Officer and Representative(1)
Paul B. Jones....................... 50 Senior Vice President, Legal and Regulatory
A. Graham Powers.................... 51 Senior Vice President, Engineering and Technology
David J. Rayner..................... 41 Senior Vice President and Chief Financial Officer
John T. Blount...................... 39 Senior Vice President, Sales
Raymond H. Whinery.................. 43 Senior Vice President, Technical Operations
Julie A. Rich....................... 44 Vice President, Human Resources and Business Administration
Richard J. Bressler................. 40 Representative
Glenn A. Britt...................... 49 Representative
Stephen A. McPhie(1)................ 43 Representative
Robert J. Miron..................... 61 Representative
Carl U.J. Rossetti.................. 49 Representative
Audley M. Webster, Jr............... 45 Representative
Pearre A. Williams.................. 43 Representative
</TABLE>
- ------------
(1) Prior to June 22, 1998, Stephen A. McPhie served as President and Chief
Executive Officer of the Company. He resigned his position on that date to
accept a position with MediaOne.
Ms. Herda has served as President and Chief Executive Officer of the
Company since June 22, 1998 and as a Representative of the Company since July
1998. From March 1997 to June 21, 1998, Ms. Herda served as Senior Vice
President, Sales of the Company. From 1989 to 1997, Ms. Herda was employed by
MFS Telecom Inc., a CLEC, most recently as Southeast Regional Vice President and
General Manager.
Mr. Jones has served as Senior Vice President, Legal and Regulatory of the
Company since October 1993. From 1992 to 1993, Mr. Jones served as Senior Vice
President, Corporate Development of Time Warner Cable Ventures. Mr. Jones was
Senior Vice President and General Counsel of Warner Cable from 1987 to 1992 and
Vice President, Strategy and Development of CBS Publishing Group from 1985 to
1986. From 1977 to 1979, Mr. Jones was the Assistant General Counsel for the
FCC.
Mr. Powers has served as Senior Vice President, Engineering and Technology
of the Company since June 1996. From August 1993 to May 1996, Mr. Powers served
as Senior Vice President, Operations Development and Business Implementation.
Prior to joining the Company, Mr. Powers was the President of Telecommunications
Strategy Inc., a technology consulting service, from May 1992 to July 1993 and
previously held various management positions at American Television and
Communications Corporation, a subsidiary of Time Warner Inc.
Mr. Rayner has served as Senior Vice President and Chief Financial Officer
of the Company since June 1998. From February 1997 to May 1998, Mr. Rayner
served as Vice President, Finance. From May 1994 to February 1997, Mr. Rayner
served as Controller. From 1982 to 1994, Mr. Rayner held various financial and
operational management positions in TW Cable.
Mr. Blount has served as Senior Vice President, Sales of the Company since
June 24, 1998. Prior to that, Mr. Blount served as the Company's Regional Vice
President for the Midwest and Southwest regions from January 1997 and
Milwaukee's Vice President and General Manager from January 1996 to January
1997, having served as its General Manager from February 1995. Prior to joining
the Company, Mr. Blount held various sales positions at US WEST starting in
1988, including Director of Sales for US WEST !nterprise in Minneapolis
from May 1994 to February 1995 and Sales and Service Manager for South Dakota
from January 1992 to May 1994.
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Mr. Whinery has served as Senior Vice President, Technical Operations of
the Company since January 1997. From May 1994 to January 1997, Mr. Whinery
served as the Senior Director of Engineering and Planning. Prior to May 1994,
Mr. Whinery was employed by U S WEST, Inc. (the predecessor of MediaOne) from
1978 and served as General Manager for Idaho, Montana, North Dakota and South
Dakota from 1992 to 1994.
Ms. Rich has served as Vice President, Human Resources and Business
Administration of the Company since March 1998. From June 1996 to February 1998,
she owned an independent human resources consulting practice. From 1984 to 1996
she was a founder of XEL Communications, Inc., a telecommunications
manufacturer, and held positions of Director and Vice President of Human
Resources.
Mr. Bressler has served as a Representative of the Company since June 1998
and as a director of TWT since February 1998 and as Executive Vice President and
Chief Financial Officer of Time Warner Inc. since January 1998. Prior to that,
he served as Time Warner Inc.'s Senior Vice President and Chief Financial
Officer from March 1995; as Senior Vice President, Finance from January 1995;
and as a Vice President prior to that. Mr. Bressler is also a member of the
Board of Representatives of TWE.
Mr. Britt has served as a Representative of the Company since July 1998, as
Vice President of the Company and TWT since July 1998 and as Chief Executive
Officer and President of Time Warner Cable Ventures, a division of TW Cable, for
more than the past five years.
Mr. McPhie has served as a Representative of the Company since July 1998
and has recently accepted a position as an officer of MediaOne. From January
1997 to June 1998, Mr. McPhie served as President and Chief Executive Officer of
the Company. Prior to that, Mr. McPhie was Vice President of Business
Development at U S WEST, Inc. (the predecessor of MediaOne) from November 1995.
From 1993 to 1995, Mr. McPhie served as Senior Vice President of MFS Network
Technologies, a CLEC, and from 1989 to 1993, he was the President of Mission
Group, a telecommunications consultancy.
Mr. Miron has served as a Representative of the Company and as a director
of TWT since July 1998 and as President of Advance/Newhouse Communications since
April 1995, having served as President of Newhouse Broadcasting Corporation from
October 1986.
Mr. Rossetti has served as a Representative of the Company since July 1998
and as a Senior Vice President -- Corporate Development of TW Cable since 1992.
Mr. Webster has served as a Representative of the Company since July 1998
and as Vice President -- Shared Corporate Resources of MediaOne since December
1997. Prior to December 1997, he was Vice President -- Corporate Strategy of
MediaOne from December 1996. Prior to that, Mr. Webster served as Executive
Director of US WEST since February 1993.
Mr. Williams has served as a Representative of the Company and as a
director of TWT since July 1998, as Vice President of MediaOne and as President
of Multimedia Ventures of MediaOne since July 1997. Prior to July 1997, Mr.
Williams served as Vice President, Business Development of MediaOne from June
1995 and as Vice President, Corporate Development of U S WEST, Inc. prior to
that. Mr. Williams is also a member of the Board of Representatives of TWE.
MANAGEMENT COMMITTEE COMPOSITION
Representatives are appointed by the Members. The LLC Agreement provides
that the Management Committee will consist of 10 Representatives as follows: (i)
up to seven Representatives appointed by the Members, (ii) the Chief Executive
Officer of the Company (the 'CEO') and (iii) two Representatives who are neither
employed by nor affiliated with the Company or any Member and who are appointed
by a subcommittee comprised of the Representatives other than the CEO and the
independent Representatives. The independent Representatives are expected to be
nominated within a reasonable time after the Reorganization. See 'Certain
Relationships and Related Transactions -- LLC Agreement.'
COMPENSATION OF REPRESENTATIVES
Representatives who are employees of the Company or of any of the Members
or their affiliates will not be entitled to any fee, remuneration, compensation
or expense reimbursement in connection with their service as Representatives. It
is currently anticipated that each Representative who is not affiliated with the
Company or
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any of the holders of Class B Interests will be entitled to receive an annual
retainer of $25,000 (expected to be paid 50% in cash and 50% in Class A
Interests) and an additional $1,000 plus reasonable expenses for attending
each meeting of the Management Committee.
EFFECT OF THE RECONSTITUTION
Pursuant to the Stockholders Agreement to be entered into by the Existing
Stockholders in connection with the Reconstitution, the following provisions
regarding the Board of Directors will be applicable to the Company. There can be
no assurance that the Reconstitution will be effected.
BOARD COMPOSITION
Following the Reconstitution, directors will be elected annually. The
Stockholders Agreement provides that the Board of Directors will consist of up
to 10 directors and that at each annual meeting of the Company's stockholders at
which directors are elected, the holders of the Class B Common Stock will vote
their shares in favor of the following nominees: (i) up to seven nominees
selected by the holders of Class B Common Stock, (ii) the CEO and (iii) two
nominees who are neither employed by nor affiliated with the Company or any
holder of Class B Common Stock and who are selected by a committee comprised of
the members of the Board of Directors other than the CEO and the independent
directors. See 'Certain Relationships and Related Transactions -- Stockholders
Agreement.'
The holders of the Class A Common Stock will not have the right, as a
class, under the Company's Certificate of Incorporation or the Stockholders
Agreement to nominate any individuals for election to the Board of Directors.
COMMITTEES OF BOARD OF DIRECTORS
The Board of Directors will have two committees: (i) an Audit Committee and
(ii) a Compensation Committee.
The Audit Committee will be comprised of a majority of independent
directors. The Audit Committee reviews and recommends to the Board, as it deems
necessary, the internal accounting and financial controls for the Company and
the accounting principles and auditing practices and procedures to be employed
in preparation and review of financial statements of the Company. The Audit
Committee makes recommendations to the Board concerning the engagement of
independent public accountants and the scope of the audit to be undertaken by
such accountants. Ernst & Young LLP presently serves as the independent auditors
of the Company.
The Compensation Committee will be comprised solely of independent
directors. The Compensation Committee reviews and, as it deems appropriate,
recommends to the Board policies, practices and procedures relating to the
compensation of the officers and other managerial employees and the
establishment and administration of employee benefit plans. The Compensation
Committee will have such additional powers and be granted additional authority
as may be conferred upon it from time to time by the Board.
Compensation of Directors
Directors who are employees of the Company or of any of the holders of
Class B Common Stock or their affiliates will receive no compensation for their
services as directors. It is currently anticipated that each director who is not
affiliated with the Company or any of the holders of Class B Common Stock will
be entitled to receive an annual retainer of $25,000 (expected to be paid 50% in
cash and 50% in Class A Common Stock) and an additional $1,000 plus reasonable
expenses for attending each meeting of the Board of Directors. Each such
director will also be entitled to be paid $1,000 annually for each committee of
the Board of Directors for which such director serves as chairman.
COMPENSATION OF EXECUTIVE OFFICERS
The following table sets forth information concerning total compensation
paid to the Company's Chief Executive Officer and each of its four remaining
most highly compensated current executive officers (the
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'named executive officers') for services rendered to the Company during 1998
in their capacities as executive officers.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
------------------------
AWARDS(2)
----------
ANNUAL SECURITIES PAYOUTS
COMPENSATION UNDERLYING ----------
------------ OPTIONS LTIP ALL OTHER
NAME & PRINCIPAL POSITION SALARY(1) AWARDED(2) PAYOUTS(3) COMPENSATION(4)
- -------------------------------------------------------- ------------ ---------- ---------- ---------------
<S> <C> <C> <C> <C>
Larissa L. Herda(5) .................................... $300,000 3,800 $ -- $ --
President and Chief Executive Officer
Paul B. Jones .......................................... $259,242 8,350 $ 150,000 $ --
Senior Vice President,
Legal & Regulatory
A. Graham Powers ....................................... $175,497 3,800 $ 67,500 $ 1,620
Senior Vice President,
Engineering & Technology
David J. Rayner ........................................ $171,000 3,800 $ -- $ 1,200
Senior Vice President and Chief
Financial Officer
John T. Blount ......................................... $170,500 -- $ -- $ 1,643
Senior Vice President, Sales
- ------------
Stephen A. McPhie(5) ................................... $234,000 -- $ -- $ --
Former President and Chief Executive Officer
</TABLE>
- ------------
(1) The information provided under the heading 'Salary' is the current annual
salary prior to the Reorganization. Once the Reorganization is completed,
the named executive officers (except for Mr. McPhie, see note 5) will
receive these annual salaries pursuant to their employment agreements with
the Company. These employment agreements also provide for an annual bonus
target of 50% of each executive's annual salary. See 'Employment
Agreements.' In accordance with rules of the Securities and Exchange
Commission ('SEC'), amounts of personal benefits totalling less than 10% of
the total annual salary and bonus reported in the Table have been omitted.
(2) All of these options are exercisable for the common stock of Time Warner
Inc. ('TW common stock'). None of these options was awarded with tandem
stock appreciation rights. For information regarding awards of options
exercisable for Class A Interests, see ' -- LLC Option Plan.' For
information regarding stock options with respect to Class A Common Stock
that may be granted in connection with an Initial Public Offering, see
' -- Effect of the Reconstitution.' Mr. McPhie holds 12,450 restricted
shares of common stock of MediaOne awarded in February 1997 by U S WEST,
11,200 of which will vest on February 6, 1999 and 1,250 of which will vest
on February 21, 1999. No dividends are paid on such shares of MediaOne
common stock. The value of these restricted shares based on the closing
price of MediaOne common stock on the New York Stock Exchange Composite
Listing on May 29, 1998 was $461,428. None of the other named executive
officers was awarded restricted stock of MediaOne, Time Warner Inc. or the
Company during 1998 or holds any such shares.
(3) These payouts were made in 1998 to participants in the TW Cable Long-Term
Cash-Flow Incentive Plan for the 1994 to 1997 four-year cycle.
(4) The amounts shown in this column include the following:
(a) Pursuant to the TWC Savings Plan (the 'Savings Plan'), a defined
contribution plan available generally to employees of the Company, each
executive named above, if eligible, may defer a portion of his or her annual
compensation and the Company contributes an additional two-thirds of that
contribution so deferred by the executive ('Matching Contribution'). These
Matching Contributions were invested under the
(footnotes continued on next page)
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(footnotes continued from previous page)
Savings Plan. The amount contributed on behalf of each named executive
officer for 1998, through April 30, 1998, is disclosed under the heading
'All Other Compensation.'
(b) The Company maintains a program of life and disability insurance
generally available to all salaried employees on the same basis. For 1998,
prior to the Reorganization, group term life insurance was reduced to
$50,000 for Mr. Jones, who is given an annual cash payment equal to the cost
of replacing coverage amounting to three times base salary and annual bonus
less $50,000.
(5) Ms. Herda became President and Chief Executive Officer of the Company on
June 22, 1998 upon the resignation of Mr. McPhie who accepted a position
with MediaOne. Prior to June 22, 1998, Ms. Herda served as the Senior Vice
President, Sales.
LLC OPTION PLAN
The Company intends to adopt an option plan (the 'LLC Option Plan') that
provides for the granting of options to purchase Class A Interests to
Representatives and employees of the Company and its subsidiaries. The Company
believes that such options will be an important part of the compensation of the
Company's key employees. The LLC Option Plan is expected to provide for the
granting of options to purchase Class A Interests having a maximum aggregate
participation percentage of approximately 10%. It is anticipated that the LLC
Option Plan would provide that the purchase price of the Class A Interests
covered by each option granted thereunder will not be less than the fair market
value determined by the Management Committee based upon an appraisal procedure,
and would provide the recipient with liquidity through a repurchase of the Class
A Interests acquired thereunder by the Company under certain specified
circumstances. In connection with the Reconstitution, any such options would
automatically be converted into options to purchase shares of Class A Common
Stock pursuant to the Corporate Option Plan (as defined below), which is
described below.
Any awards under the LLC Option Plan will be determined by the Management
Committee in its discretion. It is not possible to predict the awards that will
be made to particular officers in the future under the LLC Option Plan, except
that in connection with the consummation of the Offering, it is expected that
Ms. Herda and Messrs. Jones, Powers, Rayner and Blount will be awarded options
with respect to Class A Interests having participation percentages that
aggregate approximately 1.1%. These awards will become exercisable in
installments over four years following the date of grant (subject to
acceleration upon the occurrence of certain events) and will expire ten years
from the date of the grant.
EFFECT OF THE RECONSTITUTION
Following the Reconstitution, the Company expects to adopt the Time Warner
Telecom Inc. Stock Option Plan (the 'Corporate Option Plan') which will provide
for the granting of stock options to purchase shares of Class A Common Stock to
directors and employees of the Company and its subsidiaries. The Company
believes that the stock options to be granted under the Corporate Option Plan
will be an important part of the compensation of the Company's key employees.
There can be no assurance that the Reconstitution will be effected.
Corporate Option Plan
Stock Subject to the Plan
The Corporate Option Plan is expected to provide for the granting of
options ('Options') to purchase a maximum of approximately 10% of the Class A
Common Stock expected to be outstanding (the 'Awards'). The shares of Class A
Common Stock issued under the Corporate Option Plan may be either authorized and
unissued shares or issued shares held in treasury, or both. The Company will
reserve the number of shares necessary to satisfy the maximum number of shares
that may be issued under the Corporate Option Plan. The Class A Common Stock
underlying any Option that expires, terminates or is canceled for any reason
without being exercised will again become available for Awards under the
Corporate Option Plan. Cash payments received by the Company upon the exercise
of Options will be used for general corporate purposes.
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Administration and Eligibility
The Board of Directors is expected to delegate authority to administer the
Corporate Option Plan to its Compensation Committee (the 'Committee'). Members
of the Committee are expected to be 'non-employee directors' within the meaning
of the SEC Rule 16b-3 and 'outside directors' within the meaning of Section
162(m) of the Internal Revenue Code of 1986, as amended (the 'Code').
Awards may be made to employees and directors whether or not they
participate or are entitled to participate in any other option, restricted stock
or other compensation plan of the Company. A maximum number of shares that may
be awarded to any one person will be established. The exercise of Options
granted to a prospective employee will be conditioned upon such person becoming
an employee of the Company or one of its subsidiaries.
Except as expressly provided by the Corporate Option Plan, the Board of
Directors, or to the extent delegated to the Committee, the Committee will have
the plenary authority in its discretion, to grant Awards under the Corporate
Option Plan and to determine the terms and conditions (which need not be
identical) of such Awards, including without limitation, (a) the employees and
directors to whom, and the time or times at which, Awards will be granted, (b)
the number of Awards to be granted, (c) whether an Option will be an incentive
stock option, within the meaning of Section 422A of the Code ('ISO') or a
nonqualified stock option ('NSO'), (d) the exercise price of any such Award, (e)
when an Option can be exercised and whether in whole or in installments, and (f)
the form, terms and provisions of any agreement in which Awards of Options are
made (an 'Award Agreement').
Options
Purchase Price. Subject to the limitations set forth below, the purchase
price of the shares of Class A Common Stock covered by each Option will be
determined by the Board of Directors or, to the extent delegated to the
Committee, the Committee on the date of grant. The purchase price of the shares
of Class A Common Stock covered by each Option will not be less than the fair
market value of the Class A Common Stock on the date of grant of such Option. In
addition, an ISO may not be granted to any person who owns stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company unless the purchase price is at least 110% of the fair market value of
the Class A Common Stock at the time the ISO is granted and the ISO is not
exercisable after the expiration of five years from the date it is granted.
Term and Exercise. The duration of each Option will be for a period of up
to ten years as the Board of Directors or, to the extent delegated to the
Committee, the Committee determines at the time of grant and may be exercised in
whole or in part any time or only after a period of time or in installments, as
determined by the Board of Directors or Committee at the time of grant, or by
the Board of Directors' or Committee's subsequent acceleration. Under the terms
of the Corporate Option Plan, Options become immediately exercisable in full if
the optionee's employment terminates by reason of death or total disability.
The Board of Directors or, to the extent delegated to the Committee, the
Committee will establish Option exercise procedures. Payments may be made in
cash or, unless otherwise determined by the Board of Directors or Committee, in
shares of Class A Common Stock already owned by the optionee or partly in cash
and partly in such Common Stock.
Options may be exercised after termination of employment only to the extent
provided in the Award Agreement; provided, however, that (i) if employment
terminates by reason of death or total disability, Options will remain
exercisable for a period of at least one year after such termination (but not
later than the scheduled expiration of such Options) and (ii) if employment
terminates for cause, then all such Options will terminate immediately.
Transferability. To the extent permitted by the Award Agreement, Options
will be transferable by gift to members of a holder's immediate family. Options
will also be transferable to a designated beneficiary or by will or the laws of
descent and distribution upon the death of the holder.
Acceleration of Options
Unless otherwise provided in the Award Agreement, each Award will vest upon
the occurrence of any of the following change-of-control transactions: (i) the
Board of Directors (or stockholders if required) approves a consolidation or
merger in which the Company is not the surviving corporation, the sale of all or
substantially
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all of the assets of the Company, or the liquidation or dissolution of the
Company or (ii) (a) the Existing Stockholders as a group cease to have the
ability to elect a majority of the members of the Board of Directors (other
than the chief executive officer of the Company and independent directors;
provided that independent directors shall be included in calculating
whether the foregoing majority requirement is satisfied if the directors
nominated by the Existing Stockholders do not constitute a majority of the
committee that selects the Board of Directors' nominees for independent
directors) and (b) a 'person' or 'group' (within the meaning of Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the 'Exchange
Act')) (other than the Existing Stockholders) has become the ultimate
'beneficial owner' (as defined in Rule 13d-3 under the Exchange Act) of more
than 35% of the total voting power of the Company's securities, on a fully
diluted basis, and such ownership represents a greater percentage of the total
voting power of the Company's securities, on a fully diluted basis, than is held
by the Existing Stockholders as a group on such date.
Under Section 4999 of the Code, an optionee may be required to pay an
excise tax on certain cash or stock received in connection with the optionee's
termination of employment following any such change-of-control transaction, and,
under Section 280G of the Code, the Company, may not be entitled to a deduction
for Federal income tax purposes for certain of such cash or stock paid to an
optionee. However, the Corporate Option Plan provides that Award Agreements may
contain provisions relating to the applicability of the penalty provisions of
Section 4999 of the Code to any such cash or stock received by an optionee.
Additional Provisions
Change in Capitalization. In the event of stock split, stock dividend,
recapitalization, merger, consolidation or other similar transaction which
affects the character or amount of the outstanding shares of Class A Common
Stock, the Board of Directors or, to the extent delegated to the Committee, the
Committee will equitably adjust the purchase price of each Award and the number
of shares subject to each such Award, and the number of shares for which Awards
may be granted under the Corporate Option Plan will be appropriately adjusted.
Other. The obligations of the Company with respect to Awards granted under
the Corporate Option Plan are subject to all applicable laws. Unless otherwise
provided by the Board of Directors or, to the extent delegated to the Committee,
the Committee, the payment of withholding taxes due in respect of an Award under
the Corporate Option Plan may be made with shares of Class A Common Stock.
Amendment and Termination
No Awards may be granted under the Corporate Option Plan on or after the
tenth anniversary of an Initial Public Offering. The Board of Directors may
terminate or amend the Corporate Option Plan at any time, provided that the
Board of Directors must comply with all applicable laws, applicable stock
exchange listing requirements and applicable requirements for the Corporate
Option Plan to qualify as 'performance based' under Section 162(m) of the Code.
Termination or amendment of the Corporate Option Plan or any outstanding Award
may not adversely affect the rights of any holder without his or her consent.
EMPLOYMENT AGREEMENTS
The Company is a party to employment agreements with the named executive
officers (except for Mr. McPhie) of the Company. These agreements have been
filed as exhibits to the Registration Statement of which this Prospectus forms a
part.
Among other things, the agreements with the Company's named executive
officers provide for: a three-year term of employment in a specified executive
post, commencing on the date of the Reorganization; an annual salary; an annual
bonus in the discretion of the Company, generally targeted at 50% of the named
executive officer's salary; and participation in any pension, profit-sharing,
employee equity ownership, vacation, insurance, hospitalization, medical,
health, disability and other employee benefit or welfare plan, program or policy
whether now existing or established hereafter, to the extent that employees at
such executive's level are generally deemed eligible under the general
provisions thereof. The minimum annual salaries under these agreements are
$300,000 for Ms. Herda; $259,000 for Mr. Jones; $175,497 for Mr. Powers;
$171,000 for Mr. Rayner; and $170,500 for Mr. Blount.
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Generally, such agreements include a narrow definition of the 'cause' for
which an executive's employment may be terminated and in that event, the
executive will only receive earned and unpaid base salary accrued through such
date of termination.
These agreements typically provide that in the event of the Company's
material breach or termination of the executive's employment during the term of
employment without cause, the executive will be entitled to elect either (a) to
receive a lump-sum payment equal to the present value of the base salary and
annual bonus otherwise payable during the remaining portion of the executive's
term of employment, provided that such amount shall not be less than the sum of
such salary and bonus prorated for an 18-month period or (b) to remain an
employee of the Company for up to 18 months and, without performing any
services, receive the base salary and annual bonus otherwise payable, with a
lump-sum payment, if necessary for any remaining payment, at the end of such 18
months. Executives are not generally required to mitigate damages after such a
termination, other than as necessary to prevent the Company from losing any tax
deductions to which it otherwise would have been entitled for any payments
deemed to be 'contingent on a change' under the Code.
If an executive becomes disabled during the term of his or her employment
agreement, the executive typically will receive 75% of the executive's then
current salary and his or her applicable target annual bonus amount prorated for
an 18-month period. Any such payments will be reduced by amounts received from
Worker's Compensation, Social Security and disability insurance policies
maintained by the Company.
If an executive dies during the term of an employment agreement, generally
the executive's beneficiaries will receive the executive's earned and unpaid
salary to the date thirty days after the date of death and a pro rata portion of
the executive's bonus for the year of his death.
STOCK OPTIONS AWARDED BY THE MEMBERS DURING 1998
The following table sets forth certain information with respect to employee
options to purchase shares of TW common stock ('TW Options') awarded by TW
during 1998 (through May 31, 1998) to the named executive officers. All such TW
options were nonqualified options and no stock appreciation rights ('SARs'),
alone or in tandem with stock options, were awarded during 1998. No options to
purchase MediaOne common stock were awarded to the named executive officers
during 1998.
STOCK OPTION GRANTS DURING 1998 BY THE MEMBERS
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS (1)
--------------------------------------------------
PERCENT OF
TOTAL POTENTIAL REALIZABLE VALUE
NUMBER OF OPTIONS AT ASSUMED ANNUAL RATES OF
SECURITIES GRANTED TO EXERCISE STOCK PRICE APPRECIATION FOR
UNDERLYING EMPLOYEES OR BASE OPTION TERM
OPTIONS IN 1998 PRICE EXPIRATION ------------------------------
NAME GRANTED (2) ($ /SH) DATE 5% ($) 10% ($)
- ------------------ ---------- ---------- -------- ---------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Larissa L.
Herda........... 3,800 .04% $72.06 3/17/08 $ 172,512 $ 435,387
Paul B. Jones..... 8,350 .1% $72.06 3/17/08 $ 379,072 $ 956,705
A. Graham
Powers.......... 3,800 .04% $72.06 3/17/08 $ 172,512 $ 435,387
David J. Rayner... 3,800 .04% $72.06 3/17/08 $ 172,512 $ 435,387
John T. Blount.... -- -- -- -- -- --
Stephen A.
McPhie.......... -- -- -- -- -- --
</TABLE>
- ------------
(1) These TW options were awarded pursuant to stock option plans of Time Warner
Inc. and the terms are governed by such plans and the recipient's option
agreement. The option exercise price is the fair market value of the TW
common stock on the date of grant. The TW options shown in the table become
exercisable in installments of one-third on the first three anniversaries of
the date of grant. Payment of the exercise price of a TW option may be made
in cash or, in whole or in part, in full shares of TW common stock already
owned by the holder of the TW option. The payment of withholding taxes due
upon exercise of a TW option may generally be made with shares of TW common
stock.
(2) Represents a percentage of all options granted to employees of TW during
1998 (through May 29, 1998).
As required by SEC rules, the dollar amounts in the last two columns
represent the hypothetical gain or 'option spread' that would exist for the
options based on assumed 5% and 10% annual compounded rates of
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TW common stock price appreciation over the full ten-year option term (resulting
in 63% and 159% appreciation, respectively). These assumed rates of appreciation
applied to the price on the date of the awards would result in a TW common stock
price on March 17, 2008 of $117.46 and $186.64, respectively. These prescribed
rates are not intended to forecast possible future appreciation, if any, of the
TW common stock.
OPTION EXERCISES AND VALUES IN 1998
The following table sets forth as to each of the named executive officers
information with respect to option exercises during 1998 (through May 29, 1998)
and the status of their options on May 29, 1998: (i) the number of shares of TW
common stock, or MediaOne common stock in the case of Messrs. Blount and McPhie,
underlying options exercised during 1998; (ii) the aggregate dollar value
realized upon exercise of such options; (iii) the total number of shares of TW
common stock, or MediaOne common stock in the case of Messrs. Blount and McPhie,
underlying exercisable and nonexercisable stock options held on May 29, 1998;
and (iv) the aggregate dollar value of in-the-money exercisable and
nonexercisable stock options on May 29, 1998. None of the named executive
officers has been awarded SARs alone or in tandem with stock options.
AGGREGATE OPTION EXERCISES DURING 1998 AND
OPTION VALUES ON MAY 29, 1998
<TABLE>
<CAPTION>
DOLLAR VALUE OF
NUMBER OF NUMBER OF SHARES UNEXERCISED
SHARES DOLLAR UNDERLYING UNEXERCISED IN-THE-MONEY
UNDERLYING VALUE OPTIONS ON MAY 29, 1998 OPTIONS ON MAY 29, 1998*
OPTIONS REALIZED ON ---------------------------- ----------------------------
NAME EXERCISED EXERCISE EXERCISABLE NONEXERCISABLE EXERCISABLE NONEXERCISABLE
- -------------------------------------- ---------- ----------- ----------- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Larissa L. Herda...................... -- -- 1,667 7,133 $ 57,099 $136,023
Paul B. Jones......................... -- -- 43,148 18,090 $ 1,718,140 $389,012
A. Graham Powers...................... -- -- 14,068 8,232 $ 518,148 $177,015
David J. Rayner....................... -- -- 1,134 4,466 $ 41,105 $ 44,672
John T. Blount........................ -- -- 521 -- $ 12,067 $ --
Stephen A. McPhie(1).................. -- -- 23,049 14,201 $ 411,090 $253,889
</TABLE>
- ------------
* Based on a closing price of $77.8125 per share of TW common stock, and
$37.0625 per share of MediaOne common stock with respect to stock options
held by Messrs. Blount and McPhie, on May 29, 1998 as reported on the New
York Stock Exchange Composite Listing.
(1) These options to purchase MediaOne common stock become exercisable in
installments of one-third on the first three anniversaries of the date of
grant and include a reload feature that gives the holder the right to
receive a further option, at the then current market price, for a number of
shares equal to the number of shares of stock surrendered in payment of the
exercise price of the original option.
The option exercise price of all options held by the named executive
officers is the fair market value of the stock on the date of grant. All of the
options held by the named executive officers become immediately exercisable in
full upon the occurrence of certain events, including the death or total
disability of the option holder, certain change-of-control transactions and, in
most cases, the Company's breach of the holder's employment agreement. The TW
options held by the named executive officers generally remain exercisable for
three years after their employment is terminated without cause, for one year
after death or total disability, for five years after retirement and for three
months after termination for any other reason, except that such stock options
awarded before 1996 are exercisable for three months after a termination without
cause and after retirement and those awarded after July 1997 are exercisable for
three years after death or disability. All TW options terminate immediately if
the holder's employment is terminated for cause. The terms of the options shown
in the chart are ten years.
PENSION COVERAGE
Although the Company does not currently expect to have its own pension
plan, Messrs. Jones, Powers and Rayner will, upon retirement, be entitled to
receive benefits under the Time Warner Cable Pension Plan (the
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'TW Cable Pension Plan') based on service to the Company and/or TW Cable prior
to September 30, 1998. Set forth below is a brief description of the TW Cable
Pension Plan.
A participant accrues benefits under the TW Cable Pension Plan on the basis
of 1 1/4% of the average annual compensation (defined as the highest average
annual compensation for five consecutive full years of employment in the last
ten years, which includes regular salary, overtime and shift differential
payments, and non-deferred bonuses paid according to a regular program) up to
the average Social Security Wage Base plus 1 2/3% in excess of the average
Social Security Wage Base for each year of service up to 35 years and 1/2% for
each year of service over 35 years. In addition, there is a supplemental benefit
of $60 per year times years of service up to thirty years. Compensation for
purposes of calculating average annual compensation under the TW Cable Pension
Plan is limited to $200,000 per year for 1989 through 1993 and $150,000 per year
for 1994 and thereafter (each subject to adjustments provided in the Code).
Eligible employees become vested in all benefits under the TW Cable Pension Plan
on the earlier of five years of service or certain other events.
Federal law limits both the amount of compensation that is eligible for the
calculation of benefits and the amount of benefits derived from employer
contributions that may be paid to participants under the TW Cable Pension Plan.
However, as permitted by the Employee Retirement Income Security Act of 1974, as
amended ('ERISA'), TW Cable has adopted the Time Warner Cable Excess Benefit
Pension Plan (the 'Excess Plan'), which provides for payments by TW Cable of
certain amounts which employees of TW Cable would have received under the TW
Cable Pension Plan if eligible compensation were limited to $250,000 in 1994
(increased 5% per year thereafter, to a maximum of $350,000) and there were no
payment restrictions.
The following table shows the estimated annual pension payable upon
retirement to employees in specified remuneration and years-of-service
classifications. The amount of the estimated annual pension is based upon a
pension formula which applies to all participants in both the TW Cable Pension
Plan and the Excess Plan. The estimated amounts are based on the assumption that
payments under the TW Cable Pension Plan will commence upon normal retirement
(generally age 65), that the TW Cable Pension Plan will continue in force in its
present form and that no joint and survivor annuity will be payable (which would
on an actuarial basis reduce benefits to the employee but provide benefits to a
surviving beneficiary). Amounts calculated under the pension formula which
exceed ERISA limits will be paid under the Excess Plan from TW Cable's assets
and are included in the amounts shown in the following table.
<TABLE>
<CAPTION>
ESTIMATED ANNUAL PENSION FOR YEARS OF CREDITED SERVICE
HIGHEST CONSECUTIVE FIVE YEAR ------------------------------------------------------------------
AVERAGE COMPENSATION 10 15 20 25 30 35
- ------------------------------------------- ------- ------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
$50,000.................................... $ 7,036 $10,555 $ 14,073 $ 17,591 $ 21,109 $ 24,627
$100,000................................... 15,370 23,055 30,740 38,425 46,110 53,795
$150,000................................... 23,703 35,555 47,407 59,268 71,110 82,962
$200,000................................... 32,037 48,055 64,074 80,092 96,111 112,129
$250,000................................... 40,370 60,556 80,741 100,926 121,111 141,296
$300,000................................... 48,704 73,056 97,408 121,760 146,112 170,464
$350,000................................... 57,037 85,556 114,075 142,593 171,113 199,631
</TABLE>
The estimated annual benefits payable under the TW Cable Pension Plan and
the Excess Plan, as of May 1, 1998, would be based on average compensation of
$262,674 for Mr. Jones, $220,567 for Mr. Powers and $123,918 for Mr. Rayner with
10.4, 11.4 and 14.9 years of credited service, respectively. In addition, in
connection with the Reorganization, it is expected that Mr. Blount will receive
a lump-sum distribution of pension benefits under the MediaOne Group Qualified
and Non-qualified Pension Plans. As of May 1, 1998, this payment is estimated to
equal $96,532, based on average compensation of $159,357 and 10.3 years of
service.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
LLC AGREEMENT
In connection with the Reorganization, the Company was formed under the
laws of the State of Delaware on June 18, 1998. The following summary
description of the LLC Agreement does not purport to be complete and is
qualified in its entirety by reference to the text of such agreement, which is
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part. Additionally, there is no assurance that the Members will not cause the
LLC Agreement to be amended, modified or terminated or waive any provision of
such agreement.
The LLC Agreement provides that the Company may not, directly or indirectly
(through a subsidiary or affiliate of the Company), (i) engage in the business
of providing, offering, packaging, marketing, promoting or branding (alone or
jointly with or as an agent for other parties) any Residential Services or (ii)
engage in the business of producing, packaging, distributing, marketing,
hosting, offering, promoting, branding or otherwise providing Content Services,
in each case, without the affirmative vote of all the Members.
The LLC Agreement provides that the Members will appoint the
Representatives as follows: (i) up to seven Representatives appointed by the
Members, (ii) the CEO and (iii) two Representatives who are neither employed by
nor affiliated with the Company or any Member and who are appointed by a
subcommittee comprised of the Representatives other than the CEO and the
independent Representatives.
Under the LLC Agreement, the Representatives will be selected as follows:
initially three Representatives will be appointed by TW, three by MediaOne and
one by Newhouse. Under the LLC Agreement, the ability of the Members to appoint
any Representatives depends on the identity of the particular member and the
participation percentage of Interests owned by it. Generally, each Member must
own Interests having an aggregate participation percentage of at least 9.44% to
appoint one Representative. In the case of TW, so long as it owns Interests
having an aggregate participation percentage of at least 18.88% it will be
entitled to appoint three Representatives. In the event that TW owns Interests
having an aggregate participation percentage of less than 18.88% (such event, an
'LLC TW Step Event') the number of Representatives which TW may appoint will
decrease proportionally with its ownership of participation percentages of the
Interests until it owns Interests having an aggregate participation percentage
of less than 9.44%, at which point it will not be entitled to appoint any
Representatives. In the case of MediaOne, so long as an LLC TW Step Event has
not occurred and it owns Interests having an aggregate participation percentage
of at least 9.44%, MediaOne will be entitled to appoint three Representatives.
If an LLC TW Step Event has occurred, the number of Representatives that
MediaOne is entitled to appoint will decrease proportionally with its ownership
of Interests (in accordance with the same percentage thresholds as apply to TW)
until it owns Interests having an aggregate participation percentage of less
than 9.44%, at which point it will not be entitled to appoint any
Representatives. If an LLC TW Step Event has not occurred but MediaOne owns
Interests having an aggregate participation percentage of less than 9.44%, it
will not be entitled to appoint any Representatives. In the case of Newhouse, so
long as it owns Interests having an aggregate participation percentage of at
least 9.44%, Newhouse will be entitled to appoint one Representative. The
foregoing percentages shall be decreased in the aggregate, from time to time, in
the event that the Company issues additional Interests, by an amount equal to
the participation percentage so issued, in proportion to their relative
participation percentages immediately before such issuance. The foregoing
percentages shall be increased in the aggregate, from time to time, in the event
that the Company repurchases Interests, by an amount equal to the participation
percentage of such repurchased Interest, in proportion to their relative
participation percentages immediately before such repurchase.
The LLC Agreement prohibits any transfer of Class B Interests held by the
Members, unless expressly permitted under the terms thereof. In addition, voting
agreements relating to the Class B Interests with any third party are
prohibited.
After the expiration of five years from the date of the Reorganization (the
'Restricted Period'), in the event that a holder of Class B Interests proposes
to sell all of its Class B Interests (a 'Selling Class B Member') pursuant to a
bona fide offer from an unaffiliated third party, such Selling Class B Member
shall give notice (the 'Refusal Notice') to all other holders of Class B
Interests, which notice shall contain the identity of the offeror and an offer
to sell such Interests to such holders of Class B Interests upon the terms and
subject to the conditions set forth in the offer from the third party. The
non-selling holders of Class B Interests will have the right (the 'LLC Right of
First Refusal') to purchase pro rata all, but not less than all, of such Class B
Interests.
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If the non-selling holders fail to exercise their LLC Right of First Refusal
with respect to all of such interests, the LLC Selling Class B Member shall be
free, for a period of 90 days thereafter, to sell such Class B Interests (as
Class B Interests) to a third party on terms and conditions that are no less
favorable to the LLC Selling Class B Member than those contained in the LLC
Refusal Notice. In connection with the sale by a holder of all, but not less
than all, of its Class B Interests, such holder shall have the right to transfer
all of its right, if any, to appoint Representatives to the Management
Committee. In addition, after the expiration of the Restricted Period, if TW
proposes to sell all, but not less than all, of its Class B Interests and/or all
or a portion of its Class A Interests that represent an aggregate of more than
one-third of the participation percentage of the Company's Interests, then other
holders of Class B Interests will have certain 'tag-along' rights that provide
them with the right to sell their Class A Interests and/or Class B Interests on
a pro rata basis along with, and on the same terms and conditions as TW,
provided that such 'tag-along' rights shall be applied to all Class B Interests
prior to being applied to any Class A Interests. In connection with such sale,
TW (and any other member transferring all of its Class B Interests) shall have
the right to transfer all of its right, if any, to appoint Representatives to
the Management Committee. In addition, TW and the other selling members will not
be required to convert their Class B Interests to Class A Interests prior to
such sale.
Except for transfers to affiliates and any other transfers described above,
immediately prior to any direct transfer of Class B Interests or certain
indirect transfers of Class B Interests all such Class B Interests will be
required to be converted to Class A Interests. In addition, except for transfers
described above, a Member will not have the right to transfer its right to
appoint Representatives to the Management Committee. A holder of Class B
Interests will not be required to convert into Class A Interests, and such
holder's right to appoint Representatives to the Management Committee will not
terminate, if such holder is acquired by a third party or such holder
distributes to its equityholders a company holding its Class B Interests (as
well as other assets).
STOCKHOLDERS AGREEMENT
Following the Reconstitution, the Existing Stockholders will enter into the
Stockholders Agreement. The following summary description of the Stockholders
Agreement does not purport to be complete and is qualified in its entirety by
reference to the text of such agreement, which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Additionally,
there can be no assurance that the Reconstitution will be effected or that the
Existing Stockholders will not cause the Stockholders Agreement to be amended,
modified or terminated or cause the Company to waive any provision of such
agreement.
The Stockholders Agreement provides that at each annual meeting of the
Company's stockholders at which directors are elected, the holders of the Class
B Common Stock will vote their shares in favor of the following nominees: (i) up
to seven nominees selected by the holders of Class B Common Stock (the 'Class B
Nominees') as described in the next paragraph, (ii) the CEO and (iii) two
nominees who are neither employed by nor affiliated with the Company or any
holder of Class B Common Stock and who are selected by a committee comprised of
the members of the Board of Directors, other than the CEO and the independent
directors. Solely as a result of the agreement of each Existing Stockholder to
vote in favor of the other Existing Stockholders' director nominees under the
Stockholders Agreement, the Existing Stockholders may be deemed to share
beneficial ownership of the shares beneficially owned by each of them.
Under the Stockholders Agreement, the Class B Nominees will be selected as
follows: initially three Class B Nominees will be designated by TW, three by
MediaOne and one by Newhouse. Under the Stockholders Agreement, the ability of
the Existing Stockholders to designate any Class B Nominees depends on the
identity of the particular stockholder and the percentage of shares of Common
Stock owned by it. Generally, each Existing Stockholder must own at least 9.44%
of the Common Stock to appoint one director. In the case of TW, so long as it
owns at least 18.88% of the Common Stock it will be entitled to nominate three
directors. In the event that TW owns less than 18.88% of the Common Stock (such
event, a 'TW Step Event'), the number of directors which TW may nominate will
decrease proportionally with its ownership of the Common Stock until it owns
less than 9.44%, at which point it will not be entitled to nominate any
directors. In the case of MediaOne, so long as a TW Step Event has not occurred
and it owns at least 9.44% of the Common Stock, MediaOne will be entitled to
nominate three directors. If a TW Step Event has occurred, the number of
directors that MediaOne is entitled to nominate will decrease proportionally
with its ownership of the Common Stock (in accordance with the same percentage
thresholds as apply to TW) until it owns less than 9.44%, at which point it will
not be entitled to nominate any directors. If a TW Step Event has not occurred
but MediaOne
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owns less than 9.44% of the Common Stock, it will not be entitled to nominate
any directors. In the case of Newhouse, so long as it owns at least 9.44% of the
Common Stock, Newhouse will be entitled to nominate one director. The foregoing
percentages shall be adjusted, from time to time, in the event that the Company
issues additional shares of Common Stock or takes actions in respect of Common
Stock (such as stock splits or recapitalizations) to reflect the percentages
that would have been in effect had such action been taken as of the closing of
the Reorganization and prior to the computation of such percentages.
The Stockholders Agreement prohibits any transfer of Class B Common Stock
held by the Existing Stockholders, unless expressly permitted under the terms
thereof. In addition, voting agreements relating to the Class B Common Stock
with any third party are prohibited.
In the event that a selling Class B Stockholder proposes to sell all of the
shares of Class B Common Stock owned by such holder pursuant to a bona fide
offer from an unaffiliated third party, such stockholder shall give notice (the
'Refusal Notice') to all other holders of Class B Common Stock, which notice
shall contain the identify of the offeror and an offer to sell such stock to
such holders of Class B Common Stock upon the terms and subject to the
conditions set forth in the offer from the third party. The non-selling holders
of Class B Common Stock will have the right (the 'Right of First Refusal') to
purchase pro rata all, but not less than all, of such Class B Common Stock. If
the non-selling holders fail to exercise their Right of First Refusal with
respect to all of such shares, the selling Class B Stockholder shall be free,
for a period of 90 days thereafter, to sell such shares of Class B Common Stock
(as shares of Class B Common Stock) to a third party on terms and conditions
that are no less favorable to the selling Class B Common Stockholder than those
contained in the Refusal Notice. In connection with the sale by a holder of all,
but not less than all, of the shares of Class B Common Stock owned by such
holder, such holder shall have the right to transfer all of its right, if any,
to nominate Class B Nominees for election to the board. In addition, if TW
proposes to sell shares of all, but not less than all, of its Class B Common
Stock and/or shares of its Class A Common Stock that represent an aggregate of
more than one-third of the outstanding shares of Common Stock, then other
holders of Class B Common Stock will have certain 'tag-along' rights that
provide them with the right to sell their shares of Class A Common Stock and/or
Class B Common Stock on a pro rata basis along with, and on the same terms and
conditions as, TW provided that such 'tag-along' rights shall be applied to all
Class B Common Stock prior to being applied to any Class A Common Stock. In
connection with such sale, TW (and any other stockholder transferring all of its
shares of Class B Common Stock) shall have the right to transfer all of its
right, if any, to nominate Class B Nominees for election to the board. In
addition, TW and the other selling stockholders will not be required to convert
their shares of Class B Common Stock to Class A Common Stock prior to such sale.
Except for transfers to affiliates and any other transfer described above,
immediately prior to any direct transfer of Class B Common Stock or certain
indirect transfers of Class B Common Stock all such shares of Class B Common
Stock will be required to be converted to Class A Common Stock. In addition,
except for transfers described above, a stockholder will not have the right to
transfer its right to nominate Class B Nominees. A holder of Class B Common
Stock will not be required to convert its shares into Class A Common Stock, and
such holder's right to nominate Class B Nominees will not terminate, if such
holder is acquired by a third party or such holder distributes to its
stockholders a company holding its shares of Class B Common Stock (as well as
other assets).
The Existing Stockholders will have demand registration rights with respect
to shares of Class A Common Stock (including shares of Class A Common Stock
issuable or issued upon the conversion of shares of Class B Common Stock) on the
following terms: (i) no demand may be made during the first 180 days after the
closing date of the Stock Offering, (ii) the Company shall not be obligated to
effect a demand within 180 days from the effective date of the previous demand
registration, (iii) the Company will not be required to effect a demand
registration unless the aggregate number of shares of Class A Common Stock to be
registered is, at any given time, at least 1% of the Class A Common Stock then
outstanding and (iv) the demand registration may be postponed for up to two
months if the Company believes that such registration would have a material
adverse effect on any proposal or plan to engage in any financing, acquisition
of assets or any merger, consolidation, tender offer or other significant
transaction. In addition, each Existing Stockholder may cause the Company to
include such stockholder's shares in certain other registered offerings under
the Securities Act, subject to certain conditions. Each Existing Stockholder
will pay all underwriting discounts and commissions and any transfer taxes
attributable to the sale of its shares. The Company will pay all expenses
relating to its obligations to file
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and maintain the effectiveness of a registration statement, the legal fees of
one counsel to represent the Existing Stockholders and the fees and expenses of
its auditors.
CERTAIN OPERATING AGREEMENTS
Capacity License Agreements. Each of the Company's local operations is
party to a certain Capacity License Agreement (collectively, the 'Capacity
License') with the local cable television operation of TW Cable, providing the
Company with a 30 year exclusive right to utilize all of the capacity of
specified fiber-optic cable owned and maintained by the respective TW Cable
operation. For the Company's existing networks, such Capacity License has been
fully paid and does not require additional license fees (although certain
maintenance fees and fees for splicing and similar services are payable
periodically). The Company may request that the TW Cable construct and provide
additional fiber-optic cable capacity to meet the Company's future needs. TW
Cable is not obligated to provide such fiber capacity to the Company; however,
the Capacity License provides for the sharing of construction costs between the
Company and TW Cable to the extent that such costs are incurred to build
additional fiber optic cable capacity which is licensed to the Company. See
'Risk Factors -- Relationship with TW Cable.' If TW Cable provides such
additional capacity, the Company will pay an allocable share of the cost of
construction of the fiber upon which capacity is to be provided, plus a
permitting fee. Such payments are due one-half upon commencement of construction
and the remainder upon initial acceptance of the capacity by the Company. The
Company is responsible for all taxes and franchise or similar fees arising out
of its utilization of the capacity, and a portion of other out-of-pocket
expenses incurred by TW Cable with regard to the cable upon which such capacity
is made available. The Company is permitted to use the capacity for
telecommunications services and any other lawful purpose, except for the
provision of Residential Services and Content Services. Violations of the
limitations on business activities of the Company contained in the LLC
Agreement, the Certificate of Incorporation or the Capacity License may, subject
to the cure period provided in the Capacity License, result in a termination of
the Capacity License. The Capacity License does not restrict the Company from
licensing fiber optic capacity from parties other than TW Cable. The Capacity
License expires in 2028. Although TW Cable has agreed to negotiate renewal or
alternative provisions in good faith at that time, there can be no assurance
that the parties will agree on the terms of any renewal or alternative
provisions or that the terms of any renewal or alternative provisions which may
be agreed upon by the parties will be favorable to the Company. If the Capacity
License is not renewed in 2028, the Company will have no residual interest in
the capacity under the Capacity License and may need to build, lease or
otherwise obtain transmission capacity in order to service its customers in the
service areas covered by the Capacity License; the terms of such arrangements
could have a material adverse effect on the Company's business, financial
condition and results of operations. The Company has the right to terminate a
Capacity License in whole or in part at any time upon 180 days' notice and
payment of any outstanding fees regarding the terminated capacity. TW Cable has
the right to terminate a Capacity License upon 180 days' notice in the event of,
among other things, certain governmental proceedings or third party challenges
to TW Cable's franchises or the Capacity License. The Capacity License includes
substantial limitations on liability in the event of service interruptions. See
'Risk Factors -- Relationship with TW Cable.'
Facility Lease Agreements. The Company leases or subleases physical space
located at TW Cable's facilities for various purposes pursuant to certain
Facility Lease Agreements (the 'Facility Agreements'). In the event that at
least a majority of the ownership of any TW Cable system is not owned by one or
more Parent Companies or of (i) TW's owning Interests having an aggregate
participation percentage of less than 30%, (ii) TW having the right to appoint
less than three Representatives to the Management Committee of the Company,
(iii) the Company's non-compliance with the restrictions in the LLC Agreement
regarding Residential Services and Content Services or (iv) the transfer by a
Member of its Class B Interests together with its rights to appoint
Representatives to the Management Committee under the LLC Agreement, the Company
will be required, at its own expense, to segregate and partition in a
reasonable, secure manner its leased or subleased space. See ' -- LLC
Agreement.' The lease rates for properties owned by TW Cable and leased to the
Company are based upon comparable rents in the local market, taking into account
other factors such as the term of the lease, type of space, square footage,
location and leasehold improvements funded to date by TW Cable. Generally, the
term of such leases are for 15 years, with two five year options to renew. With
respect to properties leased by TW Cable, the Company is charged a pro rata
portion of the rent and fees payable under the primary lease. The duration of
the Company's subleases are coextensive with TW Cable's primary lease.
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Services Agreement. TW Cable provides certain administrative and operating
services, including certain payroll, tax, management information systems, and
legal support services, to the Company pursuant to a certain Administrative
Services Agreement (the 'Services Agreement'). The costs for such services are
determined by TW Cable based upon the Company's historical and projected usage,
depending on the amount and type of administrative services to be provided.
Residential Support Agreements. Pursuant to certain residential support
agreements ('Residential Agreements'), the Company will provide certain support
and interconnection services or service elements, on an unbundled basis, to TW
Cable for its residential telephony business. Generally, all rates for such
residential support services offered to TW Cable may be adjusted annually by the
Company, but may not be less favorable than the wholesale rates charged to the
Company's other customers.
Road Runner Agreement. The Company expects to enter into an agreement with
TW Cable (the 'Road Runner Agreement') covering principles they intend to follow
to cooperate in the marketing and provision of TW Cable's high speed online
'Road Runner' services ('Road Runner Services'). The Company is expected to have
a right of first opportunity to provide TW Cable with any transport services for
Road Runner Services to businesses, provided that TW Cable does not choose to
provide such services directly over its own network and that the Company's
pricing for such services is no less favorable than those offered by the
Company's competitors. Road Runner Services for residential end-users that are
provided by TW Cable may be jointly marketed with the Company's offering of Road
Runner Services to business customers where mutually advantageous work at home
opportunities arise, subject to the requisite approval of the Existing Members.
See 'Business -- Planned/Future Services.'
TW License Agreement. The use of the 'Time Warner' name by the Company is
subject to a certain License Agreement with TW (the 'License Agreement'). The
Company may change its name to 'TW Telecom LLC' and the Company will no longer
have the right to use of the 'Time Warner' name upon expiration of the initial
four year term or any renewal term of such agreement or (i) TW's owning
Interests having an aggregate participation percentage of less than 30%, (ii) TW
having the right to appoint less than three Representatives to the Management
Committee of the Company, (iii) the Company's non-compliance with the
restrictions in the LLC Agreement regarding Residential Services and Content
Services or (iv) the transfer by a Member of its Class B Interests together with
its rights to appoint Representatives to the Management Committee under the LLC
Agreement. See ' -- LLC Agreement.' After the Reconstitution, the Company will
be required to discontinue use of the 'Time Warner' name upon expiration of the
initial four year term or any renewal term of such agreement or (i) TW's owning
less than 30% of the Common Stock, (ii) TW having the right to nominate less
than three nominees to the Board of Directors of the Company, (iii) the
Company's non-compliance with the restrictions in the Certificate of
Incorporation regarding Residential Services and Content Services or (iv) the
transfer by an Existing Stockholder of its Class B Common Stock together with
its rights to designate nominees to the Board of Directors under the
Stockholders Agreement. See ' -- Stockholders Agreement.'
The Company believes that the terms and conditions, taken as a whole, of
the transactions described under the headings 'Capacity License Agreements,'
'Facility Lease Agreements,' 'Services Agreement,' 'Residential Support
Agreements,' 'Road Runner Agreement' and the 'TW License Agreement' were no less
favorable to the Company than could have been obtained from unaffiliated
parties.
INTERCOMPANY SUBORDINATED DEBT
As of March 31, 1998 the Company had outstanding approximately $117.5
million of subordinated indebtedness to the Parent Companies, all of which is
subordinated in right of payment to the Notes. This subordinated indebtedness
bears interest (payable in kind) at an annual rate equal to The Chase Manhattan
Bank's prime lending rate as in effect from time to time (which was 8.5% at
March 31, 1998) and matures on August 15, 2008, one month after the maturity of
the Notes. Such indebtedness may be declared immediately due and payable only if
the maturity of the Notes is similarly accelerated. Indebtedness to the Parent
Companies is expected to be approximately $180.0 million at July 14, 1998. Such
indebtedness provides that if any event of default, or event that with notice or
the passage of time would be an event of default, shall have occurred and be
continuing (or if such an event of default or event would occur upon any payment
in respect of such subordinated indebtedness) with respect to any Senior Debt
(as defined therein) (as such event of default is defined in the documents
governing such Senior Debt), no payment shall be made by the Company with
respect to amounts owing under such subordinated indebtedness. Furthermore, upon
any distribution of assets of, or
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payments by, the Company of any kind or character (whether in cash, property or
securities) to creditors upon any dissolution or winding-up or total or partial
liquidation or reorganization of the Company (whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings), all amounts
due or to become due upon all Senior Debt (including, without limitation,
interest accruing after the filing of a petition under any bankruptcy law at the
rate provided for in the documents governing such Senior Debt, whether or not
allowable as a claim under such bankruptcy law) shall first be paid in full in
cash, or duly provided for, before any payment or distribution is made on
account of any amount owing under such subordinated indebtedness and before the
Company shall, directly or indirectly, prepay, repay, redeem, purchase, exchange
or acquire such subordinated indebtedness. Upon any such dissolution,
winding-up, liquidation or reorganization, any payment or distribution of assets
of, or payments by, the Company of any kind or character (whether in cash,
property or securities) in respect of such subordinated indebtedness to which a
Parent Company would be entitled except for the provisions of such subordinated
indebtedness, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, or by a Parent Company if received by it, directly to the holders
of Senior Debt (pro rata to such holders on the basis of the respective amounts
of Senior Debt then held by such holders) for application to the payment of
Senior Debt remaining unpaid until all such Senior Debt has been paid in full in
cash after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt. The Indenture provides that
such subordinated indebtedness may be repaid prior to maturity with the net
proceeds of any offering of common stock or equivalent interests of the Company.
Additional advances by the Parent Companies to finance the Company's operations
prior to the closing of the Offering will increase the amount of such
indebtedness outstanding as of the closing of the Offering.
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PRINCIPAL MEMBERS
Prior to the Reorganization, the Parent Companies beneficially owned all of
the assets and liabilities of the Company's business. In connection with the
Reorganization, the Parent Companies contributed such assets and liabilities to
the Company and in return received all the Class B Interests having an aggregate
participation percentage of 100%, and the Parent Companies distributed such
Interests to the Members. TWT is a wholly owned subsidiary of the Company. The
following table sets forth certain information regarding the beneficial
ownership of the Interests of the Company immediately following the
Reorganization by: (i) each of the Representatives and the named executive
officers; (ii) all Representatives and executive officers as a group; and (iii)
each owner of more than 5% of any class of Interests of the Company. Unless
otherwise noted, the address for each executive officer of the Company is c/o
the Company, 5700 S. Quebec Street, Greenwood Village, CO 80111.
<TABLE>
<CAPTION>
CLASS A CLASS B
INTERESTS (1)(2) INTERESTS (1)
---------------- -------------
PARTICIPATION PARTICIPATION
PERCENTAGE PERCENTAGE
---------------- -------------
<S> <C> <C>
TW (3).............................................................................. 0% 61.95%
MediaOne (4)........................................................................ 0 18.88
Newhouse (5)........................................................................ 0 19.17
All Representatives and executive officers as a group
(14 persons) (6)(7).......................................................... 0 0
</TABLE>
- ------------
(1) The Company has two classes of Interests, the Class A Interests and the
Class B Interests. Beneficial ownership of the Interests has been determined
in accordance with the rules of the SEC. See 'Description of Interests.'
(2) Excludes an equal amount of Class A Interests into which Class B Interests
are convertible. The Class B Interests held by TW, MediaOne and Newhouse
represented participation percentages on a converted basis of 61.95%, 18.88%
and 19.17%, respectively, of the Class A Interests.
(3) Owned by Time Warner Companies, Inc., American Television and Communications
Corporation, Warner Communications Inc., TW/TAE, Inc., FibrCOM Holdings,
L.P. and Paragon Communications, each a direct or indirect wholly owned
subsidiary of Time Warner Inc. The business address of TW is 75 Rockefeller
Plaza, New York, NY 10019.
(4) Owned by MediaOne Group, Inc., a Colorado corporation and wholly owned
subsidiary of MediaOne Group, Inc., a Delaware corporation. The business
address of MediaOne is 188 Inverness Drive West, Englewood, CO 80112.
(5) Owned by Newhouse. The business address of Newhouse is 5015 Campuswood
Drive, East Syracuse, NY 13057.
(6) None of the Representatives or executive officers of the Company
beneficially owns any Class A Interests or Class B Interests.
(7) As of May 29, 1998, all Representatives and executive officers held an
aggregate of 45,202 shares of TW common stock, including 24,571 shares held
by trusts under TW-sponsored benefit plans. In addition, such persons held
options which, on May 29, 1998, were exercisable within 60 days to purchase
678,421 shares of TW common stock.
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DESCRIPTION OF THE NOTES
The Notes are to be issued under an Indenture, to be dated as of the
Closing Date (the 'Indenture'), among the Company and TWT, as joint and several
obligors, and The Chase Manhattan Bank, as Trustee (the 'Trustee'). A copy of
the Indenture has been filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions of certain terms therein
and those terms made a part thereof by reference to the Trust Indenture Act of
1939, as amended ('TIA'). For purposes of this section, all references to the
Company are to Time Warner Telecom LLC (or any corporate successor pursuant to
the Reconstitution), excluding its subsidiaries. The Indenture is by its terms
subject to and governed by the TIA. Whenever particular defined terms of the
Indenture not otherwise defined herein are referred to, such defined terms are
incorporated herein by reference. For definitions of certain capitalized terms
used in the following summaries, see ' -- Certain Definitions.'
GENERAL
The Notes will be unsecured unsubordinated obligations of the Obligors,
initially limited to $400.0 million aggregate principal amount, and will mature
on July 15, 2008. The Obligors will be jointly and severally liable, fully and
unconditionally, with respect to the Notes. Accordingly, a claimant in respect
of the Notes will be entitled to proceed against the Company in respect of the
Notes without first proceeding against TWT. Because TWT has no operations or
assets and was formed solely for the purpose of serving as a co-obligor of the
Notes, TWT will not issue separate financial statements or otherwise provide
annual or interim reports to the Holders, however information with respect to
TWT will be included in the Company's financial statements and in annual and
interim reports issued by the Company.
Interest on the Notes will accrue at the rate shown on the front cover of
this Prospectus from the Closing Date or from the most recent interest payment
date to which interest has been paid or provided for, payable semiannually (to
Holders of record at the close of business on the January 1 or July 1
immediately preceding the interest payment date) on January 15 and July 15 of
each year, commencing July 15, 1998. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Principal of, premium, if any, and interest on the Notes will be payable,
and the Notes may be exchanged or transferred, at the office or agency of the
Obligors in the Borough of Manhattan, The City of New York (which initially will
be the corporate trust office of the Trustee at The Chase Manhattan Bank,
Corporate Trust Securities Window, Room 234, 55 Water Street, New York, NY
10041; provided that, at the option of the Obligors, payment of interest may be
made by check mailed to the Holders at their addresses as they appear in the
Security Register.
The Notes will be issued only in fully registered form, without coupons, in
denominations of $1,000 of principal amount and any integral multiple thereof.
See ' -- Book-Entry; Delivery and Form.' No service charge will be made for any
registration of transfer or exchange of Notes, but the Obligors may require
payment of a sum sufficient to cover any transfer tax or other similar
governmental charge payable in connection therewith.
The Obligors may, subject to the covenants described below under
'Covenants' and applicable law, issue additional Notes under the Indenture. The
Notes offered hereby and any additional Notes subsequently issued would be
treated as a single class for all purposes under the Indenture.
OPTIONAL REDEMPTION
The Notes will be redeemable, at the Obligors' option, in whole or in part,
at any time or from time to time, on or after July 15, 2003 and prior to
maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address as it appears in the Security
Register, at the Redemption Prices (expressed in percentages of principal
amount) set forth below, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on an Interest Payment Date), if redeemed during the 12-month
period commencing July 15, of the years set forth below:
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<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
- -------------------------------------------------------- ----------------
<S> <C>
2003.................................................... %
2004....................................................
2005....................................................
2006 and thereafter..................................... 100.000%
</TABLE>
In addition, at any time prior to July 15, 2001, the Obligors may, at their
option, redeem up to 35% of the aggregate principal amount of the Notes with the
net proceeds of one or more Equity Offerings, at any time or from time to time
in part, at a Redemption Price of % of the principal amount thereof;
provided (i) that Notes representing at least 65% of the principal amount of the
Notes initially issued remain outstanding immediately after each such redemption
and (ii) that notice of each such redemption is mailed within 90 days of each
such Equity Offering.
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed or, if such Notes are not listed on a national securities exchange, by
lot or by such other method as the Trustee in its sole discretion shall deem to
be fair and appropriate; provided that no Note of $1,000 in principal amount or
less shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Note.
SINKING FUND
There will be no sinking fund payments for the Notes.
RANKING
The Indebtedness evidenced by the Notes will rank pari passu in right of
payment with all existing and future unsubordinated indebtedness of the Obligors
and senior in right of payment to all subordinated indebtedness of the Obligors.
Holders of secured obligations of the Obligors, however, will have claims that
are prior to the claims of the Holders of the Notes with respect to the assets
securing such obligations. The Company and/or one or more of its Restricted
Subsidiaries may negotiate a Credit Agreement. The Notes will be subordinated to
any indebtedness under a Credit Agreement to the extent of any security interest
and also to the extent any such Indebtedness is Incurred by a Restricted
Subsidiary.
In addition, all existing and future liabilities (including trade payables)
of the Obligors' subsidiaries will be effectively senior to the Notes. See 'Risk
Factors -- Holding Company Structure; Effective Subordination of Notes to
Indebtedness of Subsidiaries.' After giving pro forma effect to the Offering and
the application of the net proceeds therefrom, as of March 31, 1998, the Company
and its subsidiaries would have had $517.5 million of indebtedness outstanding,
approximately $117.5 million of which would have been expressly subordinated in
right of payment to the Notes, and the Company and its subsidiaries would not
have had any indebtedness ranking senior to the Notes. As of March 31, 1998, on
the same pro forma basis, the subsidiaries of the Company other than TWT would
have had $57.3 million of liabilities, none of which is indebtedness. Neither
the Company's subsidiaries nor any other entity has guaranteed the Notes.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants and other provisions of the Indenture. Reference is made to the
Indenture for the definition of any other capitalized term used herein for which
no definition is provided.
'Acquired Indebtedness' means Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary or assumed in connection with an
Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition; provided that Indebtedness of such Person which is
redeemed, defeased, retired or otherwise repaid at the time of or immediately
upon consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
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'Adjusted Consolidated Net Income' means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined in conformity with GAAP; provided that the following items shall be
excluded in computing Adjusted Consolidated Net Income (without duplication):
(i) the net income (or loss) of any Person that is not a Restricted Subsidiary,
except (x) with respect to net income, to the extent of the amount of dividends
or other distributions actually paid to the Company or any of its Restricted
Subsidiaries by such Person during such period and (y) with respect to net
losses, to the extent of the amount of Investments made by the Company or any
Restricted Subsidiary in such Person during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of the 'Limitation on Restricted
Payments' covenant described below (and in such case, except to the extent
includable pursuant to clause (i) above), the net income (or loss) of any Person
accrued prior to the date it becomes a Restricted Subsidiary or is merged into
or consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the
Company or any of its Restricted Subsidiaries; (iii) the net income of any
Restricted Subsidiary to the extent that the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; (iv) any gains or losses
(on an after-tax basis) attributable to Asset Sales; (v) except for purposes of
calculating the amount of Restricted Payments that may be made pursuant to
clause (C) of the first paragraph of the 'Limitation on Restricted Payments'
covenant described below, any amount paid or accrued as dividends (other than
dividends to the extent paid or payable in shares of Capital Stock (other than
Disqualified Stock) of the Company) on Preferred Stock of the Company or any
Restricted Subsidiary owned by Persons other than the Company and any of its
Restricted Subsidiaries; (vi) all extraordinary gains and extraordinary losses;
and (vii) any compensation expense paid or payable solely with Capital Stock
(other than Disqualified Stock) of the Company or any options, warrants or other
rights to acquire Capital Stock (other than Disqualified Stock).
'Adjusted Consolidated Net Tangible Assets' means the total amount of
assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in conformity with GAAP), after deducting
therefrom (i) all current liabilities of the Company and its Restricted
Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in conformity with GAAP and filed with the Commission or provided to
the Trustee pursuant to the 'Commission Reports and Reports to Holders'
covenant.
'Affiliate' means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, 'control'
(including, with correlative meanings, the terms 'controlling,' 'controlled by'
and 'under common control with'), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
'Asset Acquisition' means (i) an investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries; provided that such Person's
primary business is related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such investment or (ii)
an acquisition by the Company or any of its Restricted Subsidiaries of the
property and assets of any Person other than the Company or any of its
Restricted Subsidiaries that constitute substantially all of a division or line
of business of such Person; provided that the property and assets acquired are
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such acquisition.
'Asset Disposition' means the sale or other disposition by the Company or
any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
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'Asset Sale' means any sale, transfer or other disposition (including by
way of merger, consolidation or sale-leaseback transaction) in one transaction
or a series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets (other than the Capital Stock or other
Investment in an Unrestricted Subsidiary) of the Company or any of its
Restricted Subsidiaries outside the ordinary course of business of the Company
or such Restricted Subsidiary and, in each case, that is not governed by the
provisions of the Indenture applicable to mergers, consolidations and sales of
all or substantially all of the assets of the Company; provided that 'Asset
Sale' shall not include (a) sales or other dispositions of inventory,
receivables and other current assets, (b) sales, transfers or other dispositions
of assets constituting a Restricted Payment permitted to be made under the
'Limitation on Restricted Payments' covenant, (c) sales, transfers or other
dispositions of assets with a fair market value (as certified in an Officers'
Certificate) not in excess of $5 million in any transaction or series of related
transactions, or (d) sales or other dispositions of assets for consideration at
least equal to the fair market value of the assets sold or disposed of, to the
extent that the consideration received would constitute property, assets or
securities of the kind described in clause (B) of the 'Limitation on Asset
Sales' covenant.
'Average Life' means, at any date of determination with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (a)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
'Board of Directors' means, prior to the Reconstitution, the Management
Committee of the Company, and following the Reconstitution, the Board of
Directors of the Company.
'Capital Stock' means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
'Capitalized Lease' means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
'Capitalized Lease Obligations' means the discounted present value of the
rental obligations under a Capitalized Lease.
'Change of Control' means such time as (i) the Existing Stockholders as a
group cease to have the ability to elect a majority of the members of the Board
of Directors (other than the chief executive officer of the Company and
independent directors; provided that independent directors shall be included in
calculating whether the foregoing majority requirement is satisfied if the
Directors nominated by the Existing Stockholders do not constitute a majority of
the committee that selects the Board of Directors' nominees for independent
directors) and a 'person' or 'group' (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) (other than the Existing Stockholders) has become
the ultimate 'beneficial owner' (as defined in Rule 13d-3 under the Exchange
Act) of more than 35% of the total voting power of the Voting Stock of the
Company on a fully diluted basis and such ownership represents a greater
percentage of the total voting power of the Voting Stock of the Company, on a
fully diluted basis, than is held by the Existing Stockholders as a group on
such date; or (ii) individuals who on the Closing Date constitute the Board of
Directors (together with any new Directors whose election by the Board of
Directors or whose nomination by the Board of Directors for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
members of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office.
'Change of Control Period' means, with respect to a Change of Control, the
period of 60 days commencing on the date of the earlier to occur of (a) public
notice of the occurrence of a Change of Control or of the intention of the
Company to effect a Change of Control and (b) the Change of Control.
'Closing Date' means the date on which the Notes are originally issued
under the Indenture.
'Company' means Time Warner Telecom LLC and, following the Reconstitution,
any corporate successor to Time Warner Telecom LLC.
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'Common Stock' means, with respect to any Person, such Person's equity
other than Preferred Stock of such Person, whether outstanding on the Closing
Date or issued thereafter, including, without limitation, all series and classes
of such common stock, including any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) thereof.
'Consolidated EBITDA' means, for any period, Adjusted Consolidated Net
Income for such period (x) plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income, (i) Consolidated Interest
Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iii) depreciation expense, (iv) amortization expense and (v)
all other non-cash items reducing Adjusted Consolidated Net Income (other than
items that will require cash payments and for which an accrual or reserve is, or
is required by GAAP to be, made), less all non-cash items increasing Adjusted
Consolidated Net Income, all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in conformity with GAAP, and (y) solely
for purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of the 'Limitation on Restricted
Payments' covenant described below, less (to the extent not otherwise reduced in
accordance with GAAP) the aggregate amount of deposits made by the Company and
its Restricted Subsidiaries after the Closing Date in connection with proposed
Asset Acquisitions that are forfeited by the Company or any of its Restricted
Subsidiaries; provided that, if any Restricted Subsidiary is not a Wholly Owned
Restricted Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to (A) the amount
of the Adjusted Consolidated Net Income attributable to such Restricted
Subsidiary multiplied by (B) the percentage ownership interest in the income of
such Restricted Subsidiary not owned on the last day of such period by the
Company or any of its Restricted Subsidiaries.
'Consolidated Interest Expense' means, for any period, the aggregate amount
of interest in respect of Indebtedness (including, without limitation,
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and interest
on Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations, in each case that is paid, accrued or
scheduled to be paid or to be accrued by the Company and its Restricted
Subsidiaries during such period; excluding, however, (i) in calculating
Consolidated EBITDA, any amount of such interest of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (iii) of the definition
thereof (but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (iii) of the definition thereof) and (ii) any premiums, fees
and expenses (and any amortization thereof) payable in connection with the
offering of the Notes, all as determined on a consolidated basis (without taking
into account Unrestricted Subsidiaries) in conformity with GAAP.
'Consolidated Leverage Ratio' means, on any Transaction Date, the ratio of
(i) the aggregate amount of Indebtedness of the Company and its Restricted
Subsidiaries on a consolidated basis outstanding on such Transaction Date to
(ii) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters for which financial statements of the Company have been filed
with the Commission or provided to the Trustee pursuant to the 'Commission
Reports and Reports to Holders' covenant described below (such four fiscal
quarter period being the 'Four Quarter Period'); provided that, in making the
foregoing calculation, (A) pro forma effect shall be given to any Indebtedness
to be Incurred or repaid on the Transaction Date; (B) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions (including giving pro forma
effect to the application of proceeds of any Asset Disposition) that occur from
the beginning of the Four Quarter Period through the Transaction Date (the
'Reference Period'), as if they had occurred and such proceeds had been applied
on the first day of such Reference Period; and (C) pro forma effect shall be
given to asset dispositions and asset acquisitions (including giving pro forma
effect to the application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or has been merged
with or into the Company or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or Asset Acquisitions
had such transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset Dispositions or
Asset Acquisitions that occurred on the first day of such Reference Period;
provided that to the extent that clause (B) or (C) of this
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sentence requires that pro forma effect be given to an Asset Acquisition or
Asset Disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the Person, or
division or line of business of the Person, that is acquired or disposed of for
which financial information is available.
'Consolidated Net Worth' means, at any date of determination, stockholders'
equity as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries (which
shall be as of a date not more than 90 days prior to the date of such
computation, and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Disqualified Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item to
be determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
'Credit Agreement' means credit agreements, vendor financings or similar
facilities or arrangements made available from time to time to the Company and
its Restricted Subsidiaries from banks, other financial institutions and/or
equipment manufacturers for the Incurrence of Indebtedness, including letters of
credit and any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, as the same may be amended,
supplemented, modified or restated from time to time.
'Currency Agreement' means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
'Default' means any event that is, or after notice or passage of time or
both would be, an Event of Default.
'Director' means, prior to the Reconstitution, a Representative on the
Management Committee of the Company, and following the Reconstitution, a
Director on the Board of Directors of the Company.
'Disqualified Stock' means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at any time prior to the Stated Maturity
of the Notes or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Notes; provided that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an 'asset sale' or 'change of control'
occurring prior to the Stated Maturity of the Notes shall not constitute
Disqualified Stock if the 'asset sale' or 'change of control' provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in 'Limitation on Asset Sales' and
'Repurchase of Notes upon a Change of Control' covenants described below and
such Capital Stock, or the agreements or instruments governing the redemption
rights thereof, specifically provides that such Person will not repurchase or
redeem any such stock pursuant to such provision prior to the Company's
repurchase of such Notes as are required to be repurchased pursuant to the
'Limitation on Asset Sales' and 'Repurchase of Notes upon a Change of Control'
covenants described below.
'Equity Offering' means an offering of Common Stock of the Company for cash
pursuant to an effective registration statement under the Securities Act or an
exemption from the registration requirements contained therein.
'Existing Stockholders' means Time Warner, Inc., MediaOne Group, Inc.,
Advance/Newhouse Partnership and the Affiliates of each of the foregoing.
'fair market value' means the price that would be paid in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined in
good faith by the Board of Directors, whose determination shall be conclusive if
evidenced by a Board Resolution; provided that for purposes of clause (viii) of
the second paragraph of the 'Limitation on Indebtedness' covenant, (x) the fair
market value of any security registered under the Exchange Act shall be the
average of the closing prices, regular way, of such security for the 20
consecutive trading days immediately preceding the sale of Capital Stock and (y)
in the event the aggregate fair market value of any other property (other than
cash or cash equivalents) received by the Company exceeds $15 million, the fair
market value of
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such property shall be determined by a nationally recognized investment banking
firm and set forth in their written opinion which shall be delivered to the
Trustees.
'GAAP' means generally accepted accounting principles in the United States
of America as in effect as of the Closing Date, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations contained or referred to in
the Indenture shall be computed in conformity with GAAP applied on a consistent
basis, except that calculations made for purposes of determining compliance with
the terms of the covenants and with other provisions of the Indentures shall be
made without giving effect to (i) the amortization of any expenses incurred in
connection with the offering of the Notes and (ii) except as otherwise provided,
the amortization of any amounts required or permitted by Accounting Principles
Board Opinion Nos. 16 and 17.
'Guarantee' means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term 'Guarantee' shall not include endorsements for
collection or deposit in the ordinary course of business. The term 'Guarantee'
used as a verb has a corresponding meaning.
'Incur' means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including an 'Incurrence' of Acquired Indebtedness; provided that neither the
accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
'Indebtedness' means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title thereto or
the completion of such services, except Trade Payables, (v) all Capitalized
Lease Obligations of such Person, (vi) all Indebtedness of other Persons secured
by a Lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness, (vii) all Indebtedness of
other Persons Guaranteed by such Person to the extent such Indebtedness is
Guaranteed by such Person and (viii) to the extent not otherwise included in
this definition, obligations under Currency Agreements and Interest Rate
Agreements. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided (A)
that the amount outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at the
time of its issuance as determined in conformity with GAAP, (B) that money
borrowed and set aside at the time of the Incurrence of any Indebtedness in
order to prefund the payment of the interest on such Indebtedness shall not be
deemed to be 'Indebtedness' so long as such money is held to secure the payment
of such interest and (C) that Indebtedness shall not include any liability for
federal, state, local or other taxes.
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'Interest Rate Agreement' means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.
'Investment' in any Person means any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee or
similar arrangement; but excluding advances to customers in the ordinary course
of business that are, in conformity with GAAP, recorded as accounts receivable
on the balance sheet of the Company or its Restricted Subsidiaries) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, bonds, notes, debentures or other
similar instruments issued by, such Person and shall include (i) the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair
market value of the Capital Stock (or any other Investment), held by the Company
or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to
be a Restricted Subsidiary, including without limitation, by reason of any
transaction permitted by clause (iii) of the 'Limitation on the Issuance and
Sale of Capital Stock of Restricted Subsidiaries' covenant; provided that the
fair market value of the Investment remaining in any Person that has ceased to
be a Restricted Subsidiary shall not exceed the aggregate amount of Investments
previously made in such Person valued at the time such Investments were made
less the net reduction of such Investments. For purposes of the definition of
'Unrestricted Subsidiary' and the 'Limitation on Restricted Payments' covenant
described below, (i) 'Investment' shall include the fair market value of the
assets (net of liabilities (other than liabilities to the Company or any of its
Restricted Subsidiaries)) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair
market value of the assets (net of liabilities (other than liabilities to the
Company or any of its Restricted Subsidiaries)) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary shall be considered a reduction in outstanding Investments and (iii)
any property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer.
'Investment Grade' means a rating of the Notes by both S&P and Moody's,
each such rating being in one of such agency's four highest generic rating
categories that signifies investment grade (i.e., BBB - (or the equivalent) or
higher by S&P and Baa3 (or the equivalent) or higher by Moody's); provided, in
each case, such ratings are publicly available; provided further, that in the
event Moody's or S&P is no longer in existence, for purposes of determining
whether the Notes are rated 'Investment Grade,' such organization may be
replaced by a nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) designated by the Obligors, notice of
which designation shall be given to the Trustee.
'Lien' means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof or any agreement to
give any security interest).
'Moody's' means Moody's Investors Service, Inc. and its successors.
'Net Cash Proceeds' means, (a) with respect to any Asset Sale, the proceeds
of such Asset Sale in the form of cash or cash equivalents, including payments
in respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without regard
to the consolidated results of operations of the Company and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary as a reserve against any liabilities
associated with such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as determined in conformity with GAAP and (b) with respect
to any issuance or sale of Capital Stock, the proceeds of such issuance or sale
in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the principal, but
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not interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of attorney's fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
'Offer to Purchase' means an offer to purchase Notes by the Obligors from
the Holders commenced by mailing a notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made and that all
Notes validly tendered will be accepted for payment on a pro rata basis; (ii)
the purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed)
(the 'Payment Date'); (iii) that any Note not tendered will continue to accrue
interest pursuant to its terms; (iv) that, unless the Obligors default in the
payment of the purchase price, any Note accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the form entitled
'Option of the Holder to Elect Purchase' on the reverse side of the Note
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the Payment
Date; (vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or an integral multiple thereof. On the Payment Date, the Obligors
shall (i) accept for payment on a pro rata basis Notes or portions thereof
tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted for payment by the Obligors.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
an integral multiple thereof. The Obligors will publicly announce the results of
an Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the Paying Agent for an Offer to Purchase. The Company will comply
with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable,
in the event that the Obligors are required to repurchase Notes pursuant to an
Offer to Purchase.
'Parent Company Debt' means Indebtedness of the Company to any Existing
Stockholder that is subordinated in right of payment to the Notes as evidenced
by a promissory note dated the date of the Reorganization and any additional
notes issued pursuant to the terms of such note.
'Permitted Investment' means (i) an Investment in the Company or a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such Person's primary business is
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such Investment; (ii) Temporary Cash
Investments; (iii) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
in accordance with GAAP; (iv) stock, obligations or securities received in
settlement of Indebtedness Incurred in the ordinary course of business, upon
foreclosure of a Lien created in the ordinary course of business or in
satisfaction of judgments, including in connection with a bankruptcy proceeding;
(v) Investments in prepaid expenses, negotiable instruments held for collection
and lease, utility and worker's compensation, performance and other similar
deposits; (vi) Interest Rate Agreements and Currency Agreements designed solely
to protect the Company or its Restricted Subsidiaries against fluctuations in
interest rates or foreign currency exchange rates; (vii) loans or advances to
officers or employees of the Company or any Restricted Subsidiary that do not in
the aggregate exceed $2 million at any time outstanding; and (viii)
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Investments in any Person that is engaged in the telecommunications business and
that is not an Affiliate or a Related Person of the Company.
'Permitted Liens' means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (ii) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (vi)
Liens (including extensions and renewals thereof) upon real or personal property
acquired after the Closing Date; provided that (a) such Lien is created solely
for the purpose of securing Indebtedness Incurred, in accordance with the
'Limitation on Indebtedness' covenant described below, to finance the cost
(including the cost of design, development, acquisition, construction,
installation, improvement, transportation or integration and all transaction
costs related to the foregoing) of the item of property or assets subject
thereto and such Lien is created prior to, at the time of or within six months
after the later of the acquisition, the completion of construction or the
commencement of full operation of such property, (b) the principal amount of the
Indebtedness secured by such Lien does not exceed 100% of such cost and (c) any
such Lien shall not extend to or cover any property or assets other than such
item of property or assets and any improvements on such item; (vii) leases or
subleases granted to others that do not materially interfere with the ordinary
course of business of the Company and its Restricted Subsidiaries, taken as a
whole; (viii) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Company or its Restricted
Subsidiaries relating to such property or assets; (ix) any interest or title of
a lessor in the property subject to any Capitalized Lease or operating lease;
(x) Liens arising from filing Uniform Commercial Code financing statements
regarding leases; (xi) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or becomes
a part of, any Restricted Subsidiary; provided that such Liens do not extend to
or cover any property or assets of the Company or any Restricted Subsidiary
other than the property or assets acquired; (xii) Liens in favor of the Company
or any Restricted Subsidiary; (xiii) Liens arising from the rendering of a final
judgment or order against the Company or any Restricted Subsidiary that does not
give rise to an Event of Default; (xiv) Liens securing reimbursement obligations
with respect to letters of credit that encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (xv)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(xvi) Liens encumbering customary initial deposits and margin deposits, and
other Liens that are within the general parameters customary in the industry and
incurred in the ordinary course of business, in each case, securing Indebtedness
under Interest Rate Agreements and Currency Agreements and forward contracts,
options, future contracts, futures options or similar agreements or arrangements
designed solely to protect the Company or any of its Restricted Subsidiaries
from fluctuations in interest rates, currencies or the price of commodities;
(xvii) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business in accordance
with the past practices of the Company and its Restricted Subsidiaries prior to
the Closing Date; (xviii) Liens on or sales of receivables; and (xix) Liens that
secure Indebtedness with an aggregate principal amount not in excess of $5
million at any time outstanding.
'Reconstitution' means the reconstitution of the Company from a limited
liability company to a corporation, whether by merger, exchange or otherwise.
'Related Person' means, as applied to any Person, any other Person directly
or indirectly owning (a) 10% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation,
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10% or more of the outstanding equity interest in such Person) or (b) 10% or
more of the combined outstanding voting power of the Voting Stock of such
Person, and all Affiliates of any such other Person.
'Restricted Subsidiary' means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
'Significant Subsidiary' means, at any date of determination, TWT and any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
'S&P' means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, and its successors.
'Specified Date' means any Redemption Date, any Payment Date for an Offer
to Purchase or any date on which the Notes first become due and payable after an
Event of Default.
'Stated Maturity' means, (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
'Strategic Subordinated Indebtedness' means Indebtedness of the Company
Incurred to finance the acquisition of a Person engaged in a business that is
related, ancillary or complementary to the business conducted by the Company or
any of its Restricted Subsidiaries, which Indebtedness by its terms, or by the
terms of any agreement or instrument pursuant to which such Indebtedness is
Incurred, (i) is expressly made subordinate in right of payment to the Notes and
(ii) provides that no payment of principal, premium or interest on, or any other
payment with respect to, such Indebtedness may be made prior to the payment in
full of all of the Company's obligations under the Notes; provided that such
Indebtedness may provide for and be repaid at any time from the proceeds of the
sale of Capital Stock of the Company (other than Disqualified Stock) or other
Indebtedness of the Company which by its terms, or by the terms of any agreement
or instrument pursuant to which such other Indebtedness is Incurred, meets
clauses (i) and (ii) above after the Incurrence of such Indebtedness.
'Subsidiary' means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
'Tax Amount' means, with respect to any period, without duplication, the
increase in the cumulative United States Federal, state and local tax liability
of holders of equity interests in the Company (or if such holder is a
pass-through entity for United States income tax purposes, holders of its equity
interests) in respect of their interests in the Company for such period plus any
additional amounts payable to such holders to cover taxes arising from the
ownership of such equity interests, but excluding any increase in tax liability
or additional amounts payable in respect of a gain realized by a holder of an
equity interest in the Company upon the sale or disposition by such holder of an
equity interest, including without limitation, any redemption thereof by the
Company, in the Company.
'Temporary Cash Investment' means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within one year of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated 'A'
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate of the
Company) organized and in existence
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under the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of 'P-1' (or higher) according to
Moody's or 'A-1' (or higher) according to S&P, (v) securities with maturities of
six months or less from the date of acquisition issued or fully and
unconditionally guaranteed by any state, commonwealth or territory of the United
States of America, or by any political subdivision or taxing authority thereof,
and rated at least 'A' by S&P or Moody's, (vi) corporate debt securities with
maturities of eighteen months or less from the date of acquisition and with a
rating at the time as of which any Investment therein is made of 'A3' (or
higher) according to Moody's or 'A-' (or higher) according to S&P and (vii)
money market funds at least 95% of the assets of which are invested in the
foregoing.
'Trade Payables' means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
'Transaction Date' means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
'Unrestricted Subsidiary' means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any Restricted Subsidiary; provided that (A) any Guarantee by the Company or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated
shall be deemed an 'Incurrence' of such Indebtedness and an 'Investment' by the
Company or such Restricted Subsidiary (or both, if applicable) at the time of
such designation; (B) either (I) the Subsidiary to be so designated has total
assets of $1,000 or less or (II) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under the 'Limitation on Restricted
Payments' covenant described below and (C) if applicable, the Incurrence of
Indebtedness and the Investment referred to in clause (A) of this proviso would
be permitted under the 'Limitation on Indebtedness' and 'Limitation on
Restricted Payments' covenants described below. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that (i) no Default or Event of Default shall have occurred and be continuing at
the time of or after giving effect to such designation and (ii) all Liens and
Indebtedness of such Unrestricted Subsidiary outstanding immediately after such
designation would, if Incurred at such time, have been permitted to be Incurred
(and shall be deemed to have been Incurred) for all purposes of the Indenture.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
'Voting Stock' means with respect to any Person, Capital Stock of any class
or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
'Wholly Owned' means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly Owned Subsidiaries of such
Person.
COVENANTS
Limitation on Indebtedness
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness
existing on the Closing Date); provided that the Company may Incur Indebtedness
if, after giving effect to the Incurrence of such Indebtedness and the receipt
and application of the proceeds therefrom, the Consolidated Leverage Ratio would
be greater than zero and less than 6.0:1.
Notwithstanding the foregoing, the Company and any Restricted Subsidiary
(except as specified below) may Incur each and all of the following: (i)
Indebtedness outstanding at any time in an aggregate principal amount not to
exceed $300 million, less any amount of such Indebtedness permanently repaid as
provided under
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the 'Limitation on Asset Sales' covenant described below; (ii) Indebtedness owed
(A) to the Company evidenced by a promissory note or (B) to any Restricted
Subsidiary; provided that any event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of
such Indebtedness (other than to the Company or another Restricted Subsidiary)
shall be deemed, in each case, to constitute an Incurrence of such Indebtedness
not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or
the net proceeds of which are used to refinance or refund, then outstanding
Indebtedness (other than Indebtedness Incurred under clause (i), (ii), (iv),
(vi), (viii) or (ix) of this paragraph) and any refinancings thereof in an
amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided that Indebtedness the proceeds of
which are used to refinance or refund the Notes or Indebtedness that is pari
passu with, or subordinated in right of payment to, the Notes shall only be
permitted under this clause (iii) if (A) in case the Notes are refinanced in
part or the Indebtedness to be refinanced is pari passu with the Notes, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Notes, (B) in
case the Indebtedness to be refinanced is subordinated in right of payment to
the Notes, such new Indebtedness, by its terms or by the terms of any agreement
or instrument pursuant to which such new Indebtedness is issued or remains
outstanding, is expressly made subordinate in right of payment to the Notes at
least to the extent that the Indebtedness to be refinanced is subordinated to
the Notes and (C) such new Indebtedness, determined as of the date of Incurrence
of such new Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the Indebtedness
to be refinanced or refunded; and provided further that in no event may
Indebtedness of the Company be refinanced by means of any Indebtedness of any
Restricted Subsidiary pursuant to this clause (iii); (iv) Indebtedness (A) in
respect of performance, surety or appeal bonds provided in the ordinary course
of business, (B) under Currency Agreements and Interest Rate Agreements;
provided that such agreements (a) are designed solely to protect the Company or
its Restricted Subsidiaries against fluctuations in foreign currency exchange
rates or interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted Subsidiaries pursuant to
such agreements, in any case Incurred in connection with the disposition of any
business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness
Incurred by any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such acquisition), in a
principal amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such disposition; (v)
Indebtedness of the Company, to the extent the net proceeds thereof are promptly
(A) used to purchase Notes tendered in an Offer to Purchase made as a result of
a Change of Control or (B) deposited to defease the Notes as described below
under 'Defeasance'; (vi) Guarantees of the Notes and Guarantees of Indebtedness
of the Company by any Restricted Subsidiary provided the Guarantee of such
Indebtedness is permitted by and made in accordance with the 'Limitation on
Issuance of Guarantees by Restricted Subsidiaries' covenant described below;
(vii) Indebtedness Incurred to finance the cost (including the cost of design,
development, acquisition, construction, installation, improvement,
transportation or integration and all transaction costs related to the
foregoing) to acquire equipment, inventory or network assets (including
acquisitions by way of Capitalized Lease and acquisitions of the Capital Stock
of a Person that becomes a Restricted Subsidiary to the extent of the fair
market value of the equipment, inventory or network assets so acquired plus
goodwill associated therewith) by the Company or a Restricted Subsidiary after
the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one
time outstanding, two times (A) the Net Cash Proceeds received by the Company
after the Closing Date from the issuance and sale of its Capital Stock (other
than Disqualified Stock) to a Person that is not a Subsidiary of the Company, to
the extent (I) such Net Cash Proceeds have not been used pursuant to clause
(C)(2) of the first paragraph or clause (iii), (iv), (vi) of (vii) of the second
paragraph of the 'Limitation on Restricted Payments' covenant described below to
make a Restricted Payment and (II) if such Net Cash Proceeds are used to
consummate a transaction pursuant to which the Company Incurs Acquired
Indebtedness, the amount of such Net Cash Proceeds exceeds one-half of the
amount of Acquired Indebtedness so Incurred and (B) 80% of the fair market value
of property (other than cash and cash equivalents) received by the Company after
the Closing Date from the sale of its Capital Stock (other than Disqualified
Stock) to a Person that is not a Subsidiary of the Company, to the extent (I)
such sale of
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Capital Stock has not been used pursuant to clause (iii), (iv), (vi) or (vii) of
the second paragraph of the 'Limitation on Restricted Payments' covenant
described below to make a Restricted Payment and (II) if such Capital Stock is
used to consummate a transaction pursuant to which the Company Incurs Acquired
Indebtedness, 80% of the fair market value of the property received exceeds
one-half of the amount of Acquired Indebtedness so Incurred; provided that such
Indebtedness does not mature prior to the Stated Maturity of the Notes and has
an Average Life longer than the Notes; (ix) Acquired Indebtedness; (x) Strategic
Subordinated Indebtedness; and (xi) subordinated Indebtedness of the Company (in
addition to Indebtedness permitted under clauses (i) through (x) above) in an
aggregate principal amount outstanding at any time not to exceed $200 million,
less any amount of such Indebtedness permanently repaid as provided under the
'Limitation on Asset Sales' covenant described below.
(b) Notwithstanding any other provision of this 'Limitation on
Indebtedness' covenant, the maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may Incur pursuant to this 'Limitation on Indebtedness'
covenant shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness due solely to the result of fluctuations in the exchange rates of
currencies.
(c) For purposes of determining any particular amount of Indebtedness under
this 'Limitation on Indebtedness' covenant, (1) Guarantees, Liens or obligations
with respect to letters of credit supporting Indebtedness otherwise included in
the determination of such particular amount shall not be included and (2) any
Liens granted pursuant to the equal and ratable provisions referred to in the
'Limitation on Liens' covenant described below shall not be treated as
Indebtedness. For purposes of determining compliance with this 'Limitation on
Indebtedness' covenant, in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the above
clauses, the Obligors, in their sole discretion, shall classify, and from time
to time may reclassify, such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses.
(d) For purposes of determining compliance with any Dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, provided that (x) the
Dollar-equivalent principal amount of any such Indebtedness outstanding on the
Closing Date shall be calculated based on the relevant currency exchange rate in
effect on the Closing Date and (y) if such Indebtedness is Incurred to refinance
other Indebtedness denominated in a foreign currency, and such refinancing would
cause the applicable Dollar-denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such
refinancing, such Dollar-denominated restriction shall be deemed not to have
been exceeded so long as the principal amount of such refinancing Indebtedness,
converted into the currency in which the Indebtedness being refinanced is
denominated at the currency exchange rate in effect on the date of such
refinancing, does not exceed the principal amount of such Indebtedness being
refinanced (plus premiums, accrued interest, fees and expenses). The principal
amount of any Indebtedness Incurred to refinance other Indebteness, if Incurred
in a different currency from the Indebtedness being refinanced, shall be
calculated based on the foreign currency exchange rate applicable to the
currencies in which such respective Indebtedness is denominated that is in
effect on the date of such refinancing.
Limitation on Restricted Payments
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, (i) declare or pay any dividend or make any distribution
on or with respect to its Capital Stock (other than (x) dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire shares of
such Capital Stock and (y) pro rata dividends or distributions on Common Stock
of Restricted Subsidiaries held by minority stockholders) held by Persons other
than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem,
retire or otherwise acquire for value any shares of Capital Stock of (A) the
Company or an Unrestricted Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by any Person or (B) a
Restricted Subsidiary (including options, warrants or other rights to acquire
such shares of Capital Stock) held by any Affiliate of the Company (other than a
Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such
holder) of 5% or more of the Capital Stock of the Company, (iii) make any
voluntary or optional principal payment, or voluntary or optional redemption,
repurchase, defeasance, or other acquisition or retirement for value, of
Indebtedness of the Company that is
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subordinated in right of payment to the Notes or (iv) make any Investment, other
than a Permitted Investment, in any Person (such payments or any other actions
described in clauses (i) through (iv) above being collectively 'Restricted
Payments') if, at the time of, and after giving effect to, the proposed
Restricted Payment: (A) a Default or Event of Default shall have occurred and be
continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under
the first paragraph of the 'Limitation on Indebtedness' covenant or (C) the
aggregate amount of all Restricted Payments (the amount, if other than in cash,
to be determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution) made after the Closing
Date shall exceed the sum of (1) the amount by which Consolidated EBITDA exceeds
150% of Consolidated Interest Expense, in each case, determined on a cumulative
basis during the period (taken as one accounting period) beginning on the first
day of the fiscal quarter immediately following the Closing Date and ending on
the last day of the last fiscal quarter preceding the Transaction Date for which
reports have been filed with the Commission or provided to the Trustee pursuant
to the 'Commission Reports and Reports to Holders' covenant plus (2) the
aggregate Net Cash Proceeds received by the Company after the Closing Date from
the issuance and sale permitted by the Indenture of its Capital Stock (other
than Disqualified Stock) to a Person who is not a Subsidiary of the Company,
including an issuance or sale permitted by the Indenture of Indebtedness of the
Company for cash subsequent to the Closing Date upon the conversion of such
Indebtedness into Capital Stock (other than Disqualified Stock) of the Company,
or from the issuance to a Person who is not a Subsidiary of the Company of any
options, warrants or other rights to acquire Capital Stock of the Company (in
each case, exclusive of any Disqualified Stock or any options, warrants or other
rights that are redeemable at the option of the holder, or are required to be
redeemed, prior to the Stated Maturity of the Notes), in each case except to the
extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause
(viii) or (ix) of the second paragraph under the 'Limitation on Indebtedness'
covenant, plus (3) an amount equal to the net reduction in Investments (other
than reductions in Permitted Investments) in any Person resulting from payments
of interest on Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets, in each case to the Company or any Restricted
Subsidiary or from the Net Cash Proceeds from the sale of any such Investment
(except, in each case, to the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net Income), or from redesignations
of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of 'Investments'), not to exceed, in each case, the
amount of Investments previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of: (i) the payment
of any dividend within 60 days after the date of declaration thereof if, at said
date of declaration, such payment would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition or retirement
for value of Indebtedness that is subordinated in right of payment to the Notes
including premium, if any, and accrued and unpaid interest, with the proceeds
of, or in exchange for, Indebtedness Incurred under clause (iii) of the second
paragraph of part (a) of the 'Limitation on Indebtedness' covenant; (iii) the
repurchase, redemption or other acquisition of Capital Stock of the Company or
an Unrestricted Subsidiary (or options, warrants or other rights to acquire such
Capital Stock) in exchange for, or out of the proceeds of a substantially
concurrent offering of, shares of Capital Stock (other than Disqualified Stock)
of the Company (or options, warrants or other rights to acquire such Capital
Stock); (iv) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness of the
Company which is subordinated in right of payment to the Notes (including,
without limitation, Parent Company Debt) in exchange for, or out of the proceeds
of a substantially concurrent sale of, shares of the Capital Stock (other than
Disqualified Stock) of the Company (or options, warrants or other rights to
acquire such Capital Stock); (v) payments or distributions, to dissenting
stockholders pursuant to applicable law, pursuant to or in connection with a
consolidation, merger or transfer of assets that complies with the provisions of
the Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company; (vi) Investments in
any Person the primary business of which is related, ancillary or complementary
to the business of the Company and its Restricted Subsidiaries on the date of
such Investments; provided that the aggregate amount of Investments made
pursuant to this clause (vi) does not exceed the sum of (a) $10 million and (b)
the amount of Net Cash Proceeds received by the Company after the Closing Date
from the sale of its Capital Stock (other than Disqualified Stock) to a Person
who is not a Subsidiary of the Company, except to the extent such Net Cash
Proceeds are used to Incur Indebtedness pursuant to clause (viii) or (ix) under
the 'Limitation on Indebtedness' covenant or to make Restricted Payments
pursuant to clause (C)(2) of the first paragraph, or clauses (iii) or (iv)
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of this paragraph, of this 'Limitation on Restricted Payments' covenant, plus
(z) the net reduction in Investments made pursuant to this clause (vi) resulting
from distributions on or repayments of such Investments or from the Net Cash
Proceeds from the sale of any such Investment (except in each case to the extent
any such payment or proceeds is included in the calculation of Adjusted
Consolidated Net Income) or from such Person becoming a Restricted Subsidiary
(valued in each case as provided in the definition of 'Investments'), provided
that the net reduction in any Investment shall not exceed the amount of such
Investment; (vii) Investments acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Company; (viii) other Restricted Payments in an
aggregate amount not to exceed $10 million; (ix) for so long as the Company is
treated as a pass-through entity for United States Federal income tax purposes,
distributions to equity holders of the Company in an amount not to exceed the
Tax Amount for such period; and (x) the repurchase, redemption or other
acquisition of Capital Stock of the Company (or options, warrants or other
rights to acquire such Capital Stock) from Persons who are or were formerly
directors, officers or employees of the Company or any Restricted Subsidiary,
provided that the aggregate amount of all such repurchases made in any calendar
year pursuant to this clause (x) shall not exceed $2.0 million; provided that,
except in the case of clauses (i) and (iii) no Default or Event of Default shall
have occurred and be continuing or occur as a consequence of the actions or
payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iii) or (iv) thereof and an Investment referred to in clause (vi)
thereof), and the Net Cash Proceeds from any issuance of Capital Stock referred
to in clauses (iii), (iv) and (vi), shall be included in calculating whether the
conditions of clause (C) of the first paragraph of this 'Limitation on
Restricted Payments' covenant have been met with respect to any subsequent
Restricted Payments. In the event the proceeds of an issuance of Capital Stock
of the Company are used for the redemption, repurchase or other acquisition of
the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the first paragraph
of this 'Limitation on Restricted Payments' covenant only to the extent such
proceeds are not used for such redemption, repurchase or other acquisition of
Indebtedness.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
The Company will not, and will not permit any Restricted Subsidiary to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans or advances to
the Company or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Closing Date in the Indenture or any other
agreements in effect on the Closing Date, and any extensions, refinancings,
renewals or replacements of such agreements; provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements are
no less favorable in any material respect to the Holders than those encumbrances
or restrictions that are then in effect and that are being extended, refinanced,
renewed or replaced; (ii) existing under or by reason of applicable law or
required by any regulatory authority having jurisdiction over the Company or any
Restricted Subsidiary; (iii) existing with respect to any Person or the property
or assets of such Person acquired by the Company or any Restricted Subsidiary,
existing at the time of such acquisition and not incurred in contemplation
thereof, which encumbrances or restrictions are not applicable to any Person or
the property or assets of any Person other than such Person or the property or
assets of such Person so acquired, and any extensions, renewals or replacements
of such encumbrances or restrictions; provided that the encumbrances and
restrictions in any such extensions, renewals or replacements are no less
favorable in any material respect to the Holders than those encumbrances or
restrictions that are then in effect and that are being extended, renewed or
replaced; (iv) in the case of clause (iv) of the first paragraph of this
'Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries' covenant, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (B) existing by virtue of
any transfer of, agreement to transfer, option or right with respect to, or Lien
on, any property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by the Indenture or (C) arising or agreed to in the
ordinary course of
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business, not relating to any Indebtedness, and that do not, individually or in
the aggregate, detract from the value of property or assets of the Company or
any Restricted Subsidiary in any manner material to the Company or any
Restricted Subsidiary; (v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and assets of,
such Restricted Subsidiary; or (vi) contained in the terms of any Indebtedness
or any agreement pursuant to which such Indebtedness was issued if (A) the
encumbrance or restriction either (1) applies only in the event of a payment
default or non-compliance with respect to a financial covenant contained in such
Indebtedness or agreement or (2) is contained in a Credit Agreement, (B) the
encumbrance or restriction is not materially more disadvantageous to the Holders
of the Notes than is customary in comparable financings (as determined by the
Company) and (C) the Company determines on the date of the Incurrence of such
Indebtedness that any such encumbrance or restriction would not be expected to
materially impair either Obligors' ability to make principal or interest
payments on the Notes. Nothing contained in this 'Limitation on Dividend and
Other Payment Restrictions Affecting Restricted Subsidiaries' covenant shall
prevent the Company or any Restricted Subsidiary from (1) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted in the 'Limitation
on Liens' covenant or (2) restricting the sale or other disposition of property
or assets of the Company or any of its Restricted Subsidiaries that secure
Indebtedness of the Company or any of its Restricted Subsidiaries.
Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries
The Company will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any shares of Capital Stock of a
Restricted Subsidiary (including options, warrants or other rights to purchase
shares of such Capital Stock) except (i) to the Company or a Wholly Owned
Restricted Subsidiary; (ii) issuances of director's qualifying shares or sales
to foreign nationals of shares of Capital Stock of foreign Restricted
Subsidiaries, to the extent required by applicable law; (iii) if, immediately
after giving effect to such issuance or sale, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect to such issuance or sale would have been permitted
to be made under the 'Limitation on Restricted Payments' covenant if made on the
date of such issuance or sale; or (iv) issuances or sales of Common Stock of a
Restricted Subsidiary, provided that the Company or such Restricted Subsidiary
applies the Net Cash Proceeds, if any, of any such sale in compliance with the
'Limitation on Asset Sales' covenant described below. Notwithstanding the
foregoing, the Company will ensure that TWT remains a wholly owned Subsidiary of
the Company; provided that the foregoing shall not prevent a merger of TWT into
the Company.
Limitation on Issuances of Guarantees by Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee any Indebtedness of the Company which is pari passu
with or subordinate in right of payment to the Notes ('Guaranteed
Indebtedness'), unless (i) such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture to the Indenture providing for a Guarantee
(a 'Subsidiary Guarantee') of payment of the Notes by such Restricted Subsidiary
and (ii) such Restricted Subsidiary waives and will not in any manner whatsoever
claim or take the benefit or advantage of, any rights of reimbursement,
indemnity or subrogation or any other rights against the Company or any other
Restricted Subsidiary as a result of any payment by such Restricted Subsidiary
under its Subsidiary Guarantee; provided that this paragraph shall not be
applicable to any Guarantee of any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes,
then the Guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to, the Subsidiary Guarantee or (B) subordinated to the Notes, then
the Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to the Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's and each
Restricted Subsidiary's Capital Stock in, or all or substantially all the assets
of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by the Indenture) or (ii) the release or discharge of the Guarantee
which resulted in the creation of such Subsidiary Guarantee, except a discharge
or release by or as a result of payment under such Guarantee.
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Limitation on Transactions with Shareholders and Affiliates
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or assets,
or the rendering of any service) with a Related Person or with any Affiliate of
the Company or any Restricted Subsidiary, except upon fair and reasonable terms
no less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant to
a written agreement, at the time of the execution of the agreement providing
therefor, in a comparable arm's-length transaction with a Person that is not
such a Related Person or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view; (ii) any transaction
solely between the Company and any of its Wholly Owned Restricted Subsidiaries
or solely between Wholly Owned Restricted Subsidiaries; (iii) the payment of
reasonable and customary regular fees to directors of the Company who are not
employees of the Company; (iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other Person with which
the Company files a consolidated tax return or with which the Company is part of
a consolidated group for tax purposes; (v) any transaction with respect to the
lease or sharing or other use of cable or fiber lines, equipment, transmission
capacity, right-of-way or other access rights, between the Company or any
Restricted Subsidiary and any other Person; provided that such transaction is on
terms that (A) are consistent with past practice of the Company and its
Restricted Subsidiaries and (B) are no less favorable, taken as a whole, to the
Company or the relevant Restricted Subsidiary than those that could have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person (or, in the event that there are no
comparable transactions involving unrelated Persons to apply for comparative
purposes, is otherwise on terms that, taken as a whole, the Company has
determined to be fair to the Company or the relevant Restricted Subsidiary) or
(vi) any Restricted Payments not prohibited by the 'Limitation on Restricted
Payments' covenant. Notwithstanding the foregoing, any transaction or series of
related transactions covered by the first paragraph of this 'Limitation on
Transactions with Shareholders and Affiliates' covenant and not covered by
clauses (ii) through (vi) of this paragraph, the aggregate amount of which
exceeds $10 million in value, must be determined to be fair in the manner
provided for in clause (i)(A) or (B) above.
Limitation on Liens
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, assume or suffer to exist any Lien on any of its assets or
properties of any character (including, without limitation, licenses), or any
shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without
making effective provision for all of the Notes and all other amounts due under
the Indenture to be directly secured equally and ratably with (or, if the
obligation or liability to be secured by such Lien is subordinated in right of
payment to the Notes, prior to) the obligation or liability secured by such
Lien.
The foregoing limitation does not apply to (i) Liens existing on the
Closing Date; (ii) Liens granted after the Closing Date on any assets or Capital
Stock of the Company or its Restricted Subsidiaries created in favor of the
Holders; (iii) Liens with respect to the assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary to secure Indebtedness owing to the Company or such other
Restricted Subsidiary; (iv) Liens securing Indebtedness which is Incurred to
refinance secured Indebtedness which is permitted to be Incurred under clause
(iii) of the second paragraph of the 'Limitation on Indebtedness' covenant;
provided that such Liens do not extend to or cover any property or assets of the
Company or any Restricted Subsidiary other than the property or assets securing
the Indebtedness being refinanced; (v) Liens on the Capital Stock of, or any
property or assets of, a Restricted Subsidiary securing Indebtedness of such
Restricted Subsidiary permitted under the 'Limitation on Indebtedness' covenant;
or (vi) Permitted Liens.
Limitation on Sale-Leaseback Transactions
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any sale-leaseback transaction involving any of its assets or
properties whether now owned or hereafter acquired, whereby the Company or a
Restricted Subsidiary sells or transfers such assets or properties and then or
thereafter leases such
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assets or properties or any part thereof or any other assets or properties which
the Company or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred.
The foregoing restriction does not apply to any sale-leaseback transaction
if (i) the lease is for a period, including renewal rights, of not in excess of
three years; (ii) the lease secures or relates to industrial revenue or
pollution control bonds; (iii) the transaction is solely between the Company and
any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted
Subsidiaries; or (iv) the Company or such Restricted Subsidiary, applies an
amount not less than the net proceeds received from such sale in compliance with
the 'Limitation on Asset Sales' covenant described below.
Amendments to Parent Company Debt
The Company will not amend or modify the terms of the Parent Company Debt
from those in effect on the Closing Date, in any way that is materially adverse
to the Holders of the Notes, provided, however, that no amendment or
modification may, without the consent of each Holder of the Notes, (i) shorten
the maturity of the Parent Company Debt, (ii) change the subordination
provisions thereof in a manner that is adverse to the rights of the Holders in
any material respect or (iii) change the provisions that require payment of
interest in kind to require payment in cash or cash equivalents. Upon any
amendment or modification to the terms of the Parent Company Debt, the Company
shall deliver to the Trustee an Officer's Certificate as to the compliance of
such amendment or modification with the terms of this covenant.
Limitation on Asset Sales
The Company will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale, unless (i) the consideration received by the Company
or such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
consists of cash, Temporary Cash Investments or the assumption of Indebtedness
of the Company (other than Indebtedness that is subordinated to the Notes) or of
a Restricted Subsidiary and unconditional release of the Company and its
Restricted Subsidiaries from all liability on the Indebtedness assumed;
provided, however, that this clause (ii) shall not apply to long-term
assignments in capacity in a telecommunications network. In the event and to the
extent that the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Sales occurring on or after the
Closing Date in any period of 12 consecutive months exceed 10% of Adjusted
Consolidated Net Tangible Assets (determined as of the date closest to the
commencement of such 12-month period for which a consolidated balance sheet of
the Company and its Subsidiaries has been filed with the Commission pursuant to
the 'Commission Reports and Reports to Holders' covenant), then the Company
shall or shall cause the relevant Restricted Subsidiary to (i) within 12 months
after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated
Net Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds
less any amounts invested within 6 months prior to such Asset Sale in property
or assets of a nature or type or that are used in a business (or in a company
having property and assets of a nature or type, or engaged in a business)
similar or related to the nature or type of the property and assets of, or the
business of, the Company and its Restricted Subsidiaries on the date of such
Asset Sale (the 'Adjusted Net Cash Proceeds') to permanently repay
unsubordinated Indebtedness of the Company, or any Restricted Subsidiary
providing a Subsidiary Guarantee pursuant to the 'Limitation on Issuances of
Guarantees by Restricted Subsidiaries' covenant described above or Indebtedness
of any other Restricted Subsidiary, in each case owing to a Person other than
the Company or any of its Restricted Subsidiaries or (B) invest an equal amount,
or the amount of Adjusted Net Cash Proceeds not so applied pursuant to clause
(A) (or enter into a definitive agreement committing to so invest within 12
months after the date of such agreement), in property or assets (other than
current assets) of a nature or type or that are used in a business (or in a
company having property and assets of a nature or type, or engaged in a
business) similar or related to the nature or type of the property and assets
of, or the business of, the Company and its Restricted Subsidiaries existing on
the date of such investment (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) and (ii) apply (no later than the end of the 12-month period
referred to in clause (i)) such excess Adjusted Net Cash Proceeds (to the extent
not applied pursuant to clause (i)) as provided in the following paragraph of
this 'Limitation on Asset Sales' covenant. The amount of such excess Adjusted
Net Cash Proceeds required to be applied (or to be committed to be applied)
during such 12-month period as set forth in
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clause (i) of the preceding sentence and not applied as so required by the end
of such period shall constitute 'Excess Proceeds.'
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
'Limitation on Asset Sales' covenant totals at least $10 million, the Obligors
must commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount of Notes and to the extent permitted or required by
the terms thereof, any other Indebtedness of the Company that is pari passu with
the Notes, equal to the Excess Proceeds on such date, at a purchase price equal
to 100% of the principal amount of the Notes and such other Indebtedness, if
applicable, on the relevant Payment Date, plus, in each case, accrued interest
(if any) to the Payment Date.
REPURCHASE OF NOTES UPON A CHANGE OF CONTROL
The Obligors must commence, within 30 days of the later of (a) the
occurrence of a Change of Control and (b) the end of the Change of Control
Period with respect to a Change of Control, and consummate an Offer to Purchase
for all Notes then outstanding, at a purchase price equal to 101% of the
principal amount thereof on the relevant Payment Date, plus accrued interest (if
any) to the Payment Date; provided that, the Obligors shall not be required to
commence and consummate an Offer to Purchase if, at the time specified above for
the commencement of an Offer to Purchase the Notes shall be rated Investment
Grade.
There can be no assurance that the Obligors will have sufficient funds
available at the time of any Change of Control to make any debt payment
(including repurchases of Notes) required by the foregoing covenant (as well as
may be contained in other securities of the Obligors which might be outstanding
at the time). The above covenant requiring the Obligors to repurchase the Notes
will, unless consents are obtained, require the Obligors to repay all
indebtedness then outstanding which by its terms would prohibit such Note
repurchase, either prior to or concurrently with such Note repurchase.
COMMISSION REPORTS AND REPORTS TO HOLDERS
Whether or not the Obligors are then required to file reports with the
Commission, the Obligors shall file with the Commission all such reports and
other information as they would be required to file with the Commission by
Sections 13(a) or 15(d) under the Securities Exchange Act of 1934 if they were
subject thereto. The Obligors shall supply the Trustee and each Holder or shall
supply to the Trustee for forwarding to each such Holder, without cost to such
Holder, copies of such reports and other information.
EVENTS OF DEFAULT
The following events will be defined as 'Events of Default' in the
Indenture: (a) default in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise; (b) default in the payment of interest on any Note when
the same becomes due and payable, and such default continues for a period of 30
days; (c) default in the performance or breach of the provisions of the
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with the 'Limitation on Asset
Sales' or 'Repurchase of Notes upon a Change of Control' covenant; (d) the
Company or TWT defaults in the performance of or breaches any other covenant or
agreement of the Company or TWT in the Indenture or under the Notes (other than
a default specified in clause (a), (b) or (c) above), and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes; (e) there occurs with respect to any issue or issues of Indebtedness of
the Company or any Significant Subsidiary having an outstanding principal amount
of $12 million or more in the aggregate for all such issues of all such Persons,
whether such Indebtedness now exists or shall hereafter be created, (I) an event
of default that has caused the holder thereof to declare such Indebtedness to be
due and payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (II) the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 30 days of such
payment default; (f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $12 million in the
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aggregate for all such final judgments or orders against all such Persons
(treating any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate amount
for all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $12 million during which a stay of
enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of the Company or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (B)
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 30 consecutive days;
or (h) the Company or any Significant Subsidiary (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) above that occurs with respect to an Obligor) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, by written notice to
the Obligors (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal
amount of, premium, if any, and accrued interest on the Notes to be immediately
due and payable. Upon a declaration of acceleration, such principal amount,
premium, if any, and accrued interest shall be immediately due and payable. In
the event of a declaration of acceleration because an Event of Default set forth
in clause (e) above has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (e) shall be
remedied or cured by the Company or the relevant Significant Subsidiary or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) above occurs with respect to an Obligor, the
principal amount of, premium, if any, and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. The
Holders of at least a majority in principal amount of the outstanding Notes by
written notice to the Company and to the Trustee, may waive all past Defaults
and rescind and annul a declaration of acceleration and its consequences if (i)
all existing Events of Default, other than the nonpayment of the principal of,
premium, if any, and interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (ii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. For information as to the waiver of defaults, see
' -- Modification and Waiver.'
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture, that may involve the Trustee
in personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Notes not joining in the giving
of such direction and may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of such Notes. A
Holder may not pursue any remedy with respect to the Indenture or the Notes
unless: (i) the Holder gives the Trustee written notice of a continuing Event of
Default; (ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity satisfactory to the
Trustee against any costs, liability or expense; (iv) the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of indemnity; and (v) during such 60-day period, the Holders of a majority
in aggregate principal amount of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request. However, such limitations do
not apply to the right of any Holder of a Note to receive payment of the
principal amount of, premium, if any, or interest on, such Note or to bring suit
for the enforcement of any such payment, on or after
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the due date expressed in the Notes, which right shall not be impaired or
affected without the consent of the Holder.
The Indenture will require certain officers of the Obligors to certify, on
or before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under the Indenture and that the Company has fulfilled all obligations
thereunder, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Obligors will also be obligated to notify the Trustee of any default or defaults
in the performance of any covenants or agreements under the Indenture.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company will not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property
and assets (as an entirety or substantially an entirety in one transaction or a
series of related transactions) to, any Person or permit any Person to merge
with or into the Company unless: (i) the Company shall be the continuing Person,
or the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and assets
of the Company shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Notes and under the
Indenture; (ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; (iii) immediately
after giving effect to such transaction on a pro forma basis, the Company or any
Person becoming the successor obligor of the Notes shall have a Consolidated Net
Worth equal to or greater than the Consolidated Net Worth of the Company
immediately prior to such transaction; provided that this clause (iii) shall
only apply to a sale of substantially all, but less than all, of the assets of
the Company; (iv) immediately after giving effect to such transaction on a pro
forma basis the Company, or any Person becoming the successor obligor of the
Notes, as the case may be, could Incur at least $1.00 of Indebtedness under the
first paragraph of the 'Limitation on Indebtedness' covenant; provided that this
clause (iv) shall not apply to (x) a consolidation, merger or sale of all (but
not less than all) of the assets of the Company if all Liens and Indebtedness of
the Company or any Person becoming the successor obligor on the Notes, as the
case may be, and its Restricted Subsidiaries outstanding immediately after such
transaction would, if Incurred at such time, have been permitted to be Incurred
(and all such Liens and Indebtedness, other than Liens and Indebtedness of the
Company and its Restricted Subsidiaries outstanding immediately prior to the
transaction, shall be deemed to have been Incurred) for all purposes of the
Indenture or (y) a consolidation, merger or sale of all or substantially all of
the assets of the Company if immediately after giving effect to such transaction
on a pro forma basis, the Company or any Person becoming the successor obligor
of the Notes shall have a Consolidated Leverage Ratio equal to or less than the
Consolidated Leverage Ratio of the Company immediately prior to such
transaction; and (v) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to demonstrate compliance
with clauses (iii) and (iv) above) and Opinion of Counsel, in each case stating
that such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for
herein relating to such transaction have been complied with; provided, however,
that clauses (iii) and (iv) above do not apply if, in the good faith
determination of the Board of Directors of the Company, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of incorporation of the Company; and provided
further that any such transaction shall not have as one of its purposes the
evasion of the foregoing limitations.
DEFEASANCE
Defeasance and Discharge. The Indenture will provide that the Obligors will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 123rd day after the deposit referred to below, and
the provisions of the Indenture will no longer be in effect with respect to the
Notes (except for, among other matters, certain obligations to register the
transfer or exchange of the Notes, to replace stolen, lost or mutilated Notes,
to maintain paying agencies and to hold monies for payment in trust) if, among
other things, (A) the Obligors have deposited with the Trustee, in trust, money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms
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will provide money in an amount sufficient to pay the principal of, premium, if
any, and accrued interest on the Notes on the Stated Maturity of such payments
in accordance with the terms of the Indenture and the Notes, (B) the Obligors
have delivered to the Trustee (i) either (x) an Opinion of Counsel to the effect
that Holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Obligors' exercise of their option under this
'Defeasance' provision and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred, which Opinion of
Counsel must be based upon (and accompanied by a copy of) a ruling of the
Internal Revenue Service to the same effect unless there has been a change in
applicable federal income tax law after the Closing Date such that a ruling is
no longer required or (y) a ruling directed to the Trustee received from the
Internal Revenue Service to the same effect as the aforementioned Opinion of
Counsel and (ii) an Opinion of Counsel to the effect that the creation of the
defeasance trust does not violate the Investment Company Act of 1940 and after
the passage of 123 days following the deposit, the trust fund will not be
subject to the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law, (C) immediately after giving
effect to such deposit on a pro forma basis, no Event of Default, or event that
after the giving of notice or lapse of time or both would become an Event of
Default, shall have occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after the date of such deposit, and
such deposit shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound and (D) if at such time the Notes are listed on a national securities
exchange, the Obligors have delivered to the Trustee an Opinion of Counsel to
the effect that the Notes will not be delisted as a result of such deposit,
defeasance and discharge.
Defeasance of Certain Covenants and Certain Events of Default. The
Indenture further will provide that the provisions of the Indenture will no
longer be in effect with respect to clauses (iii) and (iv) under 'Consolidation,
Merger and Sale of Assets' and all the covenants described herein under
'Covenants,' clause (c) under 'Events of Default' with respect to such clauses
(iii) and (iv) under 'Consolidation, Merger and Sale of Assets,' clause (d)
under 'Events of Default' with respect to such other covenants and clauses (e)
and (f) under 'Events of Default' shall be deemed not to be Events of Default
upon, among other things, the deposit with the Trustee, in trust, of money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of, premium, if any, and accrued
interest on the Notes on the Stated Maturity of such payments in accordance with
the terms of the Indenture and the Notes, the satisfaction of the provisions
described in clauses (B)(ii), (C) and (D) of the preceding paragraph and the
delivery by the Obligors to the Trustee of an Opinion of Counsel to the effect
that, among other things, the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred.
Defeasance and Certain Other Events of Default. In the event the Obligors
exercise their option to omit compliance with certain covenants and provisions
of the Indenture with respect to the Notes as described in the immediately
preceding paragraph and such Notes are declared due and payable because of the
occurrence of an Event of Default that remains applicable, the amount of money
and/or U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on such Notes at the time of their Stated Maturity
but may not be sufficient to pay amounts due on such Notes at the time of the
acceleration resulting from such Event of Default. However, the Obligors will
remain liable for such payments.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Obligors
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Notes; provided, however, that no
such modification or amendment may, without the consent of each Holder affected
thereby, (i) change the Stated Maturity of the principal of, or any installment
of interest on, any Note, (ii) reduce the principal amount of, or premium, if
any, or interest on, any Note, (iii) change the place or currency of payment of
principal of, or premium, if any, or interest on, any Note, (iv) impair the
right to institute suit for the enforcement of any payment on or after the
Stated Maturity (or, in the case of a redemption, on or after the Redemption
Date) of any Note, (v) reduce the above-stated percentage of outstanding Notes,
the consent of
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whose Holders is necessary to modify or amend the Indenture, (vi) waive a
default in the payment of principal of, premium, if any, or interest on the
Notes or modify any provisions of the Indenture relating to modification or
amendment thereof or (vii) reduce the percentage or aggregate principal amount
of outstanding Notes, the consent of whose Holders is necessary for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults.
NO PERSONAL LIABILITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS, OR
EMPLOYEES
The Indenture provides that no recourse for the payment of the principal
of, premium, if any, or interest on any of the Notes or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Obligors in the Indenture, or in any of
the Notes or because of the creation of any Indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer, director, employee
or controlling person of either Obligor or of any successor Person thereof. Each
Holder, by accepting the Notes, waives and releases all such liability.
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of a Default,
the Trustee will perform only such duties as are specifically set forth in the
Indenture. If an Event of Default has occurred and is continuing, the Trustee
will use the same degree of care and skill in its exercise of the rights and
powers vested in it under the Indenture as a prudent person would exercise under
the circumstances in the conduct of such person's own affairs.
The Indenture and provisions of the Trust Indenture Act of 1939, as
amended, incorporated by reference therein contain limitations on the rights of
the Trustee, should it become a creditor of an Obligor, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions; provided, however, that if it acquires any
conflicting interest, it must eliminate such conflict or resign.
BOOK-ENTRY; DELIVERY AND FORM
The Notes will be initially represented by one or more global notes (the
'Global Notes') issued in the form of fully registered Global Notes, which will
be deposited with, or on behalf of, the Depositary and registered in the name of
a nominee of the Depositary. Transfers between participants in the Depositary
will be effected in the ordinary way in accordance with the Depositary's rules
and will be settled in same-day funds.
The Depositary has advised the Obligors and the Underwriters that the
Depositary intends to follow the procedures described below:
The Depositary will act as securities depository for the Global Notes.
The Global Notes will be issued as a fully registered security registered
in the name of Cede & Co. (the Depositary's nominee).
The Depositary is a limited-purpose trust company organized under the
New York Banking Law, a 'banking organization' within the meaning of the
New York Banking Law, a member of the Federal Reserve System, a 'clearing
corporation' within the meaning of the New York Uniform Commercial Code,
and a 'clearing agency' registered pursuant to the provisions of Section
17A of the Exchange Act. The Depositary holds securities that its
participants ('Participants') deposit with the Depositary. The Depositary
also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. Direct Participants include securities brokers and dealers,
banks, trust companies, clearing corporations, and certain other
organizations ('Direct Participants'). The Depositary is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the Depositary's system is also available to others
such as securities brokers and dealers, banks, and trust companies that
clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ('Indirect Participants'). The
Rules applicable to the Depositary and its Participants are on file with
the Commission.
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Purchases of Notes must be made by or through Direct Participants,
which will receive a credit for the Notes on the Depositary's records. The
ownership interest of each actual purchaser of each Note ('Beneficial
Owner') is in turn recorded on the Direct and Indirect Participant's
records. Transfers of ownership interests in the Notes are to be
accomplished by entries made on the books of Participants acting on behalf
of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in the Notes, except in the event
that use of the book-entry system for the Notes is discontinued.
Conveyance of Notes and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and
by Direct Participants and Indirect Participants to Beneficial Owners are
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Notes are being redeemed, the Depositary's practice is to determine by lot
the amount of the interest of each Direct Participant in such issue to be
redeemed.
Neither the Depositary nor Cede & Co. will consent or vote with
respect to the Notes. Under its usual procedures, the Depositary mails an
Omnibus Proxy to the issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Notes are credited on the record
date (identified in a listing attached to the Omnibus Proxy).
Principal, premium (if any), and interest payments on the Notes will
be made to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings shown on the Depositary's records unless the Depositary
has reason to believe that it will not receive payment on the payable date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in 'street
name,' and will be the responsibility of such Participant and not of the
Depositary, the Paying Agent, or the Obligors, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment to
the Depositary of principal, premium (if any) and interest on the Notes are
the responsibility of the Obligors or the Paying Agent, disbursement of
such payments to Direct Participants shall be the responsibility of the
Depositary, and disbursement of such payments to the Beneficial Owners
shall be the responsibility of Direct and Indirect Participants.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the
Obligors believe to be reliable, but the Obligors take no responsibility
for the accuracy thereof.
So long as the Depositary for the Global Notes, or its nominee, is the
registered owner of the Global Notes, the Depositary or its nominee, as the
case may be, will be considered the sole owner or Holder of the Notes
represented by the Global Notes for all purposes under the Indenture.
Except as set forth below, owners of beneficial interests in such Global
Notes will not be entitled to have Notes represented by such Global Notes
registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form and will not be considered
the owners or Holders thereof under the Indenture. Accordingly, each person
owning a beneficial interest in Global Notes must rely on the procedures of
the Depositary and, if such person is not a Participant, those of the
Participant through which such person owns its interests, in order to
exercise any rights of a Holder under the Indenture or such Note.
The Indenture provides that the Depositary, as a Holder, may appoint
agents and otherwise authorize Participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under the Indenture, including
the right to sue for payment of principal or interest pursuant to Section
316(b) of the Trust Indenture Act of 1939, as amended. The Obligors
understand that under existing industry practices, when the Obligors
request any action of Holders or when a Beneficial Owner desires to give or
take any action which a Holder is entitled to give or take under the
Indenture, the Depositary generally will give or take such action, or
authorize the relevant Participants to give or take such action, and such
Participants would authorize Beneficial Owners owning through such
Participants to give or take such action or would otherwise act upon the
instructions of Beneficial Owners owning through them.
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The Obligors have been informed by the Depositary that the Depositary
will assist its Participants and their customers (Beneficial Owners) in
taking any action a Holder is entitled to take under the Indenture or
exercise any rights available to Cede & Co., as the holder of record of the
Notes and including the right to demand acceleration of the Notes upon an
Event of Default or to institute suit for the enforcement of payment or
interest pursuant to Section 316(b) of the Trust Indenture Act of 1939, as
amended. The Depositary has advised the Obligors that it will act with
respect to such matters only upon written instructions from a Participant
to whose account with the Depositary the relevant beneficial ownership in
the Notes is credited and only in respect of such portion of the aggregate
principal amount of the Notes as to which such Participant has given such
direction. The Obligors understand that a Participant will deliver such
written instructions to the Depositary upon itself receiving similar
written instructions from either Indirect Participants or Beneficial
Owners, as the case may be. Under Rule 6 of the rules and procedures filed
by the Depositary with the Commission pursuant to Section 17 of the
Exchange Act, Participants are required to indemnify the Depositary against
all liability the Depositary may sustain, without fault on the part of the
Depositary or its nominee, as a result of any action they may take pursuant
to the instructions of the Participant in exercising any such rights.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Such limits and such laws may impair the ability to transfer beneficial
interests in the Global Notes.
Principal, premium, if any, and interest payments on Notes registered
in the name of or held by the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner or
the Holder of the Global Notes representing such Notes. Neither the
Obligors nor the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Obligors within 60 days or, if an Event of Default under the Indenture has
occurred and is continuing, the Obligors will issue Notes in definitive
registered form, without coupons, in denominations of $1,000 of principal
amount and any integral multiple thereof, in exchange for the Global Notes
representing such Notes. In addition, the Obligors may at any time and in
their sole discretion determine not to have any Notes in registered form
represented by the Global Notes and, in such event, will issue Notes or in
definitive registered form in exchange for the Global Notes representing
such Notes. In any such instance, an owner of a beneficial interest in a
Global Note will be entitled to physical delivery in definitive form of
Notes registered in its name. Upon the exchange of the Global Notes for
Notes in definitive form, the Global Notes will be canceled by the Trustee.
DESCRIPTION OF INTERESTS
The LLC Agreement provides for two authorized classes of Interests, the
Class A Interests and the Class B Interests. The Company has not issued any
Class A Interests and the Members hold 100% of the Class B Interests.
The following summary description of the Interests does not purport to be
complete. The rights of the holders of the Interests are set forth in the LLC
Agreement, the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The summary set forth below is
qualified by reference to such exhibit and to the applicable provisions of the
Delaware Limited Liability Company Act (the 'Delaware Act').
INTERESTS
The relative rights of the Class A Interests and the Class B Interests are
substantially identical in all respects, except for voting rights, rights to
designate Representatives and conversion rights.
Voting Rights. The Class B Interests have the approval rights set forth
below, and the Class A Interests have no voting, approval or consent rights,
including with respect to the decision to effect the Reconstitution or the
Initial Public Offering; provided, that at all times the approval of the holders
of a majority (in participation
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percentages) of the Class A Interests, voting as a separate class, is required
for any amendment to the LLC Agreement that would have an adverse effect on the
rights of the holders of such class.
Without the unanimous vote of the holders of Class B Interests, voting as a
separate class, (A) the LLC Agreement and any exhibit thereto (including the
Certificate of Incorporation of the Company and the Stockholders Agreement) may
not be amended, (B) the Company may not dispose of assets having a fair market
value of $100 million or more, (C) the Company may not acquire assets having an
aggregate purchase price of $100 million or more, and (D) the Company may not
issue any additional Interests. Under the LLC Agreement, the Company may not,
directly or indirectly (through a subsidiary or affiliate of the Company), (i)
engage in the business of providing, offering, packaging, marketing, promoting
or branding (alone or jointly with or as an agent for other parties) any
Residential Services or (ii) engage in the business of producing, packaging,
distributing, marketing, hosting, offering, promoting, branding or otherwise
providing Content Services, in each case without the unanimous vote of the
holders of Class B Interests. The decision to effect the Reconstitution, and the
terms of the related Initial Public Offering, shall require the approval of 100%
of the Members who continue to have the right to designate Representatives as of
the time of such approval, and shall not require the approval of any other
holder of an Interest.
Distributions. The holders of Interests are entitled to receive
distributions from funds legally available therefor if, as and when declared by
the Management Committee, in respect of each Interest in proportion to the
participation percentage of such Interest.
Conversion. Under the LLC Agreement, each Class B Interest is convertible
(in whole or in part) at any time following the Restricted Period at the option
of the holder thereof into a Class A Interest having the same participation
percentage. The Class A Interests have no conversion rights.
Other. Holders of Interests have no preemptive or other rights to subscribe
for additional Interests.
DISCLAIMER OF CERTAIN DUTIES
The LLC Agreement provides that the Members and their affiliates and the
Representatives (collectively, 'Covered Persons') will have no liability,
including under any legal or equitable theory of fiduciary duty or other theory
of liability, to the Company or to any other Covered Person, for any losses,
claims, damages or liabilities incurred by reason of any act or omission
performed or omitted by such Covered Person in good faith on behalf of the
Company.
The LLC Agreement provides that to the fullest extent permitted by
applicable law (including Section 18-1101(c) of the Delaware Act), no holder of
an Interest (including the Members) will have any fiduciary or similar duty, at
law or in equity, or any liability relating thereto, to the Company or any other
holder, with respect to or in connection with the Company or the Company's
business or affairs, and that the doctrine of corporate opportunity, and any
other analogous doctrine, will not apply with respect to the Company. The LLC
Agreement provides that to the extent the doctrine of corporate opportunity, or
any other analogous doctrine, is applicable to the Company under applicable law,
the provisions described below under 'Description of Capital Stock -- Corporate
Opportunities' will be applicable thereto.
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DESCRIPTION OF CAPITAL STOCK
Following the Reconstitution, the Company's Certificate of Incorporation
will provide for authorized capital stock consisting of Class A Common Stock and
Class B Common Stock and preferred stock (the 'Preferred Stock'). The following
summary description relating to the capital stock of the Company does not
purport to be complete. The rights of the holders of the Company's capital stock
will be set forth in the Company's Certificate of Incorporation, as well as the
Stockholders Agreement, the forms of both of which are filed as exhibits to the
LLC Agreement which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. The summary set forth below is qualified by
reference to such exhibits and to the applicable provisions of the Delaware
General Corporation Law (the 'DGCL'). There can be no assurance that the
Reconstitution will be effected.
COMMON STOCK
The relative rights of the Class A Common Stock and Class B Common Stock
will be substantially identical in all respects, except for voting rights and
conversion rights.
Voting Rights. Each share of Class A Common Stock will entitle the holder
to one vote and each share of Class B Common Stock will entitle the holder to 10
votes on each matter to be voted upon by the holders of the Common Stock. The
holders of the shares of Class A Common Stock and Class B Common Stock will vote
as one class on all matters to be voted on by stockholders, including, without
limitation, the election of directors and any proposed amendment to the
Certificate of Incorporation of the Company that would increase the authorized
number of shares of Common Stock or any class thereof or any other class or
series of stock or decrease the number of authorized shares of any class or
series of stock (but not below the number thereof then outstanding), except as
required by the DGCL and except that, (i) without a unanimous vote of the
holders of the Class B Common Stock, voting as a separate class, (A) the
Certificate of Incorporation may not be amended, altered or repealed and (B) the
Company may not merge or consolidate with, or sell all or substantially all of
its assets to, any person, in each case, until such time as the outstanding
shares of Class B Common Stock represent less than 50% of the voting power of
the outstanding Common Stock and (ii) without a majority vote of the holders of
the Class A Common Stock, certain provisions of the Certificate of Incorporation
relating to the termination of, and vote required to waive, the limitations on
business purposes described in the next sentence may not be amended, altered or
repealed. Under the Certificate of Incorporation, the Company will not be
permitted to directly or indirectly (through a subsidiary or affiliate of the
Company) (i) engage in the business of providing, offering, packaging,
marketing, promoting or branding (alone or jointly with or as an agent for other
parties) any Residential Services or (ii) engage in the business of producing,
packaging, distributing, marketing, hosting, offering, promoting or branding or
otherwise providing Content Services, in each case until the earlier of (x) the
date that is five years after the date of the filing of the Certificate of
Incorporation and (y) the date on which the holders of Class B Common Stock no
longer represent at least 50% of the voting power of the outstanding Common
Stock of the Company.
Neither the holders of Class A Common Stock nor the holders of Class B
Common Stock will have cumulative voting rights. For a discussion of the effects
of the disproportionate voting rights of the Class A Common Stock and Class B
Common Stock, see 'Risk Factors -- Control by Principal Stockholders; Conflicts
of Interest; Possible Competition.'
Dividends. Each share of Common Stock will be entitled to receive dividends
from funds legally available therefor if, as and when declared by the Board of
Directors of the Company. Class A Common Stock and Class B Common Stock will
share equally, on a share-for-share basis, in any dividends declared by the
Board of Directors.
Conversion. Under the Certificate of Incorporation, each share of Class B
Common Stock will be convertible at any time and from time to time at the option
of the holder thereof into one share of Class A Common Stock. The Class A Common
Stock will have no conversion rights.
Other. Stockholders of the Company will have no preemptive or other rights
to subscribe for additional shares. All holders of Common Stock, regardless of
class, will be entitled to share equally on a share-for-share basis in any
assets available for distribution to stockholders on liquidation, dissolution or
winding up of the Company.
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CORPORATE OPPORTUNITIES
The Certificate of Incorporation will provide that the Existing
Stockholders are not restricted from engaging directly or indirectly in the same
or similar business activities or lines of business as the Company. In the event
that any of the Existing Stockholders acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for any of the
Existing Stockholders and the Company, such corporate opportunity shall be
allocated to the Existing Stockholder if offered to any person who is an
officer, employee or director of the Existing Stockholder and/or the Company,
unless such opportunity is expressly offered to such person primarily in his or
her capacity as an officer, employee or director of the Company. Other than in
accordance herewith, the Existing Stockholders shall have no duty to communicate
or present such corporate opportunity to the Company.
PREFERRED STOCK
The Company's Board of Directors will be authorized to provide for the
issuance of Preferred Stock in one or more series and to fix the designation,
preferences, powers and relative, participating, optional and other rights,
qualifications, limitations and restrictions thereof, including the dividend
rate, conversion rights, voting rights, redemption price and liquidation
preference and to fix the number of shares to be included in any such series.
Any Preferred Stock so issued may rank senior to the Common Stock with respect
to the payment of dividends or amounts upon liquidation, dissolution or winding
up, or both. In addition, any such shares of Preferred Stock may have class or
series voting rights.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Certificate of Incorporation of the Company will expressly state that
the Company has elected not to be governed by Section 203 of the DGCL which
prohibits a publicly held Delaware corporation from engaging in a 'business
combination' (as defined in Section 203(c)(3) of the DGCL) with an 'interested
stockholder' (as defined in Section 203(c)(5) of the DGCL) for a period of three
years after the date of the transaction in which such stockholder became an
interested stockholder.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Certificate of Incorporation will limit the liability of Directors to
the fullest extent permitted by the Delaware General Corporation Law. In
addition, the Certificate of Incorporation will provide that the Company shall
indemnify Directors and officers of the Company to the fullest extent permitted
by such law. The Company anticipates entering into separate indemnification
agreements with its current Directors and executive officers prior to the
completion of an Initial Public Offering which will have the effect of providing
such persons indemnification protection in the event the Certificate of
Incorporation is subsequently amended.
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CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
TO HOLDERS OF NOTES
EFFECT OF THE RECONSTITUTION ON HOLDERS OF THE NOTES
Under applicable Treasury regulations, the Reconstitution will not
constitute a taxable event for holders of the Notes.
CERTAIN UNITED STATES TAX CONSEQUENCES TO NON-UNITED STATES HOLDERS
The following summary describes certain United States Federal income and
estate tax consequences of the ownership of Notes as of the date hereof. It
deals only with Notes held as capital assets by Non-United States Holders. As
used herein, the term 'Non-United States Holder' means any person or entity that
is, as to the United States, a foreign corporation, a nonresident alien
individual, a nonresident fiduciary of a foreign estate or trust or a foreign
partnership one or more of the members of which is, as to the United States, a
foreign corporation, a nonresident alien individual or a nonresident fiduciary
of a foreign estate or trust.
THE DISCUSSION SET FORTH BELOW IS BASED UPON THE PROVISIONS OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE 'CODE'), AND REGULATIONS, RULINGS AND
JUDICIAL DECISIONS THEREUNDER AS OF THE DATE HEREOF, AND SUCH AUTHORITIES MAY BE
REPEALED, REVOKED OR MODIFIED SO AS TO RESULT IN FEDERAL INCOME TAX CONSEQUENCES
DIFFERENT FROM THOSE DISCUSSED BELOW. FURTHERMORE, THIS SUMMARY DOES NOT DISCUSS
ANY ASPECT OF STATE, LOCAL OR FOREIGN TAXATION. PERSONS CONSIDERING THE
PURCHASE, OWNERSHIP OR DISPOSITION OF NOTES SHOULD CONSULT THEIR OWN TAX
ADVISORS CONCERNING THE FEDERAL INCOME TAX CONSEQUENCES IN LIGHT OF THEIR
PARTICULAR SITUATIONS AS WELL AS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY
OTHER TAXING JURISDICTION.
Under present United States Federal and estate tax law, and subject to the
discussion below concerning backup withholding:
(a) no withholding of United States Federal income tax will be
required with respect to the payment by the Obligors or any paying agent of
principal or interest on a Note owned by a Non-United States Holder,
provided (i) that the beneficial owner does not actually or constructively
own either 10% or more of the capital or profits interest in a partnership
issuer or 10% or more of the total combined voting power of all classes of
stock of a corporate issuer entitled to vote within the meaning of section
871(h)(3) of the Code and the regulations thereunder, (ii) the beneficial
owner is not a controlled foreign corporation that is related to the
Obligors through stock ownership, (iii) the beneficial owner is not a bank
whose receipt of interest on a Note is described in section 881(c)(3)(A) of
the Code and (iv) the beneficial owner satisfies the statement requirement
(described generally below) set forth in section 871(h) and section 881(c)
of the Code and the regulations thereunder; and
(b) no withholding of United States Federal income tax will be
required with respect to any gain or income realized by a Non-United States
Holder upon the sale, exchange, retirement or other disposition of a Note;
and
(c) a Note beneficially owned by an individual who at the time of
death is a Non-United States Holder will not be subject to United States
Federal estate tax as a result of such individual's death, provided that
such individual does not actually or constructively own either 10% or more
of the capital or profits interest in a partnership issuer or 10% or more
of the total combined voting power of all classes of stock of a corporate
issuer entitled to vote within the meaning of section 871(h)(3) of the Code
and provided that the interest payments with respect to such Note would not
have been, if received at the time of such individual's death, effectively
connected with the conduct of a United States trade or business by such
individual.
To satisfy the requirement referred to in (a)(iv) above, the beneficial
owner of such Note, or a financial institution holding the Note on behalf of
such owner, must provide, in accordance with specified procedures, a paying
agent of the Obligors with a statement to the effect that the beneficial owner
is not a United States person. Currently, these requirements will be met if (1)
the beneficial owner provides his name and address, and certifies, under
penalties of perjury, that he is not a United States person (which certification
may be made on an Internal Revenue Service ('IRS') Form W-8 (or successor form))
or (2) a financial institution holding the Note on behalf of the beneficial
owner certifies, under penalties of perjury, that such statement has been
received by it
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and furnishes a paying agent with a copy thereof. Under recently finalized
Treasury regulations (the 'Final Regulations'), the statement requirement
referred to in (a)(iv) above may also be satisfied with other documentary
evidence for interest paid after December 31, 1999 with respect to an offshore
account or through certain foreign intermediaries.
If a Non-United States Holder cannot satisfy the requirements of the
'portfolio interest' exception described in (a)(iv) above, payments of interest
made to such Non-United States Holder will be subject to a 30% withholding tax
(or such lower rate as may be provided by an applicable income tax treaty
between the United States and a foreign country) unless the beneficial owner of
the Note provides the Obligors or their paying agent, as the case may be, with a
properly executed (1) IRS Form 1001 (or successor form) claiming an exemption
from withholding under the benefit of a tax treaty or (2) IRS Form 4224 (or
successor form) stating that interest paid on the Note is not subject to
withholding tax because it is effectively connected with the beneficial owner's
conduct of a trade or business in the United States. Under the Final
Regulations, Non-United States Holders will generally be required to provide IRS
Form W-8 in lieu of the IRS Form 1001 and IRS Form 4224, although alternative
documentation may be applicable in certain situations.
If a Non-United States Holder is engaged in a trade or business in the
United States and interest on the Note is effectively connected with the conduct
of such trade or business, the Non-United States Holder, although exempt from
the withholding tax discussed above (provided the Non-United States Holder files
the appropriate certification with the Obligors or their agent), will be subject
to United States Federal income tax on such interest on a net income basis in
the same manner as if it were a United States person. In addition, if such
holder is a foreign corporation, it may be subject to a branch profits tax equal
to 30% of its effectively connected earnings and profits for the taxable year,
subject to adjustments. For this purpose, such premium, if any, and interest on
a Note will be included in such foreign corporation's earnings and profits.
Any gain or income realized upon the sale, exchange, retirement or other
disposition of a Note generally will not be subject to United States Federal
income tax unless (i) such gain or income is effectively connected with trade or
business in the United States of the Non-United States Holder, or (ii) in the
case of a Non-United States Holder who is an individual, such individual is
present in the United States for 183 days or more in the taxable year of such
sale, exchange, retirement or other disposition, and certain other conditions
are met.
INFORMATION REPORTING AND BACKUP WITHHOLDING
No information reporting or backup withholding tax (which is a withholding
tax imposed at the rate of 31% on certain payments to persons who fail to
furnish the information required under the United States information reporting
requirements) will be required with respect to payments made by the Obligors or
any paying agent to Non-United States Holders if a statement described in
(a)(iv) under 'Non-United States Holders' has been received and the payor does
not have actual knowledge that the beneficial owner is a United States person.
In addition, backup withholding and information reporting generally will
not apply if payments of the principal or interest on a Note are paid or
collected by a foreign office of a custodian, nominee or other foreign agent on
behalf of the beneficial owner of such Note, or if a foreign office of a broker
(as defined in applicable Treasury regulations) pays the proceeds of the sale of
a Note to the owner thereof. If, however, such nominee, custodian, agent or
broker is, for United States Federal income tax purposes, a United States
person, a controlled foreign corporation or a foreign person that derives 50% or
more of its gross income for certain periods from the conduct of a trade or
business in the United States, or, for taxable years beginning after December
31, 1999, a foreign partnership, in which one or more United States persons, in
the aggregate, own more than 50% of the income or capital interests in the
partnership or which is engaged in a trade or business in the United States,
such payments will not be subject to backup withholding but will be subject to
information reporting, unless (1) such custodian, nominee, agent or broker has
documentary evidence in its records that the beneficial owner is not a United
States person and certain other conditions are met or (2) the beneficial owner
otherwise establishes an exemption.
Payments of principal or interest, on a Note paid to the beneficial owner
of a Note by a United States office of a custodian, nominee or agent, or the
payment by the United States office of a broker of the proceeds of sale of a
Note will be subject to both backup withholding and information reporting unless
the beneficial owner provides the statement referred to in (a)(iv) above and the
payor does not have actual knowledge that the beneficial owner is a United
States person or otherwise establishes an exemption.
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Any amounts withheld under the backup withholding rules will be allowed as
a refund or a credit against such holder's United States Federal income tax
liability provided the required information is furnished to the IRS.
UNDERWRITERS
Under the terms and subject to the conditions contained in the Underwriting
Agreement dated the date hereof (the 'Underwriting Agreement'), the Underwriters
named below have severally agreed to purchase, and the Obligors have agreed to
sell to them, severally, the respective principal amount of Notes set forth
opposite the names of such Underwriters below:
<TABLE>
<CAPTION>
PRINCIPAL
NAME AMOUNT
- --------------------------------------------------------------------------- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated.......................................... $
Lehman Brothers Inc. ......................................................
----------------
Total............................................................ $400,000,000
----------------
----------------
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the Notes offered hereby are
subject to the approval of certain legal matters by their counsel and to certain
other conditions. The Underwriters are obligated to take and pay for all the
Notes offered hereby if any are taken.
The Underwriters propose to offer part of the Notes directly to the public
at the Price to Public set forth on the cover page hereof and part to certain
dealers at a price which represents a concession not in excess of % of the
principal amount of the Notes. Each Underwriter may allow, and such dealers may
reallow, a concession to certain other dealers not in excess of % of the
principal amount of the Notes. After the initial offering of the Notes, the
offering price and other selling terms may from time to time be varied by the
Underwriters.
The Company does not intend to apply for listing of the Notes on any
national securities exchange, but has been advised by the Underwriters that they
currently intend to make a market in the Notes, as permitted by applicable laws
and regulations. The Underwriters are not obligated, however, to make a market
in the Notes and any such market making may be discontinued at any time without
notice, at their sole discretion. Accordingly, no assurance can be given as to
the liquidity of, or the existence of trading markets for, the Notes.
In order to facilitate the Offering, the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Notes. Specifically, the Underwriters may over-allot in connection with the
Offering, creating a short position in the Notes for their own account. In
addition, to cover over-allotments or to stabilize the price of the Notes, the
Underwriters may bid for, and purchase, Notes in the open market. Finally, the
underwriting syndicate may reclaim selling concessions allowed to an Underwriter
or a dealer for distributing the Notes in the Offering, if the syndicate
repurchases previously distributed Notes in transactions to cover syndicate
short positions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the Notes above
independent market levels. The Underwriters are not required to engage in these
activities, and may end any of these activities at any time.
The Obligors and the Underwriters have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities Act.
From time to time, Morgan Stanley & Co. Incorporated and Lehman Brothers
Inc. provide certain financial advisory services to the Company and the Members
for which they have received customary fees and commissions.
LEGAL MATTERS
The legality of the Notes offered hereby and certain other legal matters
will be passed upon for the Company by Cravath, Swaine & Moore, New York, New
York and for the Underwriters by Shearman & Sterling, New York, New York.
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EXPERTS
The combined financial statements of Time Warner Telecom LLC and its
subsidiaries as of December 31, 1997 and 1996 and for each of the three years in
the period ended December 31, 1997 included in this Prospectus and Registration
Statement have been audited by Ernst & Young LLP, independent auditors, as set
forth in their reports appearing elsewhere herein, and are included in reliance
upon such reports given upon the authority of such firm as experts in accounting
and auditing.
ADDITIONAL INFORMATION
The Obligors have filed with the SEC a Registration Statement on Form S-1
under the Securities Act with respect to the Notes being offered in the
Offering. For the purposes hereof, the term 'Registration Statement' means the
original Registration Statement and any and all amendments thereto, including
the schedules and exhibits to such original Registration Statement or any such
amendment. This Prospectus does not contain all of the information set forth in
the Registration Statement, to which reference hereby is made. Each statement
made in this Prospectus concerning a document filed as an exhibit to the
Registration Statement is qualified in its entirety by reference to such exhibit
for a complete statement of its provisions.
Upon effectiveness of the Registration Statement of which this Prospectus
forms a part, the Obligors will be subject to the informational requirements of
the Exchange Act and in accordance therewith will file periodic reports, and
other information relating to its business, financial statements and other
matters. Any interested party may inspect the Registration Statement, the
reports and other information without charge, at the public reference facilities
of the SEC at its principal office at Judiciary Plaza, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at its regional offices in Chicago
(Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, Illinois 60601),
and in New York (Seven World Trade Center, 13th Floor, New York, New York 10048)
or through the World Wide Web (http://www.sec.gov.). Any interested party may
obtain copies of all or any portion of the Registration Statement, the reports
and other information at prescribed rates from the Public Reference Section of
the SEC at its principal office at Judiciary Plaza, 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549.
The Company intends to distribute to all holders of the Notes offered
hereby annual reports containing audited consolidated financial statements and a
report thereon by its independent certified public accountants and quarterly
reports containing unaudited consolidated financial information for each of the
first three quarters of each fiscal year. Because TWT has no operations or
assets and was formed solely for the purpose of serving as a co-obligor of the
Notes offered hereby, TWT will not issue separate financial statements or
otherwise provide annual or interim reports to holders of the Notes offered
hereby, however information with respect to TWT will be included in the
Company's financial statements and in annual and quarterly reports issued by the
Company.
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GLOSSARY
Access Charges. The fees paid by long distance carriers for the local
connections between the long distance carriers' networks and the long distance
carriers' customers.
ATM (asynchronous transfer mode). A recently commercialized switching and
transmission technology that is one of a general class of packet technologies
that relay traffic by way of an address contained within the first five bits of
a standard fifty-three bit-long packet or cell. ATM-based packet transport was
specifically developed to allow switching and transmission of mixed voice, date
and video at varying rates. The ATM format can be used by many different
information systems, including LANs.
BOC (Bell Operating Company). A telephone operating subsidiary of an RBOC;
an incumbent local exchange carrier.
Broadcast Video TV-1. This Company service provides dedicated transport of
broadcast quality video signals.
CAP (Competitive Access Provider). A company that provides dedicated
telecommunications services (private line, local transport and special access)
as an alternative to the ILEC.
CDMA (Code Division Multiple Access). A form of wireless communications
technology.
Central Offices. A telecommunications center where switches and other
telecommunications facilities are housed. CAPs may connect with ILEC networks
either at this location or through a remote location.
Collocation. The ability of a telecommunications carrier to interconnect
its network to the ILEC's network by extending its facilities to the ILEC's
central office. Physical collocation occurs when the interconnecting carrier
places its network equipment within the ILEC's central offices. Virtual
collocation is an alternative to physical collocation under which the ILEC
permits a carrier to interconnect its network to the ILEC's network in a manner
which is technically, operationally and economically comparable to physical
collocation, even though the interconnecting carrier's network connection
equipment is not physically located within the central offices.
CLEC (Competitive Local Exchange Carrier). A company that provides local
exchange services, including Dedicated service, in competition with the ILEC.
Dedicated. Telecommunications lines dedicated to, or reserved for use by, a
particular customer along predetermined routes (in contrast to links which are
temporarily established).
Dedicated Transmission. The sending of electronic signals carrying
information over a Direct Transport facility.
DID. The ability of an outside caller to call an internal extension without
having to pass through an operator. In large PBX systems, the dialed numbers are
passed through from the Central Office.
Digital. A means of storing, processing and transmitting information by
using distinct electronic or optical pulses that represent the binary digits 0
and 1. Digital transmission and switching technologies use a sequence of these
pulses to represent information as opposed to the continuously variable analog
signal. The precise digital numbers preclude and distortion (such as graininess
or snow in the case of video transmission, or static or other background
distortion in the case of audio transmission).
Direct Transport (aka Dedicated Transport). A non-switched point-to-point
telecommunications facility leased from a telecommunications provider by an end
user and used exclusively by that end user.
Diverse Routing. A telecommunications network configuration in which
signals are transmitted simultaneously along two different paths so that if one
path is cut or impaired, traffic can continue in the other direction without
interrupting service. The Company's networks generally provide diverse routing.
DOD. The ability to dial directly out from an internal extension without
having to go through an operator.
DS0, DS1, DS3. Standard North American telecommunications industry digital
signal formats, which are distinguishable by bit rate (the number of binary
digits (0 and 1) transmitted per second). DS0 service has a bit rate of 64
kilobits per second. DS1 service has a bit rate of 1.544 megabits per second and
DS3 service as a bit rate of 44.736 megabits per second. A DS0 can transmit a
single uncompressed voice conversation.
FCC. Federal Communications Commission.
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FDMA (Frequency Division Multiple Access). A form of wireless
communications technology.
Fiber Miles. The number of route miles of fiber optic cable installed
(excluding pending installations) along a telecommunications path multiplied by
the number of fibers in the cable. See the definition of 'route mile' below.
Fiber Optics. Fiber optic technology involves sending laser light pulses
across glass strands in order to transmit digital information. Fiber optic cable
is the medium of choice for the telecommunications and cable industries. Fiber
is immune to electrical interference and environmental factors that effect
copper wiring and satellite transmission.
Hub. Collocation centers located centrally in an area where
telecommunications traffic can be aggregated for transport and distribution.
Hybrid Fiber Coaxial (HFC). A new technology consisting of fiber optic
distribution facilities and coaxial cable deployed to the home or business. This
technology enables the operator to offer a wide variety of two-way broadband
services, including telecommunications and entertainment.
Interconnection Decisions. Rulings by the FCC announced in September 1992
and August 1993, which require the BOCs and other large ILECs to provide
interconnection in ILEC central offices to any CAP, long distance carrier or end
user requesting such interconnection to provide interstate special access or
switched transport services.
ILECs (Incumbent Local Exchange Carriers). The local phone companies,
either a BOC or an independent (such as GTE) which provides local exchange
services.
Internet. The name used to describe the global open network of computers
that permits a person with access to the Internet to exchange information with
any other computer connected to the network.
ISDN (Integrated Services Digital Network). ISDN is an internationally
agreed standard which, through special equipment, allows two-way, simultaneous
voice and data transmission in digital formats over the same transmission line.
ISDN permits video conferencing over a single line, for example, and also
supports a multitude of value-added switched service applications such as
Incoming Calling Line Identification. ISDN's combined voice and data networking
capabilities reduce costs for end users and result in more efficient use of
available facilities. ISDN combines standards for highly flexible customer to
network signaling with both voice and data within a common facility.
IXC (Interexchange Carrier). A long distance carrier.
Kbps (Kilobits). One thousand bits of information. The information-carrying
capacity (i.e., bandwidth) of a circuit may be measured in 'thousands of bits
per second.'
LANs (Local Area Networks). The interconnection of computers for the
purpose of sharing files, programs and peripheral devices such as printers and
high-speed modems. LANs may include dedicated computers or file servers that
provide a centralized source of shared files and programs. LANs are generally
confined to a single customer's premises and may be extended or interconnected
to other locations through the use of bridges and routers.
LATAS (Local Access and Transport Area). The geographical areas within
which a local telephone company may offer telecommunications services, as
defined in the divestiture order known as the Modified Final Judgment ('MFP')
unless and until refined by the FCC pursuant to the Telecommunications Act of
1996.
Local Exchange. A geographic area defined by the appropriate state
regulatory authority in which telephone calls generally are transmitted without
toll charges to the calling or called party.
Local Exchange Service/Local Exchange Telephone Service. Basic local
telephone service, including the provision of telephone numbers, dial tone and
calling within the local exchange area.
Long Distance Carriers (Interexchange Carriers or IXC). Long distance
carriers providing services between LATAs, on an interstate or intrastate basis.
A long distance carrier may be facilities-based or offer service by reselling
the services of a facilities-based carrier.
Local Transport Services. Dedicated lines between the ILEC's central
offices and long distance carrier POPs used to carry switched traffic.
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Mbps (Megabit). One million bits of information. The information carrying
capacity (i.e., bandwidth) of a circuit may be measured in 'millions of bits per
second.'
Multiplexing. An electronic or optical process that combines a number of
lower speed transmission signals into one higher speed signal. There are various
techniques for multiplexing, including frequency division (splitting the total
available frequency bandwidth into smaller frequency slices), time division
(slicing a channel into timeslots and placing each signal into its assigned
timeslot), and statistical (wherein multiplexed signals share the same channel
and each transmits only when it has data to send).
Node. A point of connection into a fiber optic network.
PBX (Private Branch Exchange). A customer owned and operated switch on
customer premises, typically used by large businesses with multiple telephone
lines.
PBX Trunk. A transmission facility which connects a PBX to the Company's or
ILEC's central office switching center.
POPs (Points of Presence). Locations where a long distance carrier has
installed transmission equipment in a service area that serves as, or relays
telephone calls to, a network switching center of the same long distance
carrier.
Private Line. A private, dedicated telecommunications link between
different customer locations (excluding long distance carrier POPs).
Private Network Transport Service. This service is a private, dedicated
high capacity premium quality service over fully redundant, diverse routed,
SONET rings with band width that is dedicated and always available.
Public Switched Network. The switched network available to all users
generally on a shared basis (i.e., not dedicated to a particular user). The
local exchange telephone service networks operated by ILECs are the largest and
often the only public switched networks in a given locality.
PUC (Public Utility Commission). A state regulatory body, established in
most states, which regulates utilities, including telecommunications companies
providing intrastate services. In some states this regulatory body may have a
different name, such as public service commission ('PSC').
RBOC (Regional Bell Operating Company). The holding company which owns a
BOC.
Reciprocal Compensation. An arrangement in which two local exchange
carriers agree to terminate traffic originating on each other's networks in
exchange for a negotiated level of compensation.
Redundant Electronics. A telecommunications facility that uses two separate
electronic devices to transmit a telecommunications signal so that if one device
malfunctions, the signal may continue without interruption.
Route Mile. The number of miles along which fiber optic cables are
installed.
SONET (Synchronous Optical Network). A set of standards for optical
communications transmission systems that define the optical rates and formats,
signal characteristics, performance, management and maintenance information to
be embedded within the signals and the multiplexing techniques to be employed in
optical communications transmission systems. SONET facilitates the
interoperability of dissimilar vendors equipment. SONET benefits business
customers by minimizing the equipment necessary for various telecommunications
applications and supports networking diagnostic and maintenance features.
Special Access Services. The lease of private, dedicated telecommunications
lines or circuits on an ILEC's or a CAP's network which run to or from the long
distance carrier's POPs. Special access services do not require the use of
switches. Examples of special access services are telecommunications circuits
running between POPs of a single long distance carrier, from one long distance
carrier's POP to another long distance carrier's POP or from an end user to its
long distance carrier's POP.
STS-1. This dedicated transmission service is carried over high capacity
channels for full duplex, synchronous optical transmission of digital data on
SONET standards. This service eliminates the need to maintain and pay for
multiple dedicated lines.
Switch. A mechanical or electronic device that opens or closes circuits or
selects the paths or circuits to be used for the transmission of information.
Switching is a process of linking different circuits to create a
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temporary transmission path between users. Within this document, switches
generally refer to voice grade telecommunications switches unless specifically
stated otherwise.
Switched Access Services. The connection between a long distance carrier's
POP and an end user's premises through the switching facilities of a local
exchange carrier.
Switched Services. Telecommunications services that support the connection
of one calling party with another calling party via use of a telephone switch
(i.e., an electronic device that opens or closes circuits, completes or breaks
an electrical path, or selects paths or circuits).
TDMA (Time Division Multiple Access). A form of wireless communications
technology.
Toll Services. Otherwise known as EAS or intra LATA toll services are those
calls that are beyond the free local calling area but originate and terminate
within the same LATA; such calls are usually priced on a measured basis.
Voice Grade Equivalent ('VGE') Circuit. One DS0. One voice grade equivalent
circuit is equal to 64 kilobits of bandwidth.
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TIME WARNER TELECOM LLC
INDEX TO COMBINED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Audited Financial Statements:
Report of Independent Auditors........................................................................ F-2
Combined Balance Sheet at December 31, 1997 and 1996.................................................. F-3
Combined Statement of Operations for the years ended December 31, 1997, 1996
and 1995............................................................................................ F-4
Combined Statement of Cash Flows for the years ended December 31, 1997, 1996
and 1995............................................................................................ F-5
Combined Statement of Changes in Members' Equity for the years ended
December 31, 1997, 1996 and 1995.................................................................... F-6
Notes to Combined Financial Statements................................................................ F-7
Unaudited Financial Statements:
Combined Balance Sheet at March 31, 1998 and December 31, 1997........................................ F-14
Combined Statement of Operations for the three months ended March 31, 1998 and 1997................... F-15
Combined Statement of Cash Flows for the three months ended March 31, 1998 and 1997................... F-16
Combined Statement of Changes in Members' Equity for the three months ended
March 31, 1998...................................................................................... F-17
Notes to Combined Financial Statements................................................................ F-18
</TABLE>
Note: Financial statements of Time Warner Telecom Inc. ('TWT'), a wholly owned
subsidiary of the Company that was organized in January 1998, have not
been presented as TWT has no significant assets, liabilities (including
contingent liabilities) or commitments, and has no operating activities.
Accordingly, management has determined that such financial statements
would not be material to investors.
F-1
<PAGE>
<PAGE>
REPORT OF INDEPENDENT AUDITORS
To TIME WARNER TELECOM LLC
We have audited the accompanying combined balance sheet of Time Warner
Telecom LLC (the 'Company') as of December 31, 1997 and 1996, and the related
combined statements of operations, cash flows and members' equity for each of
the three years in the period ended December 31, 1997. These combined financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these combined financial statements
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the combined financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the combined financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined financial position of the Company
at December 31, 1997 and 1996, and the combined results of its operations and
its cash flows for each of the three years in the period ended December 31,
1997, in conformity with generally accepted accounting principles.
ERNST & YOUNG LLP
New York, New York
March 13, 1998,
except for Notes 1, 4, 5, 6 and 8, as to
which the date is July 14, 1998
F-2
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED BALANCE SHEET
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1997 1996
-------- --------
(THOUSANDS)
<S> <C> <C>
ASSETS
Current assets
Receivables, less allowances of $776 and $193........................................ $ 8,882 $ 4,863
Prepaid expenses..................................................................... 1,192 1,115
-------- --------
Total current assets............................................................ 10,074 5,978
Investments in unconsolidated affiliates............................................. 4,376 10,239
Property, plant and equipment........................................................ 484,206 352,708
Less: accumulated depreciation....................................................... (69,048) (29,547)
-------- --------
415,158 323,161
Intangible assets, net............................................................... 8,469 2,102
-------- --------
Total assets.................................................................... $438,077 $341,480
-------- --------
-------- --------
LIABILITIES AND MEMBERS' EQUITY
Current liabilities
Accounts payable..................................................................... $ 32,908 $ 27,622
Other current liabilities............................................................ 29,304 17,793
-------- --------
Total current liabilities....................................................... 62,212 45,415
Subordinated loans payable to the Parent Companies (including $1,544 of accrued
interest)........................................................................... 75,475 --
Other liabilities.................................................................... -- 1,128
Members' equity
Class A Interests having an aggregate participation percentage of 0%................. -- --
Class B Interests having an aggregate participation percentage of 100%............... 555,807 479,698
Accumulated deficit.................................................................. (255,417) (184,761)
-------- --------
Total members' equity........................................................... 300,390 294,937
-------- --------
Total liabilities and members' equity........................................... $438,077 $341,480
-------- --------
-------- --------
</TABLE>
See accompanying notes.
F-3
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1997 1996 1995
-------- -------- --------
(THOUSANDS)
<S> <C> <C> <C>
Revenues:
Dedicated transport services............................................. $ 44,529 $ 20,362 $ 6,505
Switched services........................................................ 10,872 3,555 350
-------- -------- --------
Total revenues...................................................... 55,401 23,917 6,855
-------- -------- --------
Costs and expenses:
Operating(a)............................................................. 40,349 25,715 15,106
Selling, general and administrative(a)................................... 54,640 60,366 34,222
Depreciation and amortization(a)......................................... 38,466 22,353 7,216
-------- -------- --------
Total costs and expenses............................................ 133,455 108,434 56,544
-------- -------- --------
Operating loss................................................................ (78,054) (84,517) (49,689)
Gain on disposition of investments (Note 3)................................... 11,018 -- --
Equity in losses of unconsolidated affiliates................................. (2,082) (1,547) (1,391)
Interest expense, net(a)...................................................... (1,538) (52) (25)
-------- -------- --------
Net loss...................................................................... $(70,656) $(86,116) $(51,105)
-------- -------- --------
-------- -------- --------
(a) Includes expenses resulting from transactions with affiliates (Note 8):
Operating.............................................................. $ 1,731 $ 1,303 $ 648
-------- -------- --------
-------- -------- --------
Selling, general and administrative.................................... $ 4,967 $ 4,759 $ 3,789
-------- -------- --------
-------- -------- --------
Depreciation and amortization.......................................... $ 7,064 $ 4,961 $ 2,070
-------- -------- --------
-------- -------- --------
Interest expense, net.................................................. $ 1,544 $ -- $ --
-------- -------- --------
-------- -------- --------
</TABLE>
See accompanying notes.
F-4
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------
1997 1996 1995
--------- --------- ---------
(THOUSANDS)
<S> <C> <C> <C>
OPERATIONS
Net loss................................................................... $ (70,656) $ (86,116) $ (51,105)
Adjustments for noncash and nonoperating items:
Gain on disposition of investments......................................... (11,018) -- --
Depreciation and amortization.............................................. 38,466 22,353 7,216
Equity in loss of unconsolidated affiliates................................ 2,082 1,547 1,391
Changes in operating assets and liabilities:
Accounts receivable and other current assets.......................... (4,124) (2,334) (936)
Accounts payable and other current liabilities........................ 18,374 10,424 7,277
Other balance sheet changes........................................... (2,543) 1,852 552
--------- --------- ---------
Cash used in operations.................................................... (29,419) (52,274) (35,605)
--------- --------- ---------
INVESTING ACTIVITIES
Capital expenditures....................................................... (127,315) (144,815) (141,479)
Investments and acquisitions............................................... (334) (4,375) (3,814)
Proceeds from sale of investment........................................... 7,028 -- --
--------- --------- ---------
Cash used in investing activities.......................................... (120,621) (149,190) (145,293)
--------- --------- ---------
FINANCING ACTIVITIES
Proceeds from loans from the Parent Companies.............................. 73,931 -- --
Capital contributions from the Parent Companies............................ 127,550 222,584 185,989
Distributions to the Parent Companies...................................... (51,441) (21,120) (5,091)
--------- --------- ---------
Cash provided by financing activities...................................... 150,040 201,464 180,898
--------- --------- ---------
INCREASE IN CASH AND EQUIVALENTS........................................... -- -- --
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD................................ -- -- --
--------- --------- ---------
CASH AND EQUIVALENTS AT END OF PERIOD...................................... $ -- $ -- $ --
--------- --------- ---------
--------- --------- ---------
Supplemental disclosures of cash flow information:
Interest paid.............................................................. $ -- $ 55 $ 25
--------- --------- ---------
--------- --------- ---------
Noncash financing activities............................................... $ -- $ -- $ 16,047
--------- --------- ---------
--------- --------- ---------
</TABLE>
See accompanying notes.
F-5
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF CHANGES IN MEMBERS' EQUITY
<TABLE>
<CAPTION>
TOTAL
CLASS B ACCUMULATED MEMBERS'
INTERESTS DEFICIT EQUITY
-------- ----------- --------
(THOUSANDS)
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994............................................... $ 81,289 $ (47,540) $ 33,749
Net loss for 1995.......................................................... -- (51,105) (51,105)
Capital contributions resulting from the A/N and KBLCOM transactions (Note
2)....................................................................... 16,047 -- 16,047
Net capital contributions from the Parent Companies........................ 180,898 -- 180,898
-------- ----------- --------
BALANCE AT DECEMBER 31, 1995............................................... 278,234 (98,645) 179,589
Net loss for 1996.......................................................... -- (86,116) (86,116)
Net capital contributions from the Parent Companies........................ 201,464 -- 201,464
-------- ----------- --------
BALANCE AT DECEMBER 31, 1996............................................... 479,698 (184,761) 294,937
Net loss for 1997.......................................................... -- (70,656) (70,656)
Net capital contributions from the Parent Companies........................ 76,109 -- 76,109
-------- ----------- --------
BALANCE AT DECEMBER 31, 1997............................................... $555,807 $(255,417) $300,390
-------- ----------- --------
-------- ----------- --------
</TABLE>
See accompanying notes.
F-6
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS
Time Warner Telecom LLC, a Delaware limited liability company (the
'Company'), is a facilities-based competitive local telecommunications services
provider ('CLEC') in selected metropolitan markets across the United States,
offering a wide range of business telephony services, primarily to medium- and
large-sized business customers. The business of the Company was commenced in
1993 by Time Warner Cable ('TW Cable'), a division of Time Warner Entertainment
Company, L.P. ('TWE'), and reflects the combined commercial telecommunication
operations under the ownership or management control of TW Cable. These
operations consist of the commercial telecommunication operations of Time Warner
Inc. and certain of its subsidiaries ('Time Warner') and the Time Warner
Entertainment-Advance/Newhouse Partnership ('TWEAN') that were acquired or
formed in 1995, as well as the pre-existing commercial telecommunication
operations of TWE (collectively, TWE, TWEAN and Time Warner are referred to
herein as the 'Parent Companies').
To date, the majority of the Company's revenues have been derived from the
provision of 'private line' or 'direct access' telecommunications services.
Because the Company has deployed switches in 16 of its 19 markets, management
expects that a growing portion of the Company's revenues will be derived from
providing switched services. The Company's customers are principally
telecommunications-intensive business end-users, IXCs, ISPs, wireless
communications companies and governmental entities. Such customers are offered a
wide range of integrated telecommunications products and services, including
dedicated transmission, local switched, data and video transmission services and
Internet services. In addition, the Company benefits from its strategic
relationship with TW Cable both through access rights and cost-sharing. As a
result, the Company's networks have been constructed primarily through the use
of fiber capacity licensed from TW Cable.
BASIS OF PRESENTATION
The combined financial statements of the Company reflect the 'carved out'
historical financial position, results of operations, cash flows and changes in
members' equity of the commercial telecommunications operations of the Parent
Companies as if they had been operating as a separate company. The combined
statement of operations has been adjusted to retroactively reflect an allocation
of certain expenses pursuant to the final terms of the related agreements,
primarily relating to office rent, overhead charges for various administrative
functions performed by TW Cable and certain facility maintenance and pole rental
costs. These allocations were required to reflect all costs of doing business
and have been based on various methods (Note 8), which management believes
results in reasonable allocations of such costs.
The combined financial statements also include the contribution of the
Advance/Newhouse Partnership's ('A/N') ownership interests in various telephony
partnerships effective as of April 1, 1995 and the San Antonio, Texas telephony
operation of KBLCOM Incorporated ('KBLCOM') acquired by Time Warner effective as
of July 6, 1995.
Effective January 1, 1996, the Company adopted Financial Accounting
Standards Board ('FASB') Statement No. 121 ('FAS 121'), 'Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of',
which established standards for the recognition and measurement of impairment
losses on long-lived assets and certain intangible assets. The adoption of FAS
121 did not have a material effect on the Company's financial condition and
results of operations.
Time Warner and MediaOne Group, Inc. ('MediaOne', a limited partner of TWE)
have various stock option plans under which options to purchase Time Warner or
MediaOne common stock may be granted to employees of the Company. Such options
have been granted to employees of the Company at fair market value at the date
of grant. In accordance with Accounting Principles Board Statement No. 25 ('APB
25'), no compensation cost has been recognized for its stock options. Generally,
the options become exercisable over a three-year vesting period and expire ten
years from the date of grant. The Company has elected to continue to account for
such transactions under APB 25.
During fiscal 1997, the FASB issued Statement No. 130, 'Reporting
Comprehensive Income' ('FAS 130'), and Statement No. 131, 'Disclosures about
Segments of an Enterprise and Related Information' ('FAS 131'). FAS 130
establishes standards for reporting and display of comprehensive income and its
components (revenue, expenses, gains and losses) in a full set of financial
statements. The Company will adopt FAS 130 as
F-7
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
of the first quarter of 1998. FAS 131 requires disclosure of financial and
descriptive information about an entity's reportable operating segments under
the 'management approach' as defined in the Statement. The Company will adopt
FAS 131 as of December 31, 1998. The impact of adoption of these standards on
the Company's financial statements is not expected to be material.
BASIS OF CONSOLIDATION AND ACCOUNTING FOR INVESTMENTS
The combined financial statements include 100% of the assets, liabilities,
revenues, expenses, income, loss and cash flows of the Company and all entities
in which the Company has a controlling voting interest ('subsidiaries'), as if
the Company and its subsidiaries were a single entity. Significant intercompany
accounts and transactions between the combined entities have been eliminated.
Significant accounts and transactions with the Parent Companies are disclosed as
related party transactions.
Investments in entities in which the Company has significant influence, but
less than a controlling voting interest, are accounted for using the equity
method. At December 31, 1997, the Company's investments in unconsolidated
affiliates consisted solely of a 50% investment in Metrocomm AXS, L.P., a joint
venture providing commercial telecommunications services in the central Ohio
area. Under the equity method, only the Company's investment in and amounts due
to and from the equity investee are included in the combined balance sheet, and
only the Company's share of the investee's earnings is included in the combined
operating results. In addition, only the Company's share of the cash
distributions and cash paid to the investee are included in the combined cash
flows.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
footnotes thereto. Actual results could differ from those estimates.
REVENUES
Revenues for dedicated transport services are generally billed on a fixed
rate basis and recognized over the period provided. Revenues for switched
services revenues are generally billed on a transactional basis determined by
customer usage, and are recognized over the period provided.
In addition to depreciation expense, the primary costs of revenues are
charges from local exchange carriers for circuit leases and interconnection
costs, which are both expensed as incurred.
ADVERTISING
Advertising costs are expensed upon the first exhibition of related
advertisements. Advertising expense amounted to $1.0 million, $1.4 million and
$1.1 million for the years ended December 31, 1997, 1996, and 1995,
respectively.
SIGNIFICANT CUSTOMERS
The Company has substantial business relationships with a few large
customers, including the major long distance carriers. For the year ended
December 31, 1997, the Company's top 10 customers accounted for 47.8% of the
Company's consolidated revenues. Two of these customers were interexchange
carriers ('IXC'), which each accounted for more than 10% of the Company's
revenues in 1997 and 1996. Revenues included sales to these two IXC's of
approximately $14.7 million and $5.2 million in 1997 and 1996, respectively. In
1995, no single customer accounted for more than 10% of the Company's total
revenues. The Company does not require collateral for telecommunications
services provided to its customers. However, the Company performs ongoing credit
evaluations of its customers' financial conditions and an allowance for doubtful
accounts of $776,000 and $193,000 at December 31, 1997 and 1996, respectively,
has been provided based on the expected collectibility of all accounts
receivables.
CASH AND EQUIVALENTS
The Company does not maintain any cash balance since all funding of the
Company's operating, investing and financing activities were provided by the
Parent Companies or by revolving loans payable to the Parent Companies (Note 6).
This funding consists of non-interest bearing capital contributions through June
30, 1997 and revolving loans thereafter. The non-interest bearing capital
contributions have been included in paid-in
F-8
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
capital. The average net capital contributions from the Parent Companies were
$517.8 million for the six months ended June 30, 1997, and $379.0 million and
$179.8 million for the years ended December 31, 1996, and 1995, respectively.
The revolving loans, including accrued interest, have been reflected as a
long-term liability in the accompanying balance sheet.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are recorded at cost. Additions to property,
plant and equipment generally include material, labor, and overhead. The Company
licenses the right to use the majority of its fiber optic cable from TW Cable
divisions, in which they are co-located. The cost of these use rights is
capitalized and reflects an allocable share of TW Cable's costs, which generally
reflects the incremental costs incurred by TW Cable to construct the fiber. Such
amounts do not always reflect TW Cable's total costs of constructing the
distribution plant. Depreciation is provided on the straight-line method over
estimated useful lives as follows:
<TABLE>
<S> <C>
Buildings and improvements............................................. 5-20 years
Communications networks................................................ 5-15 years
Vehicles and other equipment........................................... 3-10 years
Fiber optic use rights................................................. 15 years
</TABLE>
Property, plant and equipment consist of:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1997 1996
-------- --------
(THOUSANDS)
<S> <C> <C>
Buildings and improvements............................................ $ 12,846 $ 8,485
Communications networks............................................... 290,618 203,841
Vehicles and other equipment.......................................... 46,086 38,250
Fiber optic use rights................................................ 134,656 102,132
-------- --------
484,206 352,708
Less accumulated depreciation......................................... (69,048) (29,547)
-------- --------
Total....................................................... $415,158 $323,161
-------- --------
-------- --------
</TABLE>
INTANGIBLE ASSETS
Intangible assets primarily consist of goodwill, deferred right of way
costs and covenants not to compete, which are amortized over periods up to 20
years using the straight-line method. Amortization expense amounted to $2.0
million, $271,000 and $213,000 for the years ended December 31, 1997, 1996 and
1995, respectively. Accumulated amortization of intangible assets at December
31, 1997 and 1996, amounted to $1.2 million and $920,000, respectively.
INCOME TAXES
In connection with the Reorganization (Note 4), the Company was formed as a
limited liability company. As a limited liability company, the Company is
treated as a partnership for income tax purposes. As such, the Company is not
subject to Federal and state income taxation. The financial statement basis of
the Company's assets exceeds the corresponding tax basis by approximately $78.8
million at December 31, 1997, principally as a result of differences in
accounting for depreciable assets for financial statement and income tax
purposes.
2. MERGERS AND ACQUISITIONS
On April 1, 1995, in connection with the formation of TWEAN, A/N
contributed certain telecommunication investments to the Company, consisting of
(i) various telecommunication partnerships serving the New York area (the
'Hyperion Partnerships'), including a 20% interest in Buffalo (the 'Buffalo
Operations'), a 50% interest in Syracuse (the 'Syracuse Operations'), a 50%
interest in Albany (the 'Albany Operations') and an 80% interest in Binghamton
(the 'Binghamton Operations') and (ii) the remaining 50% interest not already
owned by the Company of a telecommunications partnership serving the Charlotte,
North Carolina area (the 'Charlotte Operations'). The net assets contributed
were recorded at an historical cost of $7.4 million. In connection with this
transaction, the Company consolidated the Charlotte Operations effective April
1, 1995 as a result of its 100% ownership interest therein.
F-9
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
On July 6, 1995, Time Warner acquired KBLCOM, a cable television company
which also owned a telephony operation in San Antonio, Texas. The net assets of
the San Antonio telephony operation were acquired at fair market value and
totaled $8.6 million, consisting of: property, plant and equipment, net of $7.8
million; other current and noncurrent assets of $1.0 million; and other current
liabilities of $200,000.
3. INVESTMENTS
Since April 1995, the Company has owned various interests in the Hyperion
Partnerships, a group of telecommunication partnerships serving the Buffalo,
Syracuse, Albany and Binghamton, New York areas. These interests were all
previously accounted for under the equity method of accounting.
In September 1997, the Company completed a series of transactions, whereby
it sold its interests in the Buffalo Operations and Syracuse Operations in
exchange for $7.0 million of cash and all of the minority interests in the
Albany Operations and Binghamton Operations (collectively, the 'Hyperion
Transactions'). Accordingly, effective September 1997, the Company has
consolidated the Albany Operations and Binghamton Operations as a result of its
100% ownership interests therein. The net assets of the Albany Operations and
Binghamton Operations are not material to the Company's financial position.
The Company accounted for the acquisition of the minority interests in the
Albany Operations and Binghamton Operations under the purchase method of
accounting for business combinations. In connection with the Hyperion
Transactions, the Company recognized a gain of approximately $11.0 million.
4. MEMBERS' EQUITY
At December 31, 1997, all the assets and liabilities of the Company were
beneficially owned by Time Warner and MediaOne, which, through certain
subsidiaries, are partners in TWE. The assets and liabilities of the Company
were also beneficially owned by A/N through TWEAN. Time Warner and certain of
its subsidiaries, MediaOne and certain of its subsidiaries and A/N are
collectively referred to herein as the 'Members'.
In July 1998, the Company completed a reorganization (the
'Reorganization'), under which the Company's capitalization was authorized to
include two classes of interests, Class A Interests and Class B Interests. In
connection with the Reorganization, the Members contributed their respective
assets and liabilities of the Company's business to the Company and in return
received Class B Interests having an aggregate participation percentage of 100%.
Following the Reorganization, Time Warner, MediaOne and A/N held Class B
Interests having participation percentages equalling 61.95%, 18.88% and 19.17%,
respectively. Accordingly, the accompanying combined financial statements have
been adjusted to retroactively reflect the authorization of Class A Interests
and the authorization and issuance of Class B Interests having an aggregate
participation percentage of 100% for all periods.
The Class A Interests and Class B Interests are substantially identical in
all respects, except that the Class A Interests have no voting rights, provided,
however, that the approval of the holders of a majority (in participation
percentage) of the Class A Interests, voting as a separate class, is required
for any amendment to the Limited Liability Company Agreement that would have an
adverse effect on the rights of the holders of such class. The business and
affairs of the Company are managed by a management committee (the 'Management
Committee'), except for certain matters which require the unanimous vote of the
holders of Class B Interests. Representatives of the Management Committee are
appointed by the Members.
5. STOCK OPTION PLANS
Time Warner and MediaOne have various stock option plans under which
options to purchase Time Warner or MediaOne common stock may be granted to
employees of the Company. Such options have been granted to employees of the
Company at fair market value at the date of grant. Accordingly, in accordance
with Accounting Principles Board Opinion No. 25, 'Accounting for Stock Issued to
Employees' and related interpretations, no compensation cost has been recognized
by Time Warner and MediaOne, nor charged to the Company, related to such stock
option plans. Generally, the options become exercisable over a three-year
vesting period and expire ten years from the date of grant. Had compensation
cost for Time Warner's and MediaOne's stock option plans been determined based
on the fair value at the grant dates for all awards made subsequent to 1994
consistent with the method set forth under FASB Statement No. 123, 'Accounting
for Stock-Based Compensation'
F-10
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
('FAS 123'), the Company's allocable share of compensation cost would have
increased its net loss to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------
1997 1996 1995
-------- -------- --------
(THOUSANDS)
<S> <C> <C> <C>
Net loss:
As reported..................................................... $(70,656) $(86,116) $(51,105)
-------- -------- --------
-------- -------- --------
Pro forma....................................................... $(71,228) $(86,500) $(51,198)
-------- -------- --------
-------- -------- --------
</TABLE>
FAS 123 is applicable only to stock options granted subsequent to December
31, 1994. Accordingly, since the Company's compensation expense associated with
such grants would generally be recognized over a three-year vesting period, the
initial impact of applying FAS 123 on pro forma net income for 1996 and 1995 is
not comparable to the impact on pro forma net income for 1997, when the pro
forma effect of the three-year vesting period has been fully reflected.
For purposes of applying FAS 123, the fair value of each option grant by
Time Warner and MediaOne is estimated on the date of grant using the
Black-Scholes option-pricing model. With regard to grants of Time Warner stock
options to the Company's employees in 1997, 1996 and 1995, weighted average
assumptions consisted of: dividend yields of 1% in all periods; expected
volatility of 21.9%, 21.7% and 22.3%, respectively; risk-free interest rates of
6.6%, 6.1% and 6.4%, respectively; and expected lives of 5 years in all periods.
The weighted average fair value of a Time Warner stock option granted to the
Company's employees during the year was $12.95, $12.18 and $11.21 for the years
ended December 31, 1997, 1996 and 1995, respectively. In 1997, MediaOne granted
options to an executive of the company. The weighted average fair value of a
MediaOne stock option was $7.43, based on the following weighted average
assumptions: no dividend yield; expected volatility of 30%; risk-free interest
rate of 6.8%; and an expected life of 5 years.
A summary of stock option activity with respect to employees of the Company
is as follows:
<TABLE>
<CAPTION>
TIME WARNER MEDIAONE
----------------------------- -----------------------------
NUMBER WEIGHTED-AVERAGE NUMBER WEIGHTED-AVERAGE
OF SHARES EXERCISE PRICE OF SHARES EXERCISE PRICE
--------- ---------------- --------- ----------------
<S> <C> <C> <C> <C>
Balance at January 1, 1995.................. 77,700 $36.59 -- $ --
Granted................................ 54,475 37.85 -- --
Exercised.............................. -- -- -- --
Cancelled(a)........................... -- -- -- --
--------- ---------
Balance at December 31, 1995................ 132,175 $37.11 -- $ --
Granted................................ 56,750 42.63 -- --
Exercised.............................. (634) 35.58 -- --
Cancelled(a)........................... (6,966) 40.63 -- --
--------- ---------
Balance at December 31, 1996................ 181,325 $38.71 -- $ --
Granted................................ 37,400 43.56 5,350 19.00
Exercised.............................. (1,750) 37.76 -- --
Cancelled(a)........................... (9,750) 40.98 -- --
--------- ---------
Balance at December 31, 1997................ 207,225 $39.48 5,350 $19.00
--------- ---------
--------- ---------
</TABLE>
- ------------
(a) Includes all options cancelled and forfeited during the year.
The number of exercisable options held by employees of the Company is as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------
1997 1996 1995
------- ------ ------
(THOUSANDS)
<S> <C> <C> <C>
Time Warner stock options................................................. 121,433 70,408 33,940
MediaOne stock options.................................................... -- -- --
</TABLE>
F-11
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
In connection with the Reorganization, the Management Committee is expected
to approve an option plan that is expected to provide for the granting of
options to purchase Class A Interests representing approximately 10% of the
equity in the Company, in the aggregate. Generally, options issued under such
option plan are expected to become exercisable over a four-year vesting period
and expire ten years from the date of grant. In addition, the purchase price of
the Class A Interests covered by each option is not expected to be less than The
fair market value of the Class A Interests on the date of grant.
6. SUBORDINATED LOANS PAYABLE TO THE PARENT COMPANIES
Effective July 1, 1997, all of the Company's financing requirements began
to be funded with subordinated Loans from the Parent Companies. These loans bear
interest (payable in kind) at The Chase Manhattan Bank's prime rate which was
8.5% at December 31, 1997. Effective with the Reorganization, the maturity of
these loans was extended until 2008. Interest expense relating to these loans
totaled approximately $1.5 million in 1997.
7. BENEFIT PLANS
The Company participates in the Time Warner Cable Pension Plan (the
'Pension Plan'), a noncontributory defined benefit pension plan which covers
approximately 75% of all employees. The remaining 25% of employees are
participating in a pension plan under the administration of MediaOne, their
previous employer. The Company also participates in the Time Warner Cable
Employees Savings Plan (the 'Savings Plan'), a defined contribution plan. Both
the Pension Plan and Savings Plan are administered by a committee appointed by
the Board of Representatives of TWE and cover substantially all employees.
Benefits under the Pension Plan are determined based on formulas which
reflect employees' years of service and compensation levels during their
employment period. Total pension cost was $1.7 million, $1.2 million and
$900,000 for the years ended December 31, 1997, 1996 and 1995, respectively.
The Company's contributions to the Savings Plan can represent up to 6.67%
of the employees' compensation during the plan year. TWE's Board of
Representatives has the right in any year to set the maximum amount of the
Company's annual contribution. Defined contribution plan expense was $710,000,
$606,000 and $410,000 for the years ended December 31, 1997, 1996 and 1995,
respectively.
8. RELATED PARTY TRANSACTIONS
In the normal course of conducting its businesses, the Company has various
transactions with the Parent Companies, generally on terms resulting from
negotiation between the affected units that, in management's view, results in
reasonable allocations.
The Company's local operations, which in certain cases are co-located with
TW Cable divisions, are allocated a charge for various overhead expenses for
services provided by TW Cable. These allocations are based on direct labor,
total expenses, or headcount relative to each division. The Company is also
allocated rent based on the square footage of space occupied by the Company at
TW Cable facilities. The aggregate of these charges totaled approximately $4.4
million, $4.3 million and $2.8 million for the years ended December 31, 1997,
1996 and 1995, respectively.
The combined statement of operations include consulting charges from
MediaOne, in 1995 only, for the use of certain employees on a temporary basis
and pension costs for certain employees of the Company who remain on the
MediaOne pension plan. Consulting fees approximated $522,000 for the year ended
December 31, 1995. There were no charges for consulting in 1997 and 1996.
Pension costs were approximately $624,000, $500,000 and $450,000 for the years
ended December 31, 1997, 1996 and 1995, respectively.
The Company licenses the right to use the majority of its fiber optic cable
from TW Cable. The Company paid TW Cable $32.5 million, $41.3 million, and $46.9
million in the years ended December 31, 1997, 1996 and 1995, respectively, under
this arrangement. Such costs have been capitalized by the Company. The
amortization of these costs and fiber previously capitalized in the amount of
$7.1 million, $5.0 million and $2.1 million for the years ended December 31,
1997, 1996 and 1995, respectively, has been classified as a component of
depreciation and amortization in the accompanying combined statement of
operations. In addition, under this
F-12
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
licensing arrangement, the Company reimburses TW Cable for facility maintenance
and pole rental costs, which costs amounted to $1.7 million, $1.3 million and
$648,000 for the years ended December 31, 1997, 1996 and 1995, respectively.
Effective July 1, 1997, all of the Company's financing requirements began
to be funded with loans from the Parent Companies. Interest expense relating to
these loans totaled approximately $1.5 million in 1997.
9. COMMITMENTS AND CONTINGENCIES
The Company has noncancelable operating leases for office space and
switching facilities expiring over various terms. Rental expense for all
operating leases totaled $5.4 million, $4.2 million and $3.2 million for the
years ended December 31, 1997, 1996 and 1995, respectively.
The minimum rental commitments under noncancelable operating leases are:
1998-$1.3 million; 1999-$2.8 million; 2000-$2.8 million; 2001-$2.9 million and
after 2002-$13.8 million.
Historically, the Company has relied on TW Cable's fiber in constructing
its own networks. In addition, most of the new markets in which management plans
to operate or construct networks are located in areas where TW Cable has already
made substantial infrastructure investments. The failure of the Company to
license additional fiber optic capacity from TW Cable could materially affect
the Company's future business and operations.
Pending legal proceedings are substantially limited to litigation
incidental to the business of the Company. In the opinion of management, the
ultimate resolution of these matters will not have a material effect on the
Company's financial statements.
10. OTHER CURRENT LIABILITIES
Other current liabilities consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------
1997 1996
------- -------
(THOUSANDS)
<S> <C> <C>
Accrued salaries and employee costs..................................... $13,103 $ 8,591
Property and other taxes................................................ 7,682 5,187
Accrued expenses........................................................ 6,227 2,860
Other................................................................... 2,292 1,155
------- -------
Total......................................................... $29,304 $17,793
------- -------
------- -------
</TABLE>
F-13
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED BALANCE SHEET
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1998 1997
--------- ------------
(UNAUDITED)
(THOUSANDS)
<S> <C> <C>
ASSETS
Current assets
Receivables, less allowances of $1,030 and $776................................... $ 11,712 $ 8,882
Prepaid expenses.................................................................. 814 1,192
--------- ------------
Total current assets......................................................... 12,526 10,074
Investments in unconsolidated affiliates.......................................... 4,318 4,376
Property, plant and equipment..................................................... 508,988 484,206
Less: accumulated depreciation.................................................... (80,669) (69,048)
--------- ------------
428,319 415,158
Intangible assets, net............................................................ 8,312 8,469
--------- ------------
Total assets................................................................. $ 453,475 $438,077
--------- ------------
--------- ------------
LIABILITIES AND MEMBERS' EQUITY
Current liabilities
Accounts payable.................................................................. $ 21,810 $ 32,908
Other current liabilities......................................................... 35,516 29,304
--------- ------------
Total current liabilities.................................................... 57,326 62,212
Subordinated loans payable to the Parent Companies (including $3,552 and $1,544 of
accrued interest, respectively).................................................. 117,547 75,475
Members' equity
Class A interests having an aggregate participation percentage of 0%.............. -- --
Class B interests having an aggregate participation percentage of 100%............ 555,807 555,807
Accumulated deficit............................................................... (277,205) (255,417)
--------- ------------
Total members' equity........................................................ 278,602 300,390
--------- ------------
Total liabilities and members' equity........................................ $ 453,475 $438,077
--------- ------------
--------- ------------
</TABLE>
See accompanying notes.
F-14
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1998 1997
-------- --------
(UNAUDITED)
(THOUSANDS)
<S> <C> <C>
Revenues:
Dedicated transport services.......................................................... $ 16,733 $ 8,301
Switched services..................................................................... 5,315 1,852
-------- --------
Total revenues................................................................... 22,048 10,153
-------- --------
Costs and expenses:
Operating(a).......................................................................... 13,519 8,384
Selling, general and administrative(a)................................................ 16,316 11,985
Depreciation and amortization(a)...................................................... 11,932 8,842
-------- --------
Total costs and expenses......................................................... 41,767 29,211
-------- --------
Operating loss............................................................................. (19,719) (19,058)
Equity in losses of unconsolidated affiliates.............................................. (58) (593)
Interest expense(a)........................................................................ (2,011) --
-------- --------
Net loss................................................................................... $(21,788) $(19,651)
-------- --------
-------- --------
(a) Includes expenses resulting from transactions with affiliates (Note 4):
Operating expenses.................................................................... $ 513 $ 433
-------- --------
-------- --------
Selling, general and administrative................................................... $ 765 $ 1,428
-------- --------
-------- --------
Depreciation and amortization......................................................... $ 2,193 $ 1,625
-------- --------
-------- --------
Interest expense...................................................................... $ 2,008 $ --
-------- --------
-------- --------
</TABLE>
See accompanying notes.
F-15
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1998 1997
-------- --------
(UNAUDITED)
(THOUSANDS)
<S> <C> <C>
OPERATIONS
Net loss................................................................................... $(21,788) $(19,651)
Adjustments for noncash and nonoperating items:
Depreciation and amortization.............................................................. 11,932 8,842
Equity in loss of unconsolidated affiliates................................................ 58 593
Changes in operating assets and liabilities:
Accounts receivable and other current assets.......................................... (2,452) (2,473)
Accounts payable and other current liabilities........................................ (2,878) (15,556)
Other balance sheet changes........................................................... 25 (449)
-------- --------
Cash used in operations.................................................................... (15,103) (28,694)
-------- --------
INVESTING ACTIVITIES
Capital expenditures....................................................................... (24,961) (14,261)
Investments and acquisitions............................................................... -- 28
-------- --------
Cash used in investing activities.......................................................... (24,961) (14,233)
-------- --------
FINANCING ACTIVITIES
Proceeds from loans from the Parent Companies.............................................. 59,166 --
Capital contributions from the Parent Companies............................................ -- 50,814
Repayment of loans from the Parent Companies............................................... (19,102) --
Distributions to the Parent Companies...................................................... -- (7,887)
-------- --------
Cash provided by financing activities...................................................... 40,064 42,927
-------- --------
INCREASE IN CASH AND EQUIVALENTS........................................................... -- --
CASH AND EQUIVALENTS AT BEGINNING OF PERIOD................................................ -- --
-------- --------
CASH AND EQUIVALENTS AT END OF PERIOD...................................................... $ -- $ --
-------- --------
-------- --------
</TABLE>
See accompanying notes.
F-16
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
COMBINED STATEMENT OF CHANGES IN MEMBERS' EQUITY
<TABLE>
<CAPTION>
TOTAL
CLASS B ACCUMULATED MEMBERS'
INTERESTS DEFICIT EQUITY
-------- ----------- --------
(UNAUDITED)
(THOUSANDS)
<S> <C> <C> <C>
BALANCE AT DECEMBER 31, 1997............................................... $555,807 $(255,417) $300,390
Net loss................................................................... -- (21,788) (21,788)
-------- ----------- --------
BALANCE AT MARCH 31, 1998.................................................. $555,807 $(277,205) $278,602
-------- ----------- --------
-------- ----------- --------
</TABLE>
See accompanying notes.
F-17
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS
(UNAUDITED)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS
Time Warner Telecom LLC, a Delaware limited liability company (the
'Company'), is a facilities-based competitive local telecommunications services
provider ('CLEC') in selected metropolitan markets across the United States,
offering a wide range of business telephony services, primarily to medium- and
large-sized business customers. The business of the Company was commenced in
1993 by Time Warner Cable ('TW Cable'), a division of Time Warner Entertainment
Company, L.P. ('TWE'), and reflects the combined commercial telecommunication
operations under the ownership or management control of TW Cable. These
operations consist of the commercial telecommunication operations of Time Warner
Inc. and certain of its subsidiaries ('Time Warner') and the Time Warner
Entertainment-Advance/Newhouse Partnership ('TWEAN') that were acquired or
formed in 1995, as well as the pre-existing commercial telecommunication
operations of TWE (collectively, TWE, TWEAN and Time Warner are referred to
herein as the 'Parent Companies').
To date, the majority of the Company's revenues have been derived from the
provision of 'private line' or 'direct access' telecommunications services.
Because the Company has deployed switches in 16 of its 19 markets, management
expects that a growing portion of the Company's revenues will be derived from
providing switched services. The Company's customers are principally
telecommunications-intensive business end-users, IXCs, ISPs, wireless
communications companies and governmental entities. Such customers are offered a
wide range of integrated telecommunications products and services, including
dedicated transmission, local switched, data and video transmission services and
Internet services. In addition, the Company benefits from its strategic
relationship with TW Cable both through access rights and cost-sharing. As a
result, the Company's networks have been constructed primarily through the use
of fiber capacity licensed from TW Cable.
BASIS OF PRESENTATION
The combined financial statements of the Company reflect the 'carved out'
historical financial position, results of operations, cash flows and changes in
members' equity of the commercial telecommunication operations of the Parent
Companies as if they had been operating as a separate company. The combined
statement of operations has been adjusted to retroactively reflect an allocation
of certain expenses pursuant to the final terms of the related agreements,
primarily relating to office rent, overhead charges for various administrative
functions performed by TW Cable and certain facility maintenance and pole rental
costs. These allocations were required to reflect all costs of doing business
and have been based on various methods (Note 4), which management believes
result in reasonable allocations of such costs.
The accompanying financial statements are unaudited but, in the opinion of
management, contain all the adjustments (consisting of those of a normal
recurring nature) considered necessary to present fairly the financial position
and the results of operations and cash flows for the periods presented in
conformity with generally accepted accounting principles applicable to interim
periods. The accompanying financial statements should be read in conjunction
with the audited combined financial statements of the Company for the year ended
December 31, 1997.
2. MEMBERS' EQUITY
At March 31, 1998, all the assets and liabilities of the Company were
beneficially owned by Time Warner and MediaOne Group, Inc. ('MediaOne'), which,
through certain subsidiaries, are partners in TWE. The assets and liabilities of
the Company were also beneficially owned by the Advance/Newhouse Partnership
('A/N') through TWEAN. Time Warner and certain of its subsidiaries, MediaOne and
certain of its subsidiaries and A/N are collectively referred to herein as the
'Members'.
In July 1998, the Company completed a reorganization (the
'Reorganization'), under which the Company's capitalization was authorized to
include two classes of interests, Class A Interests and Class B Interests. In
connection with the Reorganization, the Members contributed their respective
assets and liabilities of the Company's business to the Company and in return
received Class B Interests having an aggregate participation percentage of 100%.
Following the Reorganization, Time Warner, MediaOne and A/N held Class B
interests having participation percentages equalling 61.95%, 18.88% and 19.17%,
respectively. Accordingly, the accompanying combined financial statements have
been adjusted to retroactively reflect the authorization of
F-18
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
NOTES TO COMBINED FINANCIAL STATEMENTS -- CONTINUED
(UNAUDITED)
Class A Interests and the authorization and issuance of Class B Interests having
an aggregate participation percentage of 100% for all periods.
The Class A Interests and Class B Interests are substantially identical in
all respects, except that the Class A Interests have no voting rights, provided,
however, that the approval of the holders of a majority (in participation
percentage) of the Class A Interests, voting as a separate class, is required
for any amendment to the Limited Liability Company Agreement that would have an
adverse effect on the rights of the holders of such class. The business and
affairs of the Company are managed by a management committee (the 'Management
Committee'), except for certain matters which require the unanimous vote of the
holders of Class B Interests. Representatives of the Management Committee are
appointed by the Members.
In connection with the Reorganization, the Management Committee is expected
to approve an option plan that is expected to provide for the granting of
options to purchase Class A Interests representing approximately 10% of the
equity in the Company, in the aggregate. Generally, options issued under such
option plan are expected to become exercisable over a four-year vesting period
and expire ten years from the date of grant. In addition, the purchase price of
the Class A Interests covered by each option is not expected to be less than the
fair market value of the Class A Interests on the date of grant.
3. SUBORDINATED LOANS PAYABLE TO THE PARENT COMPANIES
Effective July 1, 1997, all of the Company's financing requirements began
to be funded with subordinated loans from the Parent Companies. These loans bear
interest (payable in kind) at The Chase Manhattan Bank's prime rate which was
8.5% at March 31, 1998. Effective with the Reorganization, the maturity of these
loans was extended until 2008. Interest expense relating to these loans totaled
approximately $2.0 million in 1997.
4. RELATED PARTY TRANSACTIONS
In the normal course of conducting its businesses, the Company has various
transactions with the Parent Companies, generally on terms resulting from
negotiation between the affected units that, in management's view, results in
reasonable allocations.
The Company's local operations, which in certain cases are co-located with
TW Cable divisions, are allocated a charge for various overhead expenses for
services provided by TW Cable. These allocations are based on direct labor,
total expenses, or headcount relative to each division. The Company is also
allocated rent based on the square footage of space occupied by the Company at
TW Cable facilities. The aggregate of these charges totaled approximately
$614,000 and $1.3 million for the three months ended March 31, 1998 and 1997,
respectively.
The combined statement of operations includes pension costs for certain
employees of the Company who remain on the MediaOne pension plan. Pension costs
were approximately $151,000 and $157,000 for the three months ended March 31,
1998 and 1997, respectively.
The Company licenses the right to use the majority of its fiber optic cable
from TW Cable. The Company paid TW Cable approximately $1.2 million and $5.6
million in the three months ended March 31, 1998 and 1997, respectively, under
this arrangement. Such costs have been capitalized by the Company. The
amortization of these costs and fiber previously capitalized in the amount of
approximately $2.2 million and $1.6 million for the three months ended March 31,
1998 and 1997, respectively, has been classified as a component of depreciation
and amortization in the accompanying combined statement of operations. In
addition, under this licensing arrangement, the Company reimburses TW Cable for
facility maintenance and pole rental costs, which costs amounted to $513,000 and
$433,000 for the three months ended March 31, 1998 and 1997, respectively.
Effective July 1, 1997, all of the Company's financing requirements began
to be funded with loans from the Parent Companies. Interest expense relating to
these loans totaled approximately $2.0 million for the three months ended March
31, 1998.
5. COMMITMENTS AND CONTINGENCIES
Pending legal proceedings are substantially limited to litigation
incidental to the business of the Company. In the opinion of management, the
ultimate resolution of these matters will not have a material effect on the
Company's financial statements.
F-19
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the expenses of issuance and distribution of the $400
million aggregate principal amount of % Senior Notes Due 2008 registered
hereunder on Form S-1, other than underwriting discounts and commissions. All
amounts except the Registration Fee are estimated.
<TABLE>
<CAPTION>
<S> <C>
Registration Fee.......................................................................... $ 118,000
NASD Filing Fee........................................................................... 30,500
Printing and Engraving Fees............................................................... 300,000
Blue Sky Fees and Expenses................................................................ 12,000
Legal Fees and Expenses................................................................... 400,000
Accounting Fees and Expenses.............................................................. 250,000
Trustees' Fees............................................................................ 20,000
Rating Agency Fees........................................................................ 235,000
Miscellaneous............................................................................. 146,500
----------
Total................................................................................ $1,500,000
----------
----------
</TABLE>
All of the above expenses have been or will be paid by Time Warner Telecom
LLC.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article XI of the LLC Agreement provides that the Members and their
affiliates and the Representatives (collectively, 'Covered Persons') will have
no liability, including under any legal or equitable theory of fiduciary duty or
other theory of liability, to the Company or to any other Covered Person, for
any losses, claims, damages or liabilities incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the Company.
The LLC Agreement provides that to the fullest extent permitted by
applicable law (including Section 18-1101(c) of the Delaware Act), no holder of
an Interest (including the Members) will have any fiduciary or similar duty, at
law or in equity, or any liability relating thereto, to the Company or any other
holder, with respect to or in connection with the Company or the Company's
business or affairs, and that the doctrine of corporate opportunity, and any
other analogous doctrine, will not apply with respect to the Company.
Subject to any terms, conditions or restrictions set forth in the LLC
Agreement, Section 18-108 of the Delaware Limited Liability Company Act empowers
a Delaware limited liability company to indemnify and hold harmless any member
or manager or other person from and against all claims and demands whatsoever.
Article XI of the LLC Agreement provides that the Company shall indemnify (i)
the Covered Persons against any losses arising out of or in connection with the
LLC Agreement, unless such loss is caused by such Covered Person's bad faith,
gross negligence or willful misconduct and (ii) its officers to the fullest
extent permitted by Delaware law.
Article VI of the Certificate of Incorporation (the 'TWT Charter') of Time
Warner Telecom Inc. ('TWT') provides that to the fullest extent permitted under
the General Corporation Law of the State of Delaware (the 'DGCL'), a director of
TWT shall not be personally liable to TWT or its stockholders for monetary
damages for breach of fiduciary duty as a director.
Section 102(b)(7) of the DGCL, provides that a corporation may eliminate or
limit the personal liability of a director (or certain persons who, pursuant to
the provisions of the certificate of incorporation, exercise or perform duties
conferred or imposed upon directors by the DGCL) to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provisions shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which the director derived an improper personal benefit.
II-1
<PAGE>
<PAGE>
Section 145 of the DGCL provides that a corporation may indemnify directors
and officers as well as other employees and individuals against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation -- a 'derivative action'), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, by-laws,
disinterested director vote, stockholder vote, agreement or otherwise. Article
VIII of the TWT Charter provides that TWT shall indemnify its officers,
directors, employees and agents to the full extent permitted by Delaware law.
The By-laws of Time Warner Inc. ('TWI') require indemnification to the
fullest extent permitted under Delaware law of any person who is or was a
director or officer of TWI who is or was involved or threatened to be made so
involved in any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person is or
was serving at the request of TWI as a director, officer or employee of any
other enterprise. Mr. Bressler would be covered by this provision. The
Directors' and Officers' Liability and Reimbursement Insurance Policy of TWI is
designed to reimburse TWI for any payments made by it pursuant to the foregoing
indemnification. The policy has coverage of $50,000,000.
The Agreement of Limited Partnership of TWE provides that TWE shall
indemnify, defend and hold harmless each officer of TWE from any personal
liability he or she may incur by reason of his or her action on behalf of TWE to
the fullest extent permitted as if TWE were a Delaware corporation. Messrs.
Bressler, Britt and Rossetti would be covered by this provision.
The By-laws of MediaOne Group, Inc. ('MediaOne') require indemnification to
the fullest extent permitted under Delaware law of any person who is or was a
director, officer or employee of MediaOne, or was otherwise designated as an
indemnified representative (as defined in the MediaOne By-laws) by MediaOne,
against any liability (as defined in the MediaOne By-laws) incurred by such
person in connection with any proceeding (as defined in the MediaOne By-laws) in
which such person is involved by reason of their past, present or future
services for, or at the request of, MediaOne as a director, officer, employee,
agent, fiduciary or trustee of any other entity or enterprise. Messrs. McPhie,
Williams and Webster are covered by this provision.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, except as set forth in the next sentence, the
Company has not sold any securities without registration under the Securities
Act. On July 14, 1998, pursuant to the Reorganization, the Company issued Class
B Interests, having an aggregate participation percentage of 100%, to the
Members, in a private placement under Section 4(2) of the Securities Act.
II-2
<PAGE>
<PAGE>
ITEM 16. EXHIBITS
(a) Exhibits:
TIME WARNER TELECOM LLC
EXHIBIT LIST
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- -----------------------------------------------------------------------------------------------------------
<S> <C>
1.1 -- Form of Underwriting Agreement**
2.1 -- Reorganization Agreement among Time Warner Companies, Inc., MediaOne Group, Inc., Advance/Newhouse
Partnership, Time Warner Entertainment Company, L.P., and Time Warner Entertainment-Advance/Newhouse
Partnership**
3.1 -- Amended and Restated LLC Agreement of the Company
3.2 -- Certificate of Incorporation of TWT**
3.3 -- By-laws of TWT**
3.4 -- Certificate of Formation of the Company
3.5 -- Certificate of Amendment to Certificate of Formation of the Company
3.6 -- Certificate of Change of Location of Registered Office and of Registered Agent of TWT
4.1 -- Form of Indenture, between the Company and The Chase Manhattan Bank, as Trustee**
5 -- Opinion of Cravath, Swaine and Moore
10.1 -- Lease, between Quebec Court Joint Venture No. 2, Landlord, and Intelligent Advanced Systems, Inc.,
Tenant, dated June 3, 1994**
10.2 -- Agreement for Assignment of Lease, dated September 12, 1997, between Ingram Micro Inc. and Time Warner
Communications Holdings Inc.**
10.3 -- First Amendment to Lease, dated October 15, 1997, by Carramerica Realty, L.P. and Time Warner
Communications Holdings Inc.**
10.4 -- Time Warner Telecom LLC 1998 Option Plan
10.5 -- Employment Agreement between the Company and Paul B. Jones
10.6 -- Employment Agreement between the Company and Larissa L. Herda
10.7 -- Employment Agreement between the Company and A. Graham Powers
10.8 -- Employment Agreement between the Company and David J. Rayner
10.9 -- Form of Capacity License Agreement**
10.10 -- Employment Agreement between the Company and John T. Blount
10.11 -- Form of Trade Name License between the Company, TWT and Time Warner Inc.**
12 -- Ratio of Earnings to Fixed Charges of the Company**
21 -- Subsidiaries of the Company**
23.1 -- Consent of Ernst & Young LLP, Independent Public Accountants
23.2 -- Consent of Cravath, Swaine & Moore (included in Exhibit 5)
24.1 -- Power of Attorney of TWT's Directors
24.2 -- Power of Attorney of the Company's Representatives
25 -- Statement of Eligibility and Qualification on Form T-1 of The Chase Manhattan Bank with respect to the
Company and TWT**
27 -- Financial Data Schedule
</TABLE>
- ------------
** Previously filed as part of this Registration Statement
II-3
<PAGE>
<PAGE>
(b) Financial Statement Schedule
The following financial statement schedule is included in Part II of this
Registration Statement and should be read in conjunction with the combined
financial statements and notes thereto included elsewhere herein.
<TABLE>
<S> <C>
Report of Independent Auditors.................................................................... S-1
Schedule II -- Valuation and Qualifying Accounts.................................................. S-2
</TABLE>
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described under Item 14 above or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The Company hereby undertakes that:
1. For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as a part of this
Registration Statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed part of this Registration
Statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at such time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Time Warner Telecom LLC has duly caused Amendment No. 3 to this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on July 15, 1998.
TIME WARNER TELECOM LLC
By /S/ DAVID J. RAYNER
....................................
DAVID J. RAYNER
SENIOR VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------------------- ------------------------------------ --------------
<S> <C> <C>
(i) Principal Executive Officer
/S/ LARISSA L. HERDA President and Chief Executive July 15, 1998
........................................................ Officer
LARISSA L. HERDA
(ii) Principal Financial and Accounting Officer
/S/ DAVID J. RAYNER Senior Vice President and July 15, 1998
........................................................ Chief Financial Officer
DAVID J. RAYNER
(iii) Directors
* Representative July 15, 1998
........................................................
RICHARD J. BRESSLER
* Representative July 15, 1998
........................................................
GLENN A. BRITT
* Representative July 15, 1998
........................................................
LARISSA L. HERDA
* Representative July 15, 1998
........................................................
STEPHEN A. MCPHIE
* Representative July 15, 1998
........................................................
ROBERT J. MIRON
* Representative July 15, 1998
........................................................
CARL U.J. ROSSETTI
* Representative July 15, 1998
........................................................
AUDLEY M. WEBSTER JR.
* Representative July 15, 1998
........................................................
PEARRE A. WILLIAMS
* By: /s/ DAVID J. RAYNER
........................................................
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Time Warner Telecom Inc. has duly caused Amendment No. 3 to this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on July 15, 1998.
TIME WARNER TELECOM INC.
By /S/ DAVID J. RAYNER
....................................
DAVID J. RAYNER
SENIOR VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------------------- ------------------------------------ --------------
<S> <C> <C>
(i) Principal Executive Officer
/S/ LARISSA L. HERDA President and Chief Executive July 15, 1998
........................................................ Officer
LARISSA L. HERDA
(ii) Principal Financial and Accounting Officer
/S/ DAVID J. RAYNER Senior Vice President and July 15, 1998
........................................................ Chief Financial Officer
DAVID J. RAYNER
(iii) Directors
* Director July 15, 1998
........................................................
RICHARD J. BRESSLER
* Director July 15, 1998
........................................................
ROBERT J. MIRON
* Director July 15, 1998
........................................................
PEARRE A. WILLIAMS
* By: /S/ DAVID J. RAYNER
........................................................
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
<PAGE>
REPORT OF INDEPENDENT AUDITORS
To Time Warner Telecom LLC
We have audited the combined financial statements of Time Warner Telecom
LLC (the 'Company') as of December 31, 1997 and 1996, and for each of the three
years in the period ended December 31, 1997 and have issued our report thereon
dated March 13, 1998, except for Notes 1, 4, 5, 6, and 8, as to which the date
is July 14, 1998. Our audits also included the financial statement schedule
listed in Item 16(b) of this Registration Statement. This schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion based on our audits.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic combined financial statements taken as a
whole, presents fairly in all material respects the information set forth
therein.
ERNST & YOUNG LLP
New York, New York
July 14, 1998
S-1
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
ADDITIONS/
BALANCE AT CHARGES TO BALANCE AT
BEGINNING COSTS AND END OF
OF PERIOD EXPENSES DEDUCTIONS PERIOD
---------- ---------- ---------- ----------
(THOUSANDS)
<S> <C> <C> <C> <C>
For the Year ended December 31, 1997:
Allowance for doubtful accounts receivable................. $193 $1,213 $ (630) $776
For the Year ended December 31, 1996:
Allowance for doubtful accounts receivable................. $ 21 $ 271 $ (99) $193
For the Year ended December 31, 1995:
Allowance for doubtful accounts receivable................. $ -- $ 24 $ (3) $ 21
</TABLE>
S-2
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ------- ---------------------------------------------------------------------------------------------------- ----
<C> <S> <C>
1.1 -- Form of Underwriting Agreement**.................................................................
2.1 -- Reorganization Agreement among Time Warner Companies, Inc., MediaOne Group, Inc.,
Advance/Newhouse Partnership, Time Warner Entertainment Company, L.P., and Time Warner
Entertainment-Advance/Newhouse Partnership**.....................................................
3.1 -- Amended and Restated LLC Agreement of the Company................................................
3.2 -- Certificate of Incorporation of TWT**............................................................
3.3 -- By-laws of TWT**.................................................................................
3.4 -- Certificate of Formation of the Company..........................................................
3.5 -- Certificate of Amendment to Certificate of Formation of the Company..............................
3.6 -- Certificate of Change of Location of Registered Office and of Registered Agent of TWT............
4.1 -- Form of Indenture, between the Company and The Chase Manhattan Bank, as Trustee**................
5 -- Opinion of Cravath, Swaine and Moore.............................................................
10.1 -- Lease, between Quebec Court Joint Venture No. 2, Landlord, and Intelligent Advanced Systems,
Inc., Tenant, dated June 3, 1994**...............................................................
10.2 -- Agreement for Assignment of Lease, dated September 12, 1997, between Ingram Micro Inc. and Time
Warner Communications Holdings Inc.**............................................................
10.3 -- First Amendment to Lease, dated October 15, 1997, by Carramerica Realty, L.P. and Time Warner
Communications Holdings Inc.**...................................................................
10.4 -- Time Warner Telecom LLC 1998 Option Plan.........................................................
10.5 -- Employment Agreement between the Company and Paul B. Jones.......................................
10.6 -- Employment Agreement between the Company and Larissa L. Herda....................................
10.7 -- Employment Agreement between the Company and A. Graham Powers....................................
10.8 -- Employment Agreement between the Company and David J. Rayner.....................................
10.9 -- Form of Capacity License Agreement**.............................................................
10.10 -- Employment Agreement between the Company and John T. Blount......................................
10.11 -- Form of Trade Name License between the Company, TWT and Time Warner Inc.**.......................
12 -- Ratio of Earnings to Fixed Charges of the Company**..............................................
21 -- Subsidiaries of the Company**....................................................................
23.1 -- Consent of Ernst & Young LLP, Independent Public Accountants.....................................
23.2 -- Consent of Cravath, Swaine & Moore (included in Exhibit 5).......................................
24.1 -- Power of Attorney of TWT's Directors.............................................................
24.2 -- Power of Attorney of the Company's Representatives...............................................
25 -- Statement of Eligibility and Qualification on Form T-1 of The Chase Manhattan Bank with respect
to the Company and TWT**.........................................................................
27 -- Financial Data Schedule..........................................................................
</TABLE>
- ------------
** Previously filed as part of this Registration Statement
STATEMENT OF DIFFERENCES
------------------------
The section symbol shall be expressed as.............................. 'SS'
<PAGE>
<PAGE>
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of TIME WARNER TELECOM LLC (the "Company") dated as of July
14, 1998, by and among TIME WARNER ENTERTAINMENT COMPANY,
L.P., a Delaware limited partnership ("TWE"), TIME WARNER
ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP, a New York general
partnership ("TWE-A/N"), FIBRCOM HOLDINGS, L.P., a Delaware
limited partnership ("TW/KBLCOM"), TIME WARNER COMPANIES,
INC., a Delaware corporation ("TWX"), AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION, a Delaware corporation ("ATC"),
WARNER COMMUNICATIONS INC., a Delaware corporation ("WCI"),
TW/TAE, INC., a Delaware corporation ("TW/TAE"), PARAGON
COMMUNICATIONS, a Colorado general partnership ("Paragon",
and, together with TWX, ATC, WCI, TWI/TAE and TW/KBLCOM, the
"TW Stockholders"), MEDIAONE GROUP, INC. (formerly U S WEST
Multimedia Communications, Inc.), a Colorado corporation (the
"MediaOne Stockholder"), and ADVANCE/NEWHOUSE PARTNERSHIP, a
New York general partnership ("A/N").
Preliminary Statement
WHEREAS, TWE heretofore formed the Company as a limited liability
company under the Delaware Act (as defined below) pursuant to the Original LLC
Agreement (as defined below).
WHEREAS, certain of the parties hereto are parties to a
Reorganization Agreement of even date herewith (the "Reorganization Agreement")
pursuant to which the Company is being continued and certain parties are being
admitted as members, and in connection therewith, the Original LLC Agreement is
being hereby amended and restated.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
<PAGE>
<PAGE>
2
DEFINITIONS AND USAGE
SECTION 1.01. Definitions. Capitalized terms used herein but not
defined herein shall have the respective meanings assigned thereto in the
Stockholders' Agreement attached hereto as Exhibit C (the "Stockholders'
Agreement"). The following terms shall have the following meanings for the
purposes of this Agreement:
"Additional Member" means any Person admitted as a member of the
Company pursuant to Section 3.02 in connection with the new issuance of an
Interest to such Person.
"Agreement" means this Limited Liability Company Agreement, as the
same may be amended or restated from time to time.
"Business Day" means any day other than a Saturday, a Sunday or a
Federal holiday.
"By-laws" means the By-laws attached as Exhibit B hereto.
"Capital Account" means the capital account established and
maintained for each Member pursuant to Section 6.01(a).
"CEO" means the President and Chief Executive Officer of the
Company.
"Chairman" is defined in Section 8.02(c).
"Charter" means the Certificate of Incorporation attached as Exhibit
A hereto.
"Class A Interest" means a Class A limited liability company
interest in the Company.
"Class B Interest" means a Class B limited liability company
interest in the Company.
"Class A Member" means any Member that is a holder of a Class A
Interest.
"Class B Member" means any Member that is a holder of a Class B
Interest.
"Code" means the Internal Revenue Code of 1986, as amended.
<PAGE>
<PAGE>
3
"Company Indebtedness" is defined in the Reorganization Agreement.
"Contribution" is defined in the Reorganization Agreement.
"Covered Person" means (i) each Member, (ii) each officer, director,
shareholder, partner, employee, representative, agent or trustee of a Member and
(iii) each Representative.
"Delaware Act" means the Delaware Limited Liability Company Act, 6
Del. C. 'SS''SS' 18-101 et seq., as amended from time to time.
"Distributee Member" means any of the Persons named on Schedule B
hereto, and any Person to whom all or any part of the Interest of any such named
Person is Transferred pursuant to Section 9.01(a).
"Effective Time" means the time at which the Contribution occurs.
"Fiscal Year" means each fiscal year referred to in Section 6.06.
"Interest" means a Class A Interest, a Class B Interest, or any
other limited liability company interest in the Company.
"Initial Member" means any of the Persons named on Schedule A
hereto.
"IPO Registration Statement" is defined in Section 10.01(a).
"IPO Transaction" is defined in Section 10.01(a).
"Majority Vote" is defined in Section 8.03(a).
"Management Committee" is defined in Section 8.01.
"Member" means any Person named as a member of the Company on
Schedule A or B hereto (as applicable) and/or on the books and records of the
Company and includes any Person admitted as an Additional Member or a Substitute
Member, in each case for so long as such Person continues to be a member of the
Company.
<PAGE>
<PAGE>
4
"Net Profits and Net Losses" shall be the taxable income and tax
loss of the Company as determined for Federal income tax purposes for a given
taxable year, calculated using the accrual method taking into account any
separately stated items, increased by the amount of any tax exempt income of the
Company during such taxable year and decreased by the amount of the Code Section
705(a)(2)(B) expenditures (within the meaning of Treasury Regulation 'SS' 1.704-
1(b)(2)(iv)(i)) of the Company during such taxable year; provided, however, that
(i) items of income, gain, loss and deduction attributable to Section 704(c)
Property shall be determined in accordance with the principles of Treasury
Regulation 'SS' 1.704-1(b)(2)(iv)(g) and (ii) any items of income, gain, loss or
deduction that are specially allocated pursuant to Sections 6.02(b), (c) and (d)
shall not be taken into account.
"Newco" is defined in Section 10.01(b).
"Original LLC Agreement" means the limited liability company
agreement of Time Warner Telecom L.L.C. dated as of June 18, 1998.
"Participation Percentage" is defined in Section 5.01(a).
"Reconstitution" is defined in Section 10.01(b).
"Reorganization Distribution" means the Distribution pursuant to
(and as defined in) the Reorganization Agreement.
"Representative" means a member of the Management Committee.
"Restricted Period" means the period from the Effective Time until
the fifth anniversary of the Effective Time.
"Section 704(c) Property" means "Section 704(c) property" as defined
in Treasury Regulation 'SS' 1.704-3(a)(3) or property that is subject to
"reverse Section 704(c) allocations" as defined in Treasury Regulation 'SS'
1.704-3(a)(6)(i).
"Substitute Member" means any Person admitted as a member of the
Company pursuant to Section 3.02 in connection with the Transfer of
then-existing Interest to such Person.
"Tax Matters Partner" is defined in Section 6.08.
<PAGE>
<PAGE>
5
"TW Name License" means the Trade Name License Agreement dated as of
the date of this Agreement between Time Warner Inc. and the Company.
SECTION 1.02. Other Definitional Provisions. The provisions of
Section 1.2 of the Stockholders' Agreement are hereby incorporated by reference
herein.
ARTICLE II
THE COMPANY
SECTION 2.01. Effectiveness of This Agreement. Notwithstanding
anything to the contrary contained herein, this Agreement shall become effective
at the Effective Time.
SECTION 2.02. Continuation. The Members hereby agree to continue the
Company as a limited liability company pursuant to the Delaware Act, upon the
terms and subject to the conditions set forth in this Agreement, and hereby
ratify the execution and filing of the Certificate of Formation of the Company
with the Secretary of State of the State of Delaware on June 18, 1998. The
authorized officer or representative shall file and record any amendments or
restatements of the certificate of formation of the Company and such other
documents as may be required or appropriate under the laws of the State of
Delaware and of any other jurisdiction in which the Company may conduct
business. The authorized officer or representative shall, on request, provide
any Member with copies of each such document as filed and recorded.
SECTION 2.03. Name. The name of the Company shall be Time Warner
Telecom LLC. The Management Committee by Majority Vote may change the name of
the Company or adopt such trade or fictitious names as they may determine. In
the event that the TW Name License shall terminate and the Management Committee
shall not agree as to a new name for the Company in accordance with the
preceding sentence, the name of the Company shall be changed to "TW Telecom LLC"
until such an agreement is reached.
SECTION 2.04. Term. The term of the Company shall begin on the date
the certificate of formation of the Company is filed, and the Company shall have
perpetual existence unless sooner dissolved as provided in Article XII.
SECTION 2.05. Registered Agent and Registered Office. The name of
the registered agent for service of
<PAGE>
<PAGE>
6
process shall be The Corporation Trust Company, and the address of the
registered agent and the address of the registered office in the State of
Delaware shall be Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801. Such office and such agent may be changed from time to time by
Majority Vote of the Management Committee.
SECTION 2.06. Purposes. The Company has been formed for the object
and purpose of, and the nature of the business to be conducted and promoted by
the Company is, engaging in any lawful act or activity for which limited
liability companies may be formed under the Delaware Act.
ARTICLE III
MEMBERS; BOOKS AND RECORDS;
BUDGETS AND BUSINESS PLANS; REPORTS
SECTION 3.01. Admission of Members. (a) At the Effective Time,
without the need for any further action of any Person, the Initial Members who
have executed this Agreement shall be admitted as Members, and each such Person
shall be shown as such in the books and records of the Company. Following the
Reorganization Distribution, the Distributee Members who have executed this
Agreement shall be admitted as Substitute Members, and those Initial Members
which are not also Distributee Members shall cease to be Members. Following the
Effective Time, except as set forth in the preceding sentence, no Person shall
be admitted as a Member and no additional Interest shall be issued except as
expressly provided herein.
(b) At the Effective Time, there shall be two classes of limited
liability interests in the Company, designated as Class A and Class B. At the
Effective Time, the limited liability company interests of the Company issued
pursuant to the Original LLC Agreement and held by TWE shall be converted into a
Class B Interest having a Participation Percentage equal to that set forth for
TWE on Schedule A hereto. All of the Interests issued to the Initial Members and
distributed to the Distributee Members pursuant to the Reorganization
Distribution shall be Class B Interests. At any time following the Restricted
Period, all or any part of a Class B Interest may be converted, at the option of
the Class B Member holding such Interest, into a Class A Interest having a
Participation Percentage equivalent to that of the portion converted. Such right
shall be exercised by the delivery of written notice to the
<PAGE>
<PAGE>
7
Company making such election and setting forth the amount to be converted. Upon
receipt of such election, the Company shall deliver notice to the Members
thereof, and shall deliver a revised Schedule C to this Agreement setting forth
the revised Participation Percentages of the Class A Interests and the Class B
Interests.
SECTION 3.02. Substitute Members and Additional Members. (a) No
Transferee of an Interest or Person to whom an Interest is issued pursuant to
this Agreement shall be admitted as a Member hereunder or acquire any rights
hereunder, including any voting rights or the right to receive distributions and
allocations in respect of the Transferred or issued Interest, as applicable,
unless (i) such Interest is Transferred or issued in compliance with the
provisions of this Agreement and (ii) such Transferee or recipient shall have
executed and delivered to the Company an instrument effectuating the admission
of such Transferee or recipient as a Member and confirming the agreement of such
Transferee or recipient to be bound by all the terms and provisions of this
Agreement. Upon complying with clauses (i) and (ii) above, without the need for
any further action of any Person, a Transferee or recipient shall be deemed
admitted to the Company as a Member. A Substitute Member shall enjoy the same
rights, and be subject to the same obligations, as the Transferor; provided that
such Transferor shall not be relieved of any obligation or liability hereunder
arising prior to the consummation of such Transfer but shall be relieved of all
future obligations with respect to the Interest so Transferred, unless such
Transfer is pursuant to the second sentence of Section 9.01(a) and the
Transferee owns no material assets other than the Interest so Transferred, in
which case the Transferor shall remain liable for the performance by such
Transferee of its obligations hereunder. As promptly as practicable after the
admission of any Person as a Member, the books and records of the Company shall
be changed to reflect such admission of a Substitute Member or Additional
Member. In the event of any admission of a Substitute Member or Additional
Member pursuant to this Section 3.02(a), this Agreement shall be deemed amended
to reflect such admission, and any formal amendment of this Agreement in
connection therewith shall only require execution by the such Substitute Member
or Additional Member, as applicable, to be effective.
(b) If a Member shall Transfer all (but not less than all) its
Interest, the Member shall thereupon cease to be a Member of the Company.
<PAGE>
<PAGE>
8
Section 3.03. Tax Information. (a) The Company shall timely cause to
be prepared all Federal, state, local and foreign tax returns (including
information returns) of the Company and its subsidiaries, which may be required
by a jurisdiction in which the Company and its subsidiaries operate or conduct
business for each year or period for which such returns are required to be filed
and, after review and approval of such returns by the Majority Vote of the
Management Committee, shall cause such returns to be timely filed and shall
provide the Members with copies thereof promptly after such filings are made.
(b) The Tax Matters Partner shall use reasonable efforts to submit a
draft of any such tax return contemplated in Section 3.03(a) to each Member for
review, and to the Management Committee for approval, no later than the earlier
of (i) 30 days prior to the required filing date (as such date may be extended)
and (ii) June 30 of each year, unless otherwise agreed to by the Members.
(c) The Tax Matters Partner shall provide to each Member preliminary
and estimated information concerning the Company's taxable income or loss and
each class of income, gain, loss, deduction or credit which is relevant to
reporting a Member's share of Company income, gain, loss, deduction or credit
for purposes of federal or state income, franchise and capital tax. Such
information shall be furnished to the Members as soon as possible after the
close of the Company's fiscal year and, in any event, no later than the earlier
of (i) March 31 of each year and (ii) the date on which the income tax return
for such fiscal year is submitted to the Members for review pursuant to Section
3.03(b).
ARTICLE IV
CAPITAL CONTRIBUTIONS
SECTION 4.01. Initial Capital Contributions. At the Effective Time,
each Initial Member shall make its respective Contribution as set forth in
Section 2.1 of the Reorganization Agreement.
SECTION 4.02. No Additional Capital Contributions. After the
Effective Time, no Member shall be obligated to make any additional capital
contributions.
<PAGE>
<PAGE>
9
ARTICLE V
PARTICIPATION PERCENTAGES
SECTION 5.01. General. (a) At the Effective Time, the participation
percentage (the "Participation Percentage") of each Initial Member's Interest
shall be as set forth in Section 2.1(c) of the Reorganization Agreement.
Immediately following the Reorganization Distribution, the Participation
Percentage of each Member's Interest shall be as set forth on Schedule C hereto.
(b) Such initial Participation Percentages shall be subject to
adjustment as provided in this Article V. The aggregate outstanding
Participation Percentages at all times shall equal 100%.
SECTION 5.02. Issuances of Interests After the Effective Time. Upon
the issuance of an Interest to a Member after the Effective Time, the Management
Committee by unanimous vote shall specify the Participation Percentage
associated with such issuance. Thereafter, the Participation Percentages of all
Interests outstanding immediately before such issuance shall be reduced in the
aggregate by an amount equal to the Participation Percentage so designated, in
proportion to their relative Participation Percentages immediately before such
issuance.
SECTION 5.03. Repurchases of Interests. If the Company shall
repurchase any Interest, then upon such repurchase, the Participation
Percentages of all remaining Interests shall be increased in the aggregate by an
amount equal to the Participation Percentage of such repurchased Interest, in
proportion to their relative Participation Percentages immediately before such
repurchase.
ARTICLE VI
CAPITAL ACCOUNTS, ALLOCATIONS OF
PROFIT AND LOSS AND TAX MATTERS
SECTION 6.01. Capital Accounts. (a) The Company shall establish a
capital account (a "Capital Account") for each Member on the books of the
Company. The opening balance of each Member's Capital Account on the Effective
Date shall be an amount equal to such Member's initial Contribution as agreed
upon by the Distributee Members after the Closing Date, consistent with the
Participation Percentages of the Interests of such Members. The Capital Account
of a
<PAGE>
<PAGE>
10
Member shall be increased by (i) the amount of money contributed by that Member
to the Company, (ii) the fair market value of property contributed by that
Member to the Company (net of liabilities related to such contributed property
that the Company is considered to assume or take subject to under Section 752 of
the Code) and (iii) allocations to that Member pursuant to Section 6.02 of
profit, income and gain (or items thereof). The Capital Account of a Member
shall be decreased by (i) the amount of money distributed to that Member by the
Company, (ii) the fair market value of property distributed to that Member by
the Company (net of liabilities related to such distributed property that such
Member is considered to assume or take subject to under Section 752 of the Code)
and (iii) allocations to that Member pursuant to Section 6.02 of loss, expense
and deduction (or items thereof).
(b) In the event that a Member Transfers any Interest in accordance
with the provisions of this Agreement, the Transferee of such Interest shall
succeed to the Capital Account of the Transferor attributable to such Interest.
(c) Upon the occurrence of any event specified in Treasury
Regulation 'SS' 1.704-1(b)(2)(iv)(f), if the Management Committee so elects by
unanimous vote, the Capital Accounts of the Members shall be adjusted to reflect
the fair market value of the Company's property at such time and in such manner
as provided in such Regulation.
(d) No Member shall be entitled to withdraw capital or receive
distributions except as specifically provided herein. No Member shall have any
obligation to the Company, to any other Member or to any creditor of the Company
to restore any negative balance in the Capital Account of such Member. No
interest will be paid on the balance in any Member's Capital Account.
SECTION 6.02. Allocations of Book Profits and Losses. (a) Net
Profits of the Company for each taxable period shall be allocated among the
Members pro rata, in accordance with the respective Participation Percentages of
their Interests for such period. Net Losses of the Company for each taxable
period shall be allocated among the Members in accordance with the respective
Participation Percentages of their Interests for such period, provided that any
allocation of Net Losses pursuant to this Section 6.02(a) that would cause a
Member's Capital Account to be reduced below zero shall instead be allocated to
the remaining
<PAGE>
<PAGE>
11
Members in proportion to such Members' positive Capital Account balances.
(b) Minimum Gain Chargeback. The Company shall allocate items of
profit among the Members at such times and in such amounts as necessary to
satisfy the minimum gain chargeback requirements of Treasury Regulation
'SS''SS' 1.704-2(f) and 1.704-2(i)(4).
(c) Allocation of Deductions Attributable to Member Nonrecourse
Liabilities. Any nonrecourse deductions attributable to a Member nonrecourse
liability shall be allocated among the Members that bear the economic risk of
loss for such Member nonrecourse liability in accordance with the ratios in
which such Members share such economic risk of loss and in a manner consistent
with the requirements of Treasury Regulation 'SS''SS' 1.704-2(c), 1.704-2(i)(2)
and 1.704-2(j)(1).
(d) Qualified Income Offset. The Company shall specially allocate
items of profit and loss when and to the extent required to satisfy the
"qualified income offset" requirement within the meaning of Treasury Regulation
'SS' 1.704-1(b)(2)(ii)(d).
(e) Inconsistent Allocations. To the extent that any item of Company
income, gain, loss or deduction has been specially allocated pursuant to
Sections 6.02(b), (c) or (d), and such allocation is inconsistent with the way
in which the same item amount otherwise would have been allocated under Section
6.02(a), subsequent allocations under Section 6.02(a) shall be made, in a manner
consistent with Sections 6.02(b), (c) and (d), which negate as rapidly as
possible the effect of all such inconsistent allocations under Sections 6.02(b),
(c) or (d).
(f) Allocations in Liquidation. Upon a dissolution of the Company in
accordance with Article XII, items of the Company's profit or loss attributable
to a hypothetical Company sale of all its assets remaining on the date of
dissolution, subject to its liabilities, on that date for their respective fair
market values shall be allocated to the Members in accordance with the
provisions of Section 6.02(a).
SECTION 6.03. Allocations of Taxable Income and Loss. Except as
provided in the following sentence, profit, income, gain, loss, deduction and
expense as determined for Federal income tax purposes shall be allocated among
the Members in the same proportions as the corresponding items of "book" profit,
income, gain, loss, deduction and expense
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are allocated pursuant to Section 6.02 among such Members. Notwithstanding the
foregoing sentence, Federal income tax items relating to any Section 704(c)
Property shall be allocated among the Members in accordance with Section 704(c)
of the Code and Treasury Regulation 'SS' 1.704-3(d) using remedial allocations
to take into account the difference between the fair market value and the tax
basis of such Section 704(c) Property as of the date of its contribution to the
Company or its revaluation pursuant to Section 6.01(c). Items described in this
Section 6.03 shall neither be credited nor charged to the Members' Capital
Accounts.
SECTION 6.04. Allocation Between Transferor and Transferee Members.
If any Interest is Transferred as permitted by this Agreement during a taxable
year, then the Transferor and Transferee shall each be allocated profit and loss
based upon the number of days each Person holds such Interest during such year,
subject to applicable Treasury Regulations. Similar apportionments shall be made
to account for varying Participation Percentages attributable to any Interest
during a taxable year.
SECTION 6.05. Elections. Except as otherwise expressly provided
herein, all elections required or permitted to be made by the Company under the
Code or other applicable tax law, and all material decisions with respect to the
calculation of its taxable income or tax loss for tax purposes under the Code or
other applicable tax law, shall be made in such manner as may be determined by
the Management Committee by Majority Vote. Notwithstanding the foregoing, the
Company shall, if so requested by any Member, make the election described in
Section 754 of the Code, unless the Management Committee determines by Majority
Vote that making such election would be likely to result in a tax detriment to
the other Members that is in the aggregate greater than the benefit likely to
result to such requesting Member.
SECTION 6.06. Fiscal Year. The Fiscal Year of the Company for tax
and accounting purposes shall be the 12-month (or shorter) period ending on
December 31 of each year.
SECTION 6.07. Withholding Requirements. In the event that the
Company withholds or pays tax in respect of any Member for any period in excess
of the amount otherwise distributable to such Member for such period (or there
is a determination by any taxing authority that the Company should have withheld
or paid any tax for any period in excess of the tax, if any, that it actually
withheld or paid
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13
for such period), such excess amount (or such additional amount) shall be
treated as a recourse loan to such Member that shall bear interest at a variable
rate equal to Chase Manhattan Bank's prime lending rate per annum (but in no
event more than the highest lawful rate) and be payable on demand.
SECTION 6.08. Tax Matters Partner. TWX shall act as the "Tax Matters
Partner" of the Company within the meaning of Section 6231(a)(7) of the Code and
in any similar capacity under applicable state or local tax law. All reasonable
out-of-pocket expenses incurred by TWX while acting in such capacity shall be
paid or reimbursed by the Company. In the event of an audit, the Tax Matters
Partner shall follow the same procedures as governed the preparation of the
underlying tax return which is the subject of such audit, such that the approval
of the Management Committee shall be required for all decisions and admissions
in respect thereof.
SECTION 6.09. Partnership Status. The Members intend that the
Company shall be treated as a partnership for all relevant tax purposes and
agree to take all reasonable actions, including the amendment of this Agreement
(so long as such amendment does not materially adversely affect any Member) and
the execution of other documents, as may be reasonably required to qualify for
and receive such treatment.
ARTICLE VII
DISTRIBUTIONS
SECTION 7.01. General. Except as provided in Section 7.02, all cash
distributions by the Company will be made, if, as and when declared by the
Management Committee, in respect of each Interest in proportion to the
Participation Percentage of such Interest.
SECTION 7.02. Liquidation. Upon the dissolution of the Company, cash
and non-cash assets shall be distributed in accordance with the priorities
described in Section 12.02(b).
SECTION 7.03. Distributions in Kind. Subject to Section 12.03, the
Company shall not distribute any assets in kind unless unanimously approved by
the Management Committee. Such property distributions shall be distributed based
on their fair market value in the same proportions as if cash were distributed.
If cash and property are to be
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distributed in kind simultaneously, the Company shall distribute such cash and
property in kind in the same proportion to each Member, unless otherwise agreed
by each Member.
ARTICLE VIII
VOTING RIGHTS AND MANAGEMENT OF THE COMPANY
SECTION 8.01. Powers of Members. (a) The Members hereby designate a
management committee comprised of the Representatives described in Section
8.02(a) (the "Management Committee"). The Representatives shall be managers
(within the meaning of the Delaware Act) of the Company. Except as expressly
provided in this Agreement or the Delaware Act, the business and affairs of the
Company shall be managed exclusively by the Management Committee in accordance
with the terms of this Agreement. The Management Committee shall have the power
to do any and all acts necessary or convenient to or for the furtherance of the
purposes described herein, including all powers, statutory or otherwise,
possessed by managers under the laws of the State of Delaware. Without limiting
the generality of the foregoing, the Management Committee shall have the
exclusive power and authority, on behalf of the Company, to collect and
distribute funds and make allocations and adjustments in accordance with
Articles IV, V, and VI, to determine the terms of any Interest issued in
accordance with Article III and to take such other actions not inconsistent with
this Agreement as the Management Committee deems necessary or appropriate to
carry on the business and purposes of the Company. The Management Committee is,
to the extent of its rights and powers set forth in this Agreement, an agent of
the Company for the purpose of the Company's business, and the actions of the
Management Committee taken in accordance with such rights and powers shall bind
the Company (and no individual Member or group of Members shall have such
right). The Management Committee shall be responsible for the establishment of
policy and operating procedures with respect to the business and affairs of the
Company and shall be entitled to appoint agents or employees, with such titles
as the Management Committee may select by Majority Vote, as officers of the
Company to act on behalf of the Company, with such power and authority as the
Management Committee may delegate from time to time to any such Person. Such
officers shall report to the Management Committee (or to other officers who
report to the Management Committee).
(b) The Class B Interests shall have the approval rights expressly
set forth in this Agreement and the Class A
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Interests shall have no voting, approval or consent rights, including with
respect to the IPO Transaction (or any changes to the forms of Charter, By-laws
and Stockholders Agreement relating thereto) or any merger, consolidation or
conversion of the Company; provided, however, that at all times the approval of
the holders of a majority (in Participation Percentages) of the Class A
Interests shall be required for any amendment to this Agreement that would have
an adverse effect on the rights of such class.
(c) The Company shall not, directly or indirectly (through a
subsidiary or affiliate of the Company), engage in the business of providing,
offering, packaging, marketing, promoting or branding (alone or jointly with or
as an agent for other parties) any Residential Services (as defined in the
Charter) or engage in the business of producing, packaging, distributing,
marketing, hosting, offering, promoting, branding or otherwise providing Content
Services (as defined in the Charter), unless such action shall be approved in
advance by the affirmative vote of one hundred percent (100%) of the Class B
Members, voting separately as a class.
(d) The affirmative vote of one hundred percent (100%) of the Class
B Members, voting separately as a class, shall be required:
(i) to amend any provision of this Agreement or
any Exhibit hereto;
(ii) for (x) the disposition, directly or indirectly, by the Company
(or by one or more direct or indirect subsidiaries thereof) by sale,
merger, consolidation, conversion, new issuances or otherwise, to a Person
(other than the Company or a direct or indirect wholly owned subsidiary of
the Company), in any transaction or series of related transactions, of
shares of the capital stock of one or more direct or indirect Subsidiaries
(as defined in the Charter) of the Company which, in the aggregate, hold
assets of the Company and its Subsidiaries on a consolidated basis having
a fair market value (net of associated liabilities) of $100 million or
more or (y) the disposition, directly or indirectly, by the Company (or by
one or more direct or indirect subsidiaries thereof) by sale, merger,
consolidation, conversion or otherwise, (other than to the Company or a
direct or indirect wholly owned subsidiary of the Company) in any
transaction or series of related transactions outside the ordinary course
of the business of the Company, of
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16
assets of the Company and its Subsidiaries on a consolidated basis having
a fair market value (net of associated liabilities) of $100 million or
more, except, in each case referred to in the foregoing clauses (x) and
(y), for pledges, grants of security interests, security deeds, mortgages
or similar encumbrances securing bona fide indebtedness, and any
foreclosure in respect thereof;
(iii) for the acquisition, directly or indirectly, by the Company
(or by one or more direct or indirect subsidiaries thereof), in any
transaction or series of related transactions, of assets having an
aggregate purchase price of $100 million or more; and
(iv) for the issuance of any Interest after the
Effective Time.
(e) In the event the Company proposes to take any action which,
pursuant to the terms of this Agreement requires the approval of a class of
Members, voting separately as a class, the Company shall call a meeting of such
class of Members for the purpose of a vote thereon. Telephonic or other notice
of any such meeting shall be given by the Company to each Member within such
class at least seven days prior thereto (unless waived by such Member), which
notice shall include a brief description of the action or actions to be
considered by such class of Members. Any such approval by a class of Members may
be given by the requisite vote required hereunder pursuant to (i) resolution at
a meeting of such class of Members or (ii) written consent of such Members.
SECTION 8.02. Management Committee Representatives; Chairman. (a) It
is the intent of the Members that appointments of Representatives to the
Management Committee shall be made in the same manner that directors will be
appointed to the Board following the Reconstitution pursuant to the
Stockholders' Agreement. Accordingly, and in furtherance of the foregoing, the
provisions of Article II of the Stockholders' Agreement are hereby incorporated
by reference herein; provided, that:
(A) (i) references therein to "directors" shall be deemed to be
references to "Representatives", (ii) references therein to the "Board"
shall be deemed to be references to the "Management Committee", (iii)
references therein to shares of Common Stock shall be deemed to be
references to "Interests", and (iv) references therein to the "Ownership
Percentage" of a Principal Stockholder Group shall be deemed to be
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references to the aggregate Participation Percentages of the Interests
held by such Principal Stockholder Group; and
(B) notwithstanding any references in such Article II to stockholder
meetings or voting, designations of Representatives by the applicable
Principal Stockholder Group or Nominating Committee shall be made by
written notice to the Members and the Company.
(b) Each Representative designated by a Member (or group of Members)
shall serve at the pleasure of its designating Member (or group of Members).
Each Member's designee Representative shall be drawn from the then-current
officers, directors or full-time employees of such Member (or group of Members).
Any Member may remove or replace its Representative at any time or from time to
time, with or without cause, by written notice to the other Members and to such
Representative. In addition, the CEO and any Representatives designated by the
Nominating Committee may be removed, with or without cause, by the written
consent of the Members holding Interests representing a majority of the
Participation Percentages of all the Interests. Except as provided in the
preceding two sentences, no Representative may be removed.
(c) On an annual basis, the Management Committee shall elect one
Representative to serve as Chairman of the Management Committee meetings (the
"Chairman"). The Chairman shall be responsible for soliciting from the
Representatives items for the agendas, giving notices, and presiding at
Management Committee meetings. The Chairman, or a person designated by him or
her shall keep minutes of all Management Committee meetings, including
telephonic meetings, and shall distribute copies thereof to all Representatives
for approval and adoption. Other than as set forth in the two immediately
preceding sentences, the Chairman shall have no other or additional powers,
rights or responsibilities and the Chairman shall have no additional voting or
"tie-breaking" powers.
(d) Management Committee meetings shall take place (whether in
person or by telephone) at least quarterly to consider the financial condition
and performance of and other matters pertaining to the Company and to take such
other actions as are authorized to take place at Management Committee meetings
under this Agreement. Representatives shall be entitled to access to such
information respecting the Company on the same basis and to the same extent as a
director of a corporation under Delaware law would be entitled. The Chairman
shall provide each Representative
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with at least seven days prior notice of each regular Management Committee
meeting and each Representative will use its reasonable efforts to attend such
meeting in person. The Chairman or any other Representative shall be entitled to
call a special Management Committee meeting by providing at least ten days prior
notice (unless such prior notice is waived by the applicable Representative,
including constructive waiver through attendance, unless attendance is coupled
with an immediate objection at the start of the meeting) thereof (including a
brief description of the action or actions to be considered thereat) to each
Representative.
(e) Subject to Section 8.02(f) , no action may be taken by the
Representatives except at a duly convened Management Committee meeting at which
a quorum, consisting of a majority of the entire Management Committee, is
present (in person or by telephone). Each Representative shall be entitled to
vote on all matters presented at the Management Committee meetings, and a vote
will be taken on each such matter. As used herein, the term "entire Management
Committee" means the total number of Representatives there would be if there
were no vacancies.
(f) The Management Committee may act by written consent, as set
forth in a written instrument signed by all the Representatives.
(g) No Representative shall be entitled to any fee, remuneration,
compensation or expense reimbursement in connection with their service at
Management Committee meetings.
SECTION 8.03. Requisite Vote. (a) Except as otherwise expressly
provided in this Agreement, all matters presented to the Management Committee
shall be approved by the affirmative vote of a majority of the Representatives
present at any meeting of the Management Committee at which there is a quorum
(the foregoing is referred to herein as a "Majority Vote").
(b) The day to day management and operation of the Company shall be
the responsibility of the CEO, who shall be appointed by the Management
Committee as provided in Section 8.01, and who shall have the same type of
authority as is incident to the office of a chief executive officer of a
Delaware corporation.
SECTION 8.04. Confidentiality. The provisions of Section 5.1 of the
Stockholders' Agreement are hereby incorporated by reference herein.
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ARTICLE IX
TRANSFERS OF INTERESTS
SECTION 9.01. Restrictions on Transfers. (a) During the Restricted
Period, except as provided in the next sentence, no Member may make any Transfer
or Indirect Transfer of all or any part of its Interests. At any time and from
time to time during the Restricted Period, a Member may Transfer all or any part
of its Interest in accordance with Section 3.3 of the Stockholders' Agreement,
and in furtherance of the foregoing, such Section 3.3, and Section 3.1(b) of the
Stockholders' Agreement, are hereby incorporated by reference herein; provided,
that references therein to shares of "Class B Common Stock" shall be deemed to
be references to "Class B Interests". The provisions of the last sentence of
Section 3.1(a) of the Stockholders' Agreement are hereby incorporated by
reference herein; provided, that references therein to shares of "Class A Common
Stock" and "Class B Common Stock" shall be deemed to be references to "Class A
Interests" and "Class B Interests", respectively.
(b) Following the Restricted Period, it is the intent of the Members
that Transfers and Indirect Transfers of Interests shall be made in the same
manner that Transfers and Indirect Transfers of Common Stock will be made
pursuant to the Stockholders' Agreement. Accordingly, and in furtherance of the
foregoing, the provisions of Article III of the Stockholders' Agreement are
hereby incorporated by reference herein, and shall be applicable following the
Restricted Period; provided, that:
(i) references therein to shares of "Class A Common Stock" and
"Class B Common Stock" shall be deemed to be references to "Class A
Interests" and "Class B Interests", respectively, (ii) the Interests shall
not be certificated or legended, (iii) allocations pursuant to Section
3.4(c) of the Stockholders' Agreement based on numbers of shares of Class
B Common Stock owned shall instead be based on Participation Percentages
of Class B Interests owned, (iv) the reference in clause (ii) of Section
3.5(a) of the Stockholders' Agreement to "greater than 33% of the issued
and outstanding shares of Common Stock" shall be deemed to be a reference
to "Interests having an aggregate Participation Percentage greater than
33%", and (v) the fraction described in clause (y) of Section 3.5(a) of
the Stockholders' Agreement shall be deemed to have a numerator equal to
the aggregate
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20
Participation Percentage of the Interests held by the TW Stockholder
Group, and a denominator equal to the aggregate Participation Percentage
of all the Interests owned by the TW Stockholder Group.
(c) It shall be a condition to any Transfer otherwise permitted
pursuant to this Article IX that such Transfer shall comply with the provisions
of the Securities Act and applicable state securities laws. Until any Interest
has been registered under the Securities Act, such Interest may not be offered
or sold except pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act and applicable state
securities laws.
ARTICLE X
IPO TRANSACTION
SECTION 10.01. Public Offering. (a) The Members agree that it is
their intention, at the earliest reasonable opportunity based upon the
successful performance of the Company and equity market conditions prevailing
from time to time, to reconstitute the Company as a corporation in the manner
set forth in Section 10.01(b) in order to effect immediately thereafter an
initial public offering of the common stock of such corporation (an "IPO
Transaction"). The decision to effect the IPO Transaction, and the terms of the
IPO Transaction, including, without limitation, the terms of the underwriting
arrangements and the pricing of any securities offered, shall be subject to the
approval of 100% of those Distributee Members who are, at the time of such
approval, entitled to designate Representatives pursuant to Section 8.02, but
shall not require the approval of any other Member (including any vote that, but
for this provision, would be required pursuant to Section 8.01(d)(ii)). By
acquiring an Interest, each Member hereby agrees to take the actions described
in this Section 10.01 (including, without limitation, exchanging its Interest as
described below, if applicable) if the foregoing approval of the Distributee
Members is obtained. The form and substance of the final version of the
Registration Statement on Form S-1 with respect to the IPO Transaction (the "IPO
Registration Statement") shall be subject to the approval of the Management
Committee.
(b) Immediately prior to the effectiveness of the IPO Registration
Statement, the Members agree to take such
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action as is necessary to cause the Company to be reconstituted as a corporation
organized under the laws of the State of Delaware (the "Reconstitution"). The
Reconstitution shall be effected by the merger of the Company into a newly
formed Delaware corporation ("Newco"), or by a contribution by the Members of
their Interests to Newco, in either case pursuant to which (i) all the Class A
Interests will be exchanged for such number of shares of Class A Common Stock as
represent, in the aggregate, a percentage of the total outstanding shares of
Common Stock that is equivalent to the aggregate Participation Percentages of
the Class A Interests so exchanged and (ii) all the Class B Interests will be
exchanged for such number of shares of Class B Common Stock as represent, in the
aggregate, a percentage of the total outstanding shares of Common Stock that is
equivalent to the aggregate Participation Percentages of the Class B Interests
so exchanged. The certificate of incorporation of Newco shall be in the form of
the Charter and the by-laws of Newco shall be in the form of the By-laws.
Pursuant to the Charter, the authorized capital stock of Newco shall include
shares of Class A Common Stock and Class B Common Stock. Shares of the Class A
Common Stock shall have one vote per share and shares of the Class B Common
Stock shall have ten votes per share. Shares of Class A Common Stock shall be
sold by Newco in the IPO Transaction.
(c) In connection with the Reconstitution, each Distributee Member
and each Class B Member shall execute the Stockholders' Agreement.
Section 10.02. Repayment of Company Indebtedness. All or a portion
of the proceeds received by Newco pursuant to the IPO Transaction shall be used
to repay the Company Indebtedness.
ARTICLE XI
LIMITATION ON LIABILITY, EXCULPATION
AND INDEMNIFICATION
SECTION 11.01. Limitation on Liability. The debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and no
Covered Person shall be obligated personally for any such debt, obligation or
liability of the Company; provided, however, that the foregoing shall not alter
each Member's obligation, to the extent required by applicable law, to return
funds wrongfully distributed to it.
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SECTION 11.02. Exculpation; Inapplicability of Certain Doctrines.
(a) No Covered Person shall be liable, including under any legal or equitable
theory of fiduciary duty or other theory of liability, to the Company or to any
other Covered Person for any losses, claims, damages or liabilities incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company. Whenever in this Agreement a Covered Person
is permitted or required to make decisions such Covered Person shall make such
decisions in good faith and shall not be subject to any other or different
standard (including any legal or equitable standard of fiduciary or other duty)
imposed by this Agreement or any relevant provisions of law or in equity or
otherwise.
(b) A Covered Person shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters the
Covered Person reasonably believes are within such Person's professional or
expert competence.
(c) To the fullest extent permitted by applicable law (including
Section 18-1101(c) of the Delaware Act), no Member shall have any fiduciary or
similar duty, at law or in equity, or any liability relating thereto, to the
Company or any Member, with respect to or in connection with the Company or the
Company's business or affairs. Without limiting the generality of the foregoing,
to the fullest extent permitted by applicable law (including Section 18-1101(c)
of the Delaware Act), the doctrine of corporate opportunity, and any other
analogous doctrine, shall not apply with respect to the Company. To the extent
that the doctrine of corporate opportunity, or any other analogous doctrine, is
applicable to the Company under applicable law, the provisions of Article VII of
the Charter are hereby incorporated by reference herein; provided, that (i)
references therein to the "Corporation" shall be deemed to be references to the
"Company", (ii) references therein to the "DGCL" shall be deemed to be
references to the "Delaware Act", (iii) references therein to directors of the
Corporation shall be deemed to be references to Representatives, (iv) the
reference in Section 4 thereof to Article II of the Charter shall be deemed to
be a reference to the restriction set forth in Section 8.01(c) hereof, and (v)
the reference in Section 5 thereof to ownership of 5% of the number of
outstanding shares of Common Stock of the Corporation shall be deemed to be a
reference to ownership of an Interest having a Participation Percentage of 5%.
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SECTION 11.03. Indemnification. (a) Each Member (the "Indemnifying
Member") shall indemnify, defend and hold harmless, to the fullest extent
permitted by applicable law, each other Covered Person and the Company against
any losses, claims, damages, liabilities, expenses (including all reasonable
fees and expenses of counsel), judgments, fines, settlements and other amounts
(collectively "Losses") resulting from the breach by the Indemnifying Member of
any provision of this Agreement.
(b) The Company shall indemnify, defend and hold harmless, to the
fullest extent permitted by applicable law, each Covered Person against any
Losses arising out of or in connection with the Company's business or affairs or
this Agreement, unless such Loss is as a result of such Covered Person's fraud,
bad faith, gross negligence or willful misconduct; provided, that an
Indemnifying Member's obligations pursuant to Section 11.03(a) shall not
constitute a "Loss" for purposes of this Section 11.03(b), and such Indemnifying
Member shall not be entitled to indemnification under this Section 11.03(b) to
the extent it (or any related Covered Person) suffers a Loss as a result of any
matter referred to in Section 11.03(a).
If any Covered Person becomes involved in any capacity in any
action, suit, proceeding or investigation in connection with any matter arising
out of or in connection with the Company's business or affairs, or this
Agreement or any related document, other than by reason of any act or omission
performed or omitted by such Covered Person that was not performed or omitted in
good faith on behalf of the Company, the Company shall reimburse such Covered
Person for its reasonable legal and other reasonable out-of-pocket expenses
(including the cost of any investigation and preparation) as they are incurred
in connection therewith; provided that such Covered Person shall promptly repay
to the Company the amount of any such reimbursed expenses paid to it if it shall
be finally determined (by arbitration in accordance with Section 13.05) that
such Covered Person was not entitled to be indemnified by the Company in
connection with such action, suit, proceeding or investigation. If for any
reason (other than the bad faith of a Covered Person) the foregoing
indemnification is unavailable to such Covered Person, or insufficient to hold
it harmless, then the Company shall contribute to the amount paid or payable by
such Covered Person as a result of such loss, claim, damage, liability, expense,
judgment, fine, settlement or other amount in such proportion as is appropriate
to reflect any relevant equitable considerations. The obligations of the Company
under this Section 11.03(b) shall be satisfied solely out of and to the extent
of the Company's assets, and
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no Covered Person shall have any personal liability on account thereof.
SECTION 11.04. Special Indemnification. (a) The Company shall
indemnify, defend and hold harmless, to the fullest extent permitted by
applicable law, any Person that was or is made or is threatened to be made a
party or is otherwise involved in any action, suit or proceeding, by reason of
the fact that such Person is or was an officer of the Company or, while an
officer of the Company, is or was serving at the request of the Company as an
officer, employee or agent of another company or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all Losses reasonably incurred by such
Person. Subject to the second sentence of Section 11.04(b), the Company shall be
required to indemnify or make advances (pursuant to the following paragraph) to
a Person in connection with such a proceeding (or part thereof) initiated by
such Person only if the initiation of such proceeding (or part thereof) was
authorized by the Management Committee by Majority Vote.
(b) The Company shall pay the reasonable expenses (including
reasonable attorneys' fees) incurred by any Person that is or was an officer of
the Company or, while an officer of the Company, is or was serving at the
request of the Company as a director, officer, employee or agent of another
company or of a partnership, joint venture, trust, enterprise or nonprofit
entity, in defending any proceeding of the type referred to above in advance of
its final disposition; provided, however, that the payment of expenses incurred
by such a Person in advance of the final disposition of such proceeding shall be
made only upon receipt of an undertaking by or on behalf of such Person to repay
all amounts advanced if it should be finally determined that such Person is not
entitled to be indemnified under this Section 11.04 or otherwise. If a claim for
indemnification or advancement of expenses under this Section 11.04 is not paid
in full within sixty (60) calendar days after a written claim therefor has been
received by the Company, the claimant may file suit to recover the unpaid amount
of such claim and, if successful in whole or in part, shall be entitled to be
paid the expense of prosecuting such claim. In any such action, the Company
shall have the burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under applicable law.
(c) The Company's obligation, if any, to indemnify any Person that
was or is serving at its request
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as a director, officer, employee or agent of another company, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Person may collect as indemnification from such other company, partnership,
joint venture, trust, enterprise or nonprofit entity, as applicable.
(d) The indemnification and advancement of expenses provided by or
granted pursuant to this Section 11.04 shall, unless otherwise provided when
authorized or ratified, continue as to a Person who has ceased to be an officer,
employee or agent of the Company or other Person indemnified hereunder and shall
inure to the benefit of the heirs, executors and administrators of such Person.
ARTICLE XII
DISSOLUTION AND TERMINATION
SECTION 12.01. Dissolution. (a) The Company shall not be dissolved
by the admission of Additional Members or Substitute Members pursuant to Section
3.02.
(b) No Member shall resign from the Company or take any action to
dissolve, terminate or liquidate the Company or to require apportionment,
appraisal or partition of the Company or any of its assets, or to file a bill
for an accounting, except as specifically provided in this Agreement, and each
Member, to the fullest extent permitted by applicable law, hereby waives any
rights to take any such actions under applicable law, including any right to
petition a court for judicial dissolution under Section 18-802 of the Delaware
Act.
(c) The Company shall be dissolved and its business wound up upon
the earliest to occur of any one of the following events:
(i) the written agreement of all the Class B Members; or
(ii) the entry of a decree of judicial dissolution under Section
18-802 of the Delaware Act, in contravention of this Agreement.
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(d) The resignation, expulsion, bankruptcy, insolvency or
dissolution of a Member or the occurrence of any other event that terminates the
continued membership of a Member of the Company shall not in and of itself cause
a dissolution of the Company.
SECTION 12.02. Winding Up of the Company. (a) Upon dissolution, the
Company's business shall be liquidated in an orderly manner. The Class B Members
shall unanimously appoint a liquidating trustee to wind up the affairs of the
Company pursuant to this Agreement. In performing its duties, the liquidating
trustee is authorized to sell, distribute, exchange or otherwise dispose of the
assets of the Company in accordance with the Delaware Act and in any reasonable
manner that the liquidating trustee shall determine to be in the best interest
of the Members.
(b) The proceeds of the liquidation of the Company shall be
distributed in the following order and priority:
(i) first, to the creditors (including any Members or their
respective Affiliates that are creditors) of the Company, to the fullest
extent permitted by applicable law, in satisfaction of all of the
Company's liabilities (whether by payment or by making reasonable
provision for payment thereof, including the setting up of any reserves
which are, in the judgment of the liquidating trustee, reasonably
necessary therefor); and
(ii) second, to the Members pro rata in accordance with the
respective Participation Percentages of their Interests.
SECTION 12.03. Distribution of Property. In the event it becomes
necessary in connection with the liquidation of the Company to make a
distribution of property in kind, subject to the priority set forth in Section
12.02, the liquidating trustee shall have the right to compel each Member to
accept a distribution of any asset in kind to the extent that the percentage of
the asset distributed to such Member differs from a percentage of that asset
which is equal to the Participation Percentage of such Member's Interests, with
such distribution being based upon the amount of cash that would be distributed
to such Members if such property were sold for an amount of cash equal to the
fair market value of such property, as determined by the liquidating trustee in
good faith.
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27
SECTION 12.04. Claims of Members. The Members shall look solely to
the Company's assets for the return of their capital contributions, and if the
assets of the Company remaining after payment of or reasonable provision for the
payment of all liabilities of the Company are insufficient to return such
capital contributions, the Members shall have no recourse against the Company or
any Covered Person.
SECTION 12.05. Termination. The Company shall terminate when all of
the assets of the Company, after payment of or reasonable provision for the
payment of all debts and liabilities of the Company, shall have been distributed
to the Members in the manner provided for in this Article XII, and the
certificate of formation of the Company shall have been canceled in the manner
required by the Delaware Act.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. No Third Party Beneficiaries. This Agreement is not
intended to confer any rights or remedies hereunder upon, and shall not be
enforceable by, any Person other than the parties hereto and, with respect to
the provisions of Article XI, each Covered Person.
SECTION 13.02. Amendment and Waiver. The provisions of Section 6.2
of the Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.03. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware without
reference to choice of law principles, including all matters of construction,
validity and performance. To the extent that a document, the provisions of which
are incorporated by reference herein, states that it is to be governed by and
construed in accordance with the laws of another jurisdiction, it shall, when
incorporated by reference herein, be governed by, and construed in accordance
with, the laws of the State of Delaware as set forth above.
SECTION 13.04. Notices. The provisions of Section 6.4 of the
Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.05. Entire Agreement. This Agreement (including the
Schedules and Exhibits attached hereto, all
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28
of which are a part hereof) and the Reorganization Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes and cancels all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
respecting such subject matter.
SECTION 13.06. Headings; References. The provisions of Section 6.6
of the Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.07. Counterparts. The provisions of Section 6.7 of the
Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.08. Parties in Interest; Assignment. The provisions of
Section 6.8 of the Stockholders' Agreement are hereby incorporated by reference
herein.
SECTION 13.09. Severability; Enforcement. The provisions of Section
6.9 of the Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.10. Specific Performance. The provisions of Section 6.10
of the Stockholders' Agreement are hereby incorporated by reference herein.
SECTION 13.11. Arbitration. The provisions of Section 6.11 of the
Stockholders' Agreement are hereby incorporated by reference herein.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties as of the day and year first above written.
Initial Members:
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29
TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
By /s/ Spencer B. Hays
-------------------------
TIME WARNER ENTERTAINMENT -
ADVANCE/NEWHOUSE PARTNERSHIP,
By TIME WARNER ENTERTAINMENT
COMPANY, L.P., General
Partner
By /s/ Spencer B. Hays
-------------------------
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30
FIBRCOM HOLDINGS, L.P.
By FIBRCOM INCORPORATED,
General Partner
By /s/ Susan A. Waxenberg
-------------------------
Distributee Members:
FIBRCOM HOLDINGS, L.P.,
By FIBRCOM INCORPORATED,
General Partner
By /s/ Susan A. Waxenberg
-------------------------
TIME WARNER COMPANIES, INC.
By /s/ Spencer B. Hays
-------------------------
AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION,
By /s/ Spencer B. Hays
-------------------------
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31
WARNER COMMUNICATIONS, INC.,
By /s/ Spencer B. Hays
-------------------------
TW/TAE, INC.,
By /s/ Spencer B. Hays
-------------------------
PARAGON COMMUNICATIONS,
By KBL COMMUNICATIONS, INC.,
Managing General Partner
By /s/ Spencer B. Hays
-------------------------
MEDIAONE GROUP, INC.,
By /s/ Pearre A. William
-------------------------
ADVANCE/NEWHOUSE PARTNERSHIP,
By ADVANCE COMMUNICATION
CORP., General Partner,
By
-------------------------
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32
/s/ Robert J. Miron
-------------------------
<PAGE>
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33
Schedule A
Initial Members
Time Warner Entertainment Company, L.P.
Time Warner Entertainment-Advance/Newhouse Partnership
FibrCOM Holdings, L.P.
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34
Schedule B
Distributee Members
FibrCOM Holdings, L.P.
Time Warner Companies, Inc.
American Television And Communications Corporation
Warner Communications Inc.
TW/TAE, Inc.
Paragon Communications
MediaOne Group, Inc.
Advance/Newhouse Partnership
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35
Schedule C
Participation Percentages of Interests of
Distributee Members
Member Participation Percentage
FibrCOM Holdings, L.P. 6.00000%
Time Warner Companies, Inc. 4.15272%
American Television And
Communications Corporation 19.07587%
Warner Communications Inc. 27.75883%
TW/TAE, Inc. 4.15272%
Paragon Communications 0.80978%
MediaOne Group, Inc. 18.88341%
Advance/Newhouse Partnership 19.16667%
<PAGE>
<PAGE>
Exhibit A
Form of Charter of Newco
<PAGE>
<PAGE>
EXHIBIT A
RESTATED(1) CERTIFICATE OF INCORPORATION
OF
TIME WARNER TELECOM INC.
The undersigned officers of Time Warner Telecom Inc., a Delaware
corporation (the "Corporation"), do hereby certify as follows:
(1) The present name of the Corporation is Time Warner Telecom Inc.
The Corporation was originally incorporated under the same name, and its
original certificate of incorporation was filed with the office of the Secretary
of State of the State of Delaware on [ ].
(2) This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the State
of Delaware and by unanimous written consent of stockholders in accordance with
Section 228 of the General Corporation Law of the State of Delaware.
(3) This Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation.
(4) The text of the certificate of incorporation of the Corporation
is amended and restated so as to read in its entirety as follows:
ARTICLE I
Name
The name of this corporation (hereinafter the "Corporation") is TIME
WARNER TELECOM INC.
- --------
(1) In the event that the Corporation is formed pursuant to this Charter,
references to "Restated" will need to be deleted from this document and from the
By-laws, and the provisions relating to the incorporator will need to be added
hereto.
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2
ARTICLE II
Address; Registered Agent
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
ARTICLE III
Purpose
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL"); provided, however, that until the
earlier of (i) the date that is five years after the date of filing of this
Restated Certificate of Incorporation and (ii) the date on which the outstanding
shares of Class B Stock (as defined herein) no longer represent at least fifty
percent (50%) of the total voting power in the election of directors of the
Corporation ("Voting Power") of all outstanding shares of all classes and series
of capital stock of the Corporation entitled generally to vote in such election
("Voting Stock") (the earlier of (i) and (ii) being called the "Termination
Date"), the Corporation shall not, directly or indirectly (through a subsidiary
or affiliate of the Corporation), engage in the business of providing, offering,
packaging, marketing, promoting or branding (alone or jointly with or as an
agent for other parties) any Residential Services or engage in the business of
producing, packaging, distributing, marketing, hosting, offering, promoting,
branding or otherwise providing Content Services, unless such action shall be
approved in advance by the affirmative vote of the holders of one hundred
percent (100%) of the Voting Power of the outstanding shares of Class B Stock,
voting separately as a class.
"Residential Services" shall mean wireline telecommunications services or
other services (including, without limitation, data services) of any
nature provided, directly or indirectly, to third party end-users at
address locations other than Business Locations. "Business Locations"
shall mean (i) address locations that are used solely for business
purposes, including, without limitation, public spaces within
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3
business locations and governmental offices and (ii) hotels, hospitals,
jails and the business offices of residential facilities within
educational institutions and within nursing and assisted living complexes.
"Content Services" means entertainment, information or other content
services, whether fixed or interactive, or any services incidental
thereto; provided, however, that Content Services shall not include acting
solely as a carrier of video, audio or data of unaffiliated third parties
by providing transport services, so long as the Corporation has no other
direct or indirect pecuniary interest in the transmitted information or
content.
ARTICLE IV
Capital Stock
SECTION 1. Authorized Capital Stock. The total number of shares of
all classes of capital stock that the Corporation shall have authority to issue
is [ ] shares, consisting of (i) [ ] shares of Common Stock, par value
of $0.01 per share ("Common Stock"), and (ii) [ ] shares of Preferred
Stock, par value of $0.01 per share ("Preferred Stock"). The Common Stock shall
be divided into classes as follows: [ ] shares of Class A Common Stock
("Class A Stock") and [ ] shares of Class B Common Stock ("Class B Stock").
SECTION 2. Common Stock. (a) Except as otherwise provided in this
Restated Certificate of Incorporation, the Class A Stock and the Class B Stock
shall have the same rights and privileges and shall rank equally, share ratably
and be identical in all respects as to all matters.
(b) Subject to provisions of law and the terms of any outstanding
Preferred Stock, the holders of the Class A Stock and the Class B Stock shall be
entitled to receive dividends or other distributions with respect to such stock,
in an equal amount per share, at such times and in such amounts as may be
determined by the Board and declared out of any funds lawfully available
therefor, and shares of Preferred Stock of any series shall not be entitled to
share therein except as otherwise expressly provided in the resolution or
resolutions of the Board providing for the issue of such series. Dividends and
other distributions with respect to the Class A Stock and the Class B Stock
shall be payable only when, as and if declared by the Board.
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4
(c) Subject to the provisions of law and the terms of any
outstanding Preferred Stock, if at any time a dividend or other distribution
with respect to the Class A Stock or Class B Stock is to be paid in shares of
Class A Stock, Class B Stock or any other securities of the Corporation or any
other corporation, partnership, limited liability company, trust or legal entity
("Person") (hereinafter sometimes called a "share distribution"), such share
distribution shall be declared and paid only as follows, and share distributions
declared and paid as follows shall be deemed to be equal distributions for
purposes of the preceding paragraph:
(i) a share distribution (A) consisting of Class A Stock (or Convertible
Securities that are convertible into, exchangeable for, or evidence
the right to purchase, shares of Class A Stock) to holders of Class
A Stock and Class B Stock, on an equal per share basis; or (B)
consisting of shares of Class B Stock (or Convertible Securities
that are convertible into, exchangeable for or evidence the right to
purchase shares of Class B Stock) to holders of Class A Stock and
Class B Stock, on an equal per share basis; or (C) consisting of
shares of Class A Stock (or Convertible Securities that are
convertible into, exchangeable for or evidence the right to purchase
shares of Class A Stock) to holders of Class A Stock and, on an
equal per share basis, shares of Class B Stock (or Convertible
Securities that are convertible into, exchangeable for or evidence
the right to purchase shares of Class B Stock) to holders of Class B
Stock; and
(ii) a share distribution consisting of shares of any class or series of
securities of the Corporation or any other Person other than Class A
Stock or Class B Stock (and other than Convertible Securities that
are convertible into, exchangeable for or evidence the right to
purchase shares of Class A Stock or Class B Stock), either on the
basis of a distribution of identical securities, on an equal per
share basis, to holders of Class A Stock and Class B Stock or on the
basis of a distribution of one class or series of securities to
holders of Class A Stock and another class or series of securities
to holders of Class B Stock, provided that the securities so
distributed (and, if applicable, the securities into which the
distributed securities are convertible, or for which they are
exchangeable, or which the
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5
distributed securities evidence the right to purchase) do not differ
in any respect other than their relative voting rights and related
differences in conversion and share distribution provisions, with
holders of shares of Class B Stock receiving the class or series
having the higher relative voting rights (without regard to whether
such rights differ to a greater or lesser extent than the
corresponding differences in voting rights and related differences
in conversion and share distribution provisions between the Class A
Stock and the Class B Stock), provided that if the securities so
distributed constitute capital stock of a Subsidiary of the
Corporation, such rights shall not differ to a greater extent than
the corresponding differences in voting rights, conversion and share
distribution provisions between the Class A Stock and Class B Stock,
and provided in each case that such distribution is otherwise made
on an equal per share basis.
As used herein, the term "Subsidiary" means, when used with respect
to any Person, (i) a corporation in which such Person and/or one or more
Subsidiaries of such Person, directly or indirectly, owns capital stock having a
majority of the Voting Power of such corporation's Voting Stock; and (ii) any
other Person (other than a corporation) in which such Person and/or one or more
Subsidiaries of such Person, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named Person.
As used herein, the term "Convertible Securities" shall mean any
securities of the Corporation (other than any class of Common Stock) that are
convertible into, exchangeable for, or evidence the right to purchase any class
of Common Stock, whether upon conversion, exercise or exchange, pursuant to
anti-dilution provisions of such securities or otherwise.
(d) If the Corporation shall in any manner reclassify, subdivide or
combine the outstanding shares of Class A Stock or Class B Stock, the
outstanding shares of the other class of Common Stock shall be proportionally
reclassified, subdivided or combined in the same manner and on the same basis as
the outstanding shares of Class A Stock or Class B Stock, as the case may be,
that have been reclassified, subdivided or combined so as to preserve the
relative Voting Power of each class and the relative
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6
proportion of the equity of the Corporation represented byeach class immediately
prior to the transaction giving rise to an adjustment pursuant to this
paragraph.
(e)
(i) Each share of Class B Stock may at any time be converted into
one fully paid and nonassessable share of Class A Stock. Such right shall
be exercised by the surrender of the certificate representing such share
of Class B Stock to be converted to the Corporation at any time during
normal business hours at the principal executive offices of the
Corporation, or if an agent for the registration of transfer of shares of
Class B Stock is then duly appointed and acting (said agent being
hereinafter called the "Transfer Agent"), then at the office of the
Transfer Agent, accompanied by a written notice of the election by the
holder thereof to convert and (if so required by the Corporation or the
Transfer Agent) by instruments of transfer, in form satisfactory to the
Corporation and to the Transfer Agent, duly executed by such holder or
such holder's duly authorized attorney, and together with any necessary
transfer tax stamps or funds therefor, if required pursuant to
subparagraph (v) of this subsection (e).
(ii) As promptly as practicable after the surrender for conversion
of a certificate representing shares of Class B Stock in the manner
provided in paragraph (i) of this subsection (e) and the payment in cash
of any amount required by the provisions of paragraphs (i) and (v) of this
subsection (e), the Corporation will deliver or cause to be delivered at
the office of the Transfer Agent to or upon the written order of the
holder of such certificate, a certificate or certificates representing the
number of full shares of Class A Stock issuable upon such conversion,
issued in such name or names as such holder may direct. Such conversion
shall be deemed to have been made immediately prior to the close of
business on the date of the surrender of the certificates representing
shares of Class B Stock, and all rights of the holder of such shares as
such holder shall cease at such time and the person or persons in whose
name or names the certificate or certificates representing the shares of
Class A Stock are to be issued shall be treated for all purposes as having
become the record holder or holders of such shares of Class A Stock at
such time; provided, however, if any such surrender and payment is made on
any date when the stock transfer books of the
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7
Corporation shall be closed, the person or persons in whose name or names
the certificate or certificates representing shares of Class A Stock are
to be issued as the record holder or holders thereof shall be treated for
all purposes as having become the record holder or holders of such shares
immediately prior to the close of business on the next succeeding day on
which such stock transfer books are open.
(iii) No adjustments in respect of dividends shall be made upon the
conversion of any share of Class B Stock; provided, however, that if a
share shall be converted subsequent to the record date for the payment of
a dividend or other distribution on shares of Class B Stock but prior to
such payment, the registered holder of such share at the close of business
on such record date shall be entitled to receive the dividend or other
distribution payable on such share upon the date set for payment of such
dividend or other distribution notwithstanding the conversion thereof or
the Corporation's default in payment of the dividend due on such date.
(iv) The Corporation will at all times reserve and keep available,
solely for the purpose of issuance upon conversion of the outstanding
shares of Class B Stock, such number of shares of Class A Stock as shall
be issuable upon the conversion of all such outstanding shares; provided,
however, that nothing contained herein shall be construed to preclude the
Corporation from satisfying its obligations in respect of the conversion
of the outstanding shares of Class B Stock by delivery of purchased shares
of Class A Stock which are held in the treasury of the Corporation. If any
shares of Class A Stock required to be reserved for purposes of conversion
hereunder require registration with or approval of any governmental
authority under any Federal or state law before such shares of Class A
Stock may be issued upon conversion, the Corporation will cause such
shares to be duly registered or approved, as the case may be. All shares
of Class A Stock which shall be issued upon conversion of the shares of
Class B Stock will, upon issue, be fully paid and nonassessable and not
subject to any preemptive rights.
(v) The issuance of certificates for shares of Class A Stock upon
conversion of shares of Class B Stock shall be made without charge for any
stamp or other similar tax in respect of such issuance. However, if any
such certificate is to be issued in a
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8
name other than that of the holder of the share or shares of Class B Stock
converted, the person or persons requesting the issuance thereof shall pay
to the Corporation the amount of any tax which may be payable in respect
of any transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid.
(vi) Any shares of Class B Stock which shall have been converted
into Class A Stock at any time pursuant to the provisions of this
subsection (e) of this Section 2 shall, after such conversion, have the
status of authorized but unissued shares of Class B Stock.
(f) Upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, subject to any preferential or
other amounts to be distributed to the holders of the Preferred Stock and any
other class or series of stock then outstanding, the holders of Class A Stock
and Class B Stock shall be entitled to receive all the assets of the Corporation
available for distribution to its stockholders ratably as a single class in
proportion to the number of shares held by them.
(g) The Class A Stock and the Class B Stock are subject to all the
powers, rights, privileges, preferences and priorities of any series of
Preferred Stock as shall be stated and expressed in any resolution or
resolutions adopted by the Board, pursuant to authority expressly granted to and
vested in it by the provisions of this Article IV.
SECTION 3. Preferred Stock. The Board is hereby expressly
authorized, by resolution or resolutions, to provide, out of the unissued shares
of Preferred Stock, for series of Preferred Stock and, with respect to each such
series, to fix the number of shares constituting such series and the designation
of such series, the voting powers (if any) of the shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series. The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
SECTION 4. Redemption of Capital Stock. Notwithstanding any other
provision of this Restated Certificate of Incorporation to the contrary, but
subject to
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9
the provisions of any resolution or resolutions of the Board of Directors
adopted pursuant to this Article IV creating any series of Preferred Stock,
outstanding shares of Class A Common Stock, Preferred Stock or any other class
or series of stock of the Corporation, other than Class B Stock, shall always be
subject to redemption by the Corporation, by action of the Board, if in the
judgment of the Board such action should be taken, pursuant to Section 151(b) of
the DGCL (or any other applicable provision of law), to the extent necessary to
prevent the loss or secure the reinstatement of any license or franchise from
any governmental agency held by the Corporation or any Subsidiary to conduct any
portion of the business of the Corporation or such Subsidiary, which license or
franchise is conditioned upon some or all of the holders of the Corporation's
stock of any class or series possessing prescribed qualifications. The terms and
conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant to
this Section 4 shall be equal to the Fair Market Value of such shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders are to
be redeemed, the shares to be redeemed shall be selected in such manner as
shall be determined by the Board, which may include selection first of the
most recently purchased shares thereof, selection by lot or selection in
any other manner determined by the Board of Directors;
(d) at least 30 days' written notice of the Redemption Date shall be
given to the record holders of the shares selected to be redeemed (unless
waived in writing by such holder), provided that the Redemption Date may
be the date on which written notice shall be given to record holders if
the cash or Redemption Securities necessary to effect the redemption shall
have been deposited in trust for the benefit of such record holders and
subject to immediate withdrawal by them upon surrender of the stock
certificates for their shares to be redeemed;
(e) from and after the Redemption Date, any and all rights of
whatever nature, which may be held by the owners of shares selected for
redemption (including without limitation any rights to vote or participate
in
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10
dividends declared on stock of the same class or series as such shares),
shall cease and terminate and they shall thenceforth be entitled only to
receive the cash or Redemption Securities payable upon redemption; and
(f) such other terms and conditions as the Board shall determine.
For purposes of this Section 4:
(i) "Disqualified Holder" shall mean any holder of shares of stock
of the Corporation of any class or series whose holding of such stock may
result in the loss of any license or franchise from any governmental
agency held by the Corporation or any Subsidiary to conduct any portion of
the business of the Corporation or any Subsidiary.
(ii) "Fair Market Value" of a share of the Corporation's stock of
any class or series shall mean the average (unweighted) Closing Price for
such a share for each of the 45 most recent days on which shares of stock
of such class or series shall have been traded preceding the day on which
notice of redemption shall be given pursuant to paragraph (d) of this
Section 4; provided, however, that if shares of stock of such class or
series are not traded on any securities exchange or in the
over-the-counter market, "Fair Market Value" shall be determined by the
Board of Directors in good faith; and provided further, however, that
"Fair Market Value" as to any stockholder who purchases his stock within
120 days of a Redemption Date need not (unless otherwise determined by the
Board of Directors) exceed the purchase price paid by him. "Closing Price"
on any day means the reported last sales price regular way or, in case no
such sale takes place, the average of the reported closing bid and asked
prices regular way on the New York Stock Exchange Composite Tape, or, if
stock of the class or series in question is not quoted on such Composite
Tape, on the New York Stock Exchange, or, if such stock is not listed on
such exchange, on the principal United States registered securities
exchange on which such stock is listed, or, if such stock is not listed on
any such exchange, the highest closing sales price or bid quotation for
such stock on The Nasdaq Stock Market or any system then in use, or if no
such prices or quotations are available, the fair market value on the day
in question as determined by the Board of Directors in good faith.
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11
(iii) "Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the Corporation
pursuant to this Section 4.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any Subsidiary or any other corporation, or
any combination thereof, having such terms and conditions as shall be
approved by the Board of Directors and which, together with any cash to be
paid as part of the redemption price, in the opinion of any nationally
recognized investment banking firm selected by the Board of Directors
(which may be a firm which provides other investment banking, brokerage or
other services to the Corporation or its affiliates), has a value, at the
time notice of redemption is given pursuant to paragraph (d) of this
Section 4, at least equal to the Fair Market Value of the shares to be
redeemed pursuant to this Section 4 (assuming, in the case of Redemption
Securities to be publicly traded, such Redemption Securities were fully
distributed and subject only to normal trading activity).
SECTION 5. Stockholder Voting. (a) Except as otherwise provided in
this Restated Certificate of Incorporation or required by law, with respect to
all matters upon which stockholders are entitled to vote or to which
stockholders are entitled to give consent, the holders of any outstanding shares
of Class A Stock and the holders of any outstanding shares of Class B Stock
shall vote together without regard to class, and every holder of the outstanding
shares of Class A Stock shall be entitled to cast thereon one (1) vote in person
or by proxy for each share of Class A Stock standing in such holder's name, and
every holder of the outstanding shares of Class B Stock shall be entitled to
cast thereon ten (10) votes in person or by proxy for each share of Class B
Stock standing in such holder's name.
(b) Until such time as the outstanding shares of Class B Stock no
longer represent at least fifty percent (50%) of the Voting Power of the Voting
Stock, in addition to any other vote required hereunder or by applicable law
(and notwithstanding the fact that a lesser percentage may be specified by law
or this Restated Certificate of Incorporation), the affirmative vote of the
holders of one hundred percent (100%) of the Voting Power of all outstanding
shares of Class B Stock, voting separately as a class, shall be required:
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12
(i) to amend, alter or repeal any provision of this Restated
Certificate of Incorporation, other than an amendment to Article II to
change the registered office or registered agent of the Corporation, and
other than an amendment effected pursuant to Section 151(g) of the DGCL
(or any successor provision thereto); or
(ii) for (x) the disposition, directly or indirectly, by the
Corporation (or by one or more direct or indirect subsidiaries thereof) by
sale, merger, new issuances or otherwise, to a Person (other than the
Corporation or a direct or indirect wholly owned subsidiary of the
Corporation), in any transaction or series of related transactions, of
shares of the capital stock of one or more direct or indirect Subsidiaries
of the Corporation which, in the aggregate, hold all or substantially all
of the assets of the Corporation and its Subsidiaries on a consolidated
basis or (y) the disposition, directly or indirectly, by the Corporation
(or by one or more direct or indirect subsidiaries thereof) by sale,
merger or otherwise, (other than to the Corporation or a direct or
indirect wholly owned subsidiary of the Corporation) in any transaction or
series of related transactions outside the ordinary course of the business
of the Corporation, of all or substantially all of the assets of the
Corporation and its Subsidiaries on a consolidated basis, except, in each
case referred to in the foregoing clauses (x) and (y), for pledges, grants
of security interests, security deeds, mortgages or similar encumbrances
securing bona fide indebtedness, and any foreclosure in respect thereof.
(c) In addition to any other vote required hereunder or by
applicable law, the affirmative vote of the holders of a majority of the
combined Voting Power of the Voting Stock, voting together as a single class,
shall be required for (x) the disposition, directly or indirectly, by the
Corporation (or by one or more direct or indirect subsidiaries thereof) by sale,
merger, new issuances or otherwise, to a Person (other than the Corporation or a
direct or indirect wholly owned subsidiary of the Corporation), in any
transaction or series of related transactions, of shares of the capital stock of
one or more direct or indirect Subsidiaries of the Corporation which, in the
aggregate, hold all or substantially all of the assets of the Corporation and
its Subsidiaries on a consolidated basis or (y) the disposition, directly or
indirectly, by the Corporation (or by one or more direct or indirect
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13
subsidiaries thereof) by sale, merger or otherwise, (other than to the
Corporation or a direct or indirect wholly owned subsidiary of the Corporation)
in any transaction or series of related transactions outside the ordinary course
of the business of the Corporation, of all or substantially all of the assets of
the Corporation and its Subsidiaries on a consolidated basis, except, in each
case referred to in the foregoing clauses (x) and (y), for pledges, grants of
security interests, security deeds, mortgages or similar encumbrances securing
bona fide indebtedness, and any foreclosure in respect thereof.
(d) Until such time as the outstanding shares of Class B Stock no
longer represent at least fifty (50%) percent of the Voting Power of the Voting
Stock, in addition to any other vote required hereunder or by applicable law,
the affirmative vote of the holders of a majority of the Voting Power of all
outstanding shares of Class A Stock, voting separately as a class, shall be
required to amend the definition of Termination Date as specified in Article III
so as to extend the date specified in clause (i) thereof or to reduce the
percentage specified in clause (ii) thereof.
ARTICLE V
DGCL Section 203
The Company hereby expressly elects not to be governed by the
provisions of Section 203 of the DGCL, and the restrictions and limitations set
forth therein.
ARTICLE VI
Directors
SECTION 1. Election of Directors. Directors shall be elected at the
annual meeting of stockholders, and each director elected shall hold office
until such director's successor has been elected and qualified. Directors need
not be stockholders of the Corporation.
SECTION 2. Advance Notice of Nominations; Independent Directors. (a)
Advance notice of nominations for the election of directors shall be given in
the manner and to the extent permitted provided in the By-laws of the
Corporation.
(b) The Board of Directors' nominees for election as independent
directors shall be approved by a committee of
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14
the Board comprised of all of the directors other than the Chief Executive
Officer and the independent directors; provided, that if the holders of Class B
Stock of the Corporation cease to have the right, collectively, to designate at
least three nominees to the Board pursuant to the Stockholders' Agreement
referred to in Section 3 below, then such committee of the Board shall be
comprised of three members, including all the directors designated by the
holders of the Class B Stock pursuant to the Stockholders' Agreement, if any,
and such other director or directors as shall be determined by majority vote of
the whole Board.
SECTION 3. Number of Directors. Subject to any rights of the holders
of any series of Preferred Stock outstanding at any time to elect additional
directors to the Board, the number of directors that shall constitute the whole
Board of the Corporation shall be determined from time to time pursuant to the
Stockholders' Agreement dated as of [ ], among Time Warner Companies,
Inc., American Television and Communications Corporation, Warner Communications
Inc., TW/TAE Inc., FibrCOM Holdings L.P., Paragon Communications, MediaOne
Group, Inc., and Advance/Newhouse Partnership (and their successors and
permitted assigns) and the Corporation, as amended from time to time, or, if
such agreement is no longer in effect, as specified in the By-laws of the
Corporation, as the same may be amended from time to time. In the absence of
such a provision in such Stockholders' Agreement or the By-laws of the
Corporation, the number of directors that shall constitute the whole Board of
the Corporation shall be three.
SECTION 4. Limitation on Director Liability. To the fullest extent
that the DGCL or any other law of the State of Delaware as it exists or as it
may hereafter be amended permits the limitation or elimination of the liability
of directors, no director of the Corporation shall be liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director. No amendment to or repeal of this Article VI shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
SECTION 5. Removal of Directors; Filling of Newly Created
Directorships and Vacancies. (a) Subject to the rights of the holders of any
series of Preferred Stock outstanding at any time, directors may be removed from
office with or without cause, but only upon the affirmative vote of the holders
of a majority of the combined Voting
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15
Power of the Voting Stock, voting together as a single class.
(b) Subject to the rights of holders of any series of Preferred
Stock outstanding at any time, any newly created directorship or vacancy in the
office of a director shall be filled only by (A) during the 20 day period
following the date such newly created directorship or vacancy comes into
existence, the affirmative vote of the remaining directors or the sole remaining
director, as the case may be, or (B) if not so filled within such 20 day period,
either (i) the affirmative vote of the holders of a majority of the combined
Voting Power of the Voting Stock, voting together as a single class, or (ii) the
affirmative vote of the remaining directors or the sole remaining director, as
the case may be.
ARTICLE VII
Provisions Relating to Founding Stockholders
SECTION 1. Founding Stockholders. In anticipation that the capital
stock of Corporation will cease to be owned exclusively, directly or indirectly,
by affiliates of Time Warner Inc. ("TW"), MediaOne Group, Inc. and
Advance/Newhouse Partnership (collectively and as further defined in Section 4
below, the "Founding Stockholders"), but that the Founding Stockholders will
remain, directly or indirectly, stockholders of the Corporation, and in
anticipation that the Corporation and the Founding Stockholders may engage in
the same or similar activities or lines of business and have an interest in the
same areas of corporate opportunities, and in recognition of the benefits to be
derived by the Corporation through its continued contractual, corporate and
business relations with the Founding Stockholders (including service of
officers, directors or employees of the Founding Stockholders as directors of
the Corporation), the provisions of this Article VII are set forth to regulate,
define and guide, to the fullest extent permitted by the DGCL, the conduct of
certain affairs of the Corporation as they may involve the Founding Stockholders
and their respective officers and directors, and the powers, rights and duties
of the Corporation and the Founding Stockholders and their respective officers
and directors in connection therewith.
SECTION 2. Competition and Corporate Opportunities. None of the
Founding Stockholders shall have any duty to refrain from engaging directly or
indirectly in the same or similar business activities or lines of business
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16
as the Corporation. In the event that any of the Founding Stockholders acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for any of the Founding Stockholders and the Corporation, subject to
Section 3 of this Article VIII, none of the Founding Stockholders shall have any
duty to communicate or offer such corporate opportunity to the Corporation and
any other Founding Stockholders as applicable shall be entitled to pursue or
acquire such corporate opportunity for itself or to direct such corporate
opportunity to another person or entity. In addition, the fact that a Founding
Stockholder shall engage in a particular business activity shall not, of itself,
provide a basis for determining that there has been a violation of Section 3 of
this Article.
SECTION 3. Allocation of Corporate Opportunities. The following
provisions shall be applicable to the maximum extent consistent with, and
permitted by, applicable Delaware law. In the event that a director, officer or
employee of the Corporation who is also a director, officer or employee of any
of the Founding Stockholders acquires knowledge of a potential transaction or
matter that may be a corporate opportunity for both the Corporation and any of
the Founding Stockholders, such director, officer or employee of the Corporation
shall act in good faith in a manner consistent with the following:
(a) a corporate opportunity offered to any person who is an officer
or employee (whether or not a director) of the Corporation and who is also
a director but not an officer or employee of a Founding Stockholder shall
belong to the Corporation, unless such opportunity is expressly offered to
such person primarily in his or her capacity as a director of a Founding
Stockholder, in which case such opportunity shall belong to the relevant
Founding Stockholder;
(b) a corporate opportunity offered to any person who is a director
but not an officer or employee of the Corporation and who is also an
officer or employee (whether or not a director) of a Founding Stockholder
shall belong to the relevant Founding Stockholder, unless such opportunity
is expressly offered to such person in his or her capacity as a director
of the Corporation, in which case such opportunity shall belong to the
Corporation; and
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17
(c) a corporate opportunity:
(i) offered to any other person who is either (A) an officer
or employee of both the Corporation and a Founding Stockholder or
(B) a director of both the Corporation and a Founding Stockholder
(but not an officer or employee of the Corporation or any Founding
Stockholder), and
(ii) that is expressly offered to such person
(A) in his or her capacity as an officer, employee or director of the
Corporation shall belong to the Corporation; and
(B) in his or her capacity as an officer, employee or director of a
Founding Stockholder shall belong to the relevant Founding Stockholder.
SECTION 4. Certain Matters Deemed Not Corporate Opportunities. (a)
In addition to and notwithstanding the foregoing provisions of this Article VII,
a corporate opportunity shall not be deemed to belong to the Corporation if it
is a business opportunity that the Corporation is not permitted to undertake
under the terms of Article II or that the Corporation is not financially able or
contractually permitted or legally able to undertake, or that is, from its
nature, not in the line of the Corporation's business or is of no practical
advantage to it or that is one in which the Corporation has no interest or
reasonable expectancy.
(b) For purposes of this Article VII only, (i) the term
"Corporation" shall mean the Corporation and all corporations, limited liability
companies, partnerships, joint ventures, associations and other entities in
which the Corporation beneficially owns (directly or indirectly) 50% or more of
the outstanding voting stock, voting power or similar voting interests, except
that for purposes of determining those persons who are directors of the
Corporation, such term shall mean the Corporation without regard to any other
entities in which it may hold an interest and (ii) the term "Founding
Stockholder" shall mean a Founding Stockholder and all corporations, limited
liability companies, partnerships, joint ventures, associations and other
entities (other than the Corporation) in which such Founding Stockholder
beneficially owns (directly or indirectly) 50 percent or more of the outstanding
voting stock, voting power or similar interests and, if a Founding Stockholder
is a partnership, shall also include those entities which constitute its
corporate general partners, except that for purposes of determining
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18
those persons who are directors of Founding Stockholders, such term shall mean
Time Warner Inc., U S West Media Group, Inc. and, in the case of
Advance/Newhouse Partnership, Advance Communication Corp. and Newhouse
Broadcasting Corporation, its general partners.
SECTION 5. Expiration of Certain Provisions. Notwithstanding
anything in this Restated Certificate of Incorporation to the contrary, the
provisions of this Article VII shall expire as to any Founding Stockholder on
the date that both (i) such Founding Stockholder ceases to own beneficially
Common Stock representing at least 5% of the number of outstanding shares of
Common Stock of the Corporation and (ii) no person who is a director or officer
of the Corporation is also a director or officer of such Founding Stockholder.
Neither the alteration, amendment, change or repeal of any provision of this
Article VII nor the adoption of any provision of this Restated Certificate of
Incorporation inconsistent with any provision of this Article VII shall
eliminate or reduce the effect of this Article VII in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article VII,
would accrue or arise, prior to such alteration, amendment, repeal or adoption.
SECTION 6. Deemed Notice. Any person or entity purchasing or
otherwise acquiring any interest in any shares of the Corporation shall be
deemed to have notice of and to have consented to the provisions of this Article
VII.
ARTICLE VIII
Stockholder Meetings
SECTION 1. Meetings Generally. Meetings of stockholders may be held
within or without the State of Delaware, as the By-laws of the Corporation may
provide. The books of the Corporation may be kept (subject to any provision of
Delaware law) outside the State of Delaware at such place or places as may be
designated from time to time by the Board or in the By-laws of the Corporation.
Elections of directors need not be by written ballot unless the By-laws of the
Corporation shall so provide.
SECTION 2. Special Meetings. Special meetings of the stockholders
shall be called only (i) upon written request of the holders of not less than a
majority of the total voting power of the outstanding capital stock of the
Corporation entitled to vote at such meeting or (ii) upon request of any
director. Special meetings of the
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19
stockholders may be held at such time and place as may be stated in the notice
of meeting.
ARTICLE IX
By-laws
In furtherance and not in limitation of the powers conferred upon it
by law, the Board of Directors is expressly authorized to adopt, repeal, alter
or amend the By-laws of the Corporation by the vote of a majority of the entire
Board of Directors. In addition to any requirements of law and any other
provision of this Restated Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article IV of this
Restated Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Restated Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of a majority of the combined Voting Power of the Voting Stock,
voting together as a single class, shall be required for stockholders to adopt,
amend, alter or repeal any provision of the By-laws.
IN WITNESS WHEREOF, the Corporation has caused this Restated
Certificate of Incorporation to be duly executed this day of [ ], 1998.
TIME WARNER TELECOM INC.,
a Delaware corporation,
-----------------------
Name:
Title:
<PAGE>
<PAGE>
Exhibit B
Form of By-laws of Newco
<PAGE>
<PAGE>
EXHIBIT B
BY-LAWS
OF
TIME WARNER TELECOM INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES AND AGENT
SECTION 1. Registered Office and Agent. The address of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may also have offices at
other places, either within or without the State of Delaware, as the Board of
Directors of the Corporation (the "Board") may from time to time determine or as
the business of the Corporation shall require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board and stated in the notice of meeting or in a duly executed
waiver of notice thereof. Adjournments of meetings may be held at the place at
which the meeting adjourned is being held, or at any other place determined by
the Board, whether or not a quorum shall have been present at such meeting.
SECTION 2. Annual Meetings. To the extent required by applicable law
or the Restated Certificate of Incorporation of the Corporation, an annual
meeting of the stockholders for the election of directors and the transaction of
such other business as may properly come before the meeting shall be held at
such time and on such
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2
date as shall be determined by the Board and stated in the notice of the
meeting.
SECTION 3. Special Meetings. Except as otherwise provided by
applicable law, special meetings of the stockholders shall be called only in
accordance with the provisions of the Restated Certificate of Incorporation of
the Corporation.
SECTION 4. Notice of Meetings. Written notice of stockholder
meetings, stating the time, place and date, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
by the Chairman of the Board, the President, any Vice President, the Secretary
or an Assistant Secretary to each stockholder entitled to vote at such meeting,
at least ten days but not more than sixty days before the date of the meeting,
unless a different period is prescribed by applicable law.
SECTION 5. Quorum. Except as otherwise provided by applicable law or
by the Restated Certificate of Incorporation of the Corporation, the holders of
a majority in total voting power of the outstanding capital stock of the
Corporation entitled to vote at a meeting of the stockholders, present in person
or represented by proxy, shall constitute a quorum for the transaction of
business at any annual or special meeting of the stockholders; provided, that
where a separate vote by a class or series of capital stock is required, the
holders of a majority in total voting power of the outstanding capital stock of
such class or series, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to such vote on such
matter. In the absence of a quorum, the Chairman of the meeting or the holders
of a majority in voting power of the capital stock entitled to vote thereat that
are present in person or represented by proxy, shall have the power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting of the time and place of the adjourned meeting, until a quorum shall be
present or represented. At such adjourned meeting, any business may be
transacted which may have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a written notice of the
adjourned meeting shall be given to each stockholder entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the
meeting, unless a different period is prescribed by applicable law.
SECTION 6. Proxies. Any stockholder entitled to vote at a meeting of
the stockholders may do so in person or
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3
by proxy appointed by such stockholder or by such stockholder's attorney thereto
authorized, and bearing a date not more than three years prior to such meeting,
unless such instrument provides for a longer period. All proxies must be filed
with the Secretary of the Corporation at the beginning of the applicable meeting
in order to be counted in any vote at such meeting.
SECTION 7. Voting. Except as otherwise provided by applicable law,
the Restated Certificate of Incorporation of the Corporation or these By-laws,
and except for the election of directors, any question brought before any
meeting of the stockholders at which a quorum is present shall be decided by the
affirmative vote of the holders of a majority of the total number of votes of
the capital stock present in person or represented by proxy and entitled to vote
on the applicable subject matter.
SECTION 8. Organization; Order of Business. (a) At every meeting of
stockholders, the Chairman of the Board, or in such person's absence, the
President, or in the absence of both of them, any Vice President, shall act as
Chairman of the meeting. In the absence of the Chairman of the Board, the
President, and all Vice Presidents, the Board, or if the Board fails to act, the
stockholders may appoint any stockholder, director or officer of the Corporation
to act as Chairman of any meeting. The Secretary of the Corporation shall act as
Secretary of the meeting, but in the absence of the Secretary, the Chairman of
the meeting may appoint any person to act as Secretary of the meeting.
(b) (1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at any annual meeting of the stockholders, only (i)
pursuant to the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors of the Corporation or (iii) by any stockholder who is a
holder of record at the time of the giving of the notice provided for in this
Section 8, who is entitled to vote at the meeting and who complies with the
procedures set forth in this Section 8.
(2) For nominations or business properly to be brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 70 days nor
more than 120 days prior to the anniversary date of the immediately preceding
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4
annual meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days earlier or more than 60 days later than such
anniversary date, notice by the stockholder to be timely must be so delivered or
received not earlier than the 120th day prior to such annual meeting and not
later than the close of business on the later of the 70th day prior to such
annual meeting or the 10th day following the day on which public announcement of
the date of such meeting is first made. To be in proper written form, a
stockholder's notice to the Secretary of the Corporation shall set forth in
writing as to each matter the stockholder proposes to bring before the annual
meeting: (i) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (ii) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting and in the event that such business includes
a proposal to amend the by-laws of the Corporation, the language of the proposed
amendment; (iii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business; (iv) the class or series and
number of shares of the Corporation which are beneficially owned by the
stockholder; (v) any material interest of the stockholder in such business; (vi)
a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such annual meeting and intends to appear in
person or by proxy at such meeting to propose such business; and (vii) if the
stockholder intends to solicit proxies in support of such stockholder's
proposal, a representation to that effect. The foregoing notice requirements
shall be deemed satisfied by a stockholder if the stockholder has notified the
Corporation of his or her intention to make a nomination or present a proposal
at an annual meeting and such stockholder's nominee or proposal has been
included in a proxy statement that has been prepared by management of the
Corporation to solicit proxies for such annual meeting; provided, however, that
if such stockholder does not appear or send a qualified representative to
present such nominee or proposal at such annual meeting, the Corporation need
not present such nominee or proposal for a vote at such meeting
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5
notwithstanding that proxies in respect of such vote may have been received by
the Corporation.
(c) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors of the Corporation may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation's
notice of meeting (i) by or at the direction of the Board of Directors or (ii)
provided that the Board of Directors has determined that directors shall be
elected at such meeting, by any stockholder who is a holder of record at the
time of the giving of notice provided for in this Section 8, who is entitled to
vote at the meeting and who complies with the procedures set forth in this
Section 8. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors of
the Corporation, any such stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation's
notice of meeting, if the stockholder has given timely notice thereof in proper
written form to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation not earlier than the 120th day prior to such special
meeting and not later than the close of business on the later of the 70th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. To be in proper written
form, such notice must meet the requirements of either of the last two sentences
of paragraph (b)(2) above.
(d) Only such persons who are nominated in accordance with this
Section 8 (including, for avoidance of doubt, pursuant to the last sentence of
paragraph (b)(2) above) shall be eligible to serve as directors of the
Corporation and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 8 (including, for avoidance of doubt,
pursuant to the last sentence of paragraph (b)(2) above). The Chairman of a
meeting shall refuse to permit any business to be brought before the meeting
which fails to comply with the foregoing or if a stockholder solicits proxies in
support of such stockholder's nominee or proposal without such stockholder
having made the representation required by clause (vii) of paragraph (b)(2)
above.
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6
SECTION 9. Action by Written Consent. Except as otherwise provided
by applicable law or by the Restated Certificate of Incorporation of the
Corporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
of the Corporation having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
of stock of the Corporation entitled to vote thereon were present and voted.
SECTION 10. Voting List. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof and may be inspected
by any stockholder of the Corporation who is present.
SECTION 11. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to the identity of the stockholders entitled to examine
the stock ledger, the list required by Section 10 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 12. Record Date. In order that the Corporation may determine
the stockholders entitled to (i) notice of or to vote at any meeting of the
stockholders or any adjournment thereof, (ii) unless otherwise provided in the
Restated Certificate of Incorporation of the Corporation, express consent to
corporate action by written consent without a meeting or (iii) receive payment
of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion, or exchange of stock,
or (iv) for the purpose of any other lawful action, the Board may fix a record
date, which shall not precede the date upon which the resolution
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7
fixing the record date is adopted by the Board and which record date shall,
unless otherwise required by law, not be: (a) in the case of clause (i) above,
more than sixty nor less than ten days before the date of such meeting, (b) in
the case of clause (ii) above, more than ten days after the date upon which the
resolution fixing the record date was adopted by the Board, and (c) in the case
of any other action, more than sixty days prior to such other action. If no
record date is fixed: (a) the record date for determining stockholders entitled
to notice of or to vote at a meeting of the stockholders shall be at the close
of business on the day next preceding the day on which notice is given, or if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (b) the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting
(unless otherwise provided in the Restated Certificate of Incorporation of the
Corporation), when no prior action by the Board is required under the General
Corporation Law of the State of Delaware, as amended from time to time (the
"General Corporation Law"), shall be the first day on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded; and when prior action by the Board is required under the General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the date on which the Board adopts the resolution taking such
prior action; and (c) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of the stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
SECTION 13. Inspectors of Election. The Corporation may, and at the
request of any stockholder or if required by law shall, before or at each
meeting of stockholders, appoint one or more inspectors of elections to act at
the meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of the
stockholders, the Chairman of the meeting may, and at the request of any
stockholder or if required by law shall,
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appoint one or more inspectors to act at the meeting. Unless otherwise required
by law, inspectors may be officers, employees or agents of the Corporation. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector or
inspectors so appointed or designated shall (i) ascertain the number of
outstanding shares of capital stock of the Corporation and the voting power of
each such share, (ii) determine the shares of capital stock of the Corporation
represented at the meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors and (v) certify their determination of the number of shares of
capital stock of the Corporation represented at the meeting and such inspectors'
count of all votes and ballots. Such certification and report shall specify such
other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of the stockholders of the
Corporation, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business of the Corporation shall be
managed by or under the direction of the Board. In addition to the powers and
authority herein or by statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of applicable law, the Restated Certificate of Incorporation of the
Corporation and these By-laws; provided, however, that no By-laws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such By-laws had not been adopted.
SECTION 2. Number of Directors. Subject to any rights of the holders
of any series of Preferred Stock of the Corporation outstanding at any time to
elect additional directors to the Board, the number of directors that shall
constitute the entire Board of the Corporation shall be determined from time to
time pursuant to the Stockholders' Agreement dated as of [ ], among Time
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Warner Companies, Inc., American Television and Communications Corporation,
Warner Communications Inc., TW/TAE Inc., FibrCOM Holdings L.P., Paragon
Communications, MediaOne Group, Inc., and Advance/Newhouse Partnership (and
their successors and permitted assigns) and the Corporation, as amended from
time to time, or, if such agreement is no longer in effect, the number of
directors that shall constitute the entire Board of the Corporation shall be not
less than three members, the exact number of which shall from time to time be
determined by resolution of the Board.
SECTION 3. Election of Directors. (a) Except as otherwise required
by statute or by the Restated Certificate of Incorporation of the Corporation,
directors shall be elected by a plurality of the votes cast at a meeting of
stockholders by the holders of shares of Class A Common Stock of the Corporation
and Class B Common Stock of the Corporation, voting together as a single class.
(b) Subject to the provisions of the Restated Certificate of
Incorporation of the Corporation and to this Article III, each director shall
serve until the next succeeding annual meeting of stockholders and until his or
her respective successor has been duly elected and qualified.
SECTION 4. Independent Directors. For so long as any class of
capital stock of the Corporation is traded on a national securities exchange or
authorized for quotation on any nationally recognized over-the-counter quotation
system, the Board shall have at least two independent directors in compliance
with the requirements of any such national securities exchange or quotation
system then applicable to the Corporation. The Board's nominees for election as
independent directors shall be approved by a committee of the Board as set forth
in the Restated Certificate of Incorporation of the Corporation.
SECTION 5. Resignations. Any director of the Corporation may resign
at any time, by giving written notice to the Board, the Chairman of the Board,
the President or the Secretary of the Corporation. Such resignation shall take
effect after receipt of the applicable written notice of resignation by the
Board, the Chairman of the Board, the President or the Secretary of the
Corporation at the time specified in such written notice or, if no time is
specified, immediately upon receipt of such written notice by the Board, the
Chairman of the Board, the President or the Secretary of the Corporation. Unless
otherwise
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specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 6. Removal of Directors. Directors may only be removed as
provided in Section 5 of Article VI of the Restated Certificate of Incorporation
of the Corporation.
SECTION 7. Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors and any
vacancy on the Board occurring for any other reason shall be filled in
accordance with Section 5 of Article VI of the Restated Certificate of
Incorporation of the Corporation.
SECTION 8. Chairman of the Board. The directors shall elect one of
their members to be Chairman of the Board. The Chairman of the Board shall
perform such duties as may from time to time be assigned by the Board. The
Chairman of the Board shall be subject to the control of and may be removed from
such office by the Board.
SECTION 9. Annual Meetings. The Board shall meet for the election of
officers and the transaction of other business as soon as practicable after each
annual meeting of the stockholders, and no notice of such meeting shall be
necessary in order legally to constitute the meeting, provided a quorum is
present. Such meeting may be held at any other time or place specified in a
notice given as hereinafter provided for regular meetings of the Board.
SECTION 10. Regular Meetings. The Board may hold meetings, both
regular and special, either within or without the State of Delaware. Regular
meetings of the Board may be held at such time and at such place as may from
time to time be determined by the Board. Notice of each regular meeting shall be
furnished in writing to each member of the Board not less than five days in
advance of such meeting, unless such notice requirement is waived in writing by
each such member.
SECTION 11. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board, and shall be called by the President or the
Secretary of the Corporation upon the written request of not less than a
majority of the members of the Board then in office. Special meetings of the
Board shall be held at such time and place as shall be designated in the notice
of the meeting. The Secretary, or in his or her absence any other officer of the
Corporation, shall give each director notice of the time and place of holding of
special meetings of the Board by
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mail at least ten days before the meeting, or by facsimile, telegram, cable or
personal service at least three days before the meeting, unless such notice
requirement is waived in writing by each director. Unless otherwise stated in
the notice thereof, any and all business shall be transacted at any meeting
without specification of such business in the notice.
SECTION 12. Quorum. Except as otherwise required by applicable law,
the Restated Certificate of Incorporation of the Corporation or these By-laws,
at all meetings of the Board, a majority of the entire Board shall constitute a
quorum for the transaction of business. If a quorum shall not be present at any
meeting of the Board, a majority of those present may adjourn the meeting from
time to time, without notice other than announcement at the meeting of the time
and place of the adjourned meeting, until a quorum shall be present. For
purposes of these By-laws, "the entire Board" means the total number of
directors which the Corporation would have if there were no vacancies or
unfilled newly created directorships.
SECTION 13. Manner of Acting. (a) Except as otherwise provided by
applicable law, the Restated Certificate of Incorporation of the Corporation or
these Bylaws, and except for those matters that may be specified in the Restated
Certificate of Incorporation of the Corporation as requiring stockholder
approval, all matters presented to the Board (or a committee thereof) shall be
approved by the affirmative vote of a majority of the directors present at any
meeting of the Board (or such committee) at which there is a quorum (the
foregoing is referred to herein as a "simple majority").
(b) Except as otherwise provided by applicable law, the Restated
Certificate of Incorporation of the Corporation or these By-laws, the Board may
from time to time, by resolution of a simple majority of the Board, specify,
amend, supplement, substitute, remove or add matters that may not be effected by
the Corporation without the affirmative vote of a simple majority of the Board.
SECTION 14. Organization. Meetings shall be presided over by the
Chairman of the Board, or in the absence of the Chairman of the Board, by such
other person as the directors may select. The Board shall keep written minutes
of its meetings. The Secretary of the Corporation shall act as Secretary of the
meeting, but in the absence of the Secretary, the Chairman of the meeting may
appoint any person to act as Secretary of the meeting.
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SECTION 15. Action by Written Consent. Unless otherwise required by
the Restated Certificate of Incorporation of the Corporation or these By-laws,
any action required or permitted to be taken at any meeting of the Board or of
any committee thereof may be taken without a meeting, if all the members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee thereof.
SECTION 16. Meetings by Means of Conference Telephone. Unless
otherwise required by the Restated Certificate of Incorporation of the
Corporation or these Bylaws, members of the Board, or any committee thereof, may
participate in a meeting of the Board or such committee by means of a 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 16 shall constitute presence in person at such meeting.
SECTION 17. Compensation. The directors shall receive such
compensation for attendance at any meetings of the Board and any expenses
incidental to performance of their duties as the Board shall from time to time
determine by resolution. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
COMMITTEES
SECTION 1. Constitution and Powers. Except as provided by applicable
law, the Restated Certificate of Incorporation of the Corporation or these
By-laws, the Board may, by resolution of a simple majority of its members,
designate one or more committees. Except as provided in these By-laws, each
committee shall consist of one or more directors of the Corporation. Except as
provided by applicable law, the Restated Certificate of Incorporation of the
Corporation or these By-laws, the Board, by a simple majority vote of its
members, shall have the right from time to time to delegate to or to remove from
any board committee the authority to approve any matters which would not
otherwise require a higher vote than a simple majority vote of the Board. Except
as required by applicable law, the
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Restated Certificate of Incorporation of the Corporation or these By-laws, for
those matters that require a higher vote of the Board than a simple majority
vote, the Board, by such requisite higher vote, shall have the right from time
to time to delegate to or to remove from any board committee the authority to
approve any such matters requiring such requisite higher vote.
SECTION 2. Organization of Committees. The Board may designate one
or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of such committee. In the absence
or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the Board to act
at the meeting in place of any such absent or disqualified member. Each
committee that may be established by the Board may fix its own rules and
procedures. All committees so appointed shall keep regular minutes of the
transactions of their meetings and shall be responsible to the Board for the
conduct of the enterprises and affairs entrusted to them. Notice of meetings of
committees, other than of regular meetings provided for by such rules, shall be
given to committee members.
SECTION 3. Executive Committee. The Board, by the affirmative vote
of all the members of the entire Board may designate an executive committee of
the Board to manage and operate the affairs of the Corporation. Except as
provided by applicable law, the Restated Certificate of Incorporation of the
Corporation or these By-laws, such executive committee shall exercise all powers
and authority of the Board in the management of the business and affairs of the
Corporation; provided, however, that an executive committee shall not have the
authority to approve any matters which (pursuant to applicable law, the Restated
Certificate of Incorporation of the Corporation or these Bylaws) require a
higher vote than a simple majority vote of the Board, unless the resolution
establishing such executive committee (or vesting such executive committee with
such authority) states otherwise and such resolution is approved by such
requisite higher vote. The executive committee shall report to the Board not
less often than quarterly.
ARTICLE V
OFFICERS
SECTION 1. Officers. The Board shall elect a Chairman of the Board,
a Chief Executive Officer, a
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President, one or more Vice Presidents, a Chief Financial Officer, a Treasurer
and a Secretary. The Chairman of the Board and the Chief Executive Officer shall
be chosen from the Board. The Board may elect from time to time such other
officers as, in the opinion of the Board, are desirable for the conduct of the
business of the Corporation. Any two or more offices may be held by the same
person, provided, however, that the President shall not hold any other office
except that of Chairman of the Board and/or Chief Executive Officer.
SECTION 2. Chairman of the Board. The Chairman of the Board, if
present, shall preside at all meetings of the stockholders and of the Board. The
Chairman of the Board may enter into and execute in the name of the Corporation
powers of attorney, contracts, bonds and other obligations which implement
policies established by the Board. The Chairman of the Board shall be a senior
officer of the Corporation and in case of the inability or failure of the
President to perform his or her duties, the Chairman of the Board shall perform
the duties of the President. In addition, the Chairman of the Board shall
perform such other duties as may from time to time be assigned to such officer
by the Board.
SECTION 3. Chief Executive Officer. The Chief Executive Officer
shall have supervisory authority over the business, affairs and property of the
Corporation, and over the activities of the President and other executive
officers of the Corporation (excluding the Chairman of the Board). In general,
the Chief Executive Officer shall have all authority incident to the office of
Chief Executive Officer and shall have such other authority and perform such
other duties as may from time to time be assigned by the Board. If the Board
shall not have elected another person to such office, the President shall be the
Chief Executive Officer. If so elected by the Board, the Chairman of the Board
may be the Chief Executive Officer.
SECTION 4. President. The President shall be the chief operating
officer of the Corporation and shall have general supervision of the daily
business, affairs and property of the Corporation. The President shall have the
power to appoint and terminate the appointment or election of officers, agents
or employees other than those appointed or elected by the Board. The President
may enter into and execute in the name of the Corporation powers of attorney,
contracts, bonds and other obligations which implement policies established by
the Board. In general, the President shall have all authority incident to the
office of President and chief operating officer and shall have such
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other authority and perform such other duties as may from time to time be
assigned by the Board. The President shall, at the request or in the absence or
disability of the Chairman of the Board or the Chief Executive Officer, perform
the duties and exercise the powers of such officer.
SECTION 5. Vice Presidents. The Vice Presidents shall have such
powers and shall perform such duties as may from time to time be assigned to
them by the Chairman of the Board, the President, the executive committee, if
any, or the Board. Without limiting the generality of the foregoing, Vice
Presidents may enter into and execute in the name of the Corporation contracts
and other obligations pertaining to the regular course of their duties which
implement policies established by the Board.
SECTION 6. Chief Financial Officer. The Chief Financial Officer
shall be the principal financial officer of the Corporation and shall have such
powers and perform such duties as may be assigned by the Chairman of the Board,
the President, the executive committee, if any, or the Board. Without limiting
the generality of the foregoing, the Chief Financial Officer may sign and
execute contracts and other obligations pertaining to the regular course of his
or her duties which implement policies established by the Board.
SECTION 7. Treasurer. The Treasurer shall, if required by the
Chairman of the Board, the President, the executive committee, if any, the Board
or any other officer to whom the Treasurer reports, give a bond for the faithful
discharge of duties, in such sum and with such sureties as may be so required.
Unless the Board otherwise declares by resolution, the Treasurer shall have
custody of, and be responsible for, all funds and securities of the Corporation;
receive and give receipts for money due and payable to the Corporation from any
source whatsoever; deposit all such money in the name of the Corporation in such
banks, trust companies, or other depositories as the Board may designate;
against proper vouchers, cause such funds to be disbursed by check or draft on
the authorized depositories of the Corporation signed in such manner as shall be
determined by the Board, and be responsible for the accuracy of the amounts of
all funds so disbursed; regularly enter or cause to be entered in books to be
kept by the Treasurer or under the Treasurer's direction, full and adequate
accounts of all money received and paid by the Treasurer for the account of the
Corporation; render to the Board, any duly authorized committee of directors,
the Chairman of the Board, the President or any officer to whom the Treasurer
reports, whenever they or any of them,
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respectively, shall require the Treasurer to do so, an account of the financial
condition of the Corporation and of all transactions of the Treasurer; and, in
general, have all authority incident to the office of Treasurer and such other
authority and perform such other duties as from time to time may be assigned by
the Board. Any Assistant Treasurer shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer and shall
have such other duties and have such other powers as the Board may from time to
time prescribe.
SECTION 8. Secretary. The Secretary shall act as Secretary of all
meetings of the stockholders and of the Board; shall keep the minutes thereof in
the proper book or books to be provided for that purpose; shall see that all
notices required to be given by the Corporation in connection with meetings of
stockholders and of the Board are duly given; shall be the custodian of the seal
of the Corporation and shall affix the seal or cause it or a facsimile thereof
to be affixed to all certificates for stock of the Corporation and to all
documents or instruments requiring the same, the execution of which on behalf of
the Corporation is duly authorized in accordance with the provisions of these
By-laws; shall have charge of the stock records and also of the other books,
records and papers of the Corporation relating to its organization and acts as a
corporation, and shall see that the reports, statements and other documents
related thereto required by law are properly kept and filed, all of which shall,
at all reasonable times, be open to the examination of any director; and shall,
in general, have all authority incident to the office of Secretary and such
other authority and perform such other duties as from time to time may be
assigned by the Board.
SECTION 9. Removal. Any officer may be terminated or removed from
office, either with or without cause, by the Board at any meeting thereof or by
written consent, provided, however, that such removal shall be without prejudice
to the contract rights, if any, of the person so removed.
SECTION 10. Resignation. Any officer may resign at any time by
giving written notice to the Board, the Chairman of the Board, the President or
the Secretary of the Corporation. Any such resignation shall take effect at the
time therein specified or if no time is specified, immediately. Unless otherwise
specified in such notice, the acceptance of such resignation shall not be
necessary to make it effective.
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SECTION 11. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause may be filled at any
time by the Board, or if such officer was appointed by the Chairman of the Board
or the President, then by the Chairman of the Board or the President, as
applicable.
SECTION 12. Bank Accounts. In addition to such bank accounts as may
be authorized in the usual manner by resolution of the Board, the Treasurer,
with approval of the Chairman of the Board or the President, may authorize such
bank accounts to be opened or maintained in the name and on behalf of the
Corporation as the Treasurer shall deem necessary or appropriate, provided that
payments from such bank accounts are to be made upon and according to the check
of the Corporation as shall be specified in the written instructions of the
Treasurer or Assistant Treasurer of the Corporation with the approval of the
Chairman of the Board or the President of the Corporation.
SECTION 13. Voting of Stock Held. Unless otherwise provided in the
Restated Certificate of Incorporation of the Corporation or directed by the
Board, the Chairman of the Board and the President may from time to time
personally or by an attorney or attorneys or agent or agents of the Corporation,
in the name and on behalf of the Corporation, cast the votes which the
Corporation may be entitled to cast as a stockholder or otherwise in any other
corporation, limited liability company, partnership, trust or legal entity
("Person") any of the stock or securities of which may be held by the
Corporation, at meetings of the holders of the stock or other securities of such
Person, or consent in writing to any action by any such Person, and may instruct
any person or persons so appointed as to the manner of casting such votes or
giving such consent, and may execute or cause to be executed on behalf of the
Corporation and under its corporate seal, or otherwise, such written proxies,
consents, waivers or other instruments as the Secretary may deem necessary or
proper in the premises; or may attend any meeting of the holders of stock or
other securities of any such Person and thereat vote or exercise any or all
other powers of the Corporation as the holder of such stock or other securities
of such Person.
ARTICLE VI
CAPITAL STOCK
SECTION 1. Form of Certificates. (a) Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by
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the Chairman of the Board, the President or any of the Vice Presidents and (ii)
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him or
her in the Corporation.
(b) For each class or series of stock that the Corporation shall be
authorized to issue, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
or rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent each class or series
of stock, provided that, except as otherwise required by Section 202 of the GCL,
in lieu of the foregoing requirements, there may be set forth on the face or
back of the certificate which the Corporation shall issue to represent such
class or series of stock, a statement that the Corporation will furnish without
charge to each stockholder that so requests the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
SECTION 2. Signatures. Any or all signatures on the certificate may
be a facsimile. In case an officer, transfer agent or registrar that has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if he or
she were such officer, transfer agent or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of the fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate the Board may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to advertise the same in such manner as the Board shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation and its transfer
agents and registrars with respect to the certificate alleged to have
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been lost, stolen or destroyed or the issuance of such new certificate.
SECTION 4. Transfers. Except as otherwise prescribed by applicable
law or by the Restated Certificate of Incorporation of the Corporation, and
subject to any transfer restrictions applicable thereto and conspicuously noted
on the stock certificate, stock of the Corporation shall be transferable in the
manner prescribed in these Bylaws. Transfers of stock shall be made on the books
of the Corporation only by the person named in the certificate or by such
person's duly authorized attorney appointed by a power of attorney duly executed
and filed with the Secretary of the Corporation or a transfer agent of the
Corporation, and upon surrender of the certificate or certificates for such
stock properly endorsed. Every certificate exchanged, returned or surrendered
shall be marked "Canceled," with the date of cancelation, by the Secretary or an
Assistant Secretary of the Corporation or the transfer agent thereof. No
transfer of stock shall be valid as against the Corporation, its stockholders or
creditors for any purpose until it shall have been entered in the stock records
of the Corporation by an entry showing from and to whom transferred.
SECTION 5. Transfer Agent and Registrar. The Board may appoint one
or more transfer agents and one or more registrars and may require all
certificates for shares to bear the manual or facsimile signature or signatures
of any of them.
SECTION 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise required by
law.
SECTION 7. Regulations. Except as otherwise provided by applicable
law or in the Restated Certificate of Incorporation of the Corporation, the
Board shall have the power and authority to make all such rules and regulations
as it may deem expedient concerning the issue, transfer, registration,
cancelation and replacement of certificates representing stock of the
Corporation.
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SECTION 8. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions in the Restated Certificate of
Incorporation of the Corporation, may be declared by the Board at any regular or
special meeting, and may be paid in cash, in property, or in securities of the
Corporation. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board may modify or abolish any such reserve.
ARTICLE VII
INDEMNIFICATION
SECTION 1. Directors' Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person that was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(collectively, a "Proceeding"), by reason of the fact that such person is or was
a director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person in connection
with such proceeding or any claim made in connection therewith. Such right of
indemnification shall inure whether or not the claim asserted is based on
matters which antedate the adoption of this Section 1 of Article VII. Subject to
the second sentence of the next paragraph, the Corporation shall be required to
indemnify or make advances to a person in connection with a Proceeding (or part
thereof) initiated by such person only if the initiation of such Proceeding (or
part thereof) was authorized by the Board.
The Corporation shall pay the expenses (including attorneys' fees)
incurred by any person that is or was a
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director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, in defending any Proceeding in
advance of its final disposition; provided, however, that the payment of
expenses incurred by such a person in defending any Proceeding in advance of its
final disposition shall be made only upon receipt of an undertaking by such
person to repay all amounts advanced if it should be ultimately determined that
such person is not entitled to be indemnified under this Section 1 of Article
VII or otherwise. If a claim for indemnification or payment of expenses under
this Section 1 of Article VII is not paid in full within sixty (60) calendar
days after a written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action, the Corporation shall have the
burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
The rights conferred on any person by this Section 1 of Article VII
shall not be exclusive of any other rights which such person may have or
hereafter acquire under any statute, the Restated Certificate of Incorporation,
these By-laws, agreement, vote of stockholders or resolution of disinterested
directors or otherwise. The Corporation's obligation, if any, to indemnify any
person that was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit entity, as applicable.
Any amendment, modification or repeal of the foregoing provisions of
this Section 1 of Article VII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such amendment, modification or repeal.
SECTION 2. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VII shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent of the Corporation or other person indemnified hereunder and
shall
<PAGE>
<PAGE>
22
inure to the benefit of the heirs, executors and administrators of such person.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. Books and Records. The books and record of the
Corporation may be kept at such places within to time determine.
SECTION 2. Seal. The Board shall approve a corporate seal which
shall be in the form of a circle and shall bear the name of the Corporation, the
year of its incorporation and the word "Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be
determined and may be changed by resolution of the Board.
SECTION 4. Notices and Waivers Thereof. (a) Whenever written notice
is required by applicable law, the Restated Certificate of Incorporation of the
Corporation or these By-laws to be given to any director, member of a committee
or stockholder, such notice may be given personally, or by mail, or in the case
of directors or officers, by facsimile transmission, addressed to such address
as appears on the books of the Corporation. Any notice given by facsimile
transmission shall be deemed to have been given upon confirmation of receipt by
the addressee.
(b) Whenever any notice is required by applicable law, the Restated
Certificate of Incorporation of the Corporation, or these By-laws, to be given
to any director, member of a committee or stockholder, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting, present in person or represented by proxy,
shall constitute a waiver of notice of such meeting, except where the person
attends the meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors, or members of
a committee of directors needs to be specified in any written
<PAGE>
<PAGE>
23
waiver of notice unless so required by applicable law, the Restated Certificate
of Incorporation of the Corporation or these By-laws.
SECTION 5. Amendments. These By-laws may be amended only as set
forth in Article IX of the Restated Certificate of Incorporation of the
Corporation.
SECTION 6. Saving Clause. These By-laws are subject to the
provisions of the Restated Certificate of Incorporation of the Corporation and
applicable law. If any provision of these By-laws is inconsistent with the
Restated Certificate of Incorporation of the Corporation or the General
Corporation Law, such provision shall be invalid only to the extent of such
conflict, and such conflict shall not affect the validity of any other provision
of these By-laws.
<PAGE>
<PAGE>
Exhibit C
Form of Stockholders' Agreement of Newco
<PAGE>
<PAGE>
STOCKHOLDERS' AGREEMENT
AGREEMENT, dated as of ________, 1998, among TIME WARNER TELECOM
INC., a Delaware corporation (the "Company"), TIME WARNER COMPANIES, INC., a
Delaware corporation ("TWX"), AMERICAN TELEVISION AND COMMUNICATIONS
CORPORATION, a Delaware corporation ("ATC"), WARNER COMMUNICATIONS INC., a
Delaware corporation ("WCI"), TW/TAE, INC., a Delaware corporation ("TW/TAE"),
FIBRCOM HOLDINGS, L.P., a Delaware limited partnership that is owned by
TW/KBLCOM INC., a Delaware corporation ("TW/KBLCOM"), PARAGON COMMUNICATIONS, a
Colorado general partnership ("Paragon" and, together with TWX, ATC, WCI,
TWI/TAE and TW/KBLCOM, the "TW Stockholders"), MEDIAONE GROUP, INC. (formerly U
S WEST Multimedia Communications, Inc.), a Colorado corporation (the "MediaOne
Stockholder"), and ADVANCE/NEWHOUSE PARTNERSHIP, a New York general partnership
("A/N").
W I T N E S S E T H:
WHEREAS, the TW Stockholders, the MediaOne Stockholder and A/N own
all of the issued and outstanding shares of Class B Common Stock of the Company;
and
WHEREAS, the parties hereto desire to set forth herein their
agreement concerning the composition of the Board of Directors of the Company,
the ownership and transfer of the Common Stock of the Company and such other
matters as are set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person and shall include, with respect to A/N, any Newhouse Family
Member.
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<PAGE>
For purposes of this Agreement, neither the Company, nor any Person controlled
by the Company, shall be deemed to be an Affiliate of a Principal Stockholder.
"Agreement" shall mean this Stockholders' Agreement, as it may be
amended, restated, modified or supplemented from time to time in accordance with
its terms.
"beneficially own" (and beneficial ownership, owned beneficially and
other correlative terms) is defined in Rule 13d-3 promulgated under the Exchange
Act; provided, however, that a party shall not be deemed to beneficially own
securities merely as a result of the voting agreements set forth in this
Agreement.
"A/N Stockholder Group" shall mean A/N and any other Affiliates of
A/N that become parties to this Agreement pursuant to Section 3.3.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean any day (other than a day which is a
Saturday or Sunday) on which banks are permitted to be open for business in the
City of New York.
"CEO" shall mean the officer elected by the Board as the chief
executive officer of the Company.
"Certificate of Incorporation" shall mean, as of any date, the
Restated Certificate of Incorporation of the Company as in effect on such date.
"Class A Common Stock" shall mean the Class A Common Stock, par
value $0.01 per share, of the Company.
"Class B Common Stock" shall mean the Class B Common Stock, par
value $0.01 per share, of the Company.
"Common Stock" shall mean the Class A Common Stock and the Class B
Common Stock.
"control" shall mean possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person whether through the ownership of equity securities or voting securities,
by contract or otherwise.
2
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"Controlled Affiliate" shall mean, with respect to any Person as of
any relevant date, shall mean the Parent of such Person and each Subsidiary of
such Parent.
"Distribution" shall mean the distribution by a Parent to its
stockholders (whether by divided, redemption, exchange, merger or otherwise) of
the capital stock of a Subsidiary of such Parent the assets of which include all
of the shares of Common Stock beneficially owned by such Parent.
"Equity Securities" shall have the meaning ascribed to such term in
Rule 405 promulgated under the Securities Act, and in any event includes any
security having the attendant right to vote for directors or similar
representatives.
"Exchange Act" shall mean the Securities and Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Independent Director" shall mean a director who is neither employed
by nor affiliated with the Company or any Principal Stockholder.
"Indirect Transfer" shall mean a Transfer of common stock or other
equity interests of a Principal Stockholder or of a Person (other than the
Parent of such Principal Stockholder) of which such Principal Stockholder is a
direct or indirect Subsidiary to any Person after giving effect to which such
Principal Stockholder is no longer a Subsidiary of the Person that was its
Parent prior to such Transfer; provided, however, that a Distribution shall not
constitute an "Indirect Transfer."
"MediaOne" shall mean MediaOne Group, Inc. (formerly U S WEST,
Inc.), a Delaware corporation.
"MediaOne Stockholder Group" shall mean the MediaOne Stockholder and
any other Affiliates of MediaOne that become parties to this Agreement pursuant
to Section 3.3.
"Monetizing Securities" shall mean any security which is convertible
into or exchangeable for Class A Common Stock. As used herein, "Monetizing
Securities" offered by an Eligible Holder or its Parent shall include securities
offered by an independent trust established at the request of such Eligible
Holder or its Parent.
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"NASD" shall mean the National Association of Securities Dealers.
"Newhouse Family Member" shall mean any Person who is a lineal
descendant (including adoptees) of Meyer and Rose Newhouse, or any Person which
is wholly-owned directly or indirectly by one or more of such lineal
descendants, or the trustee of any trust, or a custodian under the Uniform Gift
to Minors Act or similar fiduciary, the primary beneficiaries of which (or the
primary income beneficiaries of which, in the case of a charitable remainder or
similar trust) include only one or more of such lineal descendants (provided
that such trust may grant a general or special power of appointment to any such
Person and may permit trust assets to be used to pay taxes, legacies and other
obligations of the trust or the estate of any such Person, payable by reason of
the death of such Person, as applicable) or the executor, administrator,
guardian or personal representative of the estate of any such lineal descendant.
"Nominating Committee" shall mean (i) so long as the Principal
Stockholder Groups have the right to designate a total of at least three Agreed
Nominees pursuant to Section 2.1(c), a committee of the Board comprised of all
of the members of the Board other than the CEO and the Independent Directors and
(ii) if the Principal Stockholder Groups have the right to designate a total of
less than three Agreed Nominees pursuant to Section 2.1(c), a committee of three
members of the Board comprised of all Agreed Nominees designated by the
Principal Stockholder Groups and such other director or directors as shall be
determined by majority vote of the Board.
"Ownership Percentage" shall mean, with respect to any Principal
Stockholder Group as of any date, the percentage determined by multiplying 100
by a fraction (x) the numerator of which is the number of shares of Common Stock
beneficially owned by the members of such Principal Stockholder Group as of such
date and (y) the denominator of which is the aggregate issued and outstanding
shares of Common Stock as of such date (rounded to the nearest one-hundredth (or
if there shall not be a nearest one-hundredth, to the next highest
one-hundredth).
"Parent" shall mean, with respect to any Person as of any relevant
date, such Person (i) if it is its own ultimate parent entity (within the
meaning of the Hart- Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder, as in effect on
the date hereof) or (ii) if it has no ultimate parent entity that is a
corporation or partnership; otherwise, "Parent" shall
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mean such ultimate (corporate or partnership) parent entity of such Person as so
defined.
"Person" shall mean an individual, corporation, limited liability
company, partnership, trust or unincorporated organization or a government or
any agency or political subdivision thereof.
"Principal Stockholder" shall mean each of the TW Stockholders, the
MediaOne Stockholder, A/N and any other Person that becomes a party to this
Agreement pursuant to Section 3.3, Section 3.4 or Section 3.5.
"Principal Stockholder Group" shall mean (i) the TW Stockholder
Group, (ii) the MediaOne Stockholder Group, (iii) the A/N Stockholder Group or
(iv) any other Principal Stockholder that becomes a party to this Agreement
pursuant to Section 3.4 or 3.5, together with any transferees of such Principal
Stockholder that become parties to this Agreement pursuant to Section 3.3.
"Public Offering" shall mean an offering of Class A Common Stock in
compliance with Section 5 of the Securities Act pursuant to a registration
statement on a form applicable to the sale of securities to the general public.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Subsidiary" of any Parent shall mean a Person (a)(i) more than
fifty percent of the voting power of the outstanding shares or securities of
which (representing the right to vote for the election of directors or other
managing authority) are owned or controlled, directly or indirectly through one
or more Subsidiaries, by such Parent or (ii) which does not have outstanding
shares or securities, but more than fifty percent of the ownership interests of
which representing the right to make the decisions for such Person are owned or
controlled, directly or indirectly through one or more Subsidiaries, by such
Parent and (b) that in either case is controlled by such Parent; provided,
however, that in each case, such Person shall be deemed to be a Subsidiary of
such Parent only for so long as the foregoing requirements remain satisfied.
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"Transfer" shall mean to directly offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option, or other arrangement or understanding (other than this
Agreement) with respect to or consent to the direct offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of.
Without limiting the foregoing, any redemption, purchase or other acquisition in
any manner (whether or not for consideration) by the Company of any Common Stock
shall be deemed to be a Transfer of such security. The terms "Transferred,"
"Transferee" and similar variations shall have correlative meanings.
"TWE" shall mean Time Warner Entertainment Company, L.P., a Delaware
limited partnership.
"TWE-A/N" shall mean Time Warner Entertainment-Advance/Newhouse
Partnership, a New York general partnership.
"TW Stockholder Group" shall mean the TW Stockholders and any other
Affiliates of TWX that become parties to this Agreement pursuant to Section 3.3.
1.2 Terms Defined Elsewhere in the Agreement. For purposes of this
Agreement, the following terms shall have the meanings set forth in the sections
indicated:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
A/N...............................................................recitals
Agreed Nominee......................................................2.1(b)
Company Notice......................................................4.1(a)
Demand Notice.......................................................4.1(a)
Demand Registrations................................................4.1(a)
Eligible Holder.................................................... 4.1(a)
First Refusal Electing Stockholder..................................3.4(b)
First Refusal Notice of Sale........................................3.4(a)
First Refusal Rejection Date........................................3.4(d)
First Refusal Shares................................................3.4(a)
First Refusal Stockholders..........................................3.4(a)
First Refusal Termination Date......................................3.4(f)
Incidental Registration ............................................4.2(a)
</TABLE>
6
<PAGE>
<PAGE>
<TABLE>
<S> <C>
Indemnified Party...................................................4.6(c)
Indemnifying Party..................................................4.6(c)
Inspectors..........................................................4.4(g)
Maximum Amount......................................................4.1(e)
MediaOne Stockholder..............................................recitals
Minimum Condition...................................................4.1(a)
Qualifying First Offer Amount.......................................3.4(a)
Records.............................................................4.4(g)
Reorganization Agreement..........................................recitals
Selling Stockholders................................................3.4(a)
Tag Notice of Sale..................................................3.5(e)
Tag Offer...........................................................3.5(a)
Tag Offeror.........................................................3.5(a)
Tag Shares..........................................................3.5(a)
Tag Stockholders....................................................3.5(a)
Third Party Offer...................................................3.4(a)
Third Party Offeror.................................................3.4(a)
TW Selling Stockholders.............................................3.5(a)
TW Stockholders...................................................recitals
TW Shares...........................................................3.5(a)
</TABLE>
1.2. Other Definitional Provisions. (a) The words "hereof",
"herein", and "hereunder" and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(b) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) The terms "dollars" and "$" shall mean United States dollars.
7
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ARTICLE II
BOARD OF DIRECTORS AND STOCKHOLDERS
2.1. Composition of the Board. (a) The Board shall initially consist
of 10 directors. In the event the right of any Principal Stockholder Group to
designate one or more Agreed Nominees pursuant to Section 2.1(c)(i) terminates,
the size of the Board shall be reduced by a number of directors equal to the
number of Agreed Nominees as to which such right to nominate has terminated;
provided, however, that in no circumstances shall the Board consist of less than
six directors. Individuals to serve on the Board shall be nominated in
accordance with this Agreement and nomination procedures established by the
Board, the Company's By-Laws and the rules and regulations of the SEC and the
principal stock exchange or association, if any, on which the Common Stock is
listed. Directors shall be elected in accordance with the Certificate of
Incorporation, the Company's By-Laws and the General Corporation Law of
Delaware.
(b) For purposes of this Agreement, an individual designated as a
director in accordance with Section 2.1(c) or Section 2.3 is referred to as an
"Agreed Nominee." No Principal Stockholder shall nominate any individual to
serve as a director of the Company except an individual designated as an Agreed
Nominee pursuant to the provisions of Section 2.1(c) or Section 2.3. A Principal
Stockholder may nominate for election as a director any individual designated by
its Principal Stockholder Group as an Agreed Nominee pursuant to Section
2.1(c)(i) or Section 2.3 or any individual designated as Agreed Nominee pursuant
to Section 2.1(c)(ii) if, in any such case, such individual was not duly
nominated in connection with such election by the Board or a nominating
committee of the Board pursuant to the Company's nomination procedures. Each
Principal Stockholder hereby agrees to vote (x) all shares of Common Stock held
of record or owned beneficially by such Principal Stockholder at the time of
such vote or action by written consent and (y) all shares of Common Stock as to
which such Principal Stockholder at the time of such vote or action by written
consent has voting control, in each case (A) in favor of the election to the
Board of the Agreed Nominees designated in accordance with Section 2.1(c) and
Section 2.3 and (B) against any other individual nominated to serve as a
director of the Company.
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(c) The Agreed Nominees shall be designated as follows:
(i) (A) So long as the TW Stockholder Group has an Ownership
Percentage which is greater than or equal to 18.88% (as adjusted from time to
time pursuant to Section 2.5), the TW Stockholder Group shall have the right to
designate three Agreed Nominees. If the TW Stockholder Group has an Ownership
Percentage which is less than 18.88% (as adjusted from time to time pursuant to
Section 2.5), the TW Stockholder Group shall have the right to designate a
number of Agreed Nominees determined in accordance with the following table
(with the percentages set forth in such table being adjusted from time to time
pursuant to Section 2.5).
<TABLE>
<CAPTION>
TW Stockholder Group Number of
Ownership Percentage Agreed Nominees
-------------------- ---------------
<S> <C>
14.16% to 18.87% 2
9.44% to 14.15% 1
less than 9.44% 0
</TABLE>
(B) So long as the TW Stockholder Group has an Ownership Percentage
which is greater than or equal to 18.88% (as adjusted from time to time pursuant
to Section 2.5), the MediaOne Stockholder Group shall have the right to
designate a number of Agreed Nominees determined in accordance with the
following table (with the percentages set forth in such table being adjusted
from time to time pursuant to Section 2.5).
<TABLE>
<CAPTION>
MediaOne
Stockholder Group Number of
Ownership Percentage Agreed Nominees
-------------------- ---------------
<S> <C>
9.44% or greater 3
less than 9.44% 0
</TABLE>
If the TW Stockholder Group has an Ownership Percentage which is less than
18.88% (as adjusted from time to time pursuant to Section 2.5), the MediaOne
Stockholder Group shall have the right to designate a number of Agreed Nominees
determined in accordance with the following table (with the percentages set
forth in such table being adjusted from time to time pursuant to Section 2.5).
9
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<TABLE>
<CAPTION>
MediaOne
Stockholder Group Number of
Ownership Percentage Agreed Nominees
-------------------- ---------------
<S> <C>
18.88% or greater 3
14.16% to 18.87% 2
9.44% to 14.15% 1
less than 9.44% 0
</TABLE>
(C) So long as the A/N Stockholder Group has an Ownership Percentage
which is greater than or equal to 9.44% (as adjusted from time to time pursuant
to Section 2.5), the A/N Stockholder Group shall have the right to designate one
Agreed Nominee. If the A/N Stockholder Group has an Ownership Percentage of less
than 9.44% (as adjusted from time to time pursuant to Section 2.5), the A/N
Stockholder Group shall not have the right to designate any Agreed Nominees.
(D) Except as set forth below, the members of a Principal
Stockholder Group shall not have the right to Transfer or effect an Indirect
Transfer of the rights of such Principal Stockholder Group to designate Agreed
Nominees (and any Indirect Transfer shall result in the termination of the
rights of such Principal Stockholder Group to designate Agreed Nominees). The
members of a Principal Stockholder Group shall have the right to Transfer (or
effect an Indirect Transfer of) all, but not less than all, of the rights of
such Principal Stockholder Group to designate Agreed Nominees pursuant to this
Section 2.1(c)(i) in connection with the Transfer (or Indirect Transfer) by such
Principal Stockholders of all of the shares of Class B Common Stock owned by
them pursuant to the provisions of Section 3.4 or 3.5. In such event, the
acquiring Principal Stockholder Group (and any future Principal Stockholder
Group to which such Principal Stockholder Group transfers its shares of Class B
Common Stock in accordance with the provisions of Section 3.4 or 3.5) shall have
the right to designate Agreed Nominees in the same circumstances as the
transferring Principal Stockholder Group had the right to designate Agreed
Nominees as set forth in Section 2.1(c)(i). It is acknowledged and agreed that
the Transfer of all or a portion of the capital stock of a Parent of a Principal
Stockholder Group (or the consummation of any other indirect transaction which
does not constitute an Indirect Transfer) shall not result in the termination of
the rights of such Principal Stockholder Group to designate Agreed Nominees.
(ii) The CEO shall be an Agreed Nominee.
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(iii) Two individuals nominated by the Nominating Committee shall be
Agreed Nominees if such individuals would be Independent Directors at the time
of their election and are approved by a majority of the members of the
Nominating Committee.
(iv) If the Principal Stockholder Groups do not have the right to
designate at least three Agreed Nominees pursuant to this Section 2.1(c), the
Nominating Committee shall have the right to designate a number of Agreed
Nominees equal to the difference between (x) three and (y) the number of Agreed
Nominees which the Principal Stockholder Groups have the right to designate at
such time (such Agreed Nominees being "Other Directors").
(d) The Principal Stockholder Groups agree that the initial Board
shall consist of the Agreed Nominees listed on Annex A hereto and shall cause
such Agreed Nominees to be elected as directors promptly following the date
hereof to serve until the next annual meeting of the stockholders of the
Company. Thereafter, Agreed Nominees shall be designated as described in this
Section 2.1 prior to each annual meeting of the stockholders of the Company in a
manner that is consistent with the rules and regulations of the SEC and the
principal stock exchange or association, if any, on which the Common Stock is
listed.
2.2. Removal of Directors. (a) Each Principal Stockholder hereby
agrees to vote or act by written consent with respect to (or cause to be voted
or acted upon by written consent) all shares of Common Stock held of record or
beneficially owned by it at the time of such vote or action by written consent
or as to which such Principal Stockholder has voting control at the time of such
vote or action by written consent to remove or cause the removal from office of
any director who was an Agreed Nominee designated by a Principal Stockholder
Group pursuant to Section 2.1(c)(i) or Section 2.3(c) if the Principal
Stockholder Group that so designated such Agreed Nominee requests such removal
by notice to the other Principal Stockholders.
(b) In the event the right of any Principal Stockholder Group to
designate one or more Agreed Nominees pursuant to Section 2.1(c)(i) terminates
or if the number of Agreed Nominees such Principal Stockholder Group has the
right to designate pursuant to Section 2.1(c)(i) decreases, the members of such
Principal Stockholder Group shall use their reasonable best efforts to cause
specified individual(s) comprising a corresponding number of Agreed Nominees
previously designated by such Principal Stockholder Group to resign from the
Board. In the event that such Principal Stockholder Group is unable to cause
such Agreed Nominees
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to promptly resign, each Principal Stockholder hereby agrees to vote or act by
written consent with respect to (or cause to be voted or acted upon by written
consent) all shares of Common Stock held of record or beneficially owned by it
at the time of such vote or action by written consent or as to which such
Principal Stockholder has voting control at the time of such vote or action by
written consent for the removal of such Agreed Nominees.
(c) Each Principal Stockholder hereby agrees to vote or act by
written consent with respect to (or cause to be voted or acted upon by written
consent) all shares of Common Stock held of record or beneficially owned by it
at the time of such vote or action by written consent or as to which such
Principal Stockholder has voting control at the time of such vote or action by
written consent for the removal of an individual designated as an Agreed Nominee
pursuant to Section 2.1(c)(ii) and thereafter elected as a director if such
individual ceases to serve as CEO for any reason. An Independent Director and
any Other Director may be removed in accordance with the Certificate of
Incorporation and the Company's By-laws.
2.3. Vacancies. If, as a result of death, disability, retirement,
resignation, removal (with or without cause) or otherwise there shall exist or
occur any vacancies on the Board, individuals to fill such vacancies shall be
nominated and elected in the manner provided in this Agreement and in the
Certificate of Incorporation and the Company's By-laws including at a special
meeting of the stockholders called by any one director. Agreed Nominees with
respect to an election to fill any such vacancies shall be designated as
follows:
(a) In the case of the CEO, the successor CEO shall be an Agreed
Nominee.
(b) In the case of an Independent Director, an individual nominated
in the manner described in Section 2.1(c)(iii) shall be an Agreed Nominee.
(c) In the case of an Other Director, an individual nominated in the
manner described in Section 2.1(c)(iv) shall be an Agreed Nominee.
(d) In all other cases, the Principal Stockholder Group or Principal
Stockholder Groups that, under Section 2.1(c), are then entitled to designate a
greater number of Agreed Nominees than the number of directors currently sitting
on the Board who are Agreed Nominees designated by such Principal Stockholder
Group or Principal Stockholder Groups shall designate Agreed Nominees for such
vacancies
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(with each such Principal Stockholder Group designating the number of additional
Agreed Nominees that each such Principal Stockholder Group is so entitled to
designate).
(e) In the event that such vacancies are not promptly filled by the
Board of Directors in the manner provided herein, each Principal Stockholder
hereby agrees to vote or act by written consent with respect to (or cause to be
voted or acted by written consent) all shares of Common Stock held of record or
beneficially owned by it at the time of such vote or action by written consent
or as to which such Principal Stockholder has voting control at the time of such
vote or action by written consent for the election of such Agreed Nominees
designated in accordance with the above provisions and for the removal of any
directors whose election is inconsistent with such provisions.
2.4. Conflicting Charter or By-law Provisions. Each Principal
Stockholder shall vote its shares of Common Stock, and shall take all other
actions necessary, to ensure that the Certificate of Incorporation and the
Company's By-laws facilitate and do not at any time conflict with the provisions
of this Agreement.
2.5. Certain Adjustments. In the event the Company from time to time
takes any action which affects the number of issued and outstanding shares of
Common Stock, including, without limitation, (i) primary issuances of shares of
Common Stock (including pursuant to the initial Public Offering of the Company),
(ii) repurchases or redemptions of shares of Common Stock and (iii) stock
splits, reverse stock splits, stock dividends of Common Stock (or any other
class or series of common stock) or similar subdivisions, reclassifications or
recapitalizations, then the percentages used in Section 2.1(c) immediately prior
to such action shall be appropriately adjusted to reflect the percentages that
would have been in effect on the date of this Agreement had such action been
taken on the date of this Agreement prior to the computation of such
percentages.
ARTICLE III
TRANSFERS AND CONVERSIONS
3.1. Transfers; Conversion. (a) Except as permitted by Section 3.3,
3.4 or 3.5, prior to any Transfer or Indirect Transfer by a Principal
Stockholder of shares of Class B Common Stock, such Principal Stockholder shall
be required to
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convert such shares of Class B Common Stock into shares of Class A Common Stock
in accordance with the procedures set forth in the Certificate of Incorporation.
There shall be no restrictions on the ability of a Principal Stockholder to (i)
convert shares of Class B Common Stock into shares of Class A Common Stock or
(ii) transfer shares of Class A Common Stock (including shares of Class A Common
Stock received upon conversion of shares of Class B Common Stock). Nothing set
forth in this Agreement shall prevent the transfer of all or a portion of the
capital stock of a Parent of a Principal Stockholder (or any other indirect
transaction which does not constitute an Indirect Transfer) or require the
conversion of the Class B Common Stock of such Principal Stockholder into Class
A Common Stock in connection therewith.
(b) Except as expressly permitted or required by this Agreement, (i)
each Principal Stockholder shall be the record and beneficial owner of such
shares of Class B Common Stock indicated in the Company's records as being owned
by such Principal Stockholder and (ii) no Principal Stockholder shall enter into
any agreement or arrangement, grant any proxies or powers of attorney or deposit
into a voting trust with or otherwise directly or indirectly transfer voting
power, with respect to the exercise of its rights to designate Agreed Nominees
or to request the removal of a director pursuant to this Agreement (other than
an agreement or arrangement solely among Principal Stockholders that are
included in the same Principal Stockholder Group); provided, however, that the
foregoing shall not be construed to limit the ability of a Principal Stockholder
to enter into agreements with respect to the voting of its shares of Common
Stock pending a sale of such stock permitted by Section 3.1(a).
(c) The Company agrees not to record any transfer of Class B Common
Stock by any Principal Stockholder in the stock transfer books of the Company
unless the transfer complies with the provisions of this Article III.
3.2. Legend. Each certificate evidencing outstanding shares of Class
B Common Stock held by a Principal Stockholder shall bear the following legends:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO, AND
TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF A
STOCKHOLDERS' AGREEMENT, DATED AS OF _____________, 1998, AMONG TIME
WARNER TELECOM INC. AND CERTAIN STOCKHOLDERS THEREOF. A COPY OF THIS
AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF TIME
WARNER TELECOM INC. AT 5700
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S. QUEBEC STREET, GREENWOOD VILLAGE, COLORADO 80111.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ACCORDINGLY MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OR AN EXEMPTION
THEREFROM.
All certificates evidencing shares of Class B Common Stock hereafter issued by
the Company to a Principal Stockholder shall bear the legends set forth above.
Upon termination of this Agreement and surrender to the Company for such purpose
of any certificates bearing the first legend set forth above, the Company shall
reissue such certificates to the owner thereof without such legend. The Company
shall reissue certificates without the second legend set forth above upon the
delivery to the Company of an opinion of counsel to the effect that such legend
is no longer required.
3.3. Transfers to Affiliates. Subject to applicable law, (i) any
Principal Stockholder other than A/N shall have the right to Transfer shares of
Class B Common Stock to its Parent or to any direct or indirect Subsidiary of
its Parent if the transferee assumes the obligations of the transferor under
this Agreement with respect to such shares and becomes a party to this Agreement
and (ii) A/N (and any member of the A/N Stockholder Group which is a transferee
of shares of Class B Common Stock pursuant to this Section 3.3(ii)) shall have
the right to Transfer shares of Class B Common Stock to a Newhouse Family Member
or to an Affiliate of A/N so long as at least 80% of the equity of such
Affiliate is owned directly or indirectly by one or more Newhouse Family Members
and the transferee assumes the obligations of the transferor under this
Agreement with respect to such shares and becomes a party to this Agreement. A
Principal Stockholder shall be permitted to Transfer shares of Class B Common
Stock pursuant to this Section 3.3 without converting such shares into Class A
Common Stock. Notwithstanding any Transfer permitted by this Section 3.3, the
transferor shall remain liable for the performance by any transferee of its
obligations hereunder if the transferee owns no material assets other than the
shares of Common Stock transferred.
3.4. Right of First Refusal. (a) If, other than pursuant to Section
3.3, all of the members of a Principal Stockholder Group (the "Selling
Stockholders") shall propose to sell to an unaffiliated third party (the "Third
Party Offeror") all but
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not less than all of the shares of Class B Common Stock beneficially owned by
the Selling Stockholders at such time (the "First Refusal Shares") or to effect
an Indirect Transfer of such shares (in which case the "First Refusal Shares"
shall be the shares of Class B Common Stock beneficially owned by the Selling
Stockholders) (such proposal being the "Third Party Offer"), the Selling
Stockholders shall deliver to each other Principal Stockholder (the "First
Refusal Stockholders") a notice (a "First Refusal Notice of Sale") containing a
copy of the Third Party Offer, the identity of the Third Party Offeror and an
offer to sell all but not less than all of the First Refusal Shares to the First
Refusal Stockholders on the following terms: (i) if the Third Party Offer
contemplates a purchase of the First Refusal Shares by the Third Party Offeror
for consideration consisting solely of cash, then the Selling Stockholders'
offer shall be to sell the First Refusal Shares for cash in an amount equal to
the purchase price specified in, and otherwise on the terms and conditions
contained in, the Third Party Offer, and (ii) if the Third Party Offer
contemplates an acquisition of the First Refusal Shares by the Third Party
Offeror for consideration any portion of which is not cash or if the Third Party
Offer contemplates an Indirect Transfer, then the Selling Stockholder's offer
shall be to sell the First Refusal Shares for cash in an amount equal to the
cash consideration plus the fair market value of the non-cash consideration (as
determined pursuant to Section 3.6) and otherwise on the terms and conditions
contained in the Third Party Offer. The First Refusal Notice of Sale shall
specify the price at which the First Refusal Shares are offered, as provided in
the preceding sentence, as well as other material terms of the Third Party
Offer. The First Refusal Stockholders shall enter into an appropriate
confidentiality agreement relating to the Third Party Offer on customary terms
if reasonably requested by the Selling Stockholders with respect to the Third
Party Offer.
(b) If a First Refusal Stockholder desires to accept all or any
portion of the offer set forth in a First Refusal Notice of Sale as to any part
of the First Refusal Shares, such First Refusal Stockholder (a "First Refusal
Electing Stockholder") shall, within 45 days of receipt of such First Refusal
Notice of Sale, notify the Selling Stockholders of its intention to acquire
First Refusal Shares and the number of such shares it desires to acquire, and
deliver a copy of such notice to each other First Refusal Stockholder.
(c) If the First Refusal Electing Stockholders desire to acquire, in
the aggregate, all of the First Refusal Shares, then the First Refusal Electing
Stockholders shall have the right to acquire all of the First Refusal Shares,
allocated among them as follows (or in such other manner as the First Refusal
Electing Stockholders may agree):
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(i) The First Refusal Shares shall be allocated among the
First Refusal Electing Stockholders pro rata (based on the number of shares of
Class B Common Stock owned by each of them) until all of the First Refusal
Shares have been allocated or any First Refusal Electing Stockholder has been
allocated the number of First Refusal Shares that it desires to acquire, as
specified in its notice to the Selling Stockholders, as it may have been amended
pursuant to Section 3.4(d).
(ii) If all First Refusal Shares are not allocated pursuant to
paragraph (i) or any prior application of this paragraph (ii), any First Refusal
Shares that were not allocated pursuant to paragraph (i) or any prior
application of this paragraph (ii) shall be allocated among the First Refusal
Electing Stockholders (other than any First Refusal Electing Stockholder that
has been allocated the number of First Refusal Shares that it desires to
acquire), as specified in its notice to the Selling Stockholders, as it may have
been amended pursuant to Section 3.4(d), pro rata (based on the number of shares
of Class B Common Stock owned by each of them). If all First Refusal Shares are
not allocated pursuant to paragraph (i) and any prior application of this
paragraph (ii), any First Refusal Shares that were not allocated pursuant to
paragraph (i) and any prior application of this paragraph (ii) shall be
allocated by continuing to apply this paragraph (ii) as required.
(d) If the First Refusal Electing Stockholders desire to acquire, in
the aggregate, less than all of the First Refusal Shares, then the Selling
Stockholders shall so notify the First Refusal Electing Stockholders. Each First
Refusal Electing Stockholder shall have the right, by written notice sent to the
Selling Stockholder (with a copy of such notice to each other Principal
Stockholder) within 10 days after its receipt of the notice from the Selling
Stockholders pursuant to this Section 3.4(d) to amend its notice to increase the
number of First Refusal Shares that it desires to purchase. If, after giving
effect to any amendment to any First Refusal Electing Stockholder's notice
pursuant to this Section 3.4(d), the First Refusal Electing Stockholders desire
to acquire, in the aggregate, all of the First Refusal Shares, then the First
Refusal Electing Stockholders shall have the right to acquire all the First
Refusal Shares, allocated among them in accordance with Section 3.4(c). If,
after giving effect to any amendment to any First Refusal Electing Stockholder's
notice pursuant to this Section 3.4(d), the First Refusal Electing Stockholders
desire to acquire, in the aggregate, less than all of the First Refusal Shares,
then the Selling Stockholders' offer of the First Refusal Shares shall be deemed
rejected as of the last day for a First Refusal Electing Stockholder to amend
its notice pursuant to this Section 3.4(d) (the "First Refusal Rejection Date").
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(e) Any purchase of First Refusal Shares by the First Refusal
Electing Stockholders pursuant to this Section 3.4 shall be subject to the
following terms and conditions:
(i) The Selling Stockholders shall represent and warrant that
the First Refusal Electing Stockholders will receive good and valid title to the
First Refusal Shares to be purchased by them, free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, limitations
on voting rights, charges and other encumbrances of any nature whatsoever except
as set forth in this Agreement and except for governmental, regulatory and other
third party consents and approvals required for transfers of shares of Common
Stock generally.
(ii) The closing of the purchase of First Refusal Shares by
the First Refusal Electing Stockholders shall be subject to the satisfaction of
following conditions:
(A) All applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder, shall have expired or been terminated.
(B) All governmental approvals and other third party
consents expressly required with respect to the transactions to be consummated
at such closing shall have been obtained, to the extent the failure to obtain
such approvals or consents would prevent the Selling Stockholders from
performing any of their material obligations under the transaction documents or
would result in any materially adverse change in, or materially adverse effect
on, the business, assets, results of operations, financial condition or
prospects of the Company and the Persons controlled by the Company taken as a
whole.
(C) There shall be no preliminary or permanent
injunction or other order by any court of competent jurisdiction restricting,
preventing or prohibiting the consummation of the transactions to be consummated
at such closing.
(D) The representation and warranty of the Selling
Stockholders contemplated by clause (i) of this sentence shall be true and
correct at the closing of such sale with the same force and effect as if then
made.
(iii) The closing of any purchase of First Refusal Shares by
the First Refusal Electing Stockholders pursuant to this Section 3.4 shall take
place on the date and at the place and time determined by the Selling
Stockholders and communicated to
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the First Refusal Electing Stockholders in writing, at least seven days prior to
such closing, but in any event within sixty days after the acceptance by the
First Refusal Electing Stockholders of the offer, subject to extension for a
maximum of one hundred eighty additional days to the extent required to obtain
all required governmental, regulatory and other third party consents and
approvals.
(f) If (i) the Selling Stockholders' offer of the First Refusal
Shares is rejected as provided in Section 3.4(d) or (ii) the purchase by the
First Refusal Stockholders of the First Refusal Shares is not consummated within
the period set forth in Section 3.4(e)(iii) for any reason other than an action
by the Selling Stockholders, then the Selling Stockholders shall have the right,
at any time during the 90-day period beginning on the First Refusal Rejection
Date or the day following the last day of the period set forth in Section
3.4(e)(iii) (the "First Refusal Termination Date"), as applicable, to enter into
a binding agreement to sell all of the First Refusal Shares to the Third Party
Offeror, or to effect the Indirect Transfer contemplated by the Third Party
Offer, as applicable, in either case on terms and conditions no less favorable
in the aggregate to the Selling Stockholders (and, in the case of an Indirect
Transfer, the Person receiving the consideration) than those set forth in the
Third Party Offer, and thereafter to sell all of the First Refusal Shares to the
Third Party Offeror or effect the Indirect Transfer, as applicable, pursuant to
such agreement. If the Selling Stockholders do not enter into such an agreement
during such 90-day period, or do not close the sale thereunder within sixty days
after the execution of such agreement (subject to extension for a maximum of one
hundred eighty additional days to the extent required to obtain all required
governmental, regulatory and other third party consents and approvals), the
procedure set forth above with respect to the First Refusal Notice of Sale shall
be repeated with respect to the Third Party Offer or any subsequent proposed
transfer of Class B Common Stock by the Selling Stockholders which is subject to
the provisions of this Section 3.4.
(g) In connection with a sale or Indirect Transfer of shares of
Class B Common Stock to a Third Party Offeror permitted by Section 3.4(f), (i)
the Selling Stockholders shall have the right to sell to the Third Party Offeror
all, but not less than all, of their shares of Class B Common Stock or permit
the Indirect Transfer, as applicable, without converting such shares to Class A
Common Stock, (ii) the Selling Stockholders shall have the right to transfer to
the Third Party Offeror all, but not less than all, of their rights to designate
Agreed Nominees pursuant to Section 2.1(c)(i) and (iii) (A) in the case of a
sale of the First Refusal Shares, the Third Party Offeror shall be required to
assume the obligations of the Selling Stockholders under this Agreement
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with respect to such shares and become a party to this Agreement and (B) in the
case of an Indirect Transfer, the Third Party Offeror, upon taking control of
the Selling Stockholders, shall be required to cause the Selling Stockholders to
confirm in writing the continuing validity and effectiveness of their
obligations under this Agreement.
(h) In furtherance of the rights set forth in this Section 3.4, the
Company agrees that, on reasonable notice following the delivery of a First
Refusal Notice of Sale, at reasonable times and without interfering with the
business or operations of the Company, it will assist the Selling Stockholders
in obtaining all necessary consents to any disposition of the shares to be sold.
3.5. Tag-Along Rights. (a) If the members of the TW Stockholder
Group (the "TW Selling Stockholders") propose to sell to an unaffiliated third
party (the "Tag Offeror") (i) all but not less than all of the shares of Class B
Common Stock and (ii) shares of Class A Common Stock beneficially owned by them
which collectively represent greater than 33% of the issued and outstanding
shares of Common Stock (the "TW Shares) or to effect an Indirect Transfer of
such shares (in which case the "TW Shares" shall be all the shares of Common
Stock owned by the TW Selling Stockholders) (such proposed sale being a "Tag
Offer"), then, as a condition to effecting such sale or Indirect Transfer, the
TW Selling Stockholders shall cause proper provisions to be made so that each
other Principal Stockholder (each, a "Tag Stockholder") shall have the right to
participate in such Tag Offer and sell to the Tag Offeror a number of shares of
Common Stock owned by it equal to the product of (x) the number of shares of
Common Stock owned by such Tag Stockholder multiplied by (y) a fraction, the
numerator of which is the number of TW Shares and the denominator of which is
the number of issued and outstanding shares of Common Stock owned by the TW
Stockholder Group (collectively, with respect to all Tag Stockholders, the "Tag
Shares"); provided, however, that if a Tag Stockholder owns both shares of Class
B Common Stock and Class A Common Stock, the shares of Class B Common Stock
owned by such Tag Stockholder shall be included in the Tag Shares prior to the
inclusion of any shares of Class A Common Stock owned by such Tag Stockholder.
In connection with a Tag Offer, the TW Selling Stockholders shall cause the Tag
Offeror to deliver to each Tag Stockholder a notice (a "Tag Notice of Sale")
containing a copy of the Tag Offer, the identity of the Tag Offeror and an offer
to purchase all of the Tag Shares owned by such Tag Stockholder on the same
terms and conditions (including as to price and form of consideration) as the
terms and conditions contained in the Tag Offer. The Tag Notice of Sale shall
specify the price at which the Tag Shares are to be purchased, as provided in
the preceding sentence. If the Tag Offer also constitutes a Third Party Offer
pursuant to Section 3.4, the TW
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Selling Stockholders shall deliver the Tag Notice of Sale at the same time that
the First Refusal Notice of Sale is delivered. The Tag Stockholders shall enter
into an appropriate confidentiality agreement relating to the Tag Offer on
customary terms if reasonably requested by the TW Selling Stockholders with
respect to the Tag Offer. If the Tag Offer contemplates an Indirect Transfer,
the Tag Offeror shall offer the Tag Stockholders the option of selling the Tag
Shares pursuant to an Indirect Transfer.
(b) If a Tag Stockholder desires to accept the offer set forth in a
Tag Notice of Sale as to all of the Tag Shares beneficially owned by such Tag
Stockholder, such Tag Stockholder shall, within 45 days of receipt of such Tag
Notice of Sale, notify the Tag Offeror and the TW Selling Stockholders of its
intention to sell all but not less than all of its Tag Shares to the Tag
Offeror, and deliver a copy of such notice to each other Tag Stockholder. If a
Tag Stockholder desires to sell its Tag Shares, then the Tag Offeror shall
purchase all of such Tag Shares together with the TW Shares pursuant to Section
3.5(c).
(c) The TW Selling Stockholders shall have the right, at any time
during the 90-day period beginning on the day following the end of the 45-day
period referred to in Section 3.5(b), to enter into a binding agreement to sell
all but not less than all of the TW Shares to the Tag Offeror, or to effect the
Indirect Transfer contemplated by the Tag Offer, as applicable, in either case
on terms and conditions no less favorable in the aggregate to the TW Selling
Stockholders (and, in the case of an Indirect Transfer, the Person receiving the
consideration) than those set forth in the Tag Offer. The Tag Stockholders
electing to sell their Tag Shares pursuant to Section 3.5(b) shall become party
to such agreement and agree to sell all but not less than all of their Tag
Shares to the Tag Offeror (or to effect an Indirect Transfer, as applicable)
pursuant thereto on the terms and conditions set forth therein. In connection
with such agreement, each Tag Stockholder which is a member of a Principal
Stockholder Group which has the right to designate Agreed Nominees pursuant to
Section 2.1(c) at such time shall be required to make the same representations,
warranties and agreements, including as to indemnification, as the TW Selling
Stockholders and each Tag Stockholder which is a member of a Principal
Stockholder Group which does not have the right to designate Agreed Nominees
pursuant to Section 2.1(c) at such time shall not be required to make any
representations or warranties and agreements, including as to indemnification,
other than representations and warranties (and related indemnification) as to
title to the Tag Shares to be transferred and as to organization and due
execution and delivery and enforceability of the transfer agreements (and, in
the case of an Indirect Transfer, such other representations and warranties
regarding the entity the equity of which is being sold as are comparable to the
foregoing
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representations). The TW Stockholders and Tag Stockholders shall thereafter have
the right to sell such TW Shares and Tag Shares to the Tag Offeror and/or effect
the Indirect Transfers, as applicable, pursuant to such agreement. If the TW
Selling Stockholders do not enter into such an agreement during such 90-day
period, or do not close the sale thereunder within sixty days after the
execution of such agreement (subject to extension for delays caused by actions
by the Tag Stockholders and to extension for a maximum of one hundred eighty
additional days to the extent required to obtain all required governmental,
regulatory and other third party consents and approvals), the procedure set
forth above with respect to the Tag Notice of Sale shall be repeated with
respect to the Tag Offer or any subsequent proposed transfer of Common Stock by
the TW Selling Stockholders which is subject to the provisions of this Section
3.5.
(d) In connection with a sale or Indirect Transfers of shares of
Class B Common Stock to a Tag Offeror pursuant to Section 3.5(d), (i) the TW
Selling Stockholders and the Tag Stockholders shall have the right to sell to
the Tag Offeror all but not less than all of their shares of Class B Common
Stock or permit the Indirect Transfers, as applicable, without converting such
shares to Class A Common Stock, (ii) (A) when the TW Selling Stockholders sell
all of the shares of Class B Common Stock owned by them to the Tag Offeror, the
TW Selling Stockholders shall have the right to transfer to the Tag Offeror
their rights to designate Agreed Nominees pursuant to Section 2.1(c)(i) and (B)
when all of the members of any Principal Stockholder Group other than the TW
Stockholder Group sell all of the shares of Class B Common Stock owned by them
to the Tag Offeror, such Tag Stockholders shall have the right to transfer to
the Tag Offeror their rights to designate Agreed Nominees pursuant to Section
2.1(c)(i) and (iii) (A) in the case of a sale of the TW Shares or Tag Shares,
the Third Party Offeror shall be required to assume the obligations of the TW
Selling Stockholders and the Tag Stockholders under this Agreement with respect
to such shares and become a party to this Agreement and (B) in the case of an
Indirect Transfer, the Tag Offeror, upon taking control of the TW Selling
Stockholders or Tag Stockholders, as applicable, shall be required to cause the
TW Selling Stockholders or Tag Stockholders to confirm in writing the continuing
validity and effectiveness of their obligations under this Agreement.
(e) In furtherance of the rights set forth in this Section 3.5, the
Company agrees that, on reasonable notice following the delivery of a Tag Notice
of Sale, at reasonable times and without interfering with the business or
operations of the Company, it will assist the TW Selling Stockholders and the
Tag Stockholders in obtaining all necessary consents to any disposition of the
shares to be sold. In the
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event the TW Selling Stockholders transfer the TW Shares to the Tag Offeror, the
provisions of this Section 3.5 shall apply to any subsequent transfer by the Tag
Offeror and/or any of its future transferees of shares of Class B Common Stock
which represent greater than 33% of the voting power of the outstanding Common
Stock as if any such transferors were TW Selling Stockholders.
3.6. Valuation of Consideration. Before submitting a First Refusal
Notice of Sale pursuant to Section 3.4(a) in response to a Third Party Offer
that contemplates (i) an acquisition of the First Refusal Shares by the Third
Party Offeror for consideration any portion of which is not cash or (ii) an
Indirect Transfer, the Selling Stockholders and the other Principal Stockholders
shall cause the fair market value of the non-cash consideration to be determined
by an investment banking firm in the following manner. The Selling Stockholders
shall deliver to each other Principal Stockholder a notice stating that the
Selling Stockholders intend to deliver a First Refusal Notice of Sale. The
Selling Stockholders and the Principal Stockholder (other than the Selling
Stockholders) that, together with its Controlled Affiliates, owns the greatest
number of shares of Class B Common Stock, shall each select an investment
banking firm and shall instruct the investment banking firms so selected to
select a third investment banking firm within 30 days following the delivery of
such notice by the Selling Stockholders. The investment banking firm selected in
accordance with the foregoing procedure shall submit a written report setting
forth its determination of its appraisal of the First Refusal Shares no later
than 45 days after the date of its selection. The fees, costs and expenses of
the investment banking firms so selected shall be borne by the Selling
Stockholders. In determining the fair market value of the non-cash
consideration, if applicable, the investment banking firm retained pursuant to
this Section 3.6 shall: (A) assume that the fair market value of the applicable
non-cash consideration asset is the price at which such asset would change hands
between a willing buyer and a willing seller, neither being under any compulsion
to buy or sell and each having reasonable knowledge of all relevant facts; (B)
assume that the applicable non-cash consideration asset would be sold for cash;
(C) take into account any applicable control premium relating to the shares to
be sold; and (D) use valuation techniques then prevailing in the relevant
industry. If the Third Party Offer contemplates a sale of First Refusal Shares
or an Indirect Transfer in exchange for tax-deferred consideration, the fair
market value of the First Refusal Shares shall not be grossed-up to the extent
of any taxes which shall be payable by the Selling Stockholders as a result of a
sale of the First Refusal Shares to the First Refusal Electing Stockholders;
provided, however, that the parties agree to negotiate in good faith to
structure any such transaction in a tax-efficient manner.
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3.7. Transferee Principal Stockholders; Other Parties to Agreement.
(a) A Principal Stockholder shall remain a Principal Stockholder for so long as
it owns any Class B Common Stock regardless of the percentage of Class B Common
Stock it may own from time to time. Any transferee of a Principal Stockholder
required to become a party to this Agreement pursuant to Section 3.3, Section
3.4(g) or Section 3.5(d) shall become a Principal Stockholder by delivering to
the Company (which shall promptly send notice thereof to the Principal
Stockholders) a counterpart signature page to this Agreement. No further action
by the Company or the Principal Stockholders shall be required for such person
to become a party to this Agreement. Following any Indirect Transfer permitted
by this Agreement, the Principal Stockholder with respect to which such Indirect
Transfer has occurred shall confirm to the other Principal Stockholders in
writing the continuing validity and effectiveness of its obligations under this
Agreement.
(b) If any Principal Stockholder Group transfers to any Person
shares of Class A Common Stock which represent at least 5% of the shares of
Common Stock then outstanding, such Person shall have the right to become a
party to this Agreement with respect to the registration rights granted under
Article IV only.
3.8. Cooperation. (a) The Company shall use commercially reasonable
efforts to cooperate with any transferring Principal Stockholder in connection
with its efforts to Transfer any interest in its Common Stock in accordance with
the provisions of this Article III, including making qualified personnel
available for attending hearings and meetings respecting any consents, approvals
and authorizations required for such Transfer and, at the request of the
transferring Principal Stockholder, making all filings with, and giving all
notices to, third parties and governmental authorities that may be necessary or
reasonably required to be made or given by the Company in order to effect the
contemplated Transfers. Each Principal Stockholder also agrees to use
commercially reasonable efforts to cooperate with any transferring Principal
Stockholder by making any filings with, and giving notices to, third parties and
governmental authorities that may be necessary or reasonably required to be made
or given by such Principal Stockholder in connection with such contemplated
Transfer. Subject to the other provisions of this Section, no Principal
Stockholder or the Company shall take any action to delay, impair or impede the
receipt of any required consents, approvals or authorizations. "Commercially
reasonable efforts" as used in this Section shall not require any party to
undertake extraordinary or unreasonable measures to obtain any consents,
approvals or other authorizations, including requiring such party to make any
material expenditures (other than normal filing fees or the like)
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or to accept any material changes in the terms of the contract, license or other
instrument for which a consent, approval or authorization is sought.
(b) Without limiting the foregoing and notwithstanding anything to
the contrary in this Agreement, no party to this Agreement shall be required to
agree to any prohibition, limitation or other requirements, including but not
limited to (i) any prohibition or limitation on the ownership or operation by
such party or any of its Subsidiaries or Affiliates of any portion of the
business or assets of such party or any of its Subsidiaries or Affiliates, or
any prohibition or limitation that would compel such party or any of its
Subsidiaries or Affiliates to dispose of or hold separate any portion of the
business or assets of such party or any of its Subsidiaries or Affiliates, (ii)
any prohibition or limitation on the rights of such party to acquire, own or
enter into any businesses or lines of businesses, (iii) any prohibition or
limitation on the ability of such party to acquire or hold, or exercise full
rights of ownership of, any shares of capital stock of the Company, including
the right to vote the capital stock of the Company acquired by it on all matters
properly presented to the stockholders of the Company, (iv) any prohibition or
limitation on such party or any of its Subsidiaries or Affiliates from
effectively controlling in any material respect the business or operations of
such party or any of its Subsidiaries or Affiliates or (v) any change in any
respect the governance of the Company from that set forth in the Certificate of
Incorporation, the Company's By-Laws and this Agreement, any change in such
party's rights under this Agreement or any limitations on the ability of such
party to exercise any such rights.
ARTICLE IV
REGISTRATION RIGHTS
4.1. Demand Registration. (a) At any time after the date which is
180 days after the closing of the Company's initial Public Offering, any
stockholder of the Company which is a party to this Agreement (an "Eligible
Holder") may request that the Company effect the registration under the
Securities Act of all or part of its shares of Class A Common Stock (including
shares of Class A Common Stock issuable upon conversion of shares of Class B
Common Stock held by it) for sale in the manner specified in such request. A
stockholder that previously owned shares of Class B Common Stock but ceased to
be a Principal Stockholder upon the conversion of its shares of Class B Common
Stock to shares of Class A Common Stock shall continue to be a party to this
Agreement so long as it owns any shares of Class A Common
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Stock and therefore shall be an Eligible Holder. Such request shall be made by
furnishing written notice thereof (a "Demand Notice") to the Company, setting
forth the number of shares of Class A Common Stock requested to be registered
and such Eligible Holder's intended method of distribution. Within ten days
after receipt of any Demand Notice, the Company shall give written notice of
such Demand Notice to all other Eligible Holders. Following receipt of such
notice from the Company (the "Company Notice"), each such other Eligible Holder
shall have the right to give the Company a written request to register any or
all of such Eligible Holder's Class A Common Stock (including shares of Class A
Common Stock issuable upon conversion of shares of Class B Common Stock held by
it) in the registration described in the Company Notice, provided that such
written request is given within fifteen days after the date on which the Company
Notice is given (with such request stating (i) the number of shares of Class A
Common Stock to be so included, (ii) such other Eligible Holder's intended
method of distribution of such shares and (iii) any other information that the
Company Notice reasonably requests be included in such notice from such Eligible
Holder). All registrations requested pursuant to this Section 4.1(a) are
referred to herein as "Demand Registrations." The Company shall not be required
to effect a Demand Registration unless the aggregate number of shares of Class A
Common Stock demanded to be so registered is at least one percent of the number
of shares of Class A Common Stock then outstanding (the "Minimum Condition"). If
the Minimum Condition is met, then, subject to Sections 4.1(c), 4.1(e) and
4.1(f) below, the Company shall, as soon as practicable, file with the SEC and
use its best efforts to cause to become effective as promptly as practicable, a
Registration Statement which shall cover the shares of Class A Common Stock
requested to be registered pursuant to such Demand Notice and Company Notices.
(b) Once a Demand Registration has been effected, the Company shall
not be obligated to register Class A Common Stock pursuant to another Demand
Registration prior to the expiration of 180 days from the date on which the
previous Demand Registration was declared effective; provided, however, that a
registration will not count as a Demand Registration unless it has become
effective, and such effectiveness has been maintained under the Securities Act
(and not subject to any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason) for the period
specified in Section 4.4(a).
(c) The Company may postpone for a reasonable period (not to exceed
two months) after its receipt of a Demand Notice the filing of a Registration
Statement for a Demand Registration if the Board reasonably believes that such
Demand Registration would have a material adverse effect on any proposal or plan
by
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the Company or any of its Subsidiaries to engage in any financing, acquisition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or other significant transaction and notifies the
Eligible Holders in writing of such postponement; provided however, that the
Company shall have the right to so postpone a filing only one time during any
period of twelve consecutive months.
(d) In the event that the Demand Notice and the notices in response
to the Company Notices for a Demand Registration contemplate more than one
intended method of distribution by the Eligible Holders, then the Company will
use its best efforts to include in the Registration Statement for such Demand
Registration multiple prospectuses and/or plans of distributions covering each
intended method of distribution. The Company acknowledges and agrees that an
intended method of distribution of an Eligible Holder may include the
registration of shares of Class A Common Stock in connection with an
underwritten offering of Monetizing Securities of such Eligible Holder or its
Parent. If, in the event of such an underwritten offering of Monetizing
Securities, the other Eligible Holders desire to offer their own Monetizing
Securities or to sell shares of Class A Common Stock for cash as part of such
underwritten offering, the Eligible Holders will negotiate in good faith, in
consultation with the managing underwriter for the offering, to include such
securities to the extent practicable.
(e) If a Demand Registration involves an underwriting of shares of
Class A Common Stock for cash (or, to the extent permitted by Section 4.1(d), an
underwriting of Monetizing Securities of one or more Eligible Holders or their
Parents or shares of Class A Common Stock for cash and Monetizing Securities of
one or more Eligible Holders or their Parents) and the managing underwriter
advises the Company and the Eligible Holders in writing that marketing factors
require a limitation of the number of shares of Class A Common Stock (and/or
Monetizing Securities) to be underwritten, then the managing underwriter may
exclude shares (and/or Monetizing Securities) requested to be included in such
Demand Registration from such underwriting. If the managing underwriter imposes
a limit on the number of shares of Class A Common Stock (and/or Monetizing
Securities) to be included in such underwriting, then each Eligible Holder shall
have the right to include in such underwriting up to its pro rata share (based
on the ratio that the number of shares of Class A Common Stock (and/or
Monetizing Securities) proposed to be sold by each Eligible Holder bears to the
total numbers of shares of Class A Common Stock (and/or Monetizing Securities)
proposed to be sold by all Eligible Holders who have elected to participate in
the Demand Registration) of the maximum number of shares (and/or
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Monetizing Securities) permitted by the managing underwriter to be included in
the Demand Registration (the "Maximum Amount").
(f) If, in connection with an underwriting involving the offering of
shares of Class A Common Stock for cash, the managing underwriter has not
limited the number of shares of Class A Common Stock (and/or Monetizing
Securities) to be underwritten or if the number of shares (and/or Monetizing
Securities) which the Eligible Holders have requested to be registered is less
than the Maximum Amount, then the Company may include shares of Class A Common
Stock for its own account or for the account of others in such underwriting if
the managing underwriter so agrees and if the number of shares of Class A Common
Stock (and/or Monetizing Securities) which would otherwise have been included in
such underwriting by Eligible Holders will not thereby be limited. The inclusion
of such shares shall be on the same terms as the offering for cash of shares of
Class A Common Stock by the Eligible Holders. In the event that the managing
underwriter excludes some of the securities to be registered, the securities to
be sold for the account of the Company and any other holders shall be excluded
in their entirety prior to the exclusion of any shares of Class A Common Stock
(and/or Monetizing Securities) of the Eligible Holders.
4.2. Incidental Registration. (a) If the Company proposes to
register any shares of Class A Common Stock under the Securities Act (other than
a registration (i) on Form S-8 or S-4 or any successor or similar forms, (ii)
relating to shares of Common Stock issuable upon exercise of employee share
options or in connection with any employee benefit or similar plan of the
Company or (iii) in connection with a direct or indirect acquisition by the
Company of another Person or any transaction with respect to which Rule 145 (or
any successor provision) under the Securities Act applies), whether or not for
sale for its own account, it will each such time, subject to the provisions of
Section 4.2(b) hereof, give prompt written notice at least 20 days prior to the
anticipated filing date of the Registration Statement relating to such
registration to each Eligible Holder, which notice shall set forth such Eligible
Holder's rights under this Section 4.2 and shall offer all Eligible Holders the
opportunity to include in such Registration Statement such number of shares of
Class A Common Stock as each such Eligible Holder may request (an "Incidental
Registration"); provided, however, that the provisions of Section 4.1 hereof and
not this Section 4.2 shall apply to the ability of any Eligible Holder to
participate in any registration being effected pursuant to a Demand Registration
contemplated by Section 4.1 hereof. Upon the written request of any such
Eligible Holder made within ten days after the receipt of notice from the
Company (which request shall specify the number of shares of Class A Common
Stock intended to be disposed of by such
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Eligible Holder), the Company will use its best efforts to effect the
registration under the Securities Act of all of the Class A Common Stock that
the Company has been so requested to register by such Eligible Holders;
provided, however, that (A) if such registration involves an underwriting, all
such Eligible Holders requesting to be included in the Company's registration
must sell their shares of Class A Common Stock to the underwriters selected as
provided in Section 4.4(f) hereof on the same terms and conditions as apply to
the Company and (B) if, at any time after giving written notice of its intention
to register any shares pursuant to this Section 4.2(a) and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register such
shares, the Company shall give written notice to all such Eligible Holders and,
thereupon, shall be relieved of its obligation to register any shares of Class A
Common Stock owned by the Eligible Holders (without prejudice, however, to
rights of any of the Eligible Holders under Section 4.1 hereof). No registration
effected under this Section 4.2 shall relieve the Company of its obligations to
effect a Demand Registration to the extent required by Section 4.1 hereof.
(b) If an Incidental Registration pursuant to this Section 4.2
involves an underwriting and the managing underwriter thereof advises the
Company and the Eligible Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter may exclude shares requested to be included in such Incidental
Registration from such underwriting. If the managing underwriter imposes a limit
on the number of shares of Common Stock to be included in such underwriting,
then there shall be included in the offering, (i) first, all shares of Common
Stock proposed by the Company to be sold for its account or the account of any
other party not covered by this Agreement that triggers registration rights and
(ii) second, that number of shares of Class A Common Stock requested to be
included in such underwriting by the Eligible Holders, on a pro rata basis
(based on the ratio that the number of shares of Class A Common Stock proposed
to be sold by each Eligible Holder bears to the total numbers of shares of Class
A Common Stock proposed to be sold by all Eligible Holders who have elected to
participate in the Incidental Registration).
4.3. Lockup Agreements. In the event of an underwritten offering
pursuant to Section 4.1 or Section 4.2, each Eligible Holder agrees not to
effect any public sale or other distribution of Class A Common Stock during the
seven days prior to the effective date of such registration or during the
ninety-day period (or such lesser period as is agreed upon in connection with
such underwritten offering) beginning on such effective date (except in either
case as part of such underwriting), unless the
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managing underwriter otherwise agrees. The Company agrees not to effect any
public sale or other distribution of Class A Common Stock during the seven days
prior to the effective date of any registration or during the ninety-day period
beginning on such effective date (except in either case as part of such
underwriting or pursuant to registrations on Form S-8 or any successor form),
unless the managing underwriter otherwise agrees.
4.4. Registration Procedures. Whenever Eligible Holders request that
any shares of Class A Common Stock be registered pursuant to Section 4.1 or 4.2
hereof, the Company will, subject to the provisions of such Sections, use its
best efforts to effect the registration and the sale of such shares in
accordance with the intended method of distribution thereof and the applicable
provisions of Section 4.1 or 4.2, as appropriate, as promptly as practicable,
and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the distribution of the shares of Class A Common Stock to
be registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to
become and remain effective for a period of not less than 120 days. In the event
that an Eligible Holder is to effect an offering of Monetizing Securities which
requires an effective Registration Statement to cover shares of Class A Common
Stock which may be transferred by such Eligible Holder or its Parent to holders
of such Monetizing Securities upon the exchange or conversion of such Monetizing
Securities during the term of such Monetizing Securities, then the Company shall
use its best efforts to cause the Registration Statement filed in connection
with such offering to remain effective until the maturity of such Monetizing
Securities; provided, however, that the Company shall have the right to suspend
the effectiveness of such Registration Statement for a reasonable period (not to
exceed two months) during such period if the Board reasonably believes that the
continued effectiveness of such Registration Statement would have a material
adverse effect on any proposal or plan by the Company or any of its Subsidiaries
to engage in any merger, consolidation, tender offer or other significant
transaction (other than in the ordinary course of business) and notifies the
Eligible Holders in writing of such suspension (provided that the Company shall
have the right to so suspend such effectiveness only one time during any period
of twelve consecutive months).
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(b) The Company will, if requested, prior to filing a Registration
Statement or prospectus or any amendment or supplement thereto, furnish to each
Eligible Holder and each underwriter, if any, of the shares of Class A Common
Stock covered by such Registration Statement copies of such Registration
Statement as proposed to be filed, and thereafter the Company will furnish to
such Eligible Holder and underwriter, if any, such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents as such Eligible Holder or
underwriter may reasonably request in order to facilitate the disposition of the
Class A Common Stock owned by such Eligible Holder.
(c) After the filing of the Registration Statement, the Company will
promptly notify each Eligible Holder holding Class A Common Stock covered by
such Registration Statement of any stop order, injunction or other order or
requirement of the SEC and take all reasonable actions required to prevent the
entry of such stop order, injunction or other order or requirement or to remove
or revoke it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Class A Common Stock covered by such registration statement under such other
securities or blue sky laws of such jurisdictions in the United States as any
Eligible Holder holding such Class A Common Stock reasonably (in light of such
Eligible Holders's intended method of distribution) requests and (ii) cause such
shares of Class A Common Stock to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Eligible Holder to
consummate the disposition of the Class A Common Stock owned by such Eligible
Holder; provided that the Company will not be required to (A) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph (d), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(e) The Company will immediately notify each Eligible Holder holding
such shares of Class A Common Stock, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Class A
Common Stock, such
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prospectus will contain full, true and plain disclosure of all material facts
relating to the securities covered thereby and will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances in which they were made and promptly prepare and make
available to each such Eligible Holder any such supplement or amendment.
(f) In connection with any underwritten offering pursuant to a
Demand Registration, (i) the Principal Stockholder Group holding the largest
number of the shares of Class A Common Stock to be included in such offering by
all Principal Stockholder Groups shall have the right to select the lead
managing underwriter for such offering, so long as such lead managing
underwriter shall be reasonably satisfactory to the Company, (ii) the Principal
Stockholder Group holding the second largest number of the shares of Class A
Common Stock to be included in such offering by all Principal Stockholder Groups
shall have the right to select the co- lead managing underwriter for such
offering, so long as such co-lead managing underwriter shall be reasonably
satisfactory to the Company, (iii) each other Principal Stockholder Group
participating in the offering shall have the right to select one co- managing
underwriter for such offering, so long as each such co-managing underwriter
shall be reasonably satisfactory to the Company and (iv) the Company shall have
the right to select one co-managing underwriter for such offering, so long as
such co- managing underwriter shall be reasonably satisfactory to Eligible
Holders holding a majority of the shares of Class A Common Stock to be included
in such offering by Eligible Holders. In connection with any underwritten
offering pursuant to an Incidental Registration, (i) the Company shall have the
right to select the lead managing underwriter for such offering, so long as such
managing underwriter shall be reasonably satisfactory to Eligible Holders
holding a majority of the shares of Class A Common Stock to be included in such
offering by Eligible Holders and (ii) each Principal Stockholder Group
participating in such offering shall have the right to select one co-managing
underwriter for such offering, so long as each such co-managing underwriter
shall be reasonably satisfactory to the Company. The Company will enter into
customary agreements (including an underwriting agreement or indemnity agreement
in customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of shares in any such
underwriting.
(g) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, the Company will make available for
inspection by any Eligible Holder and any underwriter participating in any
disposition pursuant to a Registration Statement being filed by the Company
pursuant to this Article IV and
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any attorney, accountant or other professional retained by any such Eligible
Holder or underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such Registration Statement. Records that the
Company determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such Registration Statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Eligible Holder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public. Each Eligible
Holder further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its own expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Eligible Holder and to
each such underwriter, if any, a signed counterpart, addressed to such
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public or
chartered accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters, as the case may be, as
the Eligible Holders or the managing underwriter, if any, reasonably request.
(i) The Company shall use its best efforts to cause all the Class A
Common Stock to be included in any registration under this Article IV to be
listed on the principal securities exchange or included in the over-the-counter
market on which similar securities issued by the Company are then listed or
quoted, as the case may be, or eligible for listing or quotation, or on The
Nasdaq National Market or such other national securities exchange as the Board
may designate.
(j) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC including, without limitation,
making available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of 12 months, beginning within three months
after the
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effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(k) The Company shall make available its executive officers for a
reasonable period of time to participate in road show or other investor
presentations in connection with any underwritten offering of Class A Common
Stock or Monetizing Securities by Eligible Holders.
(l) The Company may require, as a condition to including any
Eligible Holder's Class A Common Stock in any registration under this Article
IV, each such Eligible Holder to promptly furnish in writing to the Company such
information regarding such Eligible Holder, the distribution of the Class A
Common Stock and such other information as the Company may from time to time
reasonably request in connection with such registration in order to comply with
applicable disclosure requirements. The Company shall permit any Eligible
Holder, which holder, in its sole judgment, exercised in good faith, and upon
advice of counsel, might be deemed to be an underwriter or a controlling person
of the Company, to participate in the preparation of such Registration Statement
and to require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such holder and its counsel should
be included.
(m) Each such Eligible Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4.4(e), such Eligible Holder will forthwith discontinue disposition of
shares of Class A Common Stock pursuant to the registration statement covering
such Class A Common Stock until such Eligible Holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 4.4(e) (provided
that such discontinuance shall not be required for a period in excess of two
months and may not occur more than once in any 365 day period), and, if so
directed by the Company, such Eligible Holder will deliver to the Company all
copies, other than any permanent file copies then in such Eligible Holder's
possession, of the most recent prospectus covering such Class A Common Stock at
the time of receipt of such notice. In the event that the Company shall give
such notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective (including the period referred to in
Section 4.4(a)) by the number of days during the period from and including the
date of the giving of notice pursuant to Section 4.4(e) to the date when the
Company shall make available to such Eligible Holder a prospectus supplemented
or amended to conform with the requirements of Section 4.4(e).
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4.5. Expenses. Each Eligible Holder that participates in a Demand
Registration or an Incidental Registration shall pay all underwriting discounts
and commissions and any transfer taxes attributable to the sale of such Eligible
Holder's shares, the fees and expenses of counsel for such Eligible Holder
(other than the fees and expenses for one counsel for the Eligible Holders as
set forth below) and any other out-of-pocket expenses of such Eligible Holder
incurred in connection with its participation in such Demand Registration or
Incidental Registration. The Company shall pay any and all other expenses in
connection with a Demand Registration or an Incidental Registration, including,
without limitation, (i) all SEC, NASD and securities exchange registration and
filing fees, (ii) all fees and expenses of complying with state securities or
blue sky laws (including fees and disbursements of counsel for any underwriters
in connection with blue sky qualifications), (iii) all processing, printing,
copying, messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the shares being sold on any securities exchange,
(v) the fees and disbursements of counsel for the Company and of its independent
public accountants and (vi) the reasonable fees and expenses of any special
experts retained in connection with the requested registration and one counsel
representing Eligible Holders and acting as Inspector.
4.6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Eligible Holder holding shares of Class A Common Stock covered by
a Registration Statement, its officers, directors and agents, and each Person,
if any, who controls such Eligible Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including those resulting from any
order made or any inquiry, investigation or proceeding commenced or threatened
by any securities regulatory authority, stock exchange or by any other competent
authority) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or prospectus relating to
the shares of Class A Common Stock (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by such Eligible Holder or
on such Eligible Holder's behalf expressly for use therein; provided however,
that the Company shall not be liable for any untrue statement or omission
contained in a preliminary prospectus, which untrue statement or omission was
corrected in a final
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prospectus or supplement that was furnished to such Eligible Holder. The Company
also agrees to indemnify any underwriters of the Eligible Holders, their
officers, directors, employees and agents, and each Person, if any, who controls
such underwriters (other than in respect of loss of profit or information
relating solely to the underwriters) on substantially the same basis as that of
the indemnification of the Eligible Holders provided in this Section 4.6(a).
(b) Each Eligible Holder holding shares of Class A Common Stock
included in any Registration Statement agrees, severally but not jointly, to
indemnify and hold harmless the Company, its officers, directors and agents and
each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Eligible Holder, but
only with respect to information furnished in writing by such Eligible Holder or
on such Eligible Holder's behalf expressly for use in any Registration Statement
or prospectus relating to the Class A Common Stock, or any amendment or
supplement thereto, or any preliminary prospectus, and only up to an amount
equal to the aggregate purchase price received by such Eligible Holder from the
sale of such Eligible Holder's Class A Common Stock in such registration or from
Monetizing Securities in connection with such registration. As a condition to
including shares of Class A Common Stock in any Registration Statement filed in
accordance with Article IV hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section 4.6, such Person (an
"Indemnified Party") shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Party") in writing and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party, and shall assume the
payment of all fees and expenses; provided, however, that the failure of any
Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of his or its obligations hereunder except to the extent that
the Indemnifying Party is materially prejudiced by such failure to notify. In
any such proceeding, any Indemnified Party shall have the right to retain his or
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel,
(ii) the Indemnifying Party shall
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have failed to assume the defense and employ counsel or (iii) in the reasonable
judgment of such Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or differing legal defenses available to them. It is understood
that the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for all such Indemnified Parties, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without his or its written consent
(not to be unreasonably withheld), but if settled with such consent, or if there
be a final judgment for the plaintiff, the Indemnifying Party shall indemnify
and hold harmless such Indemnified Parties from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment;
provided, however, that, if any case where the fees and expenses of counsel are
at the expense of the Indemnifying Party in accordance with this Section 4.6 and
an Indemnified Party shall have requested the Indemnifying Party to reimburse
the Indemnified Party for such fees and expenses of counsel as incurred, such
Indemnifying Party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than ten (10) Business Days after the receipt by such Indemnifying
Party of the aforesaid request and (ii) such Indemnifying Party shall have
failed to reimburse the Indemnified Party in accordance with such request for
reimbursement prior to the date of such settlement. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party (not to be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such proceeding.
(d) If the indemnification provided for in this Section 4.6 is
unavailable to the Indemnified Parties in respect of any losses, claims, damages
or liabilities referred to herein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) as between the Company and the Eligible Holder holding shares of
Class A Common Stock covered by a registration statement on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company
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and such Eligible Holders on the one hand and the underwriters on the other,
from the offering of the Class A Common Stock or Monetizing Securities, or if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and such Eligible Holders on the one hand and of such
underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and each such Eligible Holder on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such
Eligible Holder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and such Eligible Holders on the one hand and such underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering of the Class A Common Stock or Monetizing Securities (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and such Eligible Holders bear to the total underwriting
discounts and commissions received by such underwriters, in each case as set
forth in the table on the cover page of the applicable prospectus. The relative
fault of the Company and such Eligible Holders on the one hand and of such
underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Eligible Holders or by such underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The relative fault of the
Company on the one hand and of each such Eligible Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied in writing by such party, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Eligible Holders agree that it would not be just
and equitable if contribution pursuant to this Section 4.6(d) were determined by
pro rata allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or
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<PAGE>
defending any such action or claim. Notwithstanding the provisions of this
Section 4.6(d), no underwriter shall be required to contribute any amount in
excess of the amount of the total fees, discounts and commissions received by
it, and no Eligible Holder shall be required to contribute any amount in excess
of the amount of the proceeds received by such Eligible Holder in respect of a
sale of its shares of Class A Common Stock or Monetizing Securities. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Each such Eligible Holder's
obligation to contribute pursuant to this Section 4.6(d) is several in the
proportion that the proceeds of the offering received by such Eligible Holder
bears to the total proceeds of the offering received by all such Eligible
Holders and not joint.
4.7. Unregistered Offerings. In connection with any offering by an
Eligible Holder of Monetizing Securities which do not require the registration
by the Company of the shares of Class A Common Stock issuable upon the
conversion or exchange thereof, the Company shall (i) at the request of such
Eligible Holder, provide reasonable cooperation to such Eligible Holder and its
advisors in connection with such offering, (ii) to the extent relevant, comply
with the other covenants specified in Section 4.4 and provide the Indemnity
specified in Section 4.6 with respect to any unregistered offering and (iii) at
the request of such Eligible Holder, make available its executive officers for a
reasonable period of time to participate in road show or other investor
presentations in connection with such offering.
4.8. Rule 144. The Company agrees that it shall timely file the
reports required to be filed by it under the Securities Act or the Exchange Act
(including, without limitation, the reports under sections 13 and 15 (d) of the
Exchange Act referred to in paragraph (c)(1) of Rule 144 under the Securities
Act), and shall take such further actions as any Eligible Holder may reasonably
request, all to the extent required to enable Eligible Holders to sell Class A
Common Stock, from time to time, pursuant to the resale limitations of (a) Rule
144 under the Securities Act, as such rule may be hereafter amended, or (b) any
similar rules or regulations hereafter adopted by the SEC. Upon the written
request of any Eligible Holder, the Company shall deliver to such Eligible
Holder a written statement verifying that it has complied with such
requirements.
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ARTICLE V
OTHER AGREEMENTS
5.1. Confidentiality. Each Principal Stockholder agrees that it will
not, directly or indirectly, without the prior written consent of the Company,
use or disclose to any person, firm or corporation, any information, trade
secrets, confidential customer information, technical data or know-how relating
to the products, processes, methods, equipment or business practices of the
Company or any of its Subsidiaries, except (a) to the extent any of the
foregoing is or becomes available to the public other than as a result of
disclosure by such Principal Stockholder or any of its Affiliates or the
directors, officers, employees, agents, advisors and controlling persons of it
or any of its Affiliates, (b) as necessary to effect a transaction under and in
compliance with Article III or IV, (c) as may be required by law and (d) as a
Principal Stockholder may disclose to its lenders, rating agencies and business,
legal and financial advisors. In the event any Principal Stockholder is required
by applicable law or regulation or by legal process to disclose any of the
foregoing, it will provide the Company and other Principal Stockholders with
prompt notice thereof to enable them to seek an appropriate protective order.
The covenants made by a Principal Stockholder in this Section 5.1 shall continue
to apply for a period of two years after such Principal Stockholder ceases to be
a Principal Stockholder.
5.2. Issuance of Additional Class B Common Stock. Without the
consent of each Principal Stockholder which has the right to designate Agreed
Nominees pursuant to Article II, the Company shall not issue any additional
shares of Class B Common Stock other than shares of Class B Common Stock issued:
(a) in connection with a stock split; or (b) as a stock dividend with respect to
issued and outstanding shares of Class B Common Stock (in which event any
dividend to a holder of Class B Common Stock shall only be in shares of Class B
Common Stock).
5.3. Voting; Written Consent. (a) Any agreement by a Principal
Stockholder herein to vote its shares of Common Stock in a certain manner shall
be deemed, in each instance, to include an agreement by that Principal
Stockholder to use its best efforts to take all actions necessary to call, or
cause the Company and the appropriate officers and directors of the Company to
call, as promptly as practicable, a special meeting of stockholders or to act by
written consent.
(b) When any action is required to be taken by a Principal
Stockholder pursuant to this Agreement, such Principal Stockholder shall take
all steps
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necessary to implement such action, including executing or causing to be
executed, as promptly as practicable, a consent in writing in lieu of an annual
or special meeting of the stockholders pursuant to Section 228 of the General
Corporation Law of Delaware or any successor statute thereto to effect such
stockholder action.
ARTICLE VI
GENERAL PROVISIONS
6.1. Expiration and Termination. This Agreement (other than any
provision for which a different term is specified) shall terminate (i) with
respect to the applicability of any voting agreements outlined in Article II to
a particular Principal Stockholder, if and when such Principal Stockholder no
longer holds a number of shares of Class B Common Stock equal to at least two
percent of the number of shares of Common Stock then issued and outstanding;
(ii) with respect to the applicability of any transfer restrictions outlined in
Article III to a particular Principal Stockholder, if and when such Principal
Stockholder no longer holds any shares of Class B Common Stock; and (iii) with
respect to the applicability of any registration rights outlined in Article IV
to a particular Eligible Holder, if and when such Eligible Holder no longer
holds a number of shares of Common Stock equal to at least one percent of the
number of shares of Class A Common Stock then issued and outstanding.
6.2. Amendment and Waiver. Subject to Section 3.7, this Agreement
may not be amended or modified in any respect except by an instrument in writing
signed by all of the parties hereto; provided, however, that the Company need
only be a party to such modifications or amendments the result of which is a
change in the Company's obligations hereunder. Any failure of any party hereto
to comply with any obligation, covenant, agreement or condition contained herein
may be waived by the party or parties entitled to the benefits thereof, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
6.3. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York without reference
to choice of law principles, including all matters of construction, validity and
performance except to the extent the laws of Delaware are mandatorily
applicable.
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6.4. Notices. Notices, requests, permissions, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand,
mailed by United States mail (registered, return receipt requested) or reputable
overnight courier service, properly addressed and postage prepaid, or delivered
by telecopy:
If to the Company, to:
TIME WARNER TELECOM INC.
5700 S. Quebec Street
Greenwood Village, Colorado 80111
Telephone: (303)
Telecopy: (303)
Attention: General Counsel
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Telephone: (212) 474-1000
Telecopy: (212) 474-3700
Attention: William P. Rogers, Jr.
and to each of the Principal Stockholders at the address provided
below or to such other address provided in accordance with this
Section 6.4.
If to the TW Stockholders, to:
TIME WARNER COMPANIES, INC.
75 Rockefeller Plaza
New York, New York 10019
Telephone: (212) 484-7580
Telecopy: (212) 956-7281
Attention: General Counsel
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with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Telephone: (212) 474-1000
Telecopy: (212) 474-3700
Attention: William P. Rogers, Jr.
If to the MediaOne Stockholder, to:
MEDIAONE GROUP, INC.
188 Inverness Drive West
Englewood, Colorado 80112
Telephone: (303) 858-3562
Telecopy: (303) 858-3487
Attention: Vice President-Law
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Telecopy: (212) 310-8007
Attention: Akiko Mikumo, Esq.
If to A/N, to:
ADVANCE/NEWHOUSE PARTNERSHIP
5015 Campuswood Drive
East Syracuse, New York 13057
Telephone: (315) 463-7675
Telecopy: (315) 463-4127
Attention: Robert J. Miron
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with a copy to:
Sabin, Bermant & Gould LLP
350 Madison Avenue
New York, New York 10017
Telephone: (212) 692-4418
Telecopy: (212) 692-4406
Attention: Arthur J. Steinhauer
Such names and addresses may be changed by notice given in accordance with this
Section 6.4.
6.5. Entire Agreement. This Agreement (including the Schedules and
Exhibits attached hereto, all of which are a part hereof) contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and supersedes and cancels all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
respecting such subject matter.
6.6. Headings; References. The article, section and paragraph
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. All
references herein to "Articles", "Sections," or "Exhibits" shall be deemed to be
references to Articles or Sections hereof or Exhibits hereto unless otherwise
indicated.
6.7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement.
6.8. Parties in Interest; Assignment. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors or assigns. Nothing in this Agreement, express or implied, is
intended to confer upon any Person not a party to this Agreement any rights or
remedies under or by reason of this Agreement. Except as permitted herein, no
party to this Agreement may assign or delegate all or any portion of its rights,
obligations or liabilities under this Agreement without the prior written
consent of the other parties to this Agreement.
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6.9. Severability; Enforcement. The invalidity of any portion hereof
shall not affect the validity, force or effect of the remaining portions hereof.
If any term or other provision of this Agreement is invalid, illegal or
incapable or being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the greatest extent possible.
6.10. Specific Performance. Without intending to limit the remedies
available to any of the parties hereto, each of the parties hereto acknowledges
and agrees that a violation by such party of any term of this Agreement will
cause the other parties hereto irreparable injury for which an adequate remedy
at law is not available. Therefore, the parties hereto agree that each such
party shall be entitled to an injunction, restraining order or other form of
equitable relief from any court of competent jurisdiction restraining any other
party hereto from committing any breach or threatened breach of, or otherwise
specifically to enforce, any provision of this Agreement.
6.11. Arbitration. Any controversy arising under, out of, in
connection with, or relating to, this Agreement, and any amendment hereof, or
the breach hereof or thereof, shall be determined and settled by arbitration in
New York, New York, by a person or persons mutually agreed upon, or in the event
of a disagreement as to the selection of the arbitrator or arbitrators, in
accordance with the rules of the American Arbitration Association. Any award
rendered therein shall specify the findings of fact of the arbitrator or
arbitrators and the reasons of such award, with the reference to and reliance on
relevant law. Any such award shall be final and binding on each and all of the
paries thereto and their personal representatives, and judgment may be entered
thereon in any court having jurisdiction thereof.
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IN WITNESS WHEREOF, the parties have executed this Stockholders'
Agreement as of the date and year first above written.
TIME WARNER TELECOM INC.
By:
-----------------------------------------
Name:
Title:
TIME WARNER COMPANIES, INC.
By:
-----------------------------------------
Name:
Title:
AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION
By:
-----------------------------------------
Name:
Title:
WARNER COMMUNICATIONS INC.
By:
-----------------------------------------
Name:
Title:
TW/TAE, INC.
By:
-----------------------------------------
Name:
Title:
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<PAGE>
FIBRCOM HOLDINGS, L.P.
By:
-----------------------------------------
Name:
Title:
PARAGON COMMUNICATIONS
By:
-----------------------------------------
Name:
Title:
MEDIAONE GROUP, INC.
(a Colorado corporation)
By:
-----------------------------------------
Name:
Title:
ADVANCE/NEWHOUSE PARTNERSHIP
By: ADVANCE COMMUNICATION CORP.,
General Partner
By:
-----------------------------------------
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT 3.4
CERTIFICATE OF FORMATION
OF
TIME WARNER TELECOM LLC
1. The name of the limited liability company is Time Warner Telecom LLC
2. The address of its registered office in the State of Delaware is 9 East
Loockerman Street, Dover, Kent County, Delaware 19901. The name of its
registered agent at such address is National Registered Agents, Inc.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation of Time Warner Telecom LLC this 18th day of June, 1998.
/s/ Marie N. White
---------------------
Marie N. White
Authorized Person
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 01:00 PM 06/18/1998
981236866-2910516
<PAGE>
<PAGE>
EXHIBIT 3.5
CERTIFICATE OF AMENDEMENT TO CERTIFICATE OF FORMATION
OF
TIME WARNER TELECOM LLC
Time Warner Telecom LLC (hereinafter called the 'Company'), 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. The name of the limited liability company is Time Warner Telecom LLC.
2. The certificate of formation of the company is hereby amended by
striking out Article 2 thereof and by substituting in lieu of said
Article the following new Article:
"2. 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, 1209 Orange Street, Wilmington,
Delaware 19801.'
Executed on July 1, 1998.
/s/ Marie N. White
------------------------
Authorized Person
Marie N. White
<PAGE>
<PAGE>
EXHIBIT 3.6
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the 'Corporation') is
Time Warner Telecom Inc.
2. The registered office of the Corporation within the State of Delaware
is hereby changed to 1209 Orange Street, Wilmington, Delaware 19801,
Country of New Castle.
3. The registered agent of the Corporation within the State of Delaware is
hereby changed to The Corporation Trust Company, the business office
which is identical with the registered office of the Corporation as
hereby changed.
4. The Corporation has authorized the changes hereinbefore set forth by
resolution of its Board of Directors.
Signed on July 1, 1998.
/s/ Marie N. White
----------------------
Marie N. White
Assistant Secretary
<PAGE>
<PAGE>
Exhibit 5
[Letterhead of CRAVATH, SWAINE & MOORE]
[New York Office]
July 15, 1998
TIME WARNER TELECOM LLC
TIME WARNER TELECOM INC.
Ladies and Gentlemen:
We have acted as counsel for Time Warner Telecom LLC (the
"Company") and Time Warner Telecom Inc. ("TWT", and together with the Company,
the "Issuers"), in connection with the Registration Statement on Form S-1 (the
"Registration Statement") being filed by the Issuers with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the $400,000,000 aggregate
principal amount of their Senior Notes due 2008 (the "Debt Securities"). The
Debt Securities will be issued under an Indenture (the "Indenture"), among the
Issuers and The Chase Manhattan Bank (the "Trustee"), as Trustee, previously
filed as Exhibit 4.1 to the Registration Statement.
In connection with the foregoing, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for the purposes of this opinion, including (a) the Certificate of
Formation or Certificate of Incorporation, as applicable, of each of the
Issuers, (b) the By-laws or Amended and Restated Limited Liability Company
Agreement, as applicable, of each of the Issuers, (c) the Indenture, (d) the
form of the Debt Securities, (e) the resolutions of the Board of Directors or
Management Committee, as applicable, of each of the Issuers, authorizing the
registration of the Debt Securities and (f) certain resolutions adopted by the
Management Committee or Board of Directors, as applicable, of each of the
Issuers.
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2
Based upon the foregoing and subject to the qualifications
hereinafter set forth, we are of opinion that:
1. The Company is a limited liability company validly
existing and in good standing under the laws of State of
Delaware.
2. TWT is a corporation validly existing and in good
standing under the laws of the State of Delaware.
3. The Indenture has been duly authorized, and when
executed and delivered, and the Debt Securities, when duly
authorized, issued, authenticated and delivered in accordance
with the terms of the Indenture, will constitute legal, valid and
binding obligations of the Issuers, entitled to the benefits of
the Indenture and enforceable against the Issuers, in accordance
with their respective terms.
The opinion set forth above in paragraph 3 is qualified to the
extent we have assumed the due execution and delivery of the Indenture by the
Trustee pursuant to appropriate corporate authority.
Our opinion set forth above in paragraph 3 is subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect. The enforceability of the Issuers' obligations is also
subject to general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
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3
We are aware that we are referred to under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement, and we
hereby consent to such use of our name therein and the filing of this opinion as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the Rules and Regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Cravath, Swaine & Moore
Time Warner Telecom LLC
Time Warner Telecom, Inc.
5700 S. Quebec Street
Greenwood Village, CO 80111
337A
<PAGE>
<PAGE>
TIME WARNER TELECOM LLC
1998 OPTION PLAN
ARTICLE I
Purpose of the Plan
The purpose of the Time Warner Telecom LLC (the "Company") 1998
Option Plan (hereinafter the "Plan") is to provide for the granting of options
to representatives and employees of the Company and its Subsidiaries in
recognition of the valuable services provided, and contemplated to be provided,
by such representatives and employees. The general purpose of the Plan is to
promote the interests of the Company and its members and to reward dedicated
representatives and employees of the Company and its Subsidiaries by providing
them additional incentives to continue and increase their efforts with respect
to, and to remain in the employ of, the Company or its Subsidiaries.
ARTICLE II
Certain Definitions
The following terms (whether used in the singular or plural) have
the meanings indicated when used in the Plan:
(a) "Agreement" means the option agreement specified in Article XI.
(b) "Approved Transaction" means any transaction in which the Board
(or, if approval of the Board is not required as a matter of law, the members of
the Company) shall approve (i) any consolidation or merger of the Company in
which the Company is not the continuing or surviving company or pursuant to
which Interests would be converted into cash, securities or other property,
other than a merger of the Company in which the equityholders of the Company
immediately prior to the merger have the same proportionate ownership of the
equity value of the surviving company immediately after the merger or (ii) any
sale, lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, or (iii) the adoption of any plan or proposal for the liquidation or
dissolution of the Company; provided that the reconstitution of the Company as a
corporation or other entity or a public offering of the
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2
equity of the Company (or its successor) shall not constitute an Approved
Transaction.
(c) "Award" means grants of Options under this Plan.
(d) "Board" means the Management Committee of the Company.
(e) "Board Change" means such time as the Initial Members and their
respective affiliates as a group cease to have the ability to elect a majority
of the members of the Board (other than the chief executive officer of the
Company and independent representatives; provided that independent
representatives shall be included in calculating whether the foregoing majority
requirement is satisfied if the representatives nominated by the Initial Members
and their respective affiliates do not constitute a majority of the committee
that selects the Board's nominees for independent representatives) and a
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) (other than the Initial Members and their respective affiliates)
has become the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 35% of the total voting power of the voting interests
of the Company on a fully diluted basis and such ownership represents a greater
percentage of the total voting power of the voting interests of the Company, on
a fully diluted basis, than is held by the Initial Members and their respective
affiliates as a group on such date.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute or statutes thereto. Reference to any
specific Code section shall include any successor section.
(g) "Committee" means the Committee comprised of members of the
Board appointed pursuant to Article IV.
(h) "Company" means Time Warner Telecom LLC, a limited liability
company, and any successor thereto.
(i) "Effective Date" means the date the Plan becomes effective
pursuant to Article XV.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute or statutes thereto.
Reference to any specific Exchange Act section shall include any successor
section.
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3
(k) "Fair Market Value" of Units shall mean the fair market value of
such Units as determined in good faith by the Board after consultation with an
independent appraiser or other third party deemed appropriate by the Board. In
the event of an Approved Transaction involving the sale of Interests of the
Company, the Fair Market Value of a Unit shall be based upon the price per Unit
paid by the acquiror in connection with such Approved Transaction, subject to
appropriate adjustment to reflect relative differences among the Units as
determined in good faith by the Board.
(l) "Holder" means a representative or an employee of the Company or
any of its Subsidiaries who has received an Award under this Plan. An individual
shall continue to be considered a Holder for purposes of this Plan during the
period such individual holds Units acquired pursuant to an exercise of an
Option.
(m) "Initial Members" means the initial members of the Company as
defined in the Operating Agreement.
(n) "Interest" shall mean a Class A Interest in the Company as
defined in the Operating Agreement.
(o) "Operating Agreement" shall mean the Amended and Restated
Limited Liability Company Agreement of Time Warner Telecom LLC dated July 14,
1998, as in effect from time to time.
(p) "Option" means any option granted pursuant to this Plan.
(q) "Plan" has the meaning ascribed thereto in Article I.
(r) "Subsidiary" of a person means any present or future subsidiary
of such person as such term is defined in section 425 of the Code and any
present or future trade or business, whether or not incorporated, controlled by
or under common control with such person. An entity shall be deemed a Subsidiary
of a person only for such periods as the requisite ownership or control
relationship is maintained.
(s) "Total Disability" means a permanent and total disability as
defined in section 22(e)(3) of the Code.
(t) "Unit" shall mean an Interest in the Company expressed as a
unit. As of the date of the initial grant of Options under the Plan, the Board
shall determine the notional amount of Units considered to be outstanding and
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4
the percentage interest of the equity value of the Company represented by each
Unit, which amounts shall be subject to adjustment as provided in Section 3.02
and Section 6.06. Any references herein to Units include any securities
exchanged in the conversion of Units.
ARTICLE III
Subject to the Plan
SECTION 3.01. Number of Units. Subject to the provisions of Section
3.02 and Section 6.06, the maximum number of Units in respect of which Awards
may be granted under the Plan shall be determined by the Board as of the date of
the initial grant of Awards under the Plan, but shall in no event represent more
than 10% of the equity value of the Company as of that date. The maximum number
of Units in respect of which Awards may be granted during any calendar year to
any one individual under the Plan shall not exceed one-half the number of Units
that may be subject to Awards granted under the Plan under the preceding
sentence. If and to the extent that an Option shall expire, terminate or be
canceled for any reason without having been exercised, the Units subject to such
expired, terminated or canceled portion of the Option shall again become
available for purposes of the Plan.
SECTION 3.02. Adjustments. In addition to the adjustment in the
Interests as described in Section 6.06, in the event that the Board determines
that any dividend or other distribution (whether in the form of cash, Interests,
securities or other property), recapitalization, reorganization, merger,
consolidation, issuance or exchange of Interests, other ownership interests or
other securities of the Company, issuance of warrants or other rights to
purchase Interests, other ownership interests or other securities of the Company
or other similar corporate transaction or event affects the Interests such that
an adjustment is determined by the Board in its discretion to be appropriate in
order to prevent inappropriate dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the Board
may, in such manner as it may deem equitable, adjust any or all of (a) the
number of Units, other ownership interests or other securities of the Company
(or number and kind of other securities or property) with respect to which
Awards may be granted, (b) the number of Units, other ownership interests or
other securities of the Company (or number and kind of other securities or
property) subject to outstanding Awards or the percentage of Interests, other
ownership interests or other securities of the Company subject to Units and (c)
the
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5
exercise price with respect to any Option or, if deemed appropriate, make
provision for a cash payment to the Holder of an outstanding Option in
consideration for the cancelation of such Option. No adjustment shall be made on
account of the issuance of Interests with respect to Options.
ARTICLE IV
Administration
SECTION 4.01. Powers. The Plan shall be administered by the Board.
Subject to the express provisions of the Plan, the Board shall have plenary
authority, in its discretion, to grant Awards under the Plan and to determine
the terms and conditions (which need not be identical) of all Awards so granted,
including without limitation, (a) the individuals to whom, and the time or times
at which, Awards shall be granted or awarded, (b) the number of Units to be
subject to each Award, (c) when an Option can be exercised and whether in whole
or in installments, and (d) the form, terms and provisions of any Agreement
(which terms may be amended, subject to Article XIV).
SECTION 4.02. Factors to Consider. In making determinations
hereunder, the Board may take into account the nature of the services rendered
by the respective representatives and employees, their dedication and past
contributions to the Company and its Subsidiaries, their present and potential
contributions to the success of the Company and its Subsidiaries and such other
factors as the Board in its discretion shall deem relevant.
SECTION 4.03. Interpretation. Subject to the express provisions of
the Plan, the Board shall have plenary authority to interpret the Plan, to
prescribe, amend and rescind the rules and regulations relating to it and to
make all other determinations deemed necessary or advisable for the
administration of the Plan. The determinations of the Board on the matters
referred to in this Article IV shall be conclusive.
SECTION 4.04. Delegation to Committee. Notwithstanding anything to
the contrary contained herein, the Board may at any time, or from time to time,
appoint a Committee and delegate to such Committee the authority of the Board to
administer the Plan, including to the extent provided by the Board, the power to
further delegate such authority. Upon such appointment and delegation, any such
Committee shall have all the powers, privileges and duties
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of the Board in the administration of the Plan to the extent provided in such
delegation, except for the power to appoint members of the Committee and to
terminate, modify or amend the Plan. The Board may from time to time appoint
members of any such Committee in substitution for or in addition to members
previously appointed, may fill vacancies in such Committee and may discharge
such Committee.
Any such Committee shall hold its meetings at such times and places
as it shall deem advisable. A majority of members shall constitute a quorum and
all determinations shall be made by a majority of such quorum. Any determination
reduced to writing and signed by all of the members shall be fully as effective
as if it had been made by a majority vote at a meeting duly called and held.
ARTICLE V
Eligibility
Awards may be made only to (a) representatives, employees, including
officers and representatives who are also employees, of, and consultants to, the
Company or any of its Subsidiaries, (b) prospective employees of the Company or
any of its Subsidiaries and (c) any other individuals providing services to the
Company or any of its Subsidiaries. The exercise of Options granted to a
prospective employee shall be conditioned upon such person becoming an employee
of the Company or any of its Subsidiaries. For purposes of the Plan, the term
"prospective employee" shall mean any person who holds an outstanding offer of
employment on specific terms from the Company or any of its Subsidiaries. Awards
may be made to employees who hold or have held Awards under this Plan or any
similar or other awards under any other plan of the Company or its Subsidiaries.
ARTICLE VI
Options
SECTION 6.01. Option Price. The purchase price of the Units under
each Option shall be determined by the Board and set forth in the applicable
Agreement, but shall not be less than 100% of the Fair Market Value of the Unit
on the date of grant.
SECTION 6.02. Term of Options. The term of each Option shall be for
such period as the Board shall determine, as set forth in the applicable
Agreement, but not
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more than 10 years from the date of grant (except as provided in Section
6.08(b)).
SECTION 6.03. Exercise of Options. An Option granted under the Plan
shall become (and remain) exercisable during the term of the Option to the
extent provided in the applicable Agreement and this Plan and, unless the
Agreement otherwise provides, may be exercised to the extent exercisable, in
whole or in part, at any time and from time to time during such term; provided,
however, that subsequent to the grant of an Option, the Board, at any time
before complete termination of such Option, may accelerate the time or times at
which such Option may be exercised in whole or in part (without reducing the
term of such Option). The Agreement may contain conditions precedent to the
exercisability of Options, including without limitation, the achievement of
minimum performance criteria.
SECTION 6.04. Manner of Exercise. Payment of the Option purchase
price shall be made in cash or in whole Units already owned by the person
exercising an Option or, partly in cash and partly in such Units; provided,
however, that such payment may be made in whole or in part in Units held for six
months and only if and to the extent permitted by the applicable Agreement. In
addition, before the occurrence of an IPO (as defined below), the Company may,
in its sole discretion, lend, on a full recourse basis, funds sufficient to pay
any applicable exercise price; provided that any such loan shall (i) be made
only in the event of the Holder's death or the Holder's termination of
employment by the Company without cause (as determined by the Board), (ii) be
made at commercial rates and (iii) be payable in full by the borrower on the
earliest to occur of (a) the six month anniversary of the date of exercise, (b)
30 days after an IPO or (c) the sale of the Unit(s) acquired upon exercise of
the Option. Such an Option shall be exercised by written notice to the Company
upon such terms and conditions as provided in the Agreement. The Company shall
effect the transfer of the Units purchased under the Option as soon as
practicable. No Holder or other person exercising an Option shall have any of
the rights of a Unitholder of the Company with respect to Units subject to an
Option granted under the Plan until due exercise and full payment has been made.
SECTION 6.05. Limited Transferability of Options. Except as set
forth in this Section 6.05 and Article XXI, Options shall not be transferable
other than by will or the laws of descent and distribution, and Options may be
exercised during the lifetime of the Holder thereof only by such Holder (or his
or her court appointed legal representative). The Agreement may provide that
Options are
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8
transferable by gift to such persons or entities and upon such terms and
conditions specified in the Agreement.
SECTION 6.06. Adjustment of Percentage of Interests Subject to
Units. Upon the issuance or redemption of Interests in the Company, the number
of Units available under the Plan and the number of Units subject to outstanding
Options shall be equitably adjusted as determined by the Board in its sole
discretion to prevent inappropriate dilution or enlargement of the economic
interest represented by such Units.
SECTION 6.07. Restrictions. As a condition to the exercise of an
Option, the Holder will be required to become a party to the Operating Agreement
and the Stockholders Agreement (as defined in the Operating Agreement) and the
Interests acquired upon exercise of the Option will be held subject in all
respects to the terms and conditions of the Operating Agreement and Stockholders
Agreement. In addition, certificates representing Interests issued upon exercise
of Options shall bear a restrictive legend to the effect that transferability of
such Interests is subject to the restrictions contained in the Plan and the
applicable Agreement.
SECTION 6.08. Special Exercise Delay/Extension of Options. The
provisions of this Section 6.08 shall apply to an Option unless the applicable
Option Agreement otherwise provides.
(a) An otherwise vested Option shall not be exercisable until the
"Liquidity Date" which shall be the earlier of (i) an initial public
offering of equity securities (an "IPO") of the Company or a successor
thereto and (ii) the first anniversary of the initial grant of Options
under the Plan; provided that the Liquidity Date may be postponed at the
discretion of the Board, to comply with applicable securities laws or,
prior to an IPO, to avoid the need for the Company to register the
Interests under the securities laws.
(b) If the vested portion of an Option would expire when the
Liquidity Date has not yet occurred, the expiration date of such vested
portion shall be extended until the later of (i) 30 days after the
Liquidity Date or (ii) the regularly scheduled expiration date.
(c) Prior to an IPO, vested Options may be exercised only during the
30-day period starting on each Communication Date.
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9
SECTION 6.09. Section 83(b) election. Unless the Board determines
otherwise, an individual exercising an Option will be required to make a timely,
valid election under section 83(b) of the Code.
SECTION 6.10. Tax Treatment of Exercise. Solely for purposes of
determining the appropriate tax treatment of the Members and the Holder, upon
exercise of an Option, a Holder will be treated as if the Company paid him or
her an amount equal to the aggregate difference between the exercise price and
the Fair Market Value of the Units subject to the Option and the Holder then
purchased from the Company for cash the applicable number of Units at the
then-current Fair Market Value of such Units.
SECTION 6.11 Value Determinations. The Company shall determine the
Fair Market Value of the Units as of December 31 and June 30 of each year (each,
a "Valuation Date"). Such Fair Market Value shall be communicated to Holders as
soon as practicable following each Valuation Date (each such date, a
"Communication Date").
ARTICLE VII
Acceleration of Options
Notwithstanding any contrary waiting period or installment period in
any Agreement or in the Plan, or unless the applicable Agreement provides
otherwise, if a Holder's employment shall terminate by reason of death or Total
Disability, or in the event of any Approved Transaction or Board Change each
outstanding Option granted under the Plan shall immediately become exercisable
in full in respect of the aggregate number of Units covered thereby.
ARTICLE VIII
Termination of Employment
SECTION 8.01. General. If a Holder's employment shall terminate
prior to the complete exercise of an Option, then such Option shall thereafter
be exercisable in accordance with the provisions of the applicable Agreement
(including the provisions of any other agreement referred to in the Agreement);
provided, however, that (a) no Option may be exercised after the scheduled
expiration date of such Option; (b) if the Holder's employment terminates by
reason of death or Total Disability, Options shall remain exercisable for a
period of at least one year following such termination (but not later than the
scheduled expiration of such Option); and (c) any termination by the employing
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10
company for cause will be treated in accordance with the provisions of Section
8.02.
SECTION 8.02. Termination for Cause. If a Holder's employment with
the Company or any of its Subsidiaries shall be terminated for cause, by the
Company or such Subsidiary prior to the exercise of any Option, then all Options
held by such Holder and any permitted transferee pursuant to Section 6.05 shall
immediately terminate. For the purposes of this Section 8.02, cause shall have
the meaning ascribed thereto in any employment agreement to which such Holder is
a party. In the absence of an employment agreement, cause shall include but not
be limited to, insubordination, dishonesty, incompetence, moral turpitude, other
misconduct of any kind and the refusal to perform his duties and
responsibilities for any reason other than illness or incapacity; provided,
however, that if such termination occurs within 12 months after an Approved
Transaction or Board Change, termination for cause in the absence of an
employment agreement shall mean only a felony conviction for fraud,
misappropriation or embezzlement.
SECTION 8.03. Miscellaneous. The Board may determine whether any
given leave of absence constitutes a termination of employment. Awards made
under the Plan shall not be affected by any change of employment so long as the
Holder continues to be an employee of the Company or one of its Subsidiaries.
ARTICLE IX
Right of Company to Terminate Employment
Nothing contained in the Plan or in any Award shall confer on any
Holder any right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of the Holder at any time, with or
without cause; subject, however, to the provisions of any employment agreement
between the Holder and the Company or any of its Subsidiaries.
ARTICLE X
Nonalienation of Benefits
Except as specifically provided in Section 6.05 and Article XXI, no
right or benefit under the Plan shall be subject to anticipation, alienation,
sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or
charge, and any attempt to anticipate, alienate, sell,
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11
assign, hypothecate, pledge, exchange, transfer, encumber or charge the same
shall be void. No right or benefit hereunder shall in any manner be liable for
or subject to the debts, contracts, liabilities or torts of the person entitled
to such benefits.
ARTICLE XI
Written Agreement
Each grant of an Option shall be evidenced by an Option Agreement in
such form and containing such terms and provisions not inconsistent with the
provisions of the Plan as the Board from time to time shall approve; provided,
however, that such Awards shall be evidenced by a single agreement. The
effective date of the granting of an Award shall be the date on which the Board
approves such grant. Each grantee of an Option shall be notified promptly of
such grant and a written Agreement shall be promptly executed and delivered by
the Company and the grantee; provided that such grant of Options shall terminate
if such written Agreement is not signed by such grantee (or his attorney) and
delivered to the Company within 90 days after the date the Agreement is sent to
such grantee for signature. Any such written Agreement may contain (but shall
not be required to contain) such provisions as the Board deems appropriate to
ensure that the penalty provisions of section 4999 of the Code will not apply to
any stock or cash received from the Company or any of its Subsidiaries by the
Holder or a transferee of such Holder if the Award, or any part thereof, has
been transferred pursuant to Section 6.05 or Article XXI.
ARTICLE XII
Right of First Refusal
The Agreement may contain such provisions as the Board shall
determine to the effect that if a Holder, or such other person exercising an
Option, elects to sell all or any Units that such Holder or other person
acquired upon the exercise of an Option awarded under the Plan, then such Holder
or other person shall not sell such Units unless such Holder or other person
shall have first offered in writing to sell such Units to the Company at Fair
Market Value on a date specified in such offer (which date shall be at least
three business days and not more than 10 business days following the date of
such offer). If the Company does not accept such offer within 10 days, the Units
may be sold on terms no more favorable than those offered to the Company. If the
Units (i) are not sold within 10 days of the date the
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12
Company declined to purchase the Units or (ii) would be sold on terms more
favorable than those offered to the Company, the holder of the Units must again
offer the Units for sale to the Company in accordance with this Article XII
before any subsequent sale of such Units. Any transfer of Units that occurs
after any violation of this Article XII shall be null and void.
ARTICLE XIII
Put Rights and Call Rights
SECTION 13.01. Recurring Put Rights. (a) Prior to any IPO, if a
Holder has exercised an Option and held the Units acquired upon exercise for a
period of more than six months, such Holder shall have the right to sell to the
Company all or any portion of such Units.
(b) The put right may be exercised only during the 30-day period
starting on each Communication Date, at fair market value determined as of the
preceding Valuation Date; provided that, unless otherwise determined by the
Board, with respect to any calendar year the Company shall not be required to
purchase Units issued pursuant to the Plan with an aggregate value in excess of
$20,000,000 (the "Put Limit"). To the extent Units with a value in excess of the
Put Limit have been put to the Company, the Company shall purchase a pro rata
share of the Units put to the Company by each individual.
(c) The put right will not be available to any Holder who is
terminated for cause.
(d) Prompt payment in respect of the put right will be due, without
interest.
(e) The determination of fair market value shall be made by the
Board in good faith. Such determination shall be made on a going concern basis
and a minority interest discount shall not be applied in assigning a value to
the Units that are being put back to the Company.
(f) Notwithstanding the foregoing, the Company shall not be
obligated to take any action or make any payment in satisfaction of a Holder's
exercise of a put right (the Company being hereinafter referred to as the "Put
Obligor") (i) if an event of default should then exist and be continuing under
the terms of any agreement for indebtedness for borrowed money to which the Put
Obligor or any of its subsidiaries is a party at such time or (ii) if such
action or payment would constitute a default or an
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event of default or result in a mandatory prepayment requirement under the terms
of any agreement for indebtedness for borrowed money to which the Put Obligor or
any of its subsidiaries is a party at such time (each a "Financing Limitation")
(g) If the Put Obligor is unable to make payments in respect of the
exercise of a put right due to a Financing Limitation, the Put Obligor will make
payment of the Put Date Value at the earliest practicable date following the
date when such payment would no longer contravene a Financing Limitation,
together with interest at the prime rate from the Scheduled Payment Date to the
date of payment by the Put Obligor.
SECTION 13.02. Recurring Call Rights.
(a) Prior to an IPO, if a Holder whose employment has terminated for
any reason holds Units of the Company acquired upon the exercise of an Option,
the Company may, in its discretion, purchase all or any number of such Units
that have been held by the Holder for a period of more than six months.
(b) The call right may be exercised only during the 30-day period
starting on each Communication Date.
(c) The purchase price for called Units shall be the fair market
value as determined by the Board as of the preceding Valuation Date, as
applicable, and shall be determined under the principles governing the
determination of fair market value for purposes of the put right in Section
13.01 of this Plan.
ARTICLE XIV
Termination And Amendment
SECTION 14.01. General. Unless the Plan shall theretofore have been
terminated as hereinafter provided, no Awards may be made under the Plan on or
after the tenth anniversary of the Effective Date. The Board may at any time
prior to the tenth anniversary of the Effective Date terminate the Plan, and the
Board may at any time modify or amend the Plan in such respects as it shall deem
advisable.
SECTION 14.02. Modification. No termination, modification or
amendment of the Plan may, without the consent of the person to whom any Award
shall theretofore have been granted (or a transferee of such person if the
Award, or any part thereof, has been transferred pursuant to
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14
Section 6.05 or Article XXI), adversely affect the rights of such person with
respect to such Award. No modification, extension, renewal or other change in
any Award granted under the Plan shall be made after the grant of such Award,
unless the same is consistent with the provisions of the Plan. With the consent
of the Holder (or a transferee of such Holder if the Award, or any part thereof,
has been transferred pursuant to Section 6.05 or Article XXI) and subject to the
terms and conditions of the Plan (including Section 14.01), the Board may amend
outstanding Agreements with any Holder (or any such transferee), including,
without limitation, any amendment which would (a) accelerate the time or times
at which the Award may be exercised and/or (b) extend the scheduled expiration
date of the Award. Without limiting the generality of the foregoing, the Board
may but solely with the Holder's consent, agree to cancel any Award under the
Plan held by such Holder and issue a new Award in substitution therefor;
provided that the Award so substituted shall satisfy all of the requirements of
the Plan as of the date such new Award is made.
SECTION 14.03. Initial Public Offering. (a) Upon the occurrence of
an Initial Public Offering ("IPO") of stock by the Company or a successor, the
public corporation shall assume this Plan and any outstanding Options in such
manner as the Board shall determine to be equitable and consistent with the
purposes of the Plan. The Board shall, in its discretion, determine the period
during which the fair market value of the equity interests subject to the
Options are determined for purposes of this Section 14.03.
(b) The Board shall have the right to require all Holders to
participate in a sale or merger transaction and to sell their Units to a third
party purchaser in connection with such sale or merger. Such right shall be
exercisable by written notice (the "Buyout Notice") given to each Holder which
shall state (i) that there has been a proposal to effect the sale of the
Interests of every Member of the Company to such third party purchaser, (ii) the
proposed purchase price per Unit to be paid by the third party purchaser for the
Interests of all of the Members, and (iii) the name of the third party
purchaser, and to which shall be attached a copy of all writings between such
selling Member and the other parties to such transaction necessary to establish
the terms of such transaction. Each such Holder agrees that, upon receipt of a
Buyout Notice, each such Holder shall be obligated to sell his Option Interests
upon the terms and conditions of such transaction (and otherwise take all
reasonably necessary action to cause consummation of the proposed transaction,
including voting
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15
any such Option Interest in favor of such transaction). The third party
purchaser shall furnish evidence reasonably satisfactory to the Board to the
effect that it has the financial ability to consummate the proposed purchase of
the Interests of all of the Members. For purposes of this paragraph, "Holder"
means a person who holds an unexercised Option or who holds an Interest acquired
upon exercise of an Option. The term "Option Interest" means either an Option or
an Interest acquired pursuant to exercise of an Option.
SECTION 14.04. Corporate Reconstitution. If the Company's business
is reconstituted in corporate form, outstanding Options shall be assumed by the
successor corporation in accordance with the principles set forth in Section
14.03.
ARTICLE XV
Effectiveness of the Plan
The Plan shall become effective upon approval by the affirmative
vote of a majority of the Members of the Company entitled to vote thereon.
ARTICLE XVI
Government and Other Regulations
The obligation of the Company with respect to Awards shall be
subject to all applicable laws, rules and regulations and such approvals by any
governmental agencies as may be required, including, without limitation, the
effectiveness of any registration statement required under the Securities Act of
1933, and the rules and regulations of any applicable securities exchange.
ARTICLE XVII
Withholding
The Company's obligation to deliver Units in respect of any Award
under the Plan shall be subject to applicable federal, state and local tax
withholding requirements. Federal, state and local withholding taxes paid upon
the exercise of any Option may be paid in Units upon such terms and conditions
as the Board shall determine; provided, however, that the Board in its sole
discretion may disapprove such payment and require that such taxes be paid in
cash.
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ARTICLE XVIII
Separability
If any of the terms or provisions of this Plan conflict with the
requirements of applicable law or applicable rules and regulations thereunder,
including the applicable requirements, if any, of section 162(m) of the Code or
Rule 16b-3 under the Exchange Act, then such terms or provisions shall be deemed
inoperative to the extent necessary to avoid the conflict with applicable law,
or applicable rules and regulations, without invalidating the remaining
provisions hereof.
ARTICLE XIX
Non-Exclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of
the Plan to the Members of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and the awarding of stock and cash otherwise than
under the Plan, and such arrangements may be either generally applicable or
applicable only in specific cases.
ARTICLE XX
Exclusion from Pension and Profit-Sharing Computation.
By acceptance of an Award, each Holder shall be deemed to have
agreed that such Award is special incentive compensation that will not be taken
into account, in any manner, as salary, compensation or bonus in determining the
amount of any payment under any pension, retirement or other employee benefit
plan of the Company or any of its Subsidiaries. In addition, each beneficiary of
a deceased Holder shall be deemed to have agreed that such Award will not affect
the amount of any life insurance coverage, if any, provided by the Company or
any of its Subsidiaries on the life of the Holder which is payable to such
beneficiary under any life insurance plan covering employees of the Company or
any of its Subsidiaries.
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ARTICLE XXI
Beneficiaries
Each Holder may designate any person(s) or legal entity(ies),
including his or her estate, as his or her beneficiary under the Plan. Such
designation shall be made in writing on a form filed with the Secretary of the
Company or his or her designee and may be revoked or changed by such Holder at
any time by filing written notice of such revocation or change with the
Secretary of the Company or his or her designee. If no person shall be
designated by a Holder as his or her beneficiary or if no person designated as a
beneficiary survives such Holder, the Holder's beneficiary shall be his or her
estate.
ARTICLE XXII
Governing Law
The Plan shall be governed by, and construed in accordance with, the
laws of the State of New York.
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EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 30, 1998, between TIME WARNER
TELECOM LLC, a Delaware limited liability company (the "Company"), and the
employee whose name appears on the last page hereof (the "Employee"). The
Company shall employ the Employee on the following terms and conditions:
1. Term. The Company hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions hereof for an initial term
commencing on the effective date (the "Effective Date") of the Reorganization
Agreement among Time Warner Companies, Inc., MediaOne Group, Inc. (formerly US
WEST, Inc.) ("MediaOne"), Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-Advance Newhouse
Partnership (collectively, the "Founding Stockholders") and ending, subject to
renewal or termination as provided herein, on the third anniversary of the
Effective Date (the "Initial Term"); provided, however, that this Agreement
shall automatically continue for successive one month periods thereafter (each
such period being an "Additional Term") unless either party has delivered
written notice of termination to the other party no later than six months prior
to the end of the Initial Term or 60 days prior to the end of any Additional
Term. Sections 8, 10 through 22 and 24 through 28 shall survive any termination
of Employee's employment under this Agreement. The Employee hereby covenants
that as of the Effective Date any agreement between Employee and the Company,
Time Warner Cable, US WEST, Inc. ("US WEST") or MediaOne, respectively, or any
of their affiliates, entered into prior to the date hereof, relating to
Employee's employment with such entity, shall terminate as of, or have been
terminated prior to, the Effective Date.
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2. Duties. Employee shall serve as Senior Vice President, Legal and
Regulatory, or subject to Section 5, in such other senior management position as
the Company shall determine. Subject to the foregoing, Employee shall perform
such duties as may be assigned by the Company to Employee from time to time, and
shall travel for business purposes to the extent reasonably necessary or
appropriate in the performance of such duties.
Employee shall perform such duties on a full time basis (subject to the
Company's written policies on vacations, illness, government service, etc.
applicable to employees at Employee's level in effect from time to time),
provided, however, that Employee shall not be precluded from devoting such time
to personal affairs as shall not interfere with the performance of his or her
duties hereunder. In performing his or her duties hereunder, Employee shall
comply with the Company's policies and procedures in effect from time to time.
Unless Employee otherwise consents, the headquarters for the performance of
Employee's services shall be the principal executive offices of the Company in
the Denver, Colorado area, subject to such reasonable travel as may be
appropriate or required in the performance of Employee's duties in the business
of the Company.
3. Compensation. The Company shall pay or cause to be paid to Employee,
during the term of employment, an annual salary in respect of each calendar year
at the rate of not less than $259,000 per annum. The Company may increase, but
not decrease, such annual salary at any time and from time to time during the
term of employment. In addition to annual salary, Employee may be entitled to
receive an annual bonus in respect of each calendar year based on a target
percentage of the salary paid to Employee during such calendar year of 50%.
Subject to Section 5, and the second paragraph of this Section 3, Employee
acknowledges that his or her actual annual bonus may vary and range from 0% to
150% of the target amount, depending on actual performance of the Company and
2
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Employee.
Subject to Section 5 and the second sentence of this Section 3, the
Company shall determine, in its sole discretion, the amount of any salary
increase, the amount of any annual bonus and whether to increase the target
percentage of Employee's annual bonus. The payment of any bonus compensation
shall be made in accordance with the Company's then current practices and
policies, including without limitation, less the usual required payroll
deductions and withholding.
The Company shall pay or reimburse Employee, in accordance with Company
policies applicable to employees at Employee's level, for all travel,
entertainment and other business expenses actually incurred or paid by Employee
in the performance of his or her duties hereunder, if properly substantiated and
submitted.
4. Benefits. Employee shall be eligible to participate in any pension,
profit-sharing, employee stock ownership, vacation, insurance, hospitalization,
medical, health, disability and other employee benefit or welfare plan, program
or policy whether now existing or established hereafter (collectively, the
"Benefit Plans"), to the extent that employees at Employee's level are generally
deemed eligible under the general provisions thereof. The Company reserves the
right to amend or cancel any such Benefit Plan in its sole discretion.
5. Termination by Employee Following a Change in Control.
(a) Provided that notice of termination has not previously been
given under any other Section hereof, Employee shall have the right to terminate
his or her employment with the Company under this Agreement for cause upon 30
days prior written notice delivered to the Company at any time within 180 days
after Employee has actual knowledge of the occurrence of any of the following
events following a Change in Control, indicating
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in such notice which event has occurred:
A. A change in the location of Employee's office or of the
Company's principal executive offices to a place which is more than 50
miles from the location of Employee's office or the location of the
Company's principal executive offices immediately prior to the occurrence
of a Change in Control;
B. A material reduction in Employee's decision-making,
budgetary, operating, staff and other responsibilities, taken as a whole,
from such responsibilities immediately prior to the occurrence of a Change
in Control, or a change in the person or persons to whom Employee reported
immediately prior to the occurrence of a Change in Control, to a person or
persons of lesser rank, title or responsibility; or
C. Any material breach of this Agreement by the Company.
(b) Upon the expiration of the 30-day notice period provided in
Section 5(a), Employee shall be relieved of his or her management position with
the Company and his or her duties hereunder. In the notice delivered by Employee
to the Company pursuant to Section 5(a), Employee shall elect either (A) to
terminate his or her employment with the Company, in which case Employee shall
receive: (x) subject to the terms thereof, all benefits which may be due to
Employee under the provisions of any Benefit Plan; and (y) in a lump sum
severance payment, within 30 days following the effective date of such
termination, the present value (using the discount rate described below) of an
amount equal to the sum of the annual salary at the rate in effect on the date
of termination of employment or immediately prior to the Change in Control,
whichever is greater, plus an annual bonus in a minimum amount equal to
Employee's then applicable target bonus amount or the Employee's applicable
target bonus amount in effect immediately prior to the Change in Control,
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whichever is greater, for the remainder of the existing term of this Agreement,
without any further renewal or continuation, provided that such amount shall be
not less than the sum of such salary and bonus pro rated for an 18-month period;
or (B) to remain an employee of the Company for a period (as determined by
Employee) of up to 18 months following the date notice of termination is given
by Employee pursuant to Section 5(a), in which case Employee shall be relieved
of his or her management position with the Company and his or her duties
hereunder, and shall (i) continue to receive both salary, based on a rate equal
to his or her annual rate in effect on the date of termination of employment or
immediately prior to the Change in Control, whichever is greater, and annual
bonuses in respect of such period (in each case payable within 30 days after the
end of the respective calendar year and prorated for any portion of a year),
each such bonus to be based on an amount equal to Employee's then applicable
target bonus amount or the Employee's applicable target bonus amount in effect
immediately prior to the Change in Control, whichever is greater, and (ii)
receive a discounted lump sum payment pursuant to Section 5(b)(A)(y) for any
portion of the term of employment remaining after such period; provided,
however, that if Employee accepts full-time employment with any other
corporation, partnership, trust, government or other entity ("Entity") during
such period or notifies the Company in writing of his or her intention to
terminate his or her employment during such period, Employee shall cease to be
an employee of the Company effective upon the commencement of such employment,
or the effective date of such termination as specified by Employee in such
notice, and shall be entitled to receive, subject to the terms thereof, all
benefits due to Employee under the provisions of any Benefit Plan and a
discounted lump sum cash payment for the balance of the salary and bonuses
Employee would have been entitled to receive pursuant to this Section 5(b)(B)
had Employee remained on the Company's payroll until the end of the Initial Term
or such 18 month period, whichever is greater; provided, further, however, that
Employee shall not be entitled
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to receive any such lump sum cash payment if he or she accepts full-time
employment with any subsidiary or Affiliate of the Company. For purposes of this
Agreement, the term "Affiliate" shall mean an Entity which, directly or
indirectly, controls, is controlled by or is under common control with, the
Company or TWI.
In addition, whether Employee elects 5(b)(A) or 5(b)(B), for a
period of the earlier of one year from the date of termination of employment or
the date Employee is eligible to receive health benefits by virtue of other
employment, Employee shall receive continued eligibility and enrollment
(including family coverage, if any), without a premium charge therefor, in
hospital, medical and dental insurance plans providing substantially equivalent
benefit coverage to those plans in which Employee was enrolled immediately prior
to the Change in Control unless waived in writing by Employee (or, in the event
such coverage cannot be provided, substantially similar benefits).
Any lump sum payments required to be made pursuant to this Section
5(b) shall be discounted to present value from the times at which such amounts
would have been paid absent any such termination at an annual discount rate for
the relevant period equal to the "applicable Federal rate" (within the meaning
of Section 1274(d) of the Internal Revenue Code of 1986 (the "Code")),
compounded semi-annually, in effect on the date of such termination, the use of
which rate is hereby elected by the Company and Employee pursuant to Treas. Reg.
'SS' 1.280G-1Q/A32 (provided that in the event such election is not permitted,
such other rate determined as of such other date as is applicable for
determining present value under Section 280G of the Code shall be used).
6. Termination by Company.
(a) For Cause. Provided that notice of termination has not
previously been given under any other Section hereof, the Company shall have the
right to terminate Employee's employment for cause upon written notice to
Employee at any time. In such
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event, Employee's employment with the Company shall terminate immediately and
Employee shall be entitled to receive (i) any earned and unpaid salary accrued
through the date of such termination, and (ii) subject to the terms thereof, any
benefits which may be due to Employee under the provisions of any Benefit Plan.
Employee hereby disclaims any right to receive a pro rata portion of his or her
annual bonus with respect to the year in which such termination occurs. For
purposes hereof, "cause" shall mean termination by action of the Company's Board
of Directors or any committee thereof because of Employee's conviction (treating
a nolo contendere plea as a conviction) of a felony (whether or not any right to
appeal has been exercised) or willful refusal without proper cause to perform
his or her obligations under this Agreement or because of Employee's material
breach of the covenants provided for in Sections 10, 11 and 12 of this
Agreement. In the event (i) such termination is because of the Employee's
willful refusal without proper cause to perform any one or more of his
obligations under this Agreement, (ii) such notice is the first such notice of
termination for any reason delivered by the Company to the Employee under this
Section 6(a), and (iii) within 10 days following the date of such notice the
Employee shall cease his or her refusal and shall use his or her best efforts to
perform such obligations, the termination shall not be effective.
(b) Other. Provided that notice of termination has not previously
been given under any other Section hereof, the Company shall have the right at
any time to terminate Employee's employment under this Agreement without cause,
by giving written notice thereof to Employee.
(i) If such notice is so given to Employee, Employee shall be
entitled to receive, subject to the terms thereof, all benefits which may be due
to Employee under the provisions of any Benefit Plan and to elect, within 30
days after receiving such notice, to receive either a lump sum severance payment
in the amount, and upon the terms and
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conditions, provided in Section 5(b)(A) and calculated as set forth in the last
paragraph of Section 5(b), or to remain an employee of the Company upon the
terms and conditions provided in Section 5(b)(B); provided, however, that (i)
any reference therein to Section 5(a) shall be deemed for purposes of this
Section 6(b) to be a reference to this Section 6(b)(i), and (ii) if a Change in
Control has not occurred, then (x) Employee's salary shall be determined with
reference to his or her then current annual salary and (y) Employee's annual
bonus shall equal at least the Employee's target amount immediately prior to
Employee's termination under this Section 6(b)(i).
(ii) For the period beginning when Employee receives notice of
termination from the Company pursuant to this Section 6(b), and ending six
months thereafter, Employee will, without charge to Employee, have use of
reasonable office space and reasonable office facilities at Employee's principal
job location immediately prior to his or her termination of employment, or other
location reasonably close to such location, together with reasonable secretarial
services in each case appropriate to an employee of Employee's position and
responsibilities prior to such termination of employment but taking into account
Employee's reduced need for such office space and secretarial services. Employee
will continue to be eligible to participate in the Company's Benefit Plans and
to receive, subject to the terms thereof, all benefits, which are received by
other employees at Employee's level thereunder other than options or similar
equity-based or incentive awards.
(iii) In the event that Employee's employment is terminated
prior to the occurrence of a Change in Control, or more than three years
following a Change in Control, then, in partial consideration for the Company's
obligation to make the payments described in this Section 6(b), Employee shall
execute and deliver to the Company a release in the form as set forth in Exhibit
A. The Company shall deliver such release to Employee at the time the Company
delivers notice of termination pursuant to this Section 6(b). Employee shall
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execute and deliver such release to the Secretary of the Company within 21 days
of receipt of notice of termination. If Employee shall fail to execute and
deliver to the Company such release within 30 days of Employee's receipt thereof
from the Company, Employee's employment with the Company shall terminate
effective at the end of such 30-day period and Employee shall receive, in lieu
of the severance arrangements described in Section 6(b), a lump sum cash payment
in an amount determined in accordance with the personnel policies of the Company
then applicable.
7. Death; Disability.
(a) Death. If Employee shall die while employed by the Company,
Employee's employment under this Agreement shall thereupon terminate and
Employee's estate or beneficiaries, as the case may be, shall be entitled to
receive as promptly as practicable but in any event within 30 days after
reasonably satisfactory evidence of Employee's death is received by the Company
(i) any earned and unpaid salary accrued to Employee through the period ending
30 days following the date of Employee's death and a pro rata portion of the
target annual bonus amount in effect immediately prior to Employee's death; and
(ii) subject to the terms thereof, any benefits which may be due to Employee's
estate or beneficiaries under the provisions of any Benefit Plan.
(b) Disability. Provided that notice of termination has not
previously been given under any Section hereof, if employee becomes ill or is
injured or disabled during the term of this Agreement such that Employee fails
to perform all or substantially all the duties to be rendered hereunder and such
failure continues for a period in excess of 26 consecutive weeks (a
"Disability"), the Company may terminate the employment of Employee under this
Agreement upon written notice to Employee at any time and thereupon Employee
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of such termination; (ii) subject to the terms thereof, any benefits
which may be due to Employee
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under the provisions of any Benefit Plan; and (iii) a lump sum cash payment
equal to the sum of 75% of Employee's then current annual salary and then
applicable target annual bonus amount prorated for an 18-month period, less the
amount of any disability insurance proceeds payable to Employee under any
disability insurance policy or program covering Employee.
8. Stock Options and Other Incentive Awards. Upon Employee's termination
of employment with the Company for any reason, Employee's rights to benefits and
payments under any stock options, restricted shares or other incentive plans
shall be determined in accordance with the terms and provisions of such plans
and any agreements under which such stock options, restricted shares or other
awards were granted.
9. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred at such time as the
Founding Stockholders (and their respective affiliates) as a group cease to have
the ability to elect a majority of the representatives on the Management
Committee of the Company (other than the chief executive officer of the Company
and independent representatives; provided that independent representatives shall
be included in calculating whether the foregoing majority requirement is
satisfied if the representatives nominated by the Founding Stockholders (and
their respective affiliates) do not constitute a majority of the committee that
selects the Management Committee's nominees for independent representatives) and
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
the Founding Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage of
the total voting power of the voting interests of the Company, on a fully
diluted basis, than
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is held by the Founding Stockholders (and their respective affiliates) as a
group on such date. In the event that any successor of the Company, as
contemplated by Section 16, is a corporation, the same principles shall be
applied in determining whether a "Change in Control" has occurred with reference
to the board of directors, directors and capital stock of such corporation in
lieu of the Management Committee, representatives and voting interests of the
Company.
10. Trade Secrets; Work Products, Etc. Except in connection with the
performance of his or her duties hereunder, Employee hereby expressly covenants
and agrees that Employee will not at any time while employed by the Company or
thereafter, exploit, use, sell, publish, disclose, communicate or divulge to any
person or Entity, other than the Company and its subsidiaries, either directly
or indirectly, any trade secrets or confidential information, knowledge or data
regarding the Company or any of its subsidiaries or Affiliates or any of their
respective officers, directors or employees including, without limitation, the
existence and terms of this Agreement, other than such information, knowledge or
data which has been released by the Company or such subsidiaries, Affiliates or
others to the public (except that with respect to the terms of this Agreement
Employee may communicate such terms to Employee's spouse and Employee's
attorneys and financial advisors). Notwithstanding the foregoing, Employee may
disclose such trade secrets or confidential information, knowledge, data or
terms when required to do so by a court or government agency or legislative body
of competent jurisdiction, provided Employee first notifies the Company orally
and in writing as promptly as possible of such requirement so that the Company
may either seek an appropriate protective order or waive compliance with the
provisions of this Section, and provided further that if, in the absence of such
protective order or waiver, Employee is nevertheless, in the written opinion of
his or her counsel, reasonably acceptable to the Company, addressed to and
delivered to the Company, otherwise required
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to disclose such information to any such court, government agency or legislative
body or else stand liable for contempt or suffer other material penalty,
Employee may disclose such information in such case without liability hereunder
so long as such disclosure does not exceed that required by such court,
government agency or legislative body.
Employee hereby grants and assigns to the Company all rights (including,
without limitation, any copyright or patent) in the results and proceeds of all
services provided by Employee hereunder and all such services shall be subject
in all respects to the supervision, control and direction of the Company. Any
work in connection with such services shall be considered "work made for hire"
under the Copyright Law of 1976 or any successor thereof, and the Company shall
be the owner of such work as if the Company were the author of such work.
11. Non-Compete; Solicitation. Employee hereby expressly covenants and
agrees that:
(a) Employee will not at any time during the Term of employment and
for a period of one year following the date a notice of termination of
Employee's employment is effective as provided herein, be or become an officer,
director, partner or employee of or consultant to or act in any managerial
capacity with or own any equity interest in any Entity (an "Affiliated Person")
which is a "Competitive Business Entity" (as such term is defined on Exhibit B
hereto); provided, however, that (i) ownership of less than 1% of the
outstanding equity securities of any Entity listed on any national securities
exchange or traded on the National Association of Securities Dealers Automated
Quotation System shall not be prohibited hereby, and (ii) in the event Employee
is terminated pursuant to Section 6(b) and notice of termination is so given to
Employee following the occurrence of a Change in Control, Employee is hereby
permitted to accept employment with any Founding Stockholder and such employment
shall not violate the provisions of this Section 11.
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(b) Employee will not at any time during the Term of employment and
for a period of one year after the date a notice of termination of Employee's
employment is effective as provided herein, solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its subsidiaries or
Affiliates to work for Employee or for any Entity in which Employee owns or
expects to own more than a 1% equity interest or for which Employee serves or
expects to serve as an Affiliated Person.
For the purposes of this Section 11(b), the term "solicit any
employee" shall mean Employee's contacting, or providing information to others
who may be expected to contact, any employee of the Company or any of its
subsidiaries or Affiliates regarding their employment status, job satisfaction,
interest in seeking employment with Employee or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or
responding to an unsolicited request for a personal recommendation for or
evaluation of an employee of the Company or any of its subsidiaries or
Affiliates.
12. Documents; Conduct. Employee hereby expressly covenants and agrees
that:
(a) Following termination of Employee's employment with the Company
for any reason or at any time upon the Company's request, Employee will promptly
return to the Company all property of the Company and its subsidiaries and
Affiliates in his or her possession or control (whether maintained at his or her
office, home or elsewhere), including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed or written materials, documents, diaries, calendars and data of
or relating to the Company or its subsidiaries or Affiliates or their respective
personnel or affairs; and
(b) Employee will not at any time denigrate, ridicule or
intentionally criticize the Company or any of its subsidiaries or Affiliates or
any of their respective products, properties, employees, officers or directors,
including, without limitation, by way of news
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interviews, or the expression of personal views, opinions or judgments to the
news media.
13. Breach by Employee. Employee hereby expressly covenants and agrees
that the Company will suffer irreparable damage in the event any provisions of
Sections 10, 11 and 12 are not performed or are otherwise breached and that the
Company shall be entitled as a matter of right to an injunction or injunctions
and other relief to prevent a breach or violation by Employee and to secure its
enforcement of Section 10, 11 and 12 resort to such equitable relief, however,
shall not constitute a waiver of any other rights or remedies which the Company
may have.
14. Representations.
(a) Employee represents and warrants to the Company that this
Agreement is legal, valid and binding upon Employee and Employee is not a party
to any agreement or understanding which would prevent the fulfillment by
Employee of the terms of this Agreement. Employee has consulted with his or her
legal, tax, financial and other advisors, to the extent desired, prior to
execution and delivery of this Agreement.
(b) The Company represents and warrants to Employee that this
Agreement is legal, valid and binding upon the Company and the Company is not a
party to any agreement or understanding which would prevent the fulfillment by
the Company of the terms of this Agreement.
15. Notice. Any notice required or permitted to be given hereunder shall
be in writing (except where required to be given orally) and shall be
sufficiently given or sent by registered or certified mail or delivered, in
person, if to Employee at the address set forth on the last paragraph hereof, or
at such other address as Employee shall designate by written notice to the
Company, and if to the Company at 5700 S. Quebec Street, Greenwood Village,
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CO 80111, attention of the Secretary or at such other address as the Company
shall designate by written notice to Employee.
16. Successors and Assigns. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any right or obligations hereunder; provided however,
that the provisions hereof shall inure to the benefit of, and be binding upon,
any successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of the assets of the Company, or otherwise.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, irrespective of
its conflicts of law rules, except for the By-laws referred to in Section 26,
which shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware.
To the extent that any applicable state or Federal law, rule or
regulation confers upon Employee any greater benefit or right than that set
forth in this Agreement, such law, rule or regulation shall control in lieu of
the provisions hereof relating to such benefit or right.
18. Mitigation. Employee shall have no obligation to mitigate damages in
the event of termination of Employee's employment under this Agreement under
Section 5(a), 6(b) or 7, other than as necessary to prevent the Company from
losing any tax deductions to which it otherwise would have been entitled for any
payments deemed to be "contingent on a change" under the Code and any payments
received by Employee hereunder shall not be offset or reduced in any way by any
other earnings or payments which may be received by Employee from any source,
except as provided by this Section 18. It is acknowledged and agreed that any
payment which may be made by the Company to Employee under Section
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5(b), 6(b) or 7 is in the nature of severance and is not a penalty payment.
19. Withholding. All payments required to be paid by the Company to
Employee under this Agreement will be paid in accordance with the payroll
practices of the Company or the terms of the Benefit Plans, as the case may be,
and will be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company's policies applicable to employees at
Employee's level and the terms of the Benefit Plan.
20. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
Employee, on the one hand, and the Company and its subsidiaries and Affiliates,
on the other, and constitutes the complete understanding between the parties
with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein.
21. Modification; Waiver. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of both the parties hereto. No waiver by either party at any time of
any breach by the other party of any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Subject to Section 28, no policy,
procedure or practice of the Company whether now or hereafter in effect shall be
deemed to modify, amend or supersede any provision of this Agreement except as
contemplated or provided otherwise in this Agreement.
22. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
23. Use of Likeness. The Company and TWI shall have the right to use
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Employee's name, biography and likeness in connection with their respective
businesses and that of their subsidiaries and Affiliates, but not for use as a
direct endorsement.
24. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
25. Set-off. The Company and its subsidiaries and Affiliates shall have no
right to set-off payments owed to Employee hereunder against amounts owed or
claimed to be owed by Employee to the Company or its subsidiaries or Affiliates
under this Agreement or otherwise.
26. Indemnification. The Company shall indemnify Employee to no lesser
extent than provided in the Company's By-laws on the date hereof (the provisions
of which are hereby incorporated by reference herein), notwithstanding any
changes or amendments to such By-laws after the date hereof adversely affecting,
limiting or reducing such indemnification.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Changes. Subject to Section 5, the Company and its subsidiaries and
Affiliates are entitled to amend, modify, terminate or otherwise change at any
time or from time to time any and all Benefit Plans and policies, practices or
procedures referred to in this Agreement, and all references herein to such
Benefit Plans and policies, practices and procedures shall be to such as from
time to time in effect prior to a Change in Control except as otherwise
specifically herein provided.
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29. Beneficiaries. Whenever this Agreement provides for any payment to the
Employee's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Employee may designate in writing (using the form of
Beneficiary Designation attached hereto as Exhibit C) and file with the Company.
The Employee shall have the right to revoke such Beneficiary Designation and
redesignate a beneficiary by filing with the Company (and any applicable
insurance company) a later dated Beneficiary Designation to such effect.
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IN WITNESS WHEREOF, Employee and the Company have caused this
Agreement to be executed as of the date first above written.
TIME WARNER TELECOM LLC
By: /s/ Larissa L. Herda
--------------------------------
Name: Larissa L. Herda
Title: President and Chief Executive Officer
Agreed to and accepted as of
the date first above written
/s/Paul B. Jones
----------------
Name: Paul B. Jones
Title: Senior Vice President, Legal and Regulatory
Address for Notices:
- ---------------------------
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EXHIBIT A
RELEASE
Pursuant to the terms of the Employment Agreement dated as of June 30,
1998 between Time Warner Telecom LLC (the "Company") and any successor and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, _____________________,
being of lawful age, do hereby release and forever discharge the Company and its
respective officers, shareholders, subsidiaries, agents, and employees, from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages, attorneys' fees, expenses, or other compensation, which in any
way relate to or raise out of my employment with the Company or the termination
of such employment, which I may now or hereafter under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this release, provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement or to seek damages for the breach of the
Agreement by the Company.
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I further state that I have read the foregoing document, that I know
the contents thereof, and that I have executed the same as my own free act.
WITNESS my hand this _______ day of ____________________.
___________________________________
<PAGE>
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EXHIBIT B
"Competitive Business Entity" shall mean (i) any federal, state or local
authority empowered to grant, renew, modify or amend, or review the grant,
renewal, modification or amendment of, franchises to operate any competitive
local exchange carrier or to regulate the conduct of any such business in the
United States, except that a Competitive Business Entity shall not include any
such state or local authority that is so empowered with respect to franchises
or regulation of any such business in a state or region in which the Company
does not engage or, to the knowledge of Employee, does not have definitive plans
to engage, in the ownership, operation or management of such a business, and
(ii) any Entity which is engaged, either directly or indirectly, in the
ownership, operation or management of any business providing telecommunications
services to customers as a competitive local exchange carrier in any state of
the United States in which the Company engages or, to the knowledge of Employee,
has definitive plans to engage, in the ownerhsip, operation or management of
such a business.
All capitalized terms used herein shall have the meanings provided
in the Employment Agreement to which this Exhibit B is attached.
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EXHIBIT C
BENEFICIARY DESIGNATION PURSUANT TO
EMPLOYMENT AGREEMENT
This Beneficiary Designation is made by the undersigned employee pursuant
to that certain Employment Agreement dated as of June 30, 1998 (the
"Agreement"), between Time Warner Telecom LLC, a Delaware limited liability
company (the "Company'), and the undersigned.
1. Primary Beneficiary or Beneficiaries. I hereby designate the following
Primary Beneficiary(ies) to receive all payments and other benefits due to me
under the Agreement in the event of my death. Unless otherwise indicated, such
benefits will be paid in equal shares to all designated Primary Beneficiaries
who are living or in existence at the date of my death.
Name(s) of Primary Address(es)
Beneficiary(ies)
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- ---------------------- -----------------------------------
- ---------------------- -----------------------------------
2. Contingent Beneficiary or Beneficiaries. If none of the Primary
Beneficiaries listed in Paragraph 1 above are living or in existence at the date
of my death, then the following Contingent Beneficiary(ies) will receive the
payments and other benefits due to me under the Agreement. Unless otherwise
indicated, such benefits will be paid in equal shares to all designated
Contingent Beneficiary(ies) who are living or in existence at the date of my
death.
Name(s) of Contingent Address(es)
Beneficiary(ies)
- ---------------------- -----------------------------------
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3. Payments to Estate. If none of the Primary Beneficiaries listed in
Paragraph 1 above and one of the Contingent Beneficiaries listed in Paragraph 2
above are living or in existence at the date of my death, then the payments and
other benefits due to me under the Agreement shall be paid to my estate.
4. Effective Date of Beneficiary Designation. This Beneficiary Designation
will be effective only if it is received by the Company prior to my death. If
this Beneficiary Designation is received by the Company prior to my death, it
will revoke all prior Beneficiary Designations. This Beneficiary Designation may
be revoked by delivery to the Company of a subsequent, properly completed
Beneficiary Designation.
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Date Employee
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EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 30, 1998, between TIME WARNER
TELECOM LLC, a Delaware limited liability company (the "Company"), and the
employee whose name appears on the last page hereof (the "Employee"). The
Company shall employ the Employee on the following terms and conditions:
1. Term. The Company hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions hereof for an initial term
commencing on the effective date (the "Effective Date") of the Reorganization
Agreement among Time Warner Companies, Inc., MediaOne Group, Inc. (formerly US
WEST, Inc.) ("MediaOne"), Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-Advance Newhouse
Partnership (collectively, the "Founding Stockholders") and ending, subject to
renewal or termination as provided herein, on the third anniversary of the
Effective Date (the "Initial Term"); provided, however, that this Agreement
shall automatically continue for successive one month periods thereafter (each
such period being an "Additional Term") unless either party has delivered
written notice of termination to the other party no later than six months prior
to the end of the Initial Term or 60 days prior to the end of any Additional
Term. Sections 8, 10 through 22 and 24 through 28 shall survive any termination
of Employee's employment under this Agreement. The Employee hereby covenants
that as of the Effective Date any agreement between Employee and the Company,
Time Warner Cable, US WEST, Inc. ("US WEST") or MediaOne, respectively, or any
of their affiliates, entered into prior to the date hereof, relating to
Employee's employment with such entity, shall terminate as of, or have been
terminated prior to, the Effective Date.
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2. Duties. Employee shall serve as President and Chief Executive Officer,
or subject to Section 5, in such other senior management position as the Company
shall determine. Subject to the foregoing, Employee shall perform such duties as
may be assigned by the Company to Employee from time to time, and shall travel
for business purposes to the extent reasonably necessary or appropriate in the
performance of such duties.
Employee shall perform such duties on a full time basis (subject to the
Company's written policies on vacations, illness, government service, etc.
applicable to employees at Employee's level in effect from time to time),
provided, however, that Employee shall not be precluded from devoting such time
to personal affairs as shall not interfere with the performance of his or her
duties hereunder. In performing his or her duties hereunder, Employee shall
comply with the Company's policies and procedures in effect from time to time.
Unless Employee otherwise consents, the headquarters for the performance of
Employee's services shall be the principal executive offices of the Company in
the Denver, Colorado area, subject to such reasonable travel as may be
appropriate or required in the performance of Employee's duties in the business
of the Company.
3. Compensation. The Company shall pay or cause to be paid to Employee,
during the term of employment, an annual salary in respect of each calendar year
at the rate of not less than $300,000 per annum. The Company may increase, but
not decrease, such annual salary at any time and from time to time during the
term of employment. In addition to annual salary, Employee may be entitled to
receive an annual bonus in respect of each calendar year based on a target
percentage of the salary paid to Employee during such calendar year of 50%.
Subject to Section 5, and the second paragraph of this Section 3, Employee
acknowledges that his or her actual annual bonus may vary and range from 0% to
150% of the target amount, depending on actual performance of the Company and
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Employee.
Subject to Section 5 and the second sentence of this Section 3, the
Company shall determine, in its sole discretion, the amount of any salary
increase, the amount of any annual bonus and whether to increase the target
percentage of Employee's annual bonus. The payment of any bonus compensation
shall be made in accordance with the Company's then current practices and
policies, including without limitation, less the usual required payroll
deductions and withholding.
The Company shall pay or reimburse Employee, in accordance with Company
policies applicable to employees at Employee's level, for all travel,
entertainment and other business expenses actually incurred or paid by Employee
in the performance of his or her duties hereunder, if properly substantiated and
submitted.
4. Benefits. Employee shall be eligible to participate in any pension,
profit-sharing, employee stock ownership, vacation, insurance, hospitalization,
medical, health, disability and other employee benefit or welfare plan, program
or policy whether now existing or established hereafter (collectively, the
"Benefit Plans"), to the extent that employees at Employee's level are generally
deemed eligible under the general provisions thereof. The Company reserves the
right to amend or cancel any such Benefit Plan in its sole discretion.
5. Termination by Employee Following a Change in Control.
(a) Provided that notice of termination has not previously been
given under any other Section hereof, Employee shall have the right to terminate
his or her employment with the Company under this Agreement for cause upon 30
days prior written notice delivered to the Company at any time within 180 days
after Employee has actual knowledge of the occurrence of any of the following
events following a Change in Control, indicating
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in such notice which event has occurred:
A. A change in the location of Employee's office or of the
Company's principal executive offices to a place which is more than 50
miles from the location of Employee's office or the location of the
Company's principal executive offices immediately prior to the occurrence
of a Change in Control;
B. A material reduction in Employee's decision-making,
budgetary, operating, staff and other responsibilities, taken as a whole,
from such responsibilities immediately prior to the occurrence of a Change
in Control, or a change in the person or persons to whom Employee reported
immediately prior to the occurrence of a Change in Control, to a person or
persons of lesser rank, title or responsibility; or
C. Any material breach of this Agreement by the Company.
(b) Upon the expiration of the 30-day notice period provided in
Section 5(a), Employee shall be relieved of his or her management position with
the Company and his or her duties hereunder. In the notice delivered by Employee
to the Company pursuant to Section 5(a), Employee shall elect either (A) to
terminate his or her employment with the Company, in which case Employee shall
receive: (x) subject to the terms thereof, all benefits which may be due to
Employee under the provisions of any Benefit Plan; and (y) in a lump sum
severance payment, within 30 days following the effective date of such
termination, the present value (using the discount rate described below) of an
amount equal to the sum of the annual salary at the rate in effect on the date
of termination of employment or immediately prior to the Change in Control,
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whichever is greater, plus an annual bonus in a minimum amount equal to
Employee's then applicable target bonus amount or the Employee's applicable
target bonus amount in effect immediately prior to the Change in Control,
whichever is greater, for the remainder of the existing term of this Agreement,
without any further renewal or continuation, provided that such amount shall be
not less than the sum of such salary and bonus pro rated for an 18-month period;
or (B) to remain an employee of the Company for a period (as determined by
Employee) of up to 18 months following the date notice of termination is given
by Employee pursuant to Section 5(a), in which case Employee shall be relieved
of his or her management position with the Company and his or her duties
hereunder, and shall (i) continue to receive both salary, based on a rate equal
to his or her annual rate in effect on the date of termination of employment or
immediately prior to the Change in Control, whichever is greater, and annual
bonuses in respect of such period (in each case payable within 30 days after the
end of the respective calendar year and prorated for any portion of a year),
each such bonus to be based on an amount equal to Employee's then applicable
target bonus amount or the Employee's applicable target bonus amount in effect
immediately prior to the Change in Control, whichever is greater, and (ii)
receive a discounted lump sum payment pursuant to Section 5(b)(A)(y) for any
portion of the term of employment remaining after such period; provided,
however, that if Employee accepts full-time employment with any other
corporation, partnership, trust, government or other entity ("Entity") during
such period or notifies the Company in writing of his or her intention to
terminate his or her employment during such period, Employee shall cease to be
an employee of the Company effective upon the commencement of such employment,
or the effective date of such termination as specified by Employee in such
notice, and shall be entitled to receive, subject to the terms thereof, all
benefits due to Employee under the provisions of any Benefit Plan and a
discounted lump sum cash payment for the balance of the salary and bonuses
Employee would have been entitled to receive pursuant to this Section 5(b)(B)
had Employee remained on the Company's payroll until the end of the Initial Term
or such 18 month period, whichever is greater; provided, further, however, that
Employee shall not be entitled
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to receive any such lump sum cash payment if he or she accepts full-time
employment with any subsidiary or Affiliate of the Company. For purposes of this
Agreement, the term "Affiliate" shall mean an Entity which, directly or
indirectly, controls, is controlled by or is under common control with, the
Company or TWI.
In addition, whether Employee elects 5(b)(A) or 5(b)(B), for a
period of the earlier of one year from the date of termination of employment or
the date Employee is eligible to receive health benefits by virtue of other
employment, Employee shall receive continued eligibility and enrollment
(including family coverage, if any), without a premium charge therefor, in
hospital, medical and dental insurance plans providing substantially equivalent
benefit coverage to those plans in which Employee was enrolled immediately prior
to the Change in Control unless waived in writing by Employee (or, in the event
such coverage cannot be provided, substantially similar benefits).
Any lump sum payments required to be made pursuant to this
Section 5(b) shall be discounted to present value from the times at which such
amounts would have been paid absent any such termination at an annual discount
rate for the relevant period equal to the "applicable Federal rate" (within the
meaning of Section 1274(d) of the Internal Revenue Code of 1986 (the "Code")),
compounded semi-annually, in effect on the date of such termination, the use of
which rate is hereby elected by the Company and Employee pursuant to Treas. Reg.
'SS' 1.280G-1Q/A32 (provided that in the event such election is not permitted,
such other rate determined as of such other date as is applicable for
determining present value under Section 280G of the Code shall be used).
6. Termination by Company.
(a) For Cause. Provided that notice of termination has not
previously been given under any other Section hereof, the Company shall have the
right to terminate Employee's employment for cause upon written notice to
Employee at any time. In such
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event, Employee's employment with the Company shall terminate immediately and
Employee shall be entitled to receive (i) any earned and unpaid salary accrued
through the date of such termination, and (ii) subject to the terms thereof, any
benefits which may be due to Employee under the provisions of any Benefit Plan.
Employee hereby disclaims any right to receive a pro rata portion of his or her
annual bonus with respect to the year in which such termination occurs. For
purposes hereof, "cause" shall mean termination by action of the Company's Board
of Directors or any committee thereof because of Employee's conviction (treating
a nolo contendere plea as a conviction) of a felony (whether or not any right to
appeal has been exercised) or willful refusal without proper cause to perform
his or her obligations under this Agreement or because of Employee's material
breach of the covenants provided for in Sections 10, 11 and 12 of this
Agreement. In the event (i) such termination is because of the Employee's
willful refusal without proper cause to perform any one or more of his
obligations under this Agreement, (ii) such notice is the first such notice of
termination for any reason delivered by the Company to the Employee under this
Section 6(a), and (iii) within 10 days following the date of such notice the
Employee shall cease his or her refusal and shall use his or her best efforts to
perform such obligations, the termination shall not be effective.
(b) Other. Provided that notice of termination has not previously
been given under any other Section hereof, the Company shall have the right at
any time to terminate Employee's employment under this Agreement without cause,
by giving written notice thereof to Employee.
(i) If such notice is so given to Employee, Employee shall be
entitled to receive, subject to the terms thereof, all benefits which may be due
to Employee under the provisions of any Benefit Plan and to elect, within 30
days after receiving such notice, to receive either a lump sum severance payment
in the amount, and upon the terms and
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conditions, provided in Section 5(b)(A) and calculated as set forth in the last
paragraph of Section 5(b), or to remain an employee of the Company upon the
terms and conditions provided in Section 5(b)(B); provided, however, that (i)
any reference therein to Section 5(a) shall be deemed for purposes of this
Section 6(b) to be a reference to this Section 6(b)(i), and (ii) if a Change in
Control has not occurred, then (x) Employee's salary shall be determined with
reference to his or her then current annual salary and (y) Employee's annual
bonus shall equal at least the Employee's target amount immediately prior to
Employee's termination under this Section 6(b)(i).
(ii) For the period beginning when Employee receives notice of
termination from the Company pursuant to this Section 6(b), and ending six
months thereafter, Employee will, without charge to Employee, have use of
reasonable office space and reasonable office facilities at Employee's principal
job location immediately prior to his or her termination of employment, or other
location reasonably close to such location, together with reasonable secretarial
services in each case appropriate to an employee of Employee's position and
responsibilities prior to such termination of employment but taking into account
Employee's reduced need for such office space and secretarial services. Employee
will continue to be eligible to participate in the Company's Benefit Plans and
to receive, subject to the terms thereof, all benefits, which are received by
other employees at Employee's level thereunder other than options or similar
equity-based or incentive awards.
(iii) In the event that Employee's employment is terminated
prior to the occurrence of a Change in Control, or more than three years
following a Change in Control, then, in partial consideration for the Company's
obligation to make the payments described in this Section 6(b), Employee shall
execute and deliver to the Company a release in the form as set forth in Exhibit
A. The Company shall deliver such release to Employee at the time the Company
delivers notice of termination pursuant to this Section 6(b). Employee shall
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execute and deliver such release to the Secretary of the Company within 21 days
of receipt of notice of termination. If Employee shall fail to execute and
deliver to the Company such release within 30 days of Employee's receipt thereof
from the Company, Employee's employment with the Company shall terminate
effective at the end of such 30-day period and Employee shall receive, in lieu
of the severance arrangements described in Section 6(b), a lump sum cash payment
in an amount determined in accordance with the personnel policies of the Company
then applicable.
7. Death; Disability.
(a) Death. If Employee shall die while employed by the Company,
Employee's employment under this Agreement shall thereupon terminate and
Employee's estate or beneficiaries, as the case may be, shall be entitled to
receive as promptly as practicable but in any event within 30 days after
reasonably satisfactory evidence of Employee's death is received by the Company
(i) any earned and unpaid salary accrued to Employee through the period ending
30 days following the date of Employee's death and a pro rata portion of the
target annual bonus amount in effect immediately prior to Employee's death; and
(ii) subject to the terms thereof, any benefits which may be due to Employee's
estate or beneficiaries under the provisions of any Benefit Plan.
(b) Disability. Provided that notice of termination has not
previously been given under any Section hereof, if employee becomes ill or is
injured or disabled during the term of this Agreement such that Employee fails
to perform all or substantially all the duties to be rendered hereunder and such
failure continues for a period in excess of 26 consecutive weeks (a
"Disability"), the Company may terminate the employment of Employee under this
Agreement upon written notice to Employee at any time and thereupon Employee
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of such termination; (ii) subject to the terms thereof, any benefits
which may be due to Employee
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under the provisions of any Benefit Plan; and (iii) a lump sum cash payment
equal to the sum of 75% of Employee's then current annual salary and then
applicable target annual bonus amount prorated for an 18-month period, less the
amount of any disability insurance proceeds payable to Employee under any
disability insurance policy or program covering Employee.
8. Stock Options and Other Incentive Awards. Upon Employee's termination
of employment with the Company for any reason, Employee's rights to benefits and
payments under any stock options, restricted shares or other incentive plans
shall be determined in accordance with the terms and provisions of such plans
and any agreements under which such stock options, restricted shares or other
awards were granted.
9. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred at such time as the
Founding Stockholders (and their respective affiliates) as a group cease to have
the ability to elect a majority of the representatives on the Management
Committee of the Company (other than the chief executive officer of the Company
and independent representatives; provided that independent representatives shall
be included in calculating whether the foregoing majority requirement is
satisfied if the representatives nominated by the Founding Stockholders (and
their respective affiliates) do not constitute a majority of the committee that
selects the Management Committee's nominees for independent representatives) and
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
the Founding Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage of
the total voting power of the voting interests of the Company, on a fully
diluted basis, than
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is held by the Founding Stockholders (and their respective affiliates) as a
group on such date. In the event that any successor of the Company, as
contemplated by Section 16, is a corporation, the same principles shall be
applied in determining whether a "Change in Control" has occurred with reference
to the board of directors, directors and capital stock of such corporation in
lieu of the Management Committee, representatives and voting interests of the
Company.
10. Trade Secrets; Work Products, Etc. Except in connection with the
performance of his or her duties hereunder, Employee hereby expressly covenants
and agrees that Employee will not at any time while employed by the Company or
thereafter, exploit, use, sell, publish, disclose, communicate or divulge to any
person or Entity, other than the Company and its subsidiaries, either directly
or indirectly, any trade secrets or confidential information, knowledge or data
regarding the Company or any of its subsidiaries or Affiliates or any of their
respective officers, directors or employees including, without limitation, the
existence and terms of this Agreement, other than such information, knowledge or
data which has been released by the Company or such subsidiaries, Affiliates or
others to the public (except that with respect to the terms of this Agreement
Employee may communicate such terms to Employee's spouse and Employee's
attorneys and financial advisors). Notwithstanding the foregoing, Employee may
disclose such trade secrets or confidential information, knowledge, data or
terms when required to do so by a court or government agency or legislative body
of competent jurisdiction, provided Employee first notifies the Company orally
and in writing as promptly as possible of such requirement so that the Company
may either seek an appropriate protective order or waive compliance with the
provisions of this Section, and provided further that if, in the absence of such
protective order or waiver, Employee is nevertheless, in the written opinion of
his or her counsel, reasonably acceptable to the Company, addressed to and
delivered to the Company, otherwise required
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to disclose such information to any such court, government agency or legislative
body or else stand liable for contempt or suffer other material penalty,
Employee may disclose such information in such case without liability hereunder
so long as such disclosure does not exceed that required by such court,
government agency or legislative body.
Employee hereby grants and assigns to the Company all rights (including,
without limitation, any copyright or patent) in the results and proceeds of all
services provided by Employee hereunder and all such services shall be subject
in all respects to the supervision, control and direction of the Company. Any
work in connection with such services shall be considered "work made for hire"
under the Copyright Law of 1976 or any successor thereof, and the Company shall
be the owner of such work as if the Company were the author of such work.
11. Non-Compete; Solicitation. Employee hereby expressly covenants and
agrees that:
(a) Employee will not at any time during the Term of employment and
for a period of one year following the date a notice of termination of
Employee's employment is effective as provided herein, be or become an officer,
director, partner or employee of or consultant to or act in any managerial
capacity with or own any equity interest in any Entity (an "Affiliated Person")
which is a "Competitive Business Entity" (as such term is defined on Exhibit B
hereto); provided, however, that (i) ownership of less than 1% of the
outstanding equity securities of any Entity listed on any national securities
exchange or traded on the National Association of Securities Dealers Automated
Quotation System shall not be prohibited hereby, and (ii) in the event Employee
is terminated pursuant to Section 6(b) and notice of termination is so given to
Employee following the occurrence of a Change in Control, Employee is hereby
permitted to accept employment with any Founding Stockholder and such employment
shall not violate the provisions of this Section 11.
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(b) Employee will not at any time during the Term of employment and
for a period of one year after the date a notice of termination of Employee's
employment is effective as provided herein, solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its subsidiaries or
Affiliates to work for Employee or for any Entity in which Employee owns or
expects to own more than a 1% equity interest or for which Employee serves or
expects to serve as an Affiliated Person.
For the purposes of this Section 11(b), the term "solicit any
employee" shall mean Employee's contacting, or providing information to others
who may be expected to contact, any employee of the Company or any of its
subsidiaries or Affiliates regarding their employment status, job satisfaction,
interest in seeking employment with Employee or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or
responding to an unsolicited request for a personal recommendation for or
evaluation of an employee of the Company or any of its subsidiaries or
Affiliates.
12. Documents; Conduct. Employee hereby expressly covenants and agrees
that:
(a) Following termination of Employee's employment with the Company
for any reason or at any time upon the Company's request, Employee will promptly
return to the Company all property of the Company and its subsidiaries and
Affiliates in his or her possession or control (whether maintained at his or her
office, home or elsewhere), including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed or written materials, documents, diaries, calendars and data of
or relating to the Company or its subsidiaries or Affiliates or their respective
personnel or affairs; and
(b) Employee will not at any time denigrate, ridicule or
intentionally criticize the Company or any of its subsidiaries or Affiliates or
any of their respective products, properties, employees, officers or directors,
including, without limitation, by way of news
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interviews, or the expression of personal views, opinions or judgments to the
news media.
13. Breach by Employee. Employee hereby expressly covenants and agrees
that the Company will suffer irreparable damage in the event any provisions of
Sections 10, 11 and 12 are not performed or are otherwise breached and that the
Company shall be entitled as a matter of right to an injunction or injunctions
and other relief to prevent a breach or violation by Employee and to secure its
enforcement of Section 10, 11 and 12 resort to such equitable relief, however,
shall not constitute a waiver of any other rights or remedies which the Company
may have.
14. Representations.
(a) Employee represents and warrants to the Company that this
Agreement is legal, valid and binding upon Employee and Employee is not a party
to any agreement or understanding which would prevent the fulfillment by
Employee of the terms of this Agreement. Employee has consulted with his or her
legal, tax, financial and other advisors, to the extent desired, prior to
execution and delivery of this Agreement.
(b) The Company represents and warrants to Employee that this
Agreement is legal, valid and binding upon the Company and the Company is not a
party to any agreement or understanding which would prevent the fulfillment by
the Company of the terms of this Agreement.
15. Notice. Any notice required or permitted to be given hereunder shall
be in writing (except where required to be given orally) and shall be
sufficiently given or sent by registered or certified mail or delivered, in
person, if to Employee at the address set forth on the last paragraph hereof, or
at such other address as Employee shall designate by written notice to the
Company, and if to the Company at 5700 S. Quebec Street, Greenwood Village,
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CO 80111, attention of the Secretary or at such other address as the Company
shall designate by written notice to Employee.
16. Successors and Assigns. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any right or obligations hereunder; provided however,
that the provisions hereof shall inure to the benefit of, and be binding upon,
any successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of the assets of the Company, or otherwise.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, irrespective of
its conflicts of law rules, except for the By-laws referred to in Section 26,
which shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware.
To the extent that any applicable state or Federal law, rule or
regulation confers upon Employee any greater benefit or right than that set
forth in this Agreement, such law, rule or regulation shall control in lieu of
the provisions hereof relating to such benefit or right.
18. Mitigation. Employee shall have no obligation to mitigate damages in
the event of termination of Employee's employment under this Agreement under
Section 5(a), 6(b) or 7, other than as necessary to prevent the Company from
losing any tax deductions to which it otherwise would have been entitled for any
payments deemed to be "contingent on a change" under the Code and any payments
received by Employee hereunder shall not be offset or reduced in any way by any
other earnings or payments which may be received by Employee from any source,
except as provided by this Section 18. It is acknowledged and agreed that any
payment which may be made by the Company to Employee under Section
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5(b), 6(b) or 7 is in the nature of severance and is not a penalty payment.
19. Withholding. All payments required to be paid by the Company to
Employee under this Agreement will be paid in accordance with the payroll
practices of the Company or the terms of the Benefit Plans, as the case may be,
and will be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company's policies applicable to employees at
Employee's level and the terms of the Benefit Plan.
20. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
Employee, on the one hand, and the Company and its subsidiaries and Affiliates,
on the other, and constitutes the complete understanding between the parties
with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein.
21. Modification; Waiver. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of both the parties hereto. No waiver by either party at any time of
any breach by the other party of any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Subject to Section 28, no policy,
procedure or practice of the Company whether now or hereafter in effect shall be
deemed to modify, amend or supersede any provision of this Agreement except as
contemplated or provided otherwise in this Agreement.
22. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
23. Use of Likeness. The Company and TWI shall have the right to use
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Employee's name, biography and likeness in connection with their respective
businesses and that of their subsidiaries and Affiliates, but not for use as a
direct endorsement.
24. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
25. Set-off. The Company and its subsidiaries and Affiliates shall have no
right to set-off payments owed to Employee hereunder against amounts owed or
claimed to be owed by Employee to the Company or its subsidiaries or Affiliates
under this Agreement or otherwise.
26. Indemnification. The Company shall indemnify Employee to no lesser
extent than provided in the Company's By-laws on the date hereof (the provisions
of which are hereby incorporated by reference herein), notwithstanding any
changes or amendments to such By-laws after the date hereof adversely affecting,
limiting or reducing such indemnification.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Changes. Subject to Section 5, the Company and its subsidiaries and
Affiliates are entitled to amend, modify, terminate or otherwise change at any
time or from time to time any and all Benefit Plans and policies, practices or
procedures referred to in this Agreement, and all references herein to such
Benefit Plans and policies, practices and procedures shall be to such as from
time to time in effect prior to a Change in Control except as otherwise
specifically herein provided.
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29. Beneficiaries. Whenever this Agreement provides for any payment to the
Employee's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Employee may designate in writing (using the form of
Beneficiary Designation attached hereto as Exhibit C) and file with the Company.
The Employee shall have the right to revoke such Beneficiary Designation and
redesignate a beneficiary by filing with the Company (and any applicable
insurance company) a later dated Beneficiary Designation to such effect.
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IN WITNESS WHEREOF, Employee and the Company have caused this
Agreement to be executed as of the date first above written.
TIME WARNER TELECOM LLC
By: /s/Glenn A. Britt
---------------------
Name: Glenn A. Britt
Title: Vice President
Agreed to and accepted as of
the date first above written
/s/Larissa L. Herda
------------------------------
Name: Larissa L. Herda
Title: President and Chief Executive Officer
Address for Notices:
- --------------------------
- --------------------------
- --------------------------
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EXHIBIT A
RELEASE
Pursuant to the terms of the Employment Agreement dated as of June 30,
1998 between Time Warner Telecom LLC (the "Company") and any successor and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, _____________________,
being of lawful age, do hereby release and forever discharge the Company and its
respective officers, shareholders, subsidiaries, agents, and employees, from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages, attorneys' fees, expenses, or other compensation, which in any
way relate to or raise out of my employment with the Company or the termination
of such employment, which I may now or hereafter under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this release, provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement or to seek damages for the breach of the
Agreement by the Company.
<PAGE>
<PAGE>
I further state that I have read the foregoing document, that I know the
contents thereof, and that I have executed the same as my own free act.
WITNESS my hand this _______ day of ____________________.
___________________________________
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EXHIBIT B
"Competitive Business Entity" shall mean (i) any federal, state or local
authority empowered to grant, renew, modify or amend, or review the grant,
renewal, modification or amendment of, franchises to operate any competitive
local exchange carrier or to regulate the conduct of any such business in the
United States, except that a Competitive Business Entity shall not include any
such state or local authority that is so empowered with respect to franchises
or regulation of any such business in a state or region in which the Company
does not engage or, to the knowledge of Employee, does not have definitive plans
to engage, in the ownership, operation or management of such a business, and
(ii) any Entity which is engaged, either directly or indirectly, in the
ownership, operation or management of any business providing telecommunications
services to customers as a competitive local exchange carrier in any state of
the United States in which the Company engages or, to the knowledge of Employee,
has definitive plans to engage, in the ownerhsip, operation or management of
such a business.
All capitalized terms used herein shall have the meanings provided
in the Employment Agreement to which this Exhibit B is attached.
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EXHIBIT C
BENEFICIARY DESIGNATION PURSUANT TO
EMPLOYMENT AGREEMENT
This Beneficiary Designation is made by the undersigned employee pursuant
to that certain Employment Agreement dated as of June 30, 1998 (the
"Agreement"), between Time Warner Telecom LLC, a Delaware limited liability
company (the "Company'), and the undersigned.
1. Primary Beneficiary or Beneficiaries. I hereby designate the following
Primary Beneficiary(ies) to receive all payments and other benefits due to me
under the Agreement in the event of my death. Unless otherwise indicated, such
benefits will be paid in equal shares to all designated Primary Beneficiaries
who are living or in existence at the date of my death.
Name(s) of Primary Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
2. Contingent Beneficiary or Beneficiaries. If none of the Primary
Beneficiaries listed in Paragraph 1 above are living or in existence at the date
of my death, then the following Contingent Beneficiary(ies) will receive the
payments and other benefits due to me under the Agreement. Unless otherwise
indicated, such benefits will be paid in equal shares to all designated
Contingent Beneficiary(ies) who are living or in existence at the date of my
death.
Name(s) of Contingent Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
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<PAGE>
3. Payments to Estate. If none of the Primary Beneficiaries listed in
Paragraph 1 above and one of the Contingent Beneficiaries listed in Paragraph 2
above are living or in existence at the date of my death, then the payments and
other benefits due to me under the Agreement shall be paid to my estate.
4. Effective Date of Beneficiary Designation. This Beneficiary Designation
will be effective only if it is received by the Company prior to my death. If
this Beneficiary Designation is received by the Company prior to my death, it
will revoke all prior Beneficiary Designations. This Beneficiary Designation may
be revoked by delivery to the Company of a subsequent, properly completed
Beneficiary Designation.
- ----------------------- --------------------------------------
Date Employee
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<PAGE>
EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 30, 1998, between TIME WARNER
TELECOM LLC, a Delaware limited liability company (the "Company"), and the
employee whose name appears on the last page hereof (the "Employee"). The
Company shall employ the Employee on the following terms and conditions:
1. Term. The Company hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions hereof for an initial term
commencing on the effective date (the "Effective Date") of the Reorganization
Agreement among Time Warner Companies, Inc., MediaOne Group, Inc. (formerly US
WEST, Inc.) ("MediaOne"), Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-Advance Newhouse
Partnership (collectively, the "Founding Stockholders") and ending, subject to
renewal or termination as provided herein, on the third anniversary of the
Effective Date (the "Initial Term"); provided, however, that this Agreement
shall automatically continue for successive one month periods thereafter (each
such period being an "Additional Term") unless either party has delivered
written notice of termination to the other party no later than six months prior
to the end of the Initial Term or 60 days prior to the end of any Additional
Term. Sections 8, 10 through 22 and 24 through 28 shall survive any termination
of Employee's employment under this Agreement. The Employee hereby covenants
that as of the Effective Date any agreement between Employee and the Company,
Time Warner Cable, US WEST, Inc. ("US WEST") or MediaOne, respectively, or any
of their affiliates, entered into prior to the date hereof, relating to
Employee's employment with such entity, shall terminate as of, or have been
terminated prior to, the Effective Date.
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2. Duties. Employee shall serve as Senior Vice President, Engineering and
Technology, or subject to Section 5, in such other senior management position as
the Company shall determine. Subject to the foregoing, Employee shall perform
such duties as may be assigned by the Company to Employee from time to time, and
shall travel for business purposes to the extent reasonably necessary or
appropriate in the performance of such duties.
Employee shall perform such duties on a full time basis (subject to the
Company's written policies on vacations, illness, government service, etc.
applicable to employees at Employee's level in effect from time to time),
provided, however, that Employee shall not be precluded from devoting such time
to personal affairs as shall not interfere with the performance of his or her
duties hereunder. In performing his or her duties hereunder, Employee shall
comply with the Company's policies and procedures in effect from time to time.
Unless Employee otherwise consents, the headquarters for the performance of
Employee's services shall be the principal executive offices of the Company in
the Denver, Colorado area, subject to such reasonable travel as may be
appropriate or required in the performance of Employee's duties in the business
of the Company.
3. Compensation. The Company shall pay or cause to be paid to Employee,
during the term of employment, an annual salary in respect of each calendar year
at the rate of not less than $175,497 per annum. The Company may increase, but
not decrease, such annual salary at any time and from time to time during the
term of employment. In addition to annual salary, Employee may be entitled to
receive an annual bonus in respect of each calendar year based on a target
percentage of the salary paid to Employee during such calendar year of 50%.
Subject to Section 5, and the second paragraph of this Section 3, Employee
acknowledges that his or her actual annual bonus may vary and range from 0%
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to 150% of the target amount, depending on actual performance of the Company and
Employee.
Subject to Section 5 and the second sentence of this Section 3, the
Company shall determine, in its sole discretion, the amount of any salary
increase, the amount of any annual bonus and whether to increase the target
percentage of Employee's annual bonus. The payment of any bonus compensation
shall be made in accordance with the Company's then current practices and
policies, including without limitation, less the usual required payroll
deductions and withholding.
The Company shall pay or reimburse Employee, in accordance with Company
policies applicable to employees at Employee's level, for all travel,
entertainment and other business expenses actually incurred or paid by Employee
in the performance of his or her duties hereunder, if properly substantiated and
submitted.
4. Benefits. Employee shall be eligible to participate in any pension,
profit-sharing, employee stock ownership, vacation, insurance, hospitalization,
medical, health, disability and other employee benefit or welfare plan, program
or policy whether now existing or established hereafter (collectively, the
"Benefit Plans"), to the extent that employees at Employee's level are generally
deemed eligible under the general provisions thereof. The Company reserves the
right to amend or cancel any such Benefit Plan in its sole discretion.
5. Termination by Employee Following a Change in Control.
(a) Provided that notice of termination has not previously been
given under any other Section hereof, Employee shall have the right to terminate
his or her employment with the Company under this Agreement for cause upon 30
days prior written notice delivered to the Company at any time within 180 days
after Employee has actual knowledge
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of the occurrence of any of the following events following a Change in Control,
indicating in such notice which event has occurred:
A. A change in the location of Employee's office or of
the Company's principal executive offices to a place which is more than 50
miles from the location of Employee's office or the location of the
Company's principal executive offices immediately prior to the occurrence
of a Change in Control;
B. A material reduction in Employee's decision-making,
budgetary, operating, staff and other responsibilities, taken as a whole,
from such responsibilities immediately prior to the occurrence of a Change
in Control, or a change in the person or persons to whom Employee reported
immediately prior to the occurrence of a Change in Control, to a person or
persons of lesser rank, title or responsibility; or
C. Any material breach of this Agreement by the Company.
(b) Upon the expiration of the 30-day notice period provided in
Section 5(a), Employee shall be relieved of his or her management position
with the Company and his or her duties hereunder. In the notice delivered
by Employee to the Company pursuant to Section 5(a), Employee shall elect
either (A) to terminate his or her employment with the Company, in which
case Employee shall receive: (x) subject to the terms thereof, all
benefits which may be due to Employee under the provisions of any Benefit
Plan; and (y) in a lump sum severance payment, within 30 days following
the effective date of such termination, the present value (using the
discount rate described below) of an amount equal to the sum of the annual
salary at the rate in effect on the date of termination of employment or
immediately prior to the Change in Control, whichever is greater, plus an
annual bonus in a minimum amount equal to Employee's then applicable
target bonus amount or the Employee's
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applicable target bonus amount in effect immediately prior to the Change in
Control, whichever is greater, for the remainder of the existing term of this
Agreement, without any further renewal or continuation, provided that such
amount shall be not less than the sum of such salary and bonus pro rated for an
18-month period; or (B) to remain an employee of the Company for a period (as
determined by Employee) of up to 18 months following the date notice of
termination is given by Employee pursuant to Section 5(a), in which case
Employee shall be relieved of his or her management position with the Company
and his or her duties hereunder, and shall (i) continue to receive both salary,
based on a rate equal to his or her annual rate in effect on the date of
termination of employment or immediately prior to the Change in Control,
whichever is greater, and annual bonuses in respect of such period (in each case
payable within 30 days after the end of the respective calendar year and
prorated for any portion of a year), each such bonus to be based on an amount
equal to Employee's then applicable target bonus amount or the Employee's
applicable target bonus amount in effect immediately prior to the Change in
Control, whichever is greater, and (ii) receive a discounted lump sum payment
pursuant to Section 5(b)(A)(y) for any portion of the term of employment
remaining after such period; provided, however, that if Employee accepts
full-time employment with any other corporation, partnership, trust, government
or other entity ("Entity") during such period or notifies the Company in writing
of his or her intention to terminate his or her employment during such period,
Employee shall cease to be an employee of the Company effective upon the
commencement of such employment, or the effective date of such termination as
specified by Employee in such notice, and shall be entitled to receive, subject
to the terms thereof, all benefits due to Employee under the provisions of any
Benefit Plan and a discounted lump sum cash payment for the balance of the
salary and bonuses Employee would have been entitled to receive pursuant to this
Section 5(b)(B) had Employee remained on the Company's payroll until the end of
the Initial Term or such 18 month
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period, whichever is greater; provided, further, however, that Employee shall
not be entitled to receive any such lump sum cash payment if he or she accepts
full-time employment with any subsidiary or Affiliate of the Company. For
purposes of this Agreement, the term "Affiliate" shall mean an Entity which,
directly or indirectly, controls, is controlled by or is under common control
with, the Company or TWI.
In addition, whether Employee elects 5(b)(A) or 5(b)(B), for a
period of the earlier of one year from the date of termination of employment or
the date Employee is eligible to receive health benefits by virtue of other
employment, Employee shall receive continued eligibility and enrollment
(including family coverage, if any), without a premium charge therefor, in
hospital, medical and dental insurance plans providing substantially equivalent
benefit coverage to those plans in which Employee was enrolled immediately prior
to the Change in Control unless waived in writing by Employee (or, in the event
such coverage cannot be provided, substantially similar benefits).
Any lump sum payments required to be made pursuant to this Section
5(b) shall be discounted to present value from the times at which such amounts
would have been paid absent any such termination at an annual discount rate for
the relevant period equal to the "applicable Federal rate" (within the meaning
of Section 1274(d) of the Internal Revenue Code of 1986 (the "Code")),
compounded semi-annually, in effect on the date of such termination, the use of
which rate is hereby elected by the Company and Employee pursuant to Treas. Reg.
'SS' 1.280G-1Q/A32 (provided that in the event such election is not permitted,
such other rate determined as of such other date as is applicable for
determining present value under Section 280G of the Code shall be used).
6. Termination by Company.
(a) For Cause. Provided that notice of termination has not
previously been given under any other Section hereof, the Company shall have the
right to terminate
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Employee's employment for cause upon written notice to Employee at any time. In
such event, Employee's employment with the Company shall terminate immediately
and Employee shall be entitled to receive (i) any earned and unpaid salary
accrued through the date of such termination, and (ii) subject to the terms
thereof, any benefits which may be due to Employee under the provisions of any
Benefit Plan. Employee hereby disclaims any right to receive a pro rata portion
of his or her annual bonus with respect to the year in which such termination
occurs. For purposes hereof, "cause" shall mean termination by action of the
Company's Board of Directors or any committee thereof because of Employee's
conviction (treating a nolo contendere plea as a conviction) of a felony
(whether or not any right to appeal has been exercised) or willful refusal
without proper cause to perform his or her obligations under this Agreement or
because of Employee's material breach of the covenants provided for in Sections
10, 11 and 12 of this Agreement. In the event (i) such termination is because of
the Employee's willful refusal without proper cause to perform any one or more
of his obligations under this Agreement, (ii) such notice is the first such
notice of termination for any reason delivered by the Company to the Employee
under this Section 6(a), and (iii) within 10 days following the date of such
notice the Employee shall cease his or her refusal and shall use his or her best
efforts to perform such obligations, the termination shall not be effective.
(b) Other. Provided that notice of termination has not previously
been given under any other Section hereof, the Company shall have the right at
any time to terminate Employee's employment under this Agreement without cause,
by giving written notice thereof to Employee.
(i) If such notice is so given to Employee, Employee shall be
entitled to receive, subject to the terms thereof, all benefits which may be due
to Employee under the provisions of any Benefit Plan and to elect, within 30
days after receiving such notice, to
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receive either a lump sum severance payment in the amount, and upon the terms
and conditions, provided in Section 5(b)(A) and calculated as set forth in the
last paragraph of Section 5(b), or to remain an employee of the Company upon the
terms and conditions provided in Section 5(b)(B); provided, however, that (i)
any reference therein to Section 5(a) shall be deemed for purposes of this
Section 6(b) to be a reference to this Section 6(b)(i), and (ii) if a Change in
Control has not occurred, then (x) Employee's salary shall be determined with
reference to his or her then current annual salary and (y) Employee's annual
bonus shall equal at least the Employee's target amount immediately prior to
Employee's termination under this Section 6(b)(i).
(ii) For the period beginning when Employee receives notice of
termination from the Company pursuant to this Section 6(b), and ending six
months thereafter, Employee will, without charge to Employee, have use of
reasonable office space and reasonable office facilities at Employee's principal
job location immediately prior to his or her termination of employment, or other
location reasonably close to such location, together with reasonable secretarial
services in each case appropriate to an employee of Employee's position and
responsibilities prior to such termination of employment but taking into account
Employee's reduced need for such office space and secretarial services. Employee
will continue to be eligible to participate in the Company's Benefit Plans and
to receive, subject to the terms thereof, all benefits, which are received by
other employees at Employee's level thereunder other than options or similar
equity-based or incentive awards.
(iii) In the event that Employee's employment is terminated
prior to the occurrence of a Change in Control, or more than three years
following a Change in Control, then, in partial consideration for the Company's
obligation to make the payments described in this Section 6(b), Employee shall
execute and deliver to the Company a release in the form as set forth in Exhibit
A. The Company shall deliver such release to Employee at the time
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the Company delivers notice of termination pursuant to this Section 6(b).
Employee shall execute and deliver such release to the Secretary of the Company
within 21 days of receipt of notice of termination. If Employee shall fail to
execute and deliver to the Company such release within 30 days of Employee's
receipt thereof from the Company, Employee's employment with the Company shall
terminate effective at the end of such 30-day period and Employee shall receive,
in lieu of the severance arrangements described in Section 6(b), a lump sum cash
payment in an amount determined in accordance with the personnel policies of the
Company then applicable.
7. Death; Disability.
(a) Death. If Employee shall die while employed by the Company,
Employee's employment under this Agreement shall thereupon terminate and
Employee's estate or beneficiaries, as the case may be, shall be entitled to
receive as promptly as practicable but in any event within 30 days after
reasonably satisfactory evidence of Employee's death is received by the Company
(i) any earned and unpaid salary accrued to Employee through the period ending
30 days following the date of Employee's death and a pro rata portion of the
target annual bonus amount in effect immediately prior to Employee's death; and
(ii) subject to the terms thereof, any benefits which may be due to Employee's
estate or beneficiaries under the provisions of any Benefit Plan.
(b) Disability. Provided that notice of termination has not
previously been given under any Section hereof, if employee becomes ill or is
injured or disabled during the term of this Agreement such that Employee fails
to perform all or substantially all the duties to be rendered hereunder and such
failure continues for a period in excess of 26 consecutive weeks (a
"Disability"), the Company may terminate the employment of Employee under this
Agreement upon written notice to Employee at any time and thereupon Employee
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of such
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termination; (ii) subject to the terms thereof, any benefits which may be due to
Employee under the provisions of any Benefit Plan; and (iii) a lump sum cash
payment equal to the sum of 75% of Employee's then current annual salary and
then applicable target annual bonus amount prorated for an 18-month period, less
the amount of any disability insurance proceeds payable to Employee under any
disability insurance policy or program covering Employee.
8. Stock Options and Other Incentive Awards. Upon Employee's termination
of employment with the Company for any reason, Employee's rights to benefits and
payments under any stock options, restricted shares or other incentive plans
shall be determined in accordance with the terms and provisions of such plans
and any agreements under which such stock options, restricted shares or other
awards were granted.
9. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred at such time as the
Founding Stockholders (and their respective affiliates) as a group cease to have
the ability to elect a majority of the representatives on the Management
Committee of the Company (other than the chief executive officer of the Company
and independent representatives; provided that independent representatives shall
be included in calculating whether the foregoing majority requirement is
satisfied if the representatives nominated by the Founding Stockholders (and
their respective affiliates) do not constitute a majority of the committee that
selects the Management Committee's nominees for independent representatives) and
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
the Founding Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage
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of the total voting power of the voting interests of the Company, on a fully
diluted basis, than is held by the Founding Stockholders (and their respective
affiliates) as a group on such date. In the event that any successor of the
Company, as contemplated by Section 16, is a corporation, the same principles
shall be applied in determining whether a "Change in Control" has occurred with
reference to the board of directors, directors and capital stock of such
corporation in lieu of the Management Committee, representatives and voting
interests of the Company.
10. Trade Secrets; Work Products, Etc. Except in connection with the
performance of his or her duties hereunder, Employee hereby expressly covenants
and agrees that Employee will not at any time while employed by the Company or
thereafter, exploit, use, sell, publish, disclose, communicate or divulge to any
person or Entity, other than the Company and its subsidiaries, either directly
or indirectly, any trade secrets or confidential information, knowledge or data
regarding the Company or any of its subsidiaries or Affiliates or any of their
respective officers, directors or employees including, without limitation, the
existence and terms of this Agreement, other than such information, knowledge or
data which has been released by the Company or such subsidiaries, Affiliates or
others to the public (except that with respect to the terms of this Agreement
Employee may communicate such terms to Employee's spouse and Employee's
attorneys and financial advisors). Notwithstanding the foregoing, Employee may
disclose such trade secrets or confidential information, knowledge, data or
terms when required to do so by a court or government agency or legislative body
of competent jurisdiction, provided Employee first notifies the Company orally
and in writing as promptly as possible of such requirement so that the Company
may either seek an appropriate protective order or waive compliance with the
provisions of this Section, and provided further that if, in the absence of such
protective order or waiver, Employee is nevertheless, in the written opinion of
his or her counsel, reasonably
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acceptable to the Company, addressed to and delivered to the Company, otherwise
required to disclose such information to any such court, government agency or
legislative body or else stand liable for contempt or suffer other material
penalty, Employee may disclose such information in such case without liability
hereunder so long as such disclosure does not exceed that required by such
court, government agency or legislative body.
Employee hereby grants and assigns to the Company all rights (including,
without limitation, any copyright or patent) in the results and proceeds of all
services provided by Employee hereunder and all such services shall be subject
in all respects to the supervision, control and direction of the Company. Any
work in connection with such services shall be considered "work made for hire"
under the Copyright Law of 1976 or any successor thereof, and the Company shall
be the owner of such work as if the Company were the author of such work.
11. Non-Compete; Solicitation. Employee hereby expressly covenants and
agrees that:
(a) Employee will not at any time during the Term of employment and
for a period of one year following the date a notice of termination of
Employee's employment is effective as provided herein, be or become an officer,
director, partner or employee of or consultant to or act in any managerial
capacity with or own any equity interest in any Entity (an "Affiliated Person")
which is a "Competitive Business Entity" (as such term is defined on Exhibit B
hereto); provided, however, that (i) ownership of less than 1% of the
outstanding equity securities of any Entity listed on any national securities
exchange or traded on the National Association of Securities Dealers Automated
Quotation System shall not be prohibited hereby, and (ii) in the event Employee
is terminated pursuant to Section 6(b) and notice of termination is so given to
Employee following the occurrence of a Change in Control, Employee is hereby
permitted to accept employment with any Founding
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Stockholder and such employment shall not violate the provisions of this Section
11.
(b) Employee will not at any time during the Term of employment and
for a period of one year after the date a notice of termination of Employee's
employment is effective as provided herein, solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its subsidiaries or
Affiliates to work for Employee or for any Entity in which Employee owns or
expects to own more than a 1% equity interest or for which Employee serves or
expects to serve as an Affiliated Person.
For the purposes of this Section 11(b), the term "solicit any
employee" shall mean Employee's contacting, or providing information to others
who may be expected to contact, any employee of the Company or any of its
subsidiaries or Affiliates regarding their employment status, job satisfaction,
interest in seeking employment with Employee or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or
responding to an unsolicited request for a personal recommendation for or
evaluation of an employee of the Company or any of its subsidiaries or
Affiliates.
12. Documents; Conduct. Employee hereby expressly covenants and agrees
that:
(a) Following termination of Employee's employment with the Company
for any reason or at any time upon the Company's request, Employee will promptly
return to the Company all property of the Company and its subsidiaries and
Affiliates in his or her possession or control (whether maintained at his or her
office, home or elsewhere), including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed or written materials, documents, diaries, calendars and data of
or relating to the Company or its subsidiaries or Affiliates or their respective
personnel or affairs; and
(b) Employee will not at any time denigrate, ridicule or
intentionally criticize the Company or any of its subsidiaries or Affiliates or
any of their respective products,
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properties, employees, officers or directors, including, without limitation, by
way of news interviews, or the expression of personal views, opinions or
judgments to the news media.
13. Breach by Employee. Employee hereby expressly covenants and agrees
that the Company will suffer irreparable damage in the event any provisions of
Sections 10, 11 and 12 are not performed or are otherwise breached and that the
Company shall be entitled as a matter of right to an injunction or injunctions
and other relief to prevent a breach or violation by Employee and to secure its
enforcement of Section 10, 11 and 12 resort to such equitable relief, however,
shall not constitute a waiver of any other rights or remedies which the Company
may have.
14. Representations.
(a) Employee represents and warrants to the Company that this
Agreement is legal, valid and binding upon Employee and Employee is not a party
to any agreement or understanding which would prevent the fulfillment by
Employee of the terms of this Agreement. Employee has consulted with his or her
legal, tax, financial and other advisors, to the extent desired, prior to
execution and delivery of this Agreement.
(b) The Company represents and warrants to Employee that this
Agreement is legal, valid and binding upon the Company and the Company is not a
party to any agreement or understanding which would prevent the fulfillment by
the Company of the terms of this Agreement.
15. Notice. Any notice required or permitted to be given hereunder shall
be in writing (except where required to be given orally) and shall be
sufficiently given or sent by registered or certified mail or delivered, in
person, if to Employee at the address set forth on the last paragraph hereof, or
at such other address as Employee shall designate by written
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notice to the Company, and if to the Company at 5700 S. Quebec Street, Greenwood
Village, CO 80111, attention of the Secretary or at such other address as the
Company shall designate by written notice to Employee.
16. Successors and Assigns. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any right or obligations hereunder; provided however,
that the provisions hereof shall inure to the benefit of, and be binding upon,
any successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of the assets of the Company, or otherwise.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, irrespective of
its conflicts of law rules, except for the By-laws referred to in Section 26,
which shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware.
To the extent that any applicable state or Federal law, rule or regulation
confers upon Employee any greater benefit or right than that set forth in this
Agreement, such law, rule or regulation shall control in lieu of the provisions
hereof relating to such benefit or right.
18. Mitigation. Employee shall have no obligation to mitigate damages in
the event of termination of Employee's employment under this Agreement under
Section 5(a), 6(b) or 7, other than as necessary to prevent the Company from
losing any tax deductions to which it otherwise would have been entitled for any
payments deemed to be "contingent on a change" under the Code and any payments
received by Employee hereunder shall not be offset or reduced in any way by any
other earnings or payments which may be received by Employee from any source,
except as provided by this Section 18. It is acknowledged and
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agreed that any payment which may be made by the Company to Employee under
Section 5(b), 6(b) or 7 is in the nature of severance and is not a penalty
payment.
19. Withholding. All payments required to be paid by the Company to
Employee under this Agreement will be paid in accordance with the payroll
practices of the Company or the terms of the Benefit Plans, as the case may be,
and will be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company's policies applicable to employees at
Employee's level and the terms of the Benefit Plan.
20. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
Employee, on the one hand, and the Company and its subsidiaries and Affiliates,
on the other, and constitutes the complete understanding between the parties
with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein.
21. Modification; Waiver. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of both the parties hereto. No waiver by either party at any time of
any breach by the other party of any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Subject to Section 28, no policy,
procedure or practice of the Company whether now or hereafter in effect shall be
deemed to modify, amend or supersede any provision of this Agreement except as
contemplated or provided otherwise in this Agreement.
22. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
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23. Use of Likeness. The Company and TWI shall have the right to use
Employee's name, biography and likeness in connection with their respective
businesses and that of their subsidiaries and Affiliates, but not for use as a
direct endorsement.
24. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
25. Set-off. The Company and its subsidiaries and Affiliates shall have no
right to set-off payments owed to Employee hereunder against amounts owed or
claimed to be owed by Employee to the Company or its subsidiaries or Affiliates
under this Agreement or otherwise.
26. Indemnification. The Company shall indemnify Employee to no lesser
extent than provided in the Company's By-laws on the date hereof (the provisions
of which are hereby incorporated by reference herein), notwithstanding any
changes or amendments to such By-laws after the date hereof adversely affecting,
limiting or reducing such indemnification.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Changes. Subject to Section 5, the Company and its subsidiaries and
Affiliates are entitled to amend, modify, terminate or otherwise change at any
time or from time to time any and all Benefit Plans and policies, practices or
procedures referred to in this Agreement, and all references herein to such
Benefit Plans and policies, practices and procedures shall be to such as from
time to time in effect prior to a Change in Control except as otherwise
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specifically herein provided.
29. Beneficiaries. Whenever this Agreement provides for any payment to the
Employee's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Employee may designate in writing (using the form of
Beneficiary Designation attached hereto as Exhibit C) and file with the Company.
The Employee shall have the right to revoke such Beneficiary Designation and
redesignate a beneficiary by filing with the Company (and any applicable
insurance company) a later dated Beneficiary Designation to such effect.
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IN WITNESS WHEREOF, Employee and the Company have caused this
Agreement to be executed as of the date first above written.
TIME WARNER TELECOM LLC
By: /s/ Larissa L. Herda
--------------------
Name: Larissa L. Herda
Title: President and Chief
Executive Officer
Agreed to and accepted as of
the date first above written
/s/ A. Graham Powers
--------------------
Name: A. Graham Powers
Title: Senior Vice President,
Engineering and Technology
Address for Notices:
- ---------------------------
- ---------------------------
- ---------------------------
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EXHIBIT A
RELEASE
Pursuant to the terms of the Employment Agreement dated as of June 30,
1998 between Time Warner Telecom LLC (the "Company") and any successor and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, _____________________,
being of lawful age, do hereby release and forever discharge the Company and its
respective officers, shareholders, subsidiaries, agents, and employees, from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages, attorneys' fees, expenses, or other compensation, which in any
way relate to or raise out of my employment with the Company or the termination
of such employment, which I may now or hereafter under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this release, provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement or to seek damages for the breach of the
Agreement by the Company.
<PAGE>
<PAGE>
I further state that I have read the foregoing document, that I know
the contents thereof, and that I have executed the same as my own free act.
WITNESS my hand this _______ day of ____________________.
___________________________________
<PAGE>
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EXHIBIT B
"Competitive Business Entity" shall mean (i) any federal, state or local
authority empowered to grant, renew, modify or amend, or review the grant,
renewal, modification or amendment of, franchises to operate any competitive
local exchange carrier or to regulate the conduct of any such business in the
United States, except that a Competitive Business Entity shall not include any
such state or local authority that is so empowered with respect to franchises
or regulation of any such business in a state or region in which the Company
does not engage or, to the knowledge of Employee, does not have definitive
plans to engage, in the ownership, operation or management of such a business,
and (ii) any Entity which is engaged, either directly or indirectly, in the
ownership, operation or management of any business providing telecommunications
services to customers as a competitive local exchange carrier in any state of
the United States in which the Company engages or, to the knowledge of Employee,
has definitive plans to engage, in the ownership, operation or management of
such a business.
All capitalized terms used herein shall have the meanings provided
in the Employment Agreement to which this Exhibit B is attached.
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EXHIBIT C
BENEFICIARY DESIGNATION PURSUANT TO
EMPLOYMENT AGREEMENT
This Beneficiary Designation is made by the undersigned employee pursuant
to that certain Employment Agreement dated as of June 30, 1998 (the
"Agreement"), between Time Warner Telecom LLC, a Delaware limited liability
company (the "Company'), and the undersigned.
1. Primary Beneficiary or Beneficiaries. I hereby designate the following
Primary Beneficiary(ies) to receive all payments and other benefits due to me
under the Agreement in the event of my death. Unless otherwise indicated, such
benefits will be paid in equal shares to all designated Primary Beneficiaries
who are living or in existence at the date of my death.
Name(s) of Primary Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
2. Contingent Beneficiary or Beneficiaries. If none of the Primary
Beneficiaries listed in Paragraph 1 above are living or in existence at the date
of my death, then the following Contingent Beneficiary(ies) will receive the
payments and other benefits due to me under the Agreement. Unless otherwise
indicated, such benefits will be paid in equal shares to all designated
Contingent Beneficiary(ies) who are living or in existence at the date of my
death.
Name(s) of Contingent Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
<PAGE>
<PAGE>
3. Payments to Estate. If none of the Primary Beneficiaries listed in
Paragraph 1 above and one of the Contingent Beneficiaries listed in Paragraph 2
above are living or in existence at the date of my death, then the payments and
other benefits due to me under the Agreement shall be paid to my estate.
4. Effective Date of Beneficiary Designation. This Beneficiary Designation
will be effective only if it is received by the Company prior to my death. If
this Beneficiary Designation is received by the Company prior to my death, it
will revoke all prior Beneficiary Designations. This Beneficiary Designation may
be revoked by delivery to the Company of a subsequent, properly completed
Beneficiary Designation.
- ----------------------- --------------------------------------
Date Employee
<PAGE>
<PAGE>
EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 30, 1998, between TIME WARNER
TELECOM LLC, a Delaware limited liability company (the "Company"), and the
employee whose name appears on the last page hereof (the "Employee"). The
Company shall employ the Employee on the following terms and conditions:
1. Term. The Company hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions hereof for an initial term
commencing on the effective date (the "Effective Date") of the Reorganization
Agreement among Time Warner Companies, Inc., MediaOne Group, Inc. (formerly US
WEST, Inc.) ("MediaOne"), Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-Advance Newhouse
Partnership (collectively, the "Founding Stockholders") and ending, subject to
renewal or termination as provided herein, on the third anniversary of the
Effective Date (the "Initial Term"); provided, however, that this Agreement
shall automatically continue for successive one month periods thereafter (each
such period being an "Additional Term") unless either party has delivered
written notice of termination to the other party no later than six months prior
to the end of the Initial Term or 60 days prior to the end of any Additional
Term. Sections 8, 10 through 22 and 24 through 28 shall survive any termination
of Employee's employment under this Agreement. The Employee hereby covenants
that as of the Effective Date any agreement between Employee and the Company,
Time Warner Cable, US WEST, Inc. ("US WEST") or MediaOne, respectively, or any
of their affiliates, entered into prior to the date hereof, relating to
Employee's employment with such entity, shall terminate as of, or have been
terminated prior to, the Effective Date.
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2. Duties. Employee shall serve as Senior Vice President and Chief
Financial Officer, or subject to Section 5, in such other senior management
position as the Company shall determine. Subject to the foregoing, Employee
shall perform such duties as may be assigned by the Company to Employee from
time to time, and shall travel for business purposes to the extent reasonably
necessary or appropriate in the performance of such duties.
Employee shall perform such duties on a full time basis (subject to the
Company's written policies on vacations, illness, government service, etc.
applicable to employees at Employee's level in effect from time to time),
provided, however, that Employee shall not be precluded from devoting such time
to personal affairs as shall not interfere with the performance of his or her
duties hereunder. In performing his or her duties hereunder, Employee shall
comply with the Company's policies and procedures in effect from time to time.
Unless Employee otherwise consents, the headquarters for the performance of
Employee's services shall be the principal executive offices of the Company in
the Denver, Colorado area, subject to such reasonable travel as may be
appropriate or required in the performance of Employee's duties in the business
of the Company.
3. Compensation. The Company shall pay or cause to be paid to Employee,
during the term of employment, an annual salary in respect of each calendar year
at the rate of not less than $171,000 per annum. The Company may increase, but
not decrease, such annual salary at any time and from time to time during the
term of employment. In addition to annual salary, Employee may be entitled to
receive an annual bonus in respect of each calendar year based on a target
percentage of the salary paid to Employee during such calendar year of 50%.
Subject to Section 5, and the second paragraph of this Section 3, Employee
acknowledges that his or her actual annual bonus may vary and range from 0% to
150% of the target amount, depending on actual performance of the Company and
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Employee.
Subject to Section 5 and the second sentence of this Section 3, the
Company shall determine, in its sole discretion, the amount of any salary
increase, the amount of any annual bonus and whether to increase the target
percentage of Employee's annual bonus. The payment of any bonus compensation
shall be made in accordance with the Company's then current practices and
policies, including without limitation, less the usual required payroll
deductions and withholding.
The Company shall pay or reimburse Employee, in accordance with Company
policies applicable to employees at Employee's level, for all travel,
entertainment and other business expenses actually incurred or paid by Employee
in the performance of his or her duties hereunder, if properly substantiated and
submitted.
4. Benefits. Employee shall be eligible to participate in any pension,
profit-sharing, employee stock ownership, vacation, insurance, hospitalization,
medical, health, disability and other employee benefit or welfare plan, program
or policy whether now existing or established hereafter (collectively, the
"Benefit Plans"), to the extent that employees at Employee's level are generally
deemed eligible under the general provisions thereof. The Company reserves the
right to amend or cancel any such Benefit Plan in its sole discretion.
5. Termination by Employee Following a Change in Control.
(a) Provided that notice of termination has not previously been given
under any other Section hereof, Employee shall have the right to terminate his
or her employment with the Company under this Agreement for cause upon 30 days
prior written notice delivered to the Company at any time within 180 days after
Employee has actual knowledge of the occurrence of any of the following events
following a Change in Control, indicating
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in such notice which event has occurred:
A. A change in the location of Employee's office or of the
Company's principal executive offices to a place which is more than 50
miles from the location of Employee's office or the location of the
Company's principal executive offices immediately prior to the occurrence
of a Change in Control;
B. A material reduction in Employee's decision-making,
budgetary, operating, staff and other responsibilities, taken as a whole,
from such responsibilities immediately prior to the occurrence of a Change
in Control, or a change in the person or persons to whom Employee reported
immediately prior to the occurrence of a Change in Control, to a person or
persons of lesser rank, title or responsibility; or
C. Any material breach of this Agreement by the Company.
(b) Upon the expiration of the 30-day notice period provided in Section
5(a), Employee shall be relieved of his or her management position with the
Company and his or her duties hereunder. In the notice delivered by Employee to
the Company pursuant to Section 5(a), Employee shall elect either (A) to
terminate his or her employment with the Company, in which case Employee shall
receive: (x) subject to the terms thereof, all benefits which may be due to
Employee under the provisions of any Benefit Plan; and (y) in a lump sum
severance payment, within 30 days following the effective date of such
termination, the present value (using the discount rate described below) of an
amount equal to the sum of the annual salary at the rate in effect on the date
of termination of employment or immediately prior to the Change in Control,
whichever is greater, plus an annual bonus in a minimum amount equal to
Employee's then applicable target bonus amount or the Employee's applicable
target bonus amount in effect immediately prior to the Change in Control,
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whichever is greater, for the remainder of the existing term of this Agreement,
without any further renewal or continuation, provided that such amount shall be
not less than the sum of such salary and bonus pro rated for an 18-month period;
or (B) to remain an employee of the Company for a period (as determined by
Employee) of up to 18 months following the date notice of termination is given
by Employee pursuant to Section 5(a), in which case Employee shall be relieved
of his or her management position with the Company and his or her duties
hereunder, and sh(l) (i) continue to receive both salary, based on a rate equal
to his or her annual rate in effect on the date of termination of employment or
immediately prior to the Change in Control, whichever is greater, and annual
bonuses in respect of such period (in each case payable within 30 days after the
end of the respective calendar year and prorated for any portion of a year),
each such bonus to be based on an amount equal to Employee's then applicable
target bonus amount or the Employee's applicable target bonus amount in effect
immediately prior to the Change in Control, whichever is greater, and (ii)
receive a discounted lump sum payment pursuant to Section 5(b)(A)(y) for any
portion of the term of employment remaining after such period; provided,
however, that if Employee accepts full-time employment with any other
corporation, partnership, trust, government or other entity ("Entity") during
such period or notifies the Company in writing of his or her intention to
terminate his or her employment during such period, Employee shall cease to be
an employee of the Company effective upon the commencement of such employment,
or the effective date of such termination as specified by Employee in such
notice, and shall be entitled to receive, subject to the terms thereof, all
benefits due to Employee under the provisions of any Benefit Plan and a
discounted lump sum cash payment for the balance of the salary and bonuses
Employee would have been entitled to receive pursuant to this Section 5(b)(B)
had Employee remained on the Company's payroll until the end of the Initial Term
or such 18 month period, whichever is greater; provided, further, however, that
Employee shall not be entitled
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to receive any such lump sum cash payment if he or she accepts full-time
employment with any subsidiary or Affiliate of the Company. For purposes of this
Agreement, the term "Affiliate" shall mean an Entity which, directly or
indirectly, controls, is controlled by or is under common control with, the
Company or TWI.
In addition, whether Employee elects 5(b)(A) or 5(b)(B), for a
period of the earlier of one year from the date of termination of employment or
the date Employee is eligible to receive health benefits by virtue of other
employment, Employee shall receive continued eligibility and enrollment
(including family coverage, if any), without a premium charge therefor, in
hospital, medical and dental insurance plans providing substantially equivalent
benefit coverage to those plans in which Employee was enrolled immediately prior
to the Change in Control unless waived in writing by Employee (or, in the event
such coverage cannot be provided, substantially similar benefits).
Any lump sum payments required to be made pursuant to this Section
5(b) shall be discounted to present value from the times at which such amounts
would have been paid absent any such termination at an annual discount rate for
the relevant period equal to the "applicable Federal rate" (within the meaning
of Section 1274(d) of the Internal Revenue Code of 1986 (the "Code")),
compounded semi-annually, in effect on the date of such termination, the use of
which rate is hereby elected by the Company and Employee pursuant to Treas. Reg.
'SS' 1.280G-1Q/A32 (provided that in the event such election is not permitted,
such other rate determined as of such other date as is applicable for
determining present value under Section 280G of the Code shall be used).
6. Termination by Company.
(a) For Cause. Provided that notice of termination has not
previously been given under any other Section hereof, the Company shall have the
right to terminate Employee's employment for cause upon written notice to
Employee at any time. In such
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event, Employee's employment with the Company shall terminate immediately and
Employee shall be entitled to receive (i) any earned and unpaid salary accrued
through the date of such termination, and (ii) subject to the terms thereof, any
benefits which may be due to Employee under the provisions of any Benefit Plan.
Employee hereby disclaims any right to receive a pro rata portion of his or her
annual bonus with respect to the year in which such termination occurs. For
purposes hereof, "cause" shall mean termination by action of the Company's Board
of Directors or any committee thereof because of Employee's conviction (treating
a nolo contendere plea as a conviction) of a felony (whether or not any right to
appeal has been exercised) or willful refusal without proper cause to perform
his or her obligations under this Agreement or because of Employee's material
breach of the covenants provided for in Sections 10, 11 and 12 of this
Agreement. In the event (i) such termination is because of the Employee's
willful refusal without proper cause to perform any one or more of his
obligations under this Agreement, (ii) such notice is the first such notice of
termination for any reason delivered by the Company to the Employee under this
Section 6(a), and (iii) within 10 days following the date of such notice the
Employee shall cease his or her refusal and shall use his or her best efforts to
perform such obligations, the termination shall not be effective.
(b) Other. Provided that notice of termination has not previously
been given under any other Section hereof, the Company shall have the right at
any time to terminate Employee's employment under this Agreement without cause,
by giving written notice thereof to Employee.
(i) If such notice is so given to Employee, Employee shall be
entitled to receive, subject to the terms thereof, all benefits which may be due
to Employee under the provisions of any Benefit Plan and to elect, within 30
days after receiving such notice, to receive either a lump sum severance payment
in the amount, and upon the terms and
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conditions, provided in Section 5(b)(A) and calculated as set forth in the
last paragraph of Section 5(b), or to remain an employee of the Company upon the
terms and conditions provided in Section 5(b)(B); provided, however, that (i)
any reference therein to Section 5(a) shall be deemed for purposes of this
Section 6(b) to be a reference to this Section 6(b)(i), and (ii) if a Change in
Control has not occurred, then (x) Employee's salary shall be determined with
reference to his or her then current annual salary and (y) Employee's annual
bonus shall equal at least the Employee's target amount immediately prior to
Employee's termination under this Section 6(b)(i).
(ii) For the period beginning when Employee receives notice of
termination from the Company pursuant to this Section 6(b), and ending six
months thereafter, Employee will, without charge to Employee, have use of
reasonable office space and reasonable office facilities at Employee's principal
job location immediately prior to his or her termination of employment, or other
location reasonably close to such location, together with reasonable secretarial
services in each case appropriate to an employee of Employee's position and
responsibilities prior to such termination of employment but taking into account
Employee's reduced need for such office space and secretarial services. Employee
will continue to be eligible to participate in the Company's Benefit Plans and
to receive, subject to the terms thereof, all benefits, which are received by
other employees at Employee's level thereunder other than options or similar
equity-based or incentive awards.
(iii) In the event that Employee's employment is terminated
prior to the occurrence of a Change in Control, or more than three years
following a Change in Control, then, in partial consideration for the Company's
obligation to make the payments described in this Section 6(b), Employee shall
execute and deliver to the Company a release in the form as set forth in Exhibit
A. The Company shall deliver such release to Employee at the time the Company
delivers notice of termination pursuant to this Section 6(b). Employee shall
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execute and deliver such release to the Secretary of the Company within 21 days
of receipt of notice of termination. If Employee shall fail to execute and
deliver to the Company such release within 30 days of Employee's receipt thereof
from the Company, Employee's employment with the Company shall terminate
effective at the end of such 30-day period and Employee shall receive, in lieu
of the severance arrangements described in Section 6(b), a lump sum cash payment
in an amount determined in accordance with the personnel policies of the Company
then applicable.
7. Death; Disability.
(a) Death. If Employee shall die while employed by the Company,
Employee's employment under this Agreement shall thereupon terminate and
Employee's estate or beneficiaries, as the case may be, shall be entitled to
receive as promptly as practicable but in any event within 30 days after
reasonably satisfactory evidence of Employee's death is received by the Company
(i) any earned and unpaid salary accrued to Employee through the period ending
30 days following the date of Employee's death and a pro rata portion of the
target annual bonus amount in effect immediately prior to Employee's death; and
(ii) subject to the terms thereof, any benefits which may be due to Employee's
estate or beneficiaries under the provisions of any Benefit Plan.
(b) Disability. Provided that notice of termination has not
previously been given under any Section hereof, if employee becomes ill or is
injured or disabled during the term of this Agreement such that Employee fails
to perform all or substantially all the duties to be rendered hereunder and such
failure continues for a period in excess of 26 consecutive weeks (a
"Disability"), the Company may terminate the employment of Employee under this
Agreement upon written notice to Employee at any time and thereupon Employee
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of such termination; (ii) subject to the terms thereof, any benefits
which may be due to Employee
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under the provisions of any Benefit Plan; and (iii) a lump sum cash payment
equal to the sum of 75% of Employee's then current annual salary and then
applicable target annual bonus amount prorated for an 18-month period, less the
amount of any disability insurance proceeds payable to Employee under any
disability insurance policy or program covering Employee.
8. Stock Options and Other Incentive Awards. Upon Employee's termination
of employment with the Company for any reason, Employee's rights to benefits and
payments under any stock options, restricted shares or other incentive plans
shall be determined in accordance with the terms and provisions of such plans
and any agreements under which such stock options, restricted shares or other
awards were granted.
9. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred at such time as the
Founding Stockholders (and their respective affiliates) as a group cease to have
the ability to elect a majority of the representatives on the Management
Committee of the Company (other than the chief executive officer of the Company
and independent representatives; provided that independent representatives shall
be included in calculating whether the foregoing majority requirement is
satisfied if the representatives nominated by the Founding Stockholders (and
their respective affiliates) do not constitute a majority of the committee that
selects the Management Committee's nominees for independent representatives) and
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
the Founding Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage
of the total voting power of the voting interests of the Company, on a fully
diluted basis, than
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is held by the Founding Stockholders (and their respective affiliates) as a
group on such date. In the event that any successor of the Company, as
contemplated by Section 16, is a corporation, the same principles shall be
applied in determining whether a "Change in Control" has occurred with reference
to the board of directors, directors and capital stock of such corporation in
lieu of the Management Committee, representatives and voting interests of the
Company.
10. Trade Secrets; Work Products, Etc. Except in connection with the
performance of his or her duties hereunder, Employee hereby expressly covenants
and agrees that Employee will not at any time while employed by the Company or
thereafter, exploit, use, sell, publish, disclose, communicate or divulge to any
person or Entity, other than the Company and its subsidiaries, either directly
or indirectly, any trade secrets or confidential information, knowledge or data
regarding the Company or any of its subsidiaries or Affiliates or any of their
respective officers, directors or employees including, without limitation, the
existence and terms of this Agreement, other than such information, knowledge or
data which has been released by the Company or such subsidiaries, Affiliates or
others to the public (except that with respect to the terms of this Agreement
Employee may communicate such terms to Employee's spouse and Employee's
attorneys and financial advisors). Notwithstanding the foregoing, Employee may
disclose such trade secrets or confidential information, knowledge, data or
terms when required to do so by a court or government agency or legislative body
of competent jurisdiction, provided Employee first notifies the Company orally
and in writing as promptly as possible of such requirement so that the Company
may either seek an appropriate protective order or waive compliance with the
provisions of this Section, and provided further that if, in the absence of such
protective order or waiver, Employee is nevertheless, in the written opinion of
his or her counsel, reasonably acceptable to the Company, addressed to and
delivered to the Company, otherwise required
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to disclose such information to any such court, government agency or legislative
body or else stand liable for contempt or suffer other material penalty,
Employee may disclose such information in such case without liability hereunder
so long as such disclosure does not exceed that required by such court,
government agency or legislative body.
Employee hereby grants and assigns to the Company all rights (including,
without limitation, any copyright or patent) in the results and proceeds of all
services provided by Employee hereunder and all such services shall be subject
in all respects to the supervision, control and direction of the Company. Any
work in connection with such services shall be considered "work made for hire"
under the Copyright Law of 1976 or any successor thereof, and the Company shall
be the owner of such work as if the Company were the author of such work.
11. Non-Compete; Solicitation. Employee hereby expressly covenants and
agrees that:
(a) Employee will not at any time during the Term of employment and
for a period of one year following the date a notice of termination of
Employee's employment is effective as provided herein, be or become an officer,
director, partner or employee of or consultant to or act in any managerial
capacity with or own any equity interest in any Entity (an "Affiliated Person")
which is a "Competitive Business Entity" (as such term is defined on Exhibit B
hereto); provided, however, that (i) ownership of less than 1% of the
outstanding equity securities of any Entity listed on any national securities
exchange or traded on the National Association of Securities Dealers Automated
Quotation System shall not be prohibited hereby, and (ii) in the event Employee
is terminated pursuant to Section 6(b) and notice of termination is so given to
Employee following the occurrence of a Change in Control, Employee is hereby
permitted to accept employment with any Founding Stockholder and such employment
shall not violate the provisions of this Section 11.
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(b) Employee will not at any time during the Term of employment and
for a period of one year after the date a notice of termination of Employee's
employment is effective as provided herein, solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its subsidiaries or
Affiliates to work for Employee or for any Entity in which Employee owns or
expects to own more than a 1% equity interest or for which Employee serves or
expects to serve as an Affiliated Person.
For the purposes of this Section 11(b), the term "solicit any
employee" shall mean Employee's contacting, or providing information to others
who may be expected to contact, any employee of the Company or any of its
subsidiaries or Affiliates regarding their employment status, job satisfaction,
interest in seeking employment with Employee or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or
responding to an unsolicited request for a personal recommendation for or
evaluation of an employee of the Company or any of its subsidiaries or
Affiliates.
12. Documents; Conduct. Employee hereby expressly covenants and agrees
that:
(a) Following termination of Employee's employment with the Company
for any reason or at any time upon the Company's request, Employee will promptly
return to the Company all property of the Company and its subsidiaries and
Affiliates in his or her possession or control (whether maintained at his or her
office, home or elsewhere), including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed or written materials, documents, diaries, calendars and data of
or relating to the Company or its subsidiaries or Affiliates or their respective
personnel or affairs; and
(b) Employee will not at any time denigrate, ridicule or
intentionally criticize the Company or any of its subsidiaries or Affiliates or
any of their respective products, properties, employees, officers or directors,
including, without limitation, by way of news
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interviews, or the expression of personal views, opinions or judgments to the
news media.
13. Breach by Employee. Employee hereby expressly covenants and agrees
that the Company will suffer irreparable damage in the event any provisions of
Sections 10, 11 and 12 are not performed or are otherwise breached and that the
Company shall be entitled as a matter of right to an injunction or injunctions
and other relief to prevent a breach or violation by Employee and to secure its
enforcement of Section 10, 11 and 12 resort to such equitable relief, however,
shall not constitute a waiver of any other rights or remedies which the Company
may have.
14. Representations.
(a) Employee represents and warrants to the Company that this
Agreement is legal, valid and binding upon Employee and Employee is not a party
to any agreement or understanding which would prevent the fulfillment by
Employee of the terms of this Agreement. Employee has consulted with his or her
legal, tax, financial and other advisors, to the extent desired, prior to
execution and delivery of this Agreement.
(b) The Company represents and warrants to Employee that this
Agreement is legal, valid and binding upon the Company and the Company is not a
party to any agreement or understanding which would prevent the fulfillment by
the Company of the terms of this Agreement.
15. Notice. Any notice required or permitted to be given hereunder shall
be in writing (except where required to be given orally) and shall be
sufficiently given or sent by registered or certified mail or delivered, in
person, if to Employee at the address set forth on the last paragraph hereof, or
at such other address as Employee shall designate by written notice to the
Company, and if to the Company at 5700 S. Quebec Street, Greenwood Village,
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CO 80111, attention of the Secretary or at such other address as the Company
shall designate by written notice to Employee.
16. Successors and Assigns. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any right or obligations hereunder; provided however,
that the provisions hereof shall inure to the benefit of, and be binding upon,
any successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of the assets of the Company, or otherwise.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, irrespective of
its conflicts of law rules, except for the By-laws referred to in Section 26,
which shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware.
To the extent that any applicable state or Federal law, rule or
regulation confers upon Employee any greater benefit or right than that set
forth in this Agreement, such law, rule or regulation shall control in lieu of
the provisions hereof relating to such benefit or right.
18. Mitigation. Employee shall have no obligation to mitigate damages in
the event of termination of Employee's employment under this Agreement under
Section 5(a), 6(b) or 7, other than as necessary to prevent the Company from
losing any tax deductions to which it otherwise would have been entitled for any
payments deemed to be "contingent on a change" under the Code and any payments
received by Employee hereunder shall not be offset or reduced in any way by any
other earnings or payments which may be received by Employee from any source,
except as provided by this Section 18. It is acknowledged and agreed that any
payment which may be made by the Company to Employee under Section
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5(b), 6(b) or 7 is in the nature of severance and is not a penalty payment.
19. Withholding. All payments required to be paid by the Company to
Employee under this Agreement will be paid in accordance with the payroll
practices of the Company or the terms of the Benefit Plans, as the case may be,
and will be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company's policies applicable to employees at
Employee's level and the terms of the Benefit Plan.
20. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
Employee, on the one hand, and the Company and its subsidiaries and Affiliates,
on the other, and constitutes the complete understanding between the parties
with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein.
21. Modification; Waiver. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of both the parties hereto. No waiver by either party at any time of
any breach by the other party of any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Subject to Section 28, no policy,
procedure or practice of the Company whether now or hereafter in effect shall be
deemed to modify, amend or supersede any provision of this Agreement except as
contemplated or provided otherwise in this Agreement.
22. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
23. Use of Likeness. The Company and TWI shall have the right to use
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Employee's name, biography and likeness in connection with their respective
businesses and that of their subsidiaries and Affiliates, but not for use as a
direct endorsement.
24. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
25. Set-off. The Company and its subsidiaries and Affiliates shall have no
right to set-off payments owed to Employee hereunder against amounts owed or
claimed to be owed by Employee to the Company or its subsidiaries or Affiliates
under this Agreement or otherwise.
26. Indemnification. The Company shall indemnify Employee to no lesser
extent than provided in the Company's By-laws on the date hereof (the provisions
of which are hereby incorporated by reference herein), notwithstanding any
changes or amendments to such By-laws after the date hereof adversely affecting,
limiting or reducing such indemnification.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Changes. Subject to Section 5, the Company and its subsidiaries and
Affiliates are entitled to amend, modify, terminate or otherwise change at any
time or from time to time any and all Benefit Plans and policies, practices or
procedures referred to in this Agreement, and all references herein to such
Benefit Plans and policies, practices and procedures shall be to such as from
time to time in effect prior to a Change in Control except as otherwise
specifically herein provided.
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29. Beneficiaries. Whenever this Agreement provides for any payment to the
Employee's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Employee may designate in writing (using the form of
Beneficiary Designation attached hereto as Exhibit C) and file with the Company.
The Employee shall have the right to revoke such Beneficiary Designation and
redesignate a beneficiary by filing with the Company (and any applicable
insurance company) a later dated Beneficiary Designation to such effect.
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IN WITNESS WHEREOF, Employee and the Company have caused this
Agreement to be executed as of the date first above written.
TIME WARNER TELECOM LLC
By: /s/Larissa L. Herda
-------------------
Name: Larissa L. Herda
Title: President and Chief Executive
Officer
Agreed to and accepted as of
the date first above written
/s/David J. Rayner
------------------
Name: David J. Rayner
Title: Senior Vice President and
Chief Financial Officer
Address for Notices:
- --------------------
- --------------------
- --------------------
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EXHIBIT A
RELEASE
Pursuant to the terms of the Employment Agreement dated as of June 30,
1998 between Time Warner Telecom LLC (the "Company") and any successor and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, _____________________,
being of lawful age, do hereby release and forever discharge the Company and its
respective officers, shareholders, subsidiaries, agents, and employees, from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages, attorneys' fees, expenses, or other compensation, which in any
way relate to or raise out of my employment with the Company or the termination
of such employment, which I may now or hereafter under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this release, provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement or to seek damages for the breach of the
Agreement by the Company.
<PAGE>
<PAGE>
I further state that I have read the foregoing document, that I know
the contents thereof, and that I have executed the same as my own free act.
WITNESS my hand this _______ day of ____________________.
__________________________________
<PAGE>
<PAGE>
EXHIBIT B
"Competitive Business Entity" shall mean (i) any federal, state or local
authority empowered to grant, renew, modify or amend, or review the grant,
renewal, modification or amendment of, franchises to operate any competitive
local exchange carrier or to regulate the conduct of any such business in the
United States, except that a Competitive Business Entity shall not include any
such state or local authority that is so empowered with respect to franchises
or regulation of any such business in a state or region in which the Company
does not engage or, to the knowledge of Employee, does not have definitive plans
to engage, in the ownership, operation or management of such a business, and
(ii) any Entity which is engaged, either directly or indirectly, in the
ownership, operation or management of any business providing telecommunications
services to customers as a competitive local exchange carrier in any state of
the United States in which the Company engages or, to the knowledge of Employee,
has definitive plans to engage, in the ownerhsip, operation or management of
such a business.
All capitalized terms used herein shall have the meanings provided
in the Employment Agreement to which this Exhibit B is attached.
<PAGE>
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EXHIBIT C
BENEFICIARY DESIGNATION PURSUANT TO
EMPLOYMENT AGREEMENT
This Beneficiary Designation is made by the undersigned employee pursuant
to that certain Employment Agreement dated as of June 30, 1998 (the
"Agreement"), between Time Warner Telecom LLC, a Delaware limited liability
company (the "Company'), and the undersigned.
1. Primary Beneficiary or Beneficiaries. I hereby designate the following
Primary Beneficiary(ies) to receive all payments and other benefits due to me
under the Agreement in the event of my death. Unless otherwise indicated, such
benefits will be paid in equal shares to all designated Primary Beneficiaries
who are living or in existence at the date of my death.
Name(s) of Primary Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
2. Contingent Beneficiary or Beneficiaries. If none of the Primary
Beneficiaries listed in Paragraph 1 above are living or in existence at the date
of my death, then the following Contingent Beneficiary(ies) will receive the
payments and other benefits due to me under the Agreement. Unless otherwise
indicated, such benefits will be paid in equal shares to all designated
Contingent Beneficiary(ies) who are living or in existence at the date of my
death.
Name(s) of Contingent Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
<PAGE>
<PAGE>
3. Payments to Estate. If none of the Primary Beneficiaries listed in
Paragraph 1 above and one of the Contingent Beneficiaries listed in Paragraph 2
above are living or in existence at the date of my death, then the payments and
other benefits due to me under the Agreement shall be paid to my estate.
4. Effective Date of Beneficiary Designation. This Beneficiary Designation
will be effective only if it is received by the Company prior to my death. If
this Beneficiary Designation is received by the Company prior to my death, it
will revoke all prior Beneficiary Designations. This Beneficiary Designation may
be revoked by delivery to the Company of a subsequent, properly completed
Beneficiary Designation.
- ----------------------- --------------------------------------
Date Employee
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<PAGE>
EMPLOYMENT AGREEMENT
Employment Agreement dated as of June 30, 1998, between TIME WARNER
TELECOM LLC, a Delaware limited liability company (the "Company"), and the
employee whose name appears on the last page hereof (the "Employee"). The
Company shall employ the Employee on the following terms and conditions:
1. Term. The Company hereby employs Employee and Employee hereby accepts
such employment upon the terms and conditions hereof for an initial term
commencing on the effective date (the "Effective Date") of the Reorganization
Agreement among Time Warner Companies, Inc., MediaOne Group, Inc. (formerly US
WEST, Inc.) ("MediaOne"), Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-Advance Newhouse
Partnership (collectively, the "Founding Stockholders") and ending, subject to
renewal or termination as provided herein, on the third anniversary of the
Effective Date (the "Initial Term"); provided, however, that this Agreement
shall automatically continue for successive one month periods thereafter (each
such period being an "Additional Term") unless either party has delivered
written notice of termination to the other party no later than six months prior
to the end of the Initial Term or 60 days prior to the end of any Additional
Term. Sections 8, 10 through 22 and 24 through 28 shall survive any termination
of Employee's employment under this Agreement. The Employee hereby covenants
that as of the Effective Date any agreement between Employee and the Company,
Time Warner Cable, US WEST, Inc. ("US WEST") or MediaOne, respectively, or any
of their affiliates, entered into prior to the date hereof, relating to
Employee's employment with such entity, shall terminate as of, or have been
terminated prior to, the Effective Date.
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2. Duties. Employee shall serve as Senior Vice President, Sales, or
subject to Section 5, in such other senior management position as the Company
shall determine. Subject to the foregoing, Employee shall perform such duties as
may be assigned by the Company to Employee from time to time, and shall travel
for business purposes to the extent reasonably necessary or appropriate in the
performance of such duties.
Employee shall perform such duties on a full time basis (subject to the
Company's written policies on vacations, illness, government service, etc.
applicable to employees at Employee's level in effect from time to time),
provided, however, that Employee shall not be precluded from devoting such time
to personal affairs as shall not interfere with the performance of his or her
duties hereunder. In performing his or her duties hereunder, Employee shall
comply with the Company's policies and procedures in effect from time to time.
Unless Employee otherwise consents, the headquarters for the performance of
Employee's services shall be the principal executive offices of the Company in
the Denver, Colorado area, subject to such reasonable travel as may be
appropriate or required in the performance of Employee's duties in the business
of the Company.
3. Compensation. The Company shall pay or cause to be paid to Employee,
during the term of employment, an annual salary in respect of each calendar year
at the rate of not less than $170,500 per annum. The Company may increase, but
not decrease, such annual salary at any time and from time to time during the
term of employment. In addition to annual salary, Employee may be entitled to
receive an annual bonus in respect of each calendar year based on a target
percentage of the salary paid to Employee during such calendar year of 50%.
Subject to Section 5, and the second paragraph of this Section 3, Employee
acknowledges that his or her actual annual bonus may vary and range from 0% to
150% of the target amount, depending on actual performance of the Company and
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Employee.
Subject to Section 5 and the second sentence of this Section 3, the
Company shall determine, in its sole discretion, the amount of any salary
increase, the amount of any annual bonus and whether to increase the target
percentage of Employee's annual bonus. The payment of any bonus compensation
shall be made in accordance with the Company's then current practices and
policies, including without limitation, less the usual required payroll
deductions and withholding.
The Company shall pay or reimburse Employee, in accordance with Company
policies applicable to employees at Employee's level, for all travel,
entertainment and other business expenses actually incurred or paid by Employee
in the performance of his or her duties hereunder, if properly substantiated and
submitted.
4. Benefits. Employee shall be eligible to participate in any pension,
profit-sharing, employee stock ownership, vacation, insurance, hospitalization,
medical, health, disability and other employee benefit or welfare plan, program
or policy whether now existing or established hereafter (collectively, the
"Benefit Plans"), to the extent that employees at Employee's level are generally
deemed eligible under the general provisions thereof. The Company reserves the
right to amend or cancel any such Benefit Plan in its sole discretion.
5. Termination by Employee Following a Change in Control.
(a) Provided that notice of termination has not previously been
given under any other Section hereof, Employee shall have the right to terminate
his or her employment with the Company under this Agreement for cause upon 30
days prior written notice delivered to the Company at any time within 180 days
after Employee has actual knowledge of the occurrence of any of the following
events following a Change in Control, indicating
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in such notice which event has occurred:
A. A change in the location of Employee's office or of
the Company's principal executive offices to a place which is more than 50
miles from the location of Employee's office or the location of the
Company's principal executive offices immediately prior to the occurrence
of a Change in Control;
B. A material reduction in Employee's decision-making,
budgetary, operating, staff and other responsibilities, taken as a whole,
from such responsibilities immediately prior to the occurrence of a Change
in Control, or a change in the person or persons to whom Employee reported
immediately prior to the occurrence of a Change in Control, to a person or
persons of lesser rank, title or responsibility; or
C. Any material breach of this Agreement by the Company.
(b) Upon the expiration of the 30-day notice period provided in
Section 5(a), Employee shall be relieved of his or her management position with
the Company and his or her duties hereunder. In the notice delivered by Employee
to the Company pursuant to Section 5(a), Employee shall elect either (A) to
terminate his or her employment with the Company, in which case Employee shall
receive: (x) subject to the terms thereof, all benefits which may be due to
Employee under the provisions of any Benefit Plan; and (y) in a lump sum
severance payment, within 30 days following the effective date of such
termination, the present value (using the discount rate described below) of an
amount equal to the sum of the annual salary at the rate in effect on the date
of termination of employment or immediately prior to the Change in Control,
whichever is greater, plus an annual bonus in a minimum amount equal to
Employee's then applicable target bonus amount or the Employee's applicable
target bonus amount in effect immediately prior to the Change in Control,
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whichever is greater, for the remainder of the existing term of this Agreement,
without any further renewal or continuation, provided that such amount shall be
not less than the sum of such salary and bonus pro rated for an 18-month period;
or (B) to remain an employee of the Company for a period (as determined by
Employee) of up to 18 months following the date notice of termination is given
by Employee pursuant to Section 5(a), in which case Employee shall be relieved
of his or her management position with the Company and his or her duties
hereunder, and shall (i) continue to receive both salary, based on a rate equal
to his or her annual rate in effect on the date of termination of employment or
immediately prior to the Change in Control, whichever is greater, and annual
bonuses in respect of such period (in each case payable within 30 days after the
end of the respective calendar year and prorated for any portion of a year),
each such bonus to be based on an amount equal to Employee's then applicable
target bonus amount or the Employee's applicable target bonus amount in effect
immediately prior to the Change in Control, whichever is greater, and (ii)
receive a discounted lump sum payment pursuant to Section 5(b)(A)(y) for any
portion of the term of employment remaining after such period; provided,
however, that if Employee accepts full-time employment with any other
corporation, partnership, trust, government or other entity ("Entity") during
such period or notifies the Company in writing of his or her intention to
terminate his or her employment during such period, Employee shall cease to be
an employee of the Company effective upon the commencement of such employment,
or the effective date of such termination as specified by Employee in such
notice, and shall be entitled to receive, subject to the terms thereof, all
benefits due to Employee under the provisions of any Benefit Plan and a
discounted lump sum cash payment for the balance of the salary and bonuses
Employee would have been entitled to receive pursuant to this Section 5(b)(B)
had Employee remained on the Company's payroll until the end of the Initial Term
or such 18 month period, whichever is greater; provided, further, however, that
Employee shall not be entitled
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to receive any such lump sum cash payment if he or she accepts full-time
employment with any subsidiary or Affiliate of the Company. For purposes of this
Agreement, the term "Affiliate" shall mean an Entity which, directly or
indirectly, controls, is controlled by or is under common control with, the
Company or TWI.
In addition, whether Employee elects 5(b)(A) or 5(b)(B), for a
period of the earlier of one year from the date of termination of employment or
the date Employee is eligible to receive health benefits by virtue of other
employment, Employee shall receive continued eligibility and enrollment
(including family coverage, if any), without a premium charge therefor, in
hospital, medical and dental insurance plans providing substantially equivalent
benefit coverage to those plans in which Employee was enrolled immediately prior
to the Change in Control unless waived in writing by Employee (or, in the event
such coverage cannot be provided, substantially similar benefits).
Any lump sum payments required to be made pursuant to this Section
5(b) shall be discounted to present value from the times at which such amounts
would have been paid absent any such termination at an annual discount rate for
the relevant period equal to the "applicable Federal rate" (within the meaning
of Section 1274(d) of the Internal Revenue Code of 1986 (the "Code")),
compounded semi-annually, in effect on the date of such termination, the use of
which rate is hereby elected by the Company and Employee pursuant to Treas. Reg.
'SS' 1.280G-1Q/A32 (provided that in the event such election is not permitted,
such other rate determined as of such other date as is applicable for
determining present value under Section 280G of the Code shall be used).
6. Termination by Company.
(a) For Cause. Provided that notice of termination has not
previously been given under any other Section hereof, the Company shall have the
right to terminate Employee's employment for cause upon written notice to
Employee at any time. In such
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event, Employee's employment with the Company shall terminate immediately and
Employee shall be entitled to receive (i) any earned and unpaid salary accrued
through the date of such termination, and (ii) subject to the terms thereof, any
benefits which may be due to Employee under the provisions of any Benefit Plan.
Employee hereby disclaims any right to receive a pro rata portion of his or her
annual bonus with respect to the year in which such termination occurs. For
purposes hereof, "cause" shall mean termination by action of the Company's Board
of Directors or any committee thereof because of Employee's conviction (treating
a nolo contendere plea as a conviction) of a felony (whether or not any right to
appeal has been exercised) or willful refusal without proper cause to perform
his or her obligations under this Agreement or because of Employee's material
breach of the covenants provided for in Sections 10, 11 and 12 of this
Agreement. In the event (i) such termination is because of the Employee's
willful refusal without proper cause to perform any one or more of his
obligations under this Agreement, (ii) such notice is the first such notice of
termination for any reason delivered by the Company to the Employee under this
Section 6(a), and (iii) within 10 days following the date of such notice the
Employee shall cease his or her refusal and shall use his or her best efforts to
perform such obligations, the termination shall not be effective.
(b) Other. Provided that notice of termination has not previously
been given under any other Section hereof, the Company shall have the right at
any time to terminate Employee's employment under this Agreement without cause,
by giving written notice thereof to Employee.
(i) If such notice is so given to Employee, Employee shall be
entitled to receive, subject to the terms thereof, all benefits which may be due
to Employee under the provisions of any Benefit Plan and to elect, within 30
days after receiving such notice, to receive either a lump sum severance payment
in the amount, and upon the terms and
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conditions, provided in Section 5(b)(A) and calculated as set forth in the last
paragraph of Section 5(b), or to remain an employee of the Company upon the
terms and conditions provided in Section 5(b)(B); provided, however, that
(i) any reference therein to Section 5(a) shall be deemed for purposes of this
Section 6(b) to be a reference to this Section 6(b)(i), and (ii) if a Change
in Control has not occurred, then (x) Employee's salary shall be determined
with reference to his or her then current annual salary and (y) Employee's
annual bonus shall equal at least the Employee's target amount immediately
prior to Employee's termination under this Section 6(b)(i).
(ii) For the period beginning when Employee receives notice of
termination from the Company pursuant to this Section 6(b), and ending six
months thereafter, Employee will, without charge to Employee, have use of
reasonable office space and reasonable office facilities at Employee's principal
job location immediately prior to his or her termination of employment, or other
location reasonably close to such location, together with reasonable secretarial
services in each case appropriate to an employee of Employee's position and
responsibilities prior to such termination of employment but taking into account
Employee's reduced need for such office space and secretarial services. Employee
will continue to be eligible to participate in the Company's Benefit Plans and
to receive, subject to the terms thereof, all benefits, which are received by
other employees at Employee's level thereunder other than options or similar
equity-based or incentive awards.
(iii) In the event that Employee's employment is terminated
prior to the occurrence of a Change in Control, or more than three years
following a Change in Control, then, in partial consideration for the Company's
obligation to make the payments described in this Section 6(b), Employee shall
execute and deliver to the Company a release in the form as set forth in Exhibit
A. The Company shall deliver such release to Employee at the time the Company
delivers notice of termination pursuant to this Section 6(b). Employee shall
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execute and deliver such release to the Secretary of the Company within 21 days
of receipt of notice of termination. If Employee shall fail to execute and
deliver to the Company such release within 30 days of Employee's receipt thereof
from the Company, Employee's employment with the Company shall terminate
effective at the end of such 30-day period and Employee shall receive, in lieu
of the severance arrangements described in Section 6(b), a lump sum cash payment
in an amount determined in accordance with the personnel policies of the Company
then applicable.
7. Death; Disability.
(a) Death. If Employee shall die while employed by the Company,
Employee's employment under this Agreement shall thereupon terminate and
Employee's estate or beneficiaries, as the case may be, shall be entitled to
receive as promptly as practicable but in any event within 30 days after
reasonably satisfactory evidence of Employee's death is received by the Company
(i) any earned and unpaid salary accrued to Employee through the period ending
30 days following the date of Employee's death and a pro rata portion of the
target annual bonus amount in effect immediately prior to Employee's death; and
(ii) subject to the terms thereof, any benefits which may be due to Employee's
estate or beneficiaries under the provisions of any Benefit Plan.
(b) Disability. Provided that notice of termination has not
previously been given under any Section hereof, if employee becomes ill or is
injured or disabled during the term of this Agreement such that Employee fails
to perform all or substantially all the duties to be rendered hereunder and such
failure continues for a period in excess of 26 consecutive weeks (a
"Disability"), the Company may terminate the employment of Employee under this
Agreement upon written notice to Employee at any time and thereupon Employee
shall be entitled to receive (i) any earned and unpaid salary accrued through
the date of such termination; (ii) subject to the terms thereof, any benefits
which may be due to Employee
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under the provisions of any Benefit Plan; and (iii) a lump sum cash payment
equal to the sum of 75% of Employee's then current annual salary and then
applicable target annual bonus amount prorated for an 18-month period, less the
amount of any disability insurance proceeds payable to Employee under any
disability insurance policy or program covering Employee.
8. Stock Options and Other Incentive Awards. Upon Employee's termination
of employment with the Company for any reason, Employee's rights to benefits and
payments under any stock options, restricted shares or other incentive plans
shall be determined in accordance with the terms and provisions of such plans
and any agreements under which such stock options, restricted shares or other
awards were granted.
9. Change in Control. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred at such time as the
Founding Stockholders (and their respective affiliates) as a group cease to have
the ability to elect a majority of the representatives on the Management
Committee of the Company (other than the chief executive officer of the Company
and independent representatives; provided that independent representatives shall
be included in calculating whether the foregoing majority requirement is
satisfied if the representatives nominated by the Founding Stockholders (and
their respective affiliates) do not constitute a majority of the committee that
selects the Management Committee's nominees for independent representatives) and
a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (other than
the Founding Stockholders and their respective affiliates) has become the
ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the voting interests of the Company
on a fully diluted basis and such ownership represents a greater percentage of
the total voting power of the voting interests of the Company, on a fully
diluted basis, than
10
<PAGE>
<PAGE>
is held by the Founding Stockholders (and their respective affiliates) as a
group on such date. In the event that any successor of the Company, as
contemplated by Section 16, is a corporation, the same principles shall be
applied in determining whether a "Change in Control" has occurred with reference
to the board of directors, directors and capital stock of such corporation in
lieu of the Management Committee, representatives and voting interests of the
Company.
10. Trade Secrets; Work Products, Etc. Except in connection with the
performance of his or her duties hereunder, Employee hereby expressly covenants
and agrees that Employee will not at any time while employed by the Company or
thereafter, exploit, use, sell, publish, disclose, communicate or divulge to any
person or Entity, other than the Company and its subsidiaries, either directly
or indirectly, any trade secrets or confidential information, knowledge or data
regarding the Company or any of its subsidiaries or Affiliates or any of their
respective officers, directors or employees including, without limitation, the
existence and terms of this Agreement, other than such information, knowledge or
data which has been released by the Company or such subsidiaries, Affiliates or
others to the public (except that with respect to the terms of this Agreement
Employee may communicate such terms to Employee's spouse and Employee's
attorneys and financial advisors). Notwithstanding the foregoing, Employee may
disclose such trade secrets or confidential information, knowledge, data or
terms when required to do so by a court or government agency or legislative body
of competent jurisdiction, provided Employee first notifies the Company orally
and in writing as promptly as possible of such requirement so that the Company
may either seek an appropriate protective order or waive compliance with the
provisions of this Section, and provided further that if, in the absence of such
protective order or waiver, Employee is nevertheless, in the written opinion of
his or her counsel, reasonably acceptable to the Company, addressed to and
delivered to the Company, otherwise required
11
<PAGE>
<PAGE>
to disclose such information to any such court, government agency or legislative
body or else stand liable for contempt or suffer other material penalty,
Employee may disclose such information in such case without liability hereunder
so long as such disclosure does not exceed that required by such court,
government agency or legislative body.
Employee hereby grants and assigns to the Company all rights (including,
without limitation, any copyright or patent) in the results and proceeds of all
services provided by Employee hereunder and all such services shall be subject
in all respects to the supervision, control and direction of the Company. Any
work in connection with such services shall be considered "work made for hire"
under the Copyright Law of 1976 or any successor thereof, and the Company shall
be the owner of such work as if the Company were the author of such work.
11. Non-Compete; Solicitation. Employee hereby expressly covenants and
agrees that:
(a) Employee will not at any time during the Term of employment and
for a period of one year following the date a notice of termination of
Employee's employment is effective as provided herein, be or become an officer,
director, partner or employee of or consultant to or act in any managerial
capacity with or own any equity interest in any Entity (an "Affiliated Person")
which is a "Competitive Business Entity" (as such term is defined on Exhibit B
hereto); provided, however, that (i) ownership of less than 1% of the
outstanding equity securities of any Entity listed on any national securities
exchange or traded on the National Association of Securities Dealers Automated
Quotation System shall not be prohibited hereby, and (ii) in the event Employee
is terminated pursuant to Section 6(b) and notice of termination is so given to
Employee following the occurrence of a Change in Control, Employee is hereby
permitted to accept employment with any Founding Stockholder and such employment
shall not violate the provisions of this Section 11.
12
<PAGE>
<PAGE>
(b) Employee will not at any time during the Term of employment and
for a period of one year after the date a notice of termination of Employee's
employment is effective as provided herein, solicit (or assist or encourage the
solicitation of) any employee of the Company or any of its subsidiaries or
Affiliates to work for Employee or for any Entity in which Employee owns or
expects to own more than a 1% equity interest or for which Employee serves or
expects to serve as an Affiliated Person.
For the purposes of this Section 11(b), the term "solicit any
employee" shall mean Employee's contacting, or providing information to others
who may be expected to contact, any employee of the Company or any of its
subsidiaries or Affiliates regarding their employment status, job satisfaction,
interest in seeking employment with Employee or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or
responding to an unsolicited request for a personal recommendation for or
evaluation of an employee of the Company or any of its subsidiaries or
Affiliates.
12. Documents; Conduct. Employee hereby expressly covenants and agrees
that:
(a) Following termination of Employee's employment with the Company
for any reason or at any time upon the Company's request, Employee will promptly
return to the Company all property of the Company and its subsidiaries and
Affiliates in his or her possession or control (whether maintained at his or her
office, home or elsewhere), including, without limitation, all copies of all
management studies, business or strategic plans, budgets, notebooks and other
printed, typed or written materials, documents, diaries, calendars and data of
or relating to the Company or its subsidiaries or Affiliates or their respective
personnel or affairs; and
(b) Employee will not at any time denigrate, ridicule or
intentionally criticize the Company or any of its subsidiaries or Affiliates or
any of their respective products, properties, employees, officers or directors,
including, without limitation, by way of news
13
<PAGE>
<PAGE>
interviews, or the expression of personal views, opinions or judgments to the
news media.
13. Breach by Employee. Employee hereby expressly covenants and agrees
that the Company will suffer irreparable damage in the event any provisions of
Sections 10, 11 and 12 are not performed or are otherwise breached and that the
Company shall be entitled as a matter of right to an injunction or injunctions
and other relief to prevent a breach or violation by Employee and to secure its
enforcement of Section 10, 11 and 12 resort to such equitable relief, however,
shall not constitute a waiver of any other rights or remedies which the Company
may have.
14. Representations.
(a) Employee represents and warrants to the Company that this
Agreement is legal, valid and binding upon Employee and Employee is not a party
to any agreement or understanding which would prevent the fulfillment by
Employee of the terms of this Agreement. Employee has consulted with his or her
legal, tax, financial and other advisors, to the extent desired, prior to
execution and delivery of this Agreement.
(b) The Company represents and warrants to Employee that this
Agreement is legal, valid and binding upon the Company and the Company is not a
party to any agreement or understanding which would prevent the fulfillment by
the Company of the terms of this Agreement.
15. Notice. Any notice required or permitted to be given hereunder shall
be in writing (except where required to be given orally) and shall be
sufficiently given or sent by registered or certified mail or delivered, in
person, if to Employee at the address set forth on the last paragraph hereof, or
at such other address as Employee shall designate by written notice to the
Company, and if to the Company at 5700 S. Quebec Street, Greenwood Village,
14
<PAGE>
<PAGE>
CO 80111, attention of the Secretary or at such other address as the Company
shall designate by written notice to Employee.
16. Successors and Assigns. This Agreement is personal in its nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any right or obligations hereunder; provided however,
that the provisions hereof shall inure to the benefit of, and be binding upon,
any successor of the Company, whether by merger, consolidation, transfer of all
or substantially all of the assets of the Company, or otherwise.
17. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, irrespective of
its conflicts of law rules, except for the By-laws referred to in Section 26,
which shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware.
To the extent that any applicable state or Federal law, rule or
regulation confers upon Employee any greater benefit or right than that set
forth in this Agreement, such law, rule or regulation shall control in lieu of
the provisions hereof relating to such benefit or right.
18. Mitigation. Employee shall have no obligation to mitigate damages in
the event of termination of Employee's employment under this Agreement under
Section 5(a), 6(b) or 7, other than as necessary to prevent the Company from
losing any tax deductions to which it otherwise would have been entitled for any
payments deemed to be "contingent on a change" under the Code and any payments
received by Employee hereunder shall not be offset or reduced in any way by any
other earnings or payments which may be received by Employee from any source,
except as provided by this Section 18. It is acknowledged and agreed that any
payment which may be made by the Company to Employee under Section
15
<PAGE>
<PAGE>
5(b), 6(b) or 7 is in the nature of severance and is not a penalty payment.
19. Withholding. All payments required to be paid by the Company to
Employee under this Agreement will be paid in accordance with the payroll
practices of the Company or the terms of the Benefit Plans, as the case may be,
and will be subject to withholding taxes, social security and other payroll
deductions in accordance with the Company's policies applicable to employees at
Employee's level and the terms of the Benefit Plan.
20. Complete Understanding. This Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
Employee, on the one hand, and the Company and its subsidiaries and Affiliates,
on the other, and constitutes the complete understanding between the parties
with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect thereto except
as expressly set forth herein.
21. Modification; Waiver. This Agreement cannot be changed, modified or
amended and no provision or requirement hereof may be waived without the consent
in writing of both the parties hereto. No waiver by either party at any time of
any breach by the other party of any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Subject to Section 28, no policy,
procedure or practice of the Company whether now or hereafter in effect shall be
deemed to modify, amend or supersede any provision of this Agreement except as
contemplated or provided otherwise in this Agreement.
22. Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
this Agreement.
23. Use of Likeness. The Company and TWI shall have the right to use
16
<PAGE>
<PAGE>
Employee's name, biography and likeness in connection with their respective
businesses and that of their subsidiaries and Affiliates, but not for use as a
direct endorsement.
24. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
25. Set-off. The Company and its subsidiaries and Affiliates shall have no
right to set-off payments owed to Employee hereunder against amounts owed or
claimed to be owed by Employee to the Company or its subsidiaries or Affiliates
under this Agreement or otherwise.
26. Indemnification. The Company shall indemnify Employee to no lesser
extent than provided in the Company's By-laws on the date hereof (the provisions
of which are hereby incorporated by reference herein), notwithstanding any
changes or amendments to such By-laws after the date hereof adversely affecting,
limiting or reducing such indemnification.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Changes. Subject to Section 5, the Company and its subsidiaries and
Affiliates are entitled to amend, modify, terminate or otherwise change at any
time or from time to time any and all Benefit Plans and policies, practices or
procedures referred to in this Agreement, and all references herein to such
Benefit Plans and policies, practices and procedures shall be to such as from
time to time in effect prior to a Change in Control except as otherwise
specifically herein provided.
17
<PAGE>
<PAGE>
29. Beneficiaries. Whenever this Agreement provides for any payment to the
Employee's estate, such payment may be made instead to such beneficiary or
beneficiaries as the Employee may designate in writing (using the form of
Beneficiary Designation attached hereto as Exhibit C) and file with the Company.
The Employee shall have the right to revoke such Beneficiary Designation and
redesignate a beneficiary by filing with the Company (and any applicable
insurance company) a later dated Beneficiary Designation to such effect.
18
<PAGE>
<PAGE>
IN WITNESS WHEREOF, Employee and the Company have caused this
Agreement to be executed as of the date first above written.
TIME WARNER TELECOM LLC
By: /s/ Larissa L. Herda
------------------------------
Name: Larissa L. Herda
Title: President and Chief Executive Officer
Agreed to and accepted as of
the date first above written
/s/ John T. Blount
------------------------------
Name: John T. Blount
Title: Senior Vice President, Sales
Address for Notices:
- -----------------------------------
- -----------------------------------
- -----------------------------------
19
<PAGE>
<PAGE>
EXHIBIT A
RELEASE
Pursuant to the terms of the Employment Agreement dated as of June 30,
1998 between Time Warner Telecom LLC (the "Company") and any successor and the
undersigned (the "Agreement"), and in consideration of the payments made to me
and other benefits to be received by me pursuant thereto, _____________________,
being of lawful age, do hereby release and forever discharge the Company and its
respective officers, shareholders, subsidiaries, agents, and employees, from any
and all actions, causes of action, claims, or demands for general, special or
punitive damages, attorneys' fees, expenses, or other compensation, which in any
way relate to or raise out of my employment with the Company or the termination
of such employment, which I may now or hereafter under any federal, state or
local law, regulation or order, including without limitation, under the Age
Discrimination in Employment Act, as amended, through and including the date of
this release, provided, however, that the execution of this Release shall not
prevent the undersigned from bringing a lawsuit against the Company to enforce
its obligations under the Agreement or to seek damages for the breach of the
Agreement by the Company.
<PAGE>
<PAGE>
I further state that I have read the foregoing document, that I know
the contents thereof, and that I have executed the same as my own free act.
WITNESS my hand this _______ day of ____________________.
_____________________________________________________________________
<PAGE>
<PAGE>
EXHIBIT B
"Competitive Business Entity" shall mean (i) any federal, state or local
authority empowered to grant, renew, modify or amend, or review the grant,
renewal, modification or amendment of, franchises to operate any competitive
local exchange carrier or to regulate the conduct of any such business in the
United States, except that a Competitive Business Entity shall not include any
such state or local authority that is so empowered with respect to franchises
or regulation of any such business in a state or region in which the Company
does not engage or, to the knowledge of Employee, does not have definitive plans
to engage, in the ownership, operation or management of such a business, and
(ii) any Entity which is engaged, either directly or indirectly, in the
ownership, operation or management of any business providing telecommunications
services to customers as a competitive local exchange carrier in any state of
the United States in which the Company engages or, to the knowledge of Employee,
has definitive plans to engage, in the ownerhsip, operation or management of
such a business.
All capitalized terms used herein shall have the meanings provided in the
Employment Agreement to which this Exhibit B is attached.
<PAGE>
<PAGE>
EXHIBIT C
BENEFICIARY DESIGNATION PURSUANT TO
EMPLOYMENT AGREEMENT
This Beneficiary Designation is made by the undersigned employee pursuant
to that certain Employment Agreement dated as of June 30, 1998 (the
"Agreement"), between Time Warner Telecom LLC, a Delaware limited liability
company (the "Company'), and the undersigned.
1. Primary Beneficiary or Beneficiaries. I hereby designate the following
Primary Beneficiary(ies) to receive all payments and other benefits due to me
under the Agreement in the event of my death. Unless otherwise indicated, such
benefits will be paid in equal shares to all designated Primary Beneficiaries
who are living or in existence at the date of my death.
Name(s) of Primary Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
2. Contingent Beneficiary or Beneficiaries. If none of the Primary
Beneficiaries listed in Paragraph 1 above are living or in existence at the date
of my death, then the following Contingent Beneficiary(ies) will receive the
payments and other benefits due to me under the Agreement. Unless otherwise
indicated, such benefits will be paid in equal shares to all designated
Contingent Beneficiary(ies) who are living or in existence at the date of my
death.
Name(s) of Contingent Address(es)
Beneficiary(ies)
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
- ------------------------- ---------------------------------------
<PAGE>
<PAGE>
3. Payments to Estate. If none of the Primary Beneficiaries listed in
Paragraph 1 above and one of the Contingent Beneficiaries listed in Paragraph 2
above are living or in existence at the date of my death, then the payments and
other benefits due to me under the Agreement shall be paid to my estate.
4. Effective Date of Beneficiary Designation. This Beneficiary Designation
will be effective only if it is received by the Company prior to my death. If
this Beneficiary Designation is received by the Company prior to my death, it
will revoke all prior Beneficiary Designations. This Beneficiary Designation may
be revoked by delivery to the Company of a subsequent, properly completed
Beneficiary Designation.
- ----------------------- --------------------------------------
Date Employee
<PAGE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions 'Experts' and
'Selected Combined Financial and Other Operating Data' and to the use of our
reports dated March 13, 1998 (except Notes 1, 4, 5, 6 and 8, as to which the
date is July 14, 1998) and July 14, 1998, in Amendment No. 3 to the Registration
Statement (Form S-1) and related Prospectus of Time Warner Telecom LLC and Time
Warner Telecom Inc. for the registration of $400 million % Senior Notes Due
2008.
Ernst & Young LLP
New York, New York
July 14, 1998
<PAGE>
<PAGE>
POWER OF ATTORNEY
STATE OF NEW YORK, )
)
COUNTY OF NEW YORK, )
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors of Time Warner Telecom Inc., a Delaware corporation (the "Company")
hereby constitutes and appoints David J. Rayner and Larissa L. Herda, and
each of them, as his or her true and lawful attorneys-in-fact and agents,
with full powers to act without the other and with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a Registration Statement of the Company on Form
S-1 or other appropriate form and any and all amendments to such Registration
Statement (including post-effective amendments), to be filed with the Securities
and Exchange Commission in connection with the registration under the provisions
of the Securities Act of 1933, as amended, of debt securities of the Company
with power where appropriate to affix thereto any seal of the Company and to
attest said seal, and to file such Registration Statement, and any and all
amendments and post-effective amendments to such Registration Statement, and any
subsequent registration statement filed by the Company pursuant to Rule 462(b)
of the Securities Act of 1933, as amended, with all exhibits thereto, and any
and all documents in connection therewith, with the Securities and Exchange
Commission, hereby granting unto said attorneys-in-fact and agents full power
and authority to do and perform any and all acts and things requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or her substitute
or substitutes, or any of them, may lawfully do or cause to be done by virtue
hereof.
EXECUTED this 14th day of July, 1998.
/s/ Richard J. Bressler /s/ Pearre A. Williams
- ----------------------- ----------------------
Richard J. Bressler Pearre A. Williams
Director Director
/s/ Robert J. Miron
- -------------------
Robert J. Miron
Director
<PAGE>
<PAGE>
POWER OF ATTORNEY
STATE OF NEW YORK, )
)
COUNTY OF NEW YORK, )
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
representatives of Time Warner Telecom LLC, a Delaware limited liability company
(the "Company") hereby constitutes and appoints David J. Rayner and Larissa L.
Herda, and each of them, as his or her true and lawful attorneys-in-fact and
agents, with full powers to act without the other and with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign a Registration Statement of the
Company on Form S-1 or other appropriate form and any and all amendments to such
Registration Statement (including post-effective amendments), to be filed with
the Securities and Exchange Commission in connection with the registration under
the provisions of the Securities Act of 1933, as amended, of debt securities of
the Company with power where appropriate to affix thereto any seal of the
Company and to attest said seal, and to file such Registration Statement, and
any and all amendments and post-effective amendments to such Registration
Statement, and any subsequent registration statement filed by the Company
pursuant to Rule 462(b) of the Securities Act of 1933, as amended, with all
exhibits thereto, and any and all documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents full power and authority to do and perform any and all acts and
things requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or his or
her substitute or substitutes, or any of them, may lawfully do or cause to be
done by virtue hereof.
EXECUTED this 14th day of July, 1998.
/s/ Richard J. Bressler /s/ Larissa L. Herga
- ----------------------- --------------------
Richard J. Bressler Larissa L. Herda
Representative Representative
/s/ Glenn A. Britt /s/ Stephen A. McPhie
- ------------------ ----------------------
Glenn A. Britt Stephen A. McPhie
Representative Representative
<PAGE>
<PAGE>
2
/s/ Robert J. Miron /s/ Audley Webster
- ------------------- ------------------
Robert J. Miron Audley Webster
Representative Representative
/s/ Carl U. J. Rossetti /s/ Pearre A. Williams
- ----------------------- ----------------------
Carl U. J. Rossetti Pearre A. Williams
Representative Representative
<PAGE>
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<NAME> TIME WARNER TELECOM LLC
<MULTIPLIER> 1,000
<S> <C>
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<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
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<INCOME-PRETAX> (21,788)
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<PAGE>
