EXHIBIT 3.3
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (the "Agreement") of NTL (Triangle) LLC (the
"Company") is dated as of this 14th day of November, 1999.
RECITAL
NTL (Bermuda) Limited, a Bermuda corporation ("NTL (Bermuda)"), pursuant to
Section 18-214 of the Delaware Limited Liability Company Act and subject to the
laws of the Island of Bermuda was converted into the Company. The Member (the
"Member") desires to enter into a written agreement, in accordance with the
provisions of the Delaware Limited Liability Company Act and any successor
statute, as amended from time to time (the "Act"), governing the affairs of the
Company and the conduct of its business.
ARTICLE 1
The Limited Liability Company
1.1 Formation and Conversion. NTL (Bermuda) pursuant to Section 18-214 of
the Act and subject to the laws of the Island of Bermuda was converted into the
Company. A Certificate of Formation for the Company (the "Certificate of
Formation") has been filed in the Office of the Secretary of State of the State
of Delaware in conformity with Section 18-201 of the Act and is effective. A
Corrected Certificate of Conversion has been filed in the Office of the
Secretary of State of the State of Delaware in conformity with Section 18-214 of
the Act and is effective. A Certificate of Amendment to the Certificate of
Formation has been filed in the Office of the Secretary of State of the State of
Delaware in conformity with Section 18-202 of the Act and is effective. The
Company and, if required, the Member shall execute or cause to be executed from
time to time any and all other instruments, certificates, notices and documents
and shall do or cause to be done all such acts and things (including
undertakings concerning appointment of an agent for service of process in the
Island of Bermuda and the State of Delaware, the payment of filing and other
fees, the keeping of books and records, and making publications or periodic
filings) as may now or hereafter be required for the formation, conversion,
valid existence and, when appropriate, termination of the Company as a limited
liability company under the laws of the State of Delaware.
1.2 Name. The name of the Company shall be "NTL (Triangle) LLC" and its
business shall be carried on in such name with such variations and changes as
the Board (as defined herein) shall determine or deem reasonably necessary to
comply with requirements of the jurisdictions in which the Company's operations
are conducted, have previously been conducted, or are expected to be conducted.
1.3 Business Purpose; Powers. The business purpose of the Company is to
engage in any lawful business or activity in which limited liability companies
are permitted to engage under the Act. The Company shall possess and may
exercise all the powers and privileges granted by the Act, by any other law or
by this Agreement, together with any powers incidental thereto, insofar as such
powers and privileges are necessary, appropriate, advisable, incidental or
convenient to the conduct, promotion or attainment of the business purposes or
activities of the Company.
1.4 Registered Office and Agent. The Company shall maintain a registered
office in the State of Delaware. The name and address of the Company's
registered agent in the State of Delaware is, Corporation Service Company, 1013
Centre Road, Wilmington, Delaware 19801. The Board or a duly authorized
committee thereof may, from time to time, change the Company's registered office
and/or registered agent and shall forthwith amend the Certificate of Formation
to reflect such change(s).
1.5 Term. Subject to the provisions of Articles 7 and 9 below, the Company
shall have perpetual existence.
1.6 Principal Place of Business. The principal place of business of the
Company shall be at 110 East 59th Street, 26th Floor, New York, New York, or
such other location as the Board may, from time to time, select.
1.7 Title to Company Property. Legal title to all property of the Company
shall be held, and vested and conveyed in the name of the Company and no real or
other property of the Company shall be deemed to be owned by the Member
individually. The Common Shares (as defined herein) of the Member shall
constitute personal property.
1.8 Business Transactions of the Member with the Company. In accordance
with Section 18-107 of the Act, the Member and/or one or more Directors (as
defined herein) may transact business with the Company and, subject to
applicable law, shall have the same rights and obligations with respect to any
such matter as a person who is not a member or director of the Company.
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1.9 Fiscal Year. The fiscal year of the Company for financial statement
purposes shall end on December 31 of each year.
ARTICLE 2
The Member
2.1 The Member. The name and address of the Member is as follows:
Name Address
NTL Group Limited NTL House
Bartley Wood Business Park
Hook, Hampshire RG27 9XA
2.2 Member Meetings.
(a) Actions by the Member; Meetings. The Member may approve a matter
or take any action at a meeting or without a meeting by the written consent
of the Member pursuant to subparagraph (b) below. Meetings of the Member
may be called at any time by the Member.
(b) Action by Written Consent. Any action may be taken by the Member
without a meeting if authorized by the written consent of the Member. In no
instance where action is authorized by written consent of the Member will a
meeting of the Member be called or notice be given. However, a copy of the
action taken by written consent of the Member shall be filed with the
records of the Company. The management of the Member shall not execute such
written consent while outside the United States.
(c) Place of Meetings. The Board or a duly authorized committee
thereof may designate any place, either within or outside of the State of
Delaware but within the United States, as the place of meeting for any
regular meeting or for any special meeting. If no designation is made, the
place of the regular or special meeting shall be 110 East 59th Street, 26th
Floor, New York, New York. The management of the Member may participate in
a meeting by means of conference telephone or similar communication
equipment by means of which all persons participating in the meeting can
hear each other, and any such participation in a meeting shall constitute
presence in person of such management personnel of the Member at such
meeting. Notwithstanding the previous sentence, the management of the
Member while outside the United States shall not act in matters regarding
the management and control of the Company when participating in any meeting
of the Member by means of conference telephone.
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(d) Notice of Meetings. Written notice stating the place, day, and
hour of the meeting and, in the case of a special meeting, the purpose for
which the meeting is called shall be delivered not less than ten (10) days
nor more than sixty (60) days before the date of the meeting, either
personally, by facsimile or by mail, by or at the direction of any Director
calling the meeting to the Member of record of Common Shares entitled to
vote at such meeting.
(e) Waiver of Notice. When any notice is required to be given to the
Member under the provisions of this Agreement, a waiver thereof in writing
signed by the person entitled to such notice, whether before, at, or after
the time stated therein, shall be equivalent to the giving of such notice.
Attendance of the Member at the meeting is also a wavier of notice.
2.3 Liability of the Member. All 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 the Member shall not be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a member.
2.4 Admission of Members. New members shall be admitted only upon the
approval of the Member.
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ARTICLE 3
The Board
3.1 Management By Board of Directors. Subject to such matters that are
expressly required by this Agreement to be submitted to a vote of the Member,
the business and affairs of the Company shall be managed by or under the
direction of a Board of Directors (the "Board"). The Board shall have
substantially similar rights, duties, obligations, and responsibilities as
enumerated in Section 141 of the Delaware General Corporation Law. The Board
shall be deemed to be a board of managers, and each director shall be deemed to
be a "manager," for purposes of the Act. Other than rights and powers expressly
reserved to the Members and authority delegated to officers of the Company in
accordance with this Agreement, the Board shall have full, independent,
exclusive and complete discretion to manage and control the business and affairs
of the Company, to make all decisions affecting the business and affairs of the
Company and to take all such actions as it deems necessary or appropriate to
accomplish the purposes of the Company as set forth herein.
3.2 Decisions Affecting Policy or Management of the Company. The Board
shall have the ultimate authority to make decisions on matters affecting the
policy or management of the Company including, but not restricted to, the
following:
(a) structuring or financing the operations of the Company, including
debt financing, issuing capital, and approving the transfer of Common
Shares;
(b) appointing officers, revoking of such appointments, and
determining the remuneration of officers and Directors;
(c) discussing, negotiating and finalizing any material contracts,
including the sale or acquisition of Company assets or investments, whether
intra-group or with a third party; and
(d) approving any changes in the accounts of the Company, including
the payment of distributions to the Member.
3.3 Composition of the Board of Directors. The Board shall consist of no
less than two (2) individuals, the exact number to be determined from time to
time by the resolution of the Board (collectively, the "Directors"). The Board
initially shall consist of eight (8) Directors. Directors shall hold office
until their successors have been duly elected and qualified, subject, however,
to a Director's earlier death, resignation, retirement, disqualification or
removal from office.
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3.4 Meetings of the Board.
(a) The Board shall hold meetings, both regular and special, at such
times as may be necessary for the Company's business. Regular meetings of
the Board may be held without notice at such time as shall from time to
time be determined by the Board. Special meetings of the Board may be
called on one (1) days' notice to each Director upon the written request of
any one (1) Director. A quorum for a regular or special meeting shall exist
when a majority of the Directors are participating in the meeting either in
person or by conference telephone and such Directors are located in the
United States at the time of such meeting.
(b) Notice of any Board meeting may be waived by any Director before,
at or after such meeting.
(c) All meetings of the Board of Directors shall only be held in the
United States. The Board or a duly authorized committee thereof shall have
the power to designate the specific place of all meetings.
(d) All actions of the Board shall require the affirmative vote of a
majority of the Directors who constitute the quorum.
(e) At all meetings of the Board a full and accurate record shall be
kept by the Secretary or person charged with such duties.
(f) Meetings of the Board may be conducted in person or by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and any such
participation in a meeting shall constitute presence in person of such
Director at such meeting. Notwithstanding the previous sentence, Directors
while outside the United States shall not act in matters regarding the
management and control of the Company when participating in any meeting of
the Board by means of conference telephone.
(g) In accordance with Section 18-404(d) of the Act, any action
required or permitted to be taken at any meeting of the Board may be taken
without a meeting, without prior notice and without a vote if the number of
Directors having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting of the Board of
Directors or any committee thereof consent thereto in writing. The writing
or writings effectuating such written consent must be filed with the
minutes of proceedings of the Board. No Director shall execute such written
consent while outside the United States.
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3.5 Power to Bind Company. No Director (acting in his capacity as such)
shall have any authority to bind the Company to any third party with respect to
any matter except pursuant to a resolution expressly authorizing such action
which resolution is duly adopted by the Board by the affirmative vote required
for such matter pursuant to this Agreement.
3.6 Vacancies. Any vacancies occurring on the Board may be filled by a
majority of the remaining Directors (even if less than a quorum) or by election
at a meeting of the Member called for that purpose. A Director chosen to fill a
vacancy shall serve the unexpired term of the Director's predecessor in office.
Any Director's position to be filled by reason of an increase in the number of
Directors shall be filled by a majority of the Directors then in office or by
election at any meeting of the Member called for that purpose. A Director chosen
to fill a position resulting from an increase in the number of Directors shall
hold, office until the Director's successor has been duly elected and qualified,
subject however, to a Director's earlier death, resignation, retirement,
disqualification or removal from office.
3.7 Resignation. Any Director may resign at any time by giving written
notice to the remaining Directors. The resignation of any Director shall take
effect upon receipt of written notice thereof or at such later time as shall be
specified in such written notice; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
3.8 Removal. At a Member's meeting called expressly for that purpose, all
Directors or any lesser number may be removed, with or without cause, by the
vote of the Member.
3.9 Committees. By resolution adopted by the Board, the Board may designate
two or more Directors to constitute a committee of the Board. Each committee
shall conduct its business in the same manner as the Board conducts its business
pursuant to this Agreement. Each committee will present reports and other
findings at the request of the Board or pursuant to the resolution creating such
committee.
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3.10 Qualification of Directors. All members of the Board shall be persons
who are residents of and domiciled in the United States for all purposes (at the
time of their appointment or election and during their initial term, any
extension thereof or any subsequent term) and who have the appropriate expertise
and experience in overseeing the business and affairs of an enterprise similar
to the Company.
3.11 Liability of Directors. Except as set forth in Section 3.12, no
Director shall be personally liable for the debts, obligations or liabilities of
the Company, including any such debts, obligations or liabilities arising under
a judgment, decree or order of a court and shall not be required to lend or
advance any funds to the Company.
3.12 Fiduciary Duties. Each Director shall have the same fiduciary duties
as a member of a board of directors of a Delaware corporation. Directors shall
be personally liable to the Company or the Member for monetary damages for
breach of fiduciary duty as a Director, in cases where the Directors (a) breach
the duty of loyalty to the Company or the Member, (b) act or omit to act not in
good faith or carry out intentional misconduct or a knowing violation of law or
(c) conduct transactions from which the Directors derived any improper personal
benefit.
3.13 Officers and Related Persons. Subject to the terms of any employment
agreements to which the Company is a party, the Board shall have the authority
to appoint and terminate officers of the Company and retain and terminate
employees, agents and consultants of the Company and to delegate such duties to
any such officers, employees, agents and consultants as the Board deems
appropriate, including the power, acting individually or jointly, to represent
and bind the Company in all matters, in accordance with the scope of their
respective duties. All officers of the Company shall be persons who are
residents of and domiciled in the United States for all purposes (at the time of
their appointment and during their term) and who have appropriate expertise and
experience in managing the business and affairs of an enterprise similar to the
Company.
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ARTICLE 4
Capital Structure and Contributions
4.1 Capital Structure. Subject to the terms of this Agreement, the capital
structure of the Company shall consist of one class of common membership
interest (the "Common Shares"). Common Shares shall constitute the limited
liability company interests under the Act. The total number of Common Shares
which the Company shall have the authority to issue is 800,000 with a par value
of Pound Sterling 0.01 per share. All Common Shares shall be identical with each
other in every respect. The Board or a duly authorized committee thereof is
expressly authorized, by resolution or resolutions, to create and to issue, out
of unissued shares, different classes, groups or series of shares and to fix for
each such class, group or series such voting powers, full or limited or no
voting powers, and such designations, preferences and relative participating,
optional or other special rights and qualifications, limitations or restrictions
as determined by the Board or a duly authorized committee thereof.
4.2 Capital Contributions. In accordance with Section 18-502 of the Act,
the Board may not request the Member to make capital contributions to the
Company.
ARTICLE 5
Books of Account and Distributions
5.1 Books of Account. For financial, accounting and tax purposes, the books
and records of the Company shall be determined on an annual basis in accordance
with the appropriate rules utilized for United States Generally Accepted
Accounting Principles. The books of account of the Company shall be closed after
the close of each calendar year, and there shall be prepared appropriate
financial statements.
5.2 Distributions. The Board shall determine if cash is available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Shares, the determined amount when, as
and if declared by the Board.
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5.3 Withholding Taxes. The Company is authorized to withhold from
distributions to the Member, or with respect to allocations to the Member, and
to pay over to a foreign, federal, state or local government, any amounts
required to be withheld pursuant to the Internal Revenue Code of 1986, as
amended (the "Code"), or any provisions of any other foreign, federal, state or
local law pursuant to Section 18-1107 of the Act. Any amounts so withheld shall
be treated as having been distributed to the Member under this Article 5 for all
purposes of this Agreement, and shall be offset against the current or next
amounts otherwise distributable to the Member.
ARTICLE 6
Records
6.1 Company Records. The Board shall cause to be maintained at a designated
place in the United States complete and accurate records of the Company's
affairs, including minute books and documents required by governing statutes. If
no designation is made, the records shall be maintained at 110 East 59th Street,
26th Floor, New York, New York. The books of account shall be kept on such
method of accounting as the Board shall select. The Company's accounting period
shall be as determined by the Board.
ARTICLE 7
Events of Dissolution
Subject to approval by the Board, the Company shall be dissolved upon the
occurrence of any of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802 of the
Act.
ARTICLE 8
Transfer of Interests in the Company
Subject to approval by the Board, the Member may sell, assign, transfer,
convey, gift, exchange or otherwise dispose of any or all of its Common Shares
and, upon receipt by the Company of a written agreement by the person or
business entity to whom such Common Shares are to be transferred agreeing to be
bound by the terms of this Agreement, such person shall be admitted as a member.
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ARTICLE 9
Termination
9.1 Liquidation. In the event that an Event of Dissolution shall occur,
then the Company shall be liquidated and its affairs shall be wound up. All
proceeds from such liquidation shall be distributed in accordance with the
provisions of Section 18-804 of the Act, and all Common Shares in the Company
shall be cancelled.
9.2 Final Accounting. In the event of the dissolution of the Company, prior
to any liquidation, a proper accounting shall be made to the Member from the
date of the last previous accounting to the date of dissolution.
9.3 Distribution in Kind. In accordance with Section 18-605 of the Act, all
or any portion of the Company's assets may be distributed in kind to the Member
in the event the Board determines that it is in the best interests of the
Company.
9.4 Cancellation of Certificate. Upon the completion of the winding up of
the Company and the distribution of the Company's assets, the Company shall be
terminated and the Member shall cause the Company to execute and file a
Certificate of Cancellation in accordance with Section 18-203 of the Act.
ARTICLE 10
Exculpation and Indemnification
10.1 Exculpation. Notwithstanding any other provision of this Agreement,
whether express or implied, or obligation or duty at law or in equity, none of
the Member, Directors, or any officers, directors, stockholders, consultants,
employees, representatives or agents of any of the foregoing, nor any officer,
employee, representative or agent of the Company or any of its affiliates
(individually, a "Covered Person" and, collectively, the "Covered Persons")
shall be liable to the Company or any other person for any act or omission (in
relation to the Company, this Agreement, any related document or any transaction
or investment contemplated hereby or thereby) taken or omitted by a Covered
Person in the reasonable belief that such act or omission is in or is not
contrary to the best interests of the Company and is within the scope of
authority granted to such Covered Person by the Agreement; provided such act or
omission does not constitute fraud, willful misconduct, bad faith, or gross
negligence.
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10.2 Indemnification. To the fullest extent permitted by law, the Company
shall indemnify and hold harmless each Covered Person from and against any and
all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative
(collectively, "Claims"), in which the Covered Person may be involved, or
threatened to be involved, as a party or otherwise, by reason of its management
of the affairs of the Company or which relates to or arises out of the Company
or its property, business or affairs. A Covered Person shall not be entitled to
indemnification under this Section 10.2 with respect to (i) any Claim with
respect to which such Covered Person has engaged in fraud, willful misconduct,
bad faith or gross negligence or (ii) any Claim initiated by such Covered Person
unless such Claim (or part thereof) (A) was brought to enforce such Covered
Person's rights to indemnification hereunder or (B) was authorized or consented
to by the Board prior to its initiation by the Covered Person. Expenses incurred
by a Covered Person in defending any Claim shall be paid by the Company upon
presentation to the Company of satisfactory documentation evidencing such
expenses and in advance of the final disposition of such Claim upon receipt by
the Company of an undertaking by or on behalf of such Covered Person to repay
any amounts advanced by the Company promptly, in full, if it shall be ultimately
determined that such Covered Person is not entitled to be indemnified by the
Company as authorized by this Article 10.
10.3 Nonexclusive Remedy. The rights and remedies under this Article 10
shall not be deemed or considered exclusive of or (in any way) diminish, limit,
restrict, alter or otherwise adversely affect any other right to exculpation or
to indemnification or any other right or remedy available to any Covered Person
under this Agreement, any other agreement, any vote of the Board, any applicable
law or otherwise, both with respect to acts or omissions in an official capacity
and acts or omissions in a separate capacity while holding such official
capacity.
10.4 Additional Covered Persons. The Board or a duly authorized committee
thereof may, in its sole and absolute discretion, provide the rights set forth
in this Article 10 to any employee, representative, consultant, advisor or agent
of the Company and in such case, such persons shall have all the rights and
entitlements of a Covered Person as of the date determined by the Board in its
sole and absolute discretion.
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10.5 Amendments. Any repeal or modification of this Article 10 by the
Member shall not adversely affect any rights of such Covered Person pursuant to
this Article 10, including the right to indemnification and to the advancement
of expenses of a Covered Person existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
ARTICLE 11
Amendment to Agreement
Amendments to this Agreement and to the Certificate of Formation shall be
approved in writing by the Member. This Agreement may be amended at any time and
from time to time. An amendment shall become effective as of the date specified
in the approval of the Member or if none is specified as of the date of such
approval or as otherwise provided in the Act.
ARTICLE 12
General Provisions
12.1 Signatory Authority over Bank Accounts. Only the Directors, officers,
or delegated persons under the control or direction of Directors and officers
who are residents of the United States shall have the sole signatory authority
over the Company's bank accounts.
12.2 Notices. Unless otherwise specifically provided in this Agreement, all
notices and other communications required or permitted to be given hereunder
shall be in writing and shall be (i) delivered by hand, (ii) delivered by a
nationally recognized commercial overnight delivery service, (iii) mailed
postage prepaid by first class mail in any such case directed or addressed to
the address set forth below or (iv) transmitted by facsimile to:
If to the Member, to: NTL Incorporated
Attention: Richard J. Lubasch
Executive Vice President
110 East 59th Street
New York, New York 10022
Facsimile No.: (212) 906-8497
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with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
Attention: Thomas H. Kennedy, Esq.
919 Third Avenue
New York, New York 10022
Facsimile No.: (212) 735-2000
Such notices shall be effective: (a) in the case of hand deliveries when
received; (b) in the case of an overnight delivery service, on the next business
day after being placed in the possession of such delivery service, with delivery
charges prepaid; (c) in the case of mail, five (5) days after deposit in the
postal system, first class mail, postage prepaid; and (d) in the case of
facsimile notices, when electronic indication of receipt is received. Any party
may change its address and facsimile number by written notice to the other given
in accordance with this Section 12.3.
12.3 Construction Principles. As used in this Agreement words in any gender
shall be deemed to include all other genders. The singular shall be deemed to
include the plural and vice versa. The captions and article and section headings
in this Agreement are inserted for convenience of reference only and are not
intended to have significance for the interpretation of or construction of the
provisions of this Agreement.
12.4 Severability. If any provision of this Agreement is held to be invalid
or unenforceable for any reason, such provision shall be ineffective to the
extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
12.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
12.6 Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the Member.
12.7 Additional Documents and Acts. The Member agrees to execute and
deliver such additional documents and instruments and to perform such additional
acts as may be necessary or appropriate to effectuate, carry out and perform all
of the terms, provisions, and conditions of this Agreement and of the
transactions contemplated hereby.
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12.8 No Third-Party Beneficiary. This Agreement is made solely for the
benefit of the Member and no other person shall have any rights, interest, or
claims hereunder or otherwise be entitled to any benefits under or on account of
this Agreement as a third-party beneficiary or otherwise.
12.9 Limited Liability Company. The Member intends to form a limited
liability company and does not intend to form a partnership under the laws of
the State of Delaware or any other laws.
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IN WITNESS WHEREOF, the undersigned has been authorized by resolution of
the Board of Directors of the Member to execute this Agreement for and on its
behalf and this Agreement has been duly executed as of the date first above
written.
NTL GROUP LIMITED
By: /s/ Richard J. Lubasch
---------------------------------
Richard J. Lubasch
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