Exhibit 3.8
OPERATING AGREEMENT
OF
COAXIAL DSM LLC
THIS OPERATING AGREEMENT OF COAXIAL DSM LLC, is entered into effective as
of August 21, 1998, by and between Coaxial DSM LLC, a limited liability company
organized pursuant to the Delaware Limited Liability Company Act (the
"Company"), and X. Xxxxxxx XxXxx, an individual resident of the State of Ohio,
its sole member.
RECITAL
The parties desire to enter into this Agreement to form a limited liability
company under the laws of the State of Delaware, to provide for the organization
of the Company, the rights, obligations, and interests of the Member, and
certain other matters.
AGREEMENT
In consideration of the mutual covenants and agreements set forth in this
Agreement, the parties agree as follows.
SECTION 1
DEFINITIONS
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The following terms, as used in this Agreement, have the meanings set forth
in this Section:
"Act" means the Delaware Limited Liability Company Act.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person. For purposes of
this definition, the term "controls" means the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise. The terms "controlled by" and "under common control with" have
meanings corresponding to the meaning of "controls."
"Agreement" means this Operating Agreement, as it may be amended, restated,
modified, or supplemented from time to time in accordance with its terms.
"Central" means Coaxial Communications of Central Ohio, Inc., an Ohio
corporation, and its successors-in-interest.
"Certificate" is the Certificate of Formation of Coaxial DSM LLC as filed
with the Secretary of State of the State of Delaware, as the same may be amended
from time to time.
"Contribution Agreement" means the Contribution Agreement, dated as of June
30, 1998, between Central and Insight Communications Company, L.P. (which
assigned its rights thereunder to Insight Holdings of Ohio, LLC), as amended by
amendments thereto dated as of July 15, 1998 and August 21, 1998, and as it may
hereafter be amended from time to time in accordance with its terms.
"Discount Notes" means the Senior Discount Notes issued by Coaxial LLC and
Coaxial Financing Corp., a Delaware corporation, concurrently with the Closing
(as defined in the Contribution Agreement).
"Manager" means any Manager selected by the Member, in his sole discretion.
"Member" means X. Xxxxxxx XxXxx and his successors-in-interest under this
Agreement.
"Person" means an individual, corporation, limited liability company,
association, general partnership, limited partnership, limited liability
partnership, joint venture, trust, estate, or other entity or organization.
"Subordinated Debt" means all obligations arising under the Discount Notes
and the LLC Mirror Notes (as defined in the offering memorandum for the Discount
Notes) issued by the Company and Coaxial DJM LLC concurrently with the Closing
(as defined in the Contribution Agreement), and every subsequent amendment,
modification, restructuring, extension, renewal, or consolidation of any such
obligations, and any obligation incurred in refinancing or replacement of or
substitution for any such obligations.
SECTION 2
THE COMPANY AND ITS BUSINESS
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2.1 Formation.
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The Company was formed on July 24, 1998, pursuant to the provisions of the
Act. Except as provided in this Agreement, all rights, liabilities, and
obligations among the Member, the Company, and other Persons, shall be as
provided in the Act, and this Agreement shall be construed in accordance with
the provisions of the Act. To the extent that the rights or obligations of the
Member are different by reason of any provision of this Agreement than they
would be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control.
2.2 Filing of Certificate of Limited Liability Company.
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The Member has caused the Certificate to be filed with the Secretary of
State of Delaware and shall cause the Certificate to be filed or recorded in any
other public office where filing or recording is required or advisable. The
Member shall do, and continue to do, all other things that
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are required or advisable to maintain the Company as a limited liability company
existing pursuant to the laws of the State of Delaware.
2.3 Company Name.
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The name of the Company shall be "Coaxial DSM LLC." The business of the
Company may be conducted under that name or, upon compliance with applicable
laws, any other name that the Member deems appropriate or advisable. The Member
shall file any assumed name certificates and similar filings, and any amendments
thereto, that he considers appropriate or advisable.
2.4 Term of the Company.
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The term of the Company commenced on the date of the filing of the
Certificate with the Secretary of State of the State of Delaware and shall
continue until the Company is dissolved and its affairs wound up in accordance
with the Act and Article 8 of this Agreement.
2.5 Purposes of the Company.
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(a) The purposes of the Company are:
(1) to acquire, own, hold, and dispose of shares of Central,
or any assets or property acquired in exchange for any such shares, and to
exercise all rights incident to such shares or other property or assets, and
(2) to do all lawful acts and things necessary, appropriate,
proper, advisable, incidental to, or convenient for the furtherance and
accomplishment of the foregoing purpose, including incurring and maintaining
those debt obligations to be incurred by the Company as part of the Subordinated
Debt, as such debt obligations may hereafter be amended, modified, restructured,
extended, renewed, or consolidated, and any obligations incurred in refinancing
or replacement of or substitution for any such debt obligations, and performing
its obligations and enforcing its rights under any agreement or other
instrument, including any note or indenture, evidencing all or any part of such
debt obligations or pursuant to which all or any part of such debt obligations
exist or are outstanding.
(b) The Company shall have no purposes other than as specified in
Section 2.5(a).
2.6 Authority of the Company.
------------------------
The Company shall be empowered and authorized to do all lawful acts and
things necessary, appropriate, proper, advisable, incidental to, or convenient
for the furtherance and accomplishment of its purposes.
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2.7 Principal Office and Other Offices; Registered Agent.
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The address of the Company's registered office which is required to be
maintained by the Company in the State of Delaware pursuant to Section 18-104 of
the Act shall be located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, and the name of the Company's registered agent at
such address is The Corporation Trust Company. The Company may maintain any
other offices at any other places that the Member deems advisable. The Company
may, upon compliance with the applicable provisions of the Act, change its
principal office or registered agent from time to time at the discretion of the
Member.
2.8 Foreign Qualification.
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The Company shall take all necessary actions to be authorized to conduct
business legally in all appropriate jurisdictions, including registration or
qualification of the Company as a foreign limited liability company in those
jurisdictions that provide for registration or qualification.
2.9 Fiscal Year.
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The fiscal year of the Company shall be the calendar year. The Company
shall have the same fiscal year for income tax purposes and for financial
accounting purposes.
SECTION 3
COMPANY CAPITAL
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3.1 Capital Contributions.
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The Member shall contribute to the Company all of his shares of Central.
The Member may make additional capital contributions to the Company as he deems
appropriate.
3.2 Disbursements.
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The Company shall pay all costs and expenses of the Company business, as
determined by the Member. The Company may set aside funds for any items that
are proper Company purposes, as determined by the Member in his sole discretion.
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SECTION 4
CASH DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES
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4.1 Distributions.
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All cash of the Company available for distribution shall be distributed to
the Member at such times and in such amounts as the Member may determine in his
sole discretion.
4.2 Allocations of Profits and Losses.
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All profits and losses of the Company shall be allocated to the Member.
SECTION 5
RIGHTS AND POWERS OF THE MEMBER AND MANAGER
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5.1 Management Rights Generally.
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The responsibility and control of the management and conduct of the
Company's day-to-day activities and operations shall be vested in the Member.
5.2 Delegation of Authority to Manager.
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The Member may delegate to the Manager any of the powers, authority, and
discretion of the Member under this Agreement so long as such delegation is
expressly set forth in a management agreement between the Manager and the
Company, signed on behalf of the Company by the Member. Notwithstanding the
foregoing, and notwithstanding any contrary provision in any management
agreement between the Manager and the Company, the Company shall not take, and
no Manager shall have any authority to cause the Company to take, any of the
following actions, without the written consent of the Member:
(a) sell or issue any membership interest in the Company or any
option, warrant, or other debt or equity interest convertible into any
membership interest in the Company;
(b) engage in any transaction with the Operating Company,
Insight Holdings of Ohio, LLC, any successor to Insight Holdings of Ohio, LLC as
manager or member of the Operating Company, any Manager, or any of their
respective Affiliates;
(c) engage in any business activity other than (i) the
acquisition, ownership, holding, and disposition of shares of Central, and
exercising all rights incident thereto, and (ii) the
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performance of its obligations under any agreement or other instrument,
including any note or indenture, evidencing all or any part of the Subordinated
Debt or pursuant to which all or any part of the Subordinated Debt exists or is
outstanding;
(d) consent to any amendment to any provision of the Articles
of Incorporation of Central or the Close Corporation Agreement of Central or
consent to the termination of the Close Corporation Agreement of Central;
(e) amend, alter, or repeal any provision of the Code of
Regulations of Central;
(f) purchase, redeem, or otherwise acquire any membership
interest in the Company;
(g) merge or consolidate with or into any other Person;
(h) liquidate or dissolve;
(i) acquire, by purchase or lease, any assets;
(j) sell, assign, transfer, or otherwise dispose of, or pledge,
hypothecate, or otherwise encumber all or any part of its assets, except, with
respect to shares of Central, as permitted by any agreement or other instrument
pursuant to which all or any part of the Subordinated Debt exists or is
outstanding;
(k) incur or prepay, purchase, or redeem any indebtedness
(including any Subordinated Debt);
(l) agree to any reorganization, arrangement, or similar
adjustment of its debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors;
(m) enter into or amend any contract or other agreement,
including any agreement with respect to the incurring or repayment, purchase, or
redemption of any indebtedness (including any Subordinated Debt);
(n) take any action that would cause Central's election to be
treated as an "S corporation" under the Internal Revenue Code to be terminated
or revoked; or
(o) hire any employee or independent contractor or pay any
compensation to any of its officers or directors.
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5.3 Officers.
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The Member may appoint such officers, from time to time, as the Member
deems necessary and advisable.
5.4 Authority of the Member.
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The Member shall have all powers necessary to manage and control the day-
to-day activities and operations of the Company.
5.5 Admission of Additional Members.
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The Member, in his discretion, may admit additional members to the Company
on terms and conditions agreed to by the Member and the Person being admitted as
an additional member.
5.6 Limitation of Liability of the Member.
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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 the Member shall not be obligated personally for
any such debt, obligation, or liability of the Company solely by reason of being
the Member, except and only to the extent as otherwise expressly required by
law.
5.7 Indemnification.
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(a) In any threatened, pending, or completed claim, action,
suit, or proceeding to which the Member was or is a party or is threatened to be
made a party by reason of his activities on behalf of the Company, the Company
shall indemnify and hold harmless such Member against losses, damages, expenses
(including attorneys' and accountants' fees), judgments, and amounts paid in
settlement actually and reasonably incurred in connection with such claim,
action, suit, or proceeding, except that the Member shall not be indemnified for
actions constituting the improper receipt of personal benefits, willful
misconduct, recklessness, or gross negligence with respect to the business of
the Company; provided, however, that to the extent the Member has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding to which he was or is a party or is threatened to be made a party by
reason of the fact that he was or is a Member of the Company, or in defense of
any claim, issue, or matter in connection therewith, the Company shall indemnify
such Member and hold him harmless against the expenses (including attorneys' and
accountants' fees) actually incurred by such Member in connection therewith.
(b) Expenses (including attorneys' and accountants' fees)
incurred in defending a civil or criminal claim, action, suit, or proceeding
shall be paid by the Company in advance of the final disposition of the matter
upon receipt of an undertaking by or on behalf of the Member to repay such
amount if such Member is ultimately determined not to be entitled to indemnity.
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(c) For purposes of this Section 5.7, the termination of any
action, suit, or proceeding by judgment, order, settlement, or otherwise adverse
to the Member shall not, of itself, create a presumption that the conduct of
such Member constitutes willful misconduct, recklessness, or gross negligence
with respect to the business of the Company.
SECTION 6
PERMITTED TRANSACTIONS
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6.1 Other Businesses.
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The Member or any affiliate, agent, or representative of the Member, may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, whether currently existing or
hereafter created and whether or not competitive with or advanced by the
business of the Company. The Company shall not have any rights in or to the
income or profits derived therefrom.
6.2 Transactions with the Company.
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The Company may, in the sole discretion of the Member, contract with any
Person or Manager (including the Member or any Person affiliated with the Member
or in which the Member may be interested) for the performance of any services
which may reasonably be required to carry on the business of the Company, and
any such Person dealing with the Company, whether as an independent contractor,
agent, employee, or otherwise, may receive from others or from the Company
profits, compensation, commissions, or other income incident to such dealings.
SECTION 7
ASSIGNMENT, TRANSFER, OR SALE OF INTERESTS IN
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THE COMPANY
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The Member may sell, assign, pledge, or otherwise encumber or transfer all
or any part of his interest in the Company to any Person.
SECTION 8
DISSOLUTION AND TERMINATION OF THE COMPANY
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8.1 Events of Dissolution.
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The Company shall dissolve upon the earlier to occur of:
(a) an election to dissolve the Company made by the Member, subject
to any restriction in any agreement to which the Company is a party (including
any management agreement between the Manager and the Company); or
(b) the happening of any event that, under the Act, causes the
dissolution of a limited liability company.
8.2 Actions on Dissolution.
----------------------
Upon the dissolution of the Company, the Member shall act as liquidator to
wind up the Company. The proceeds of liquidation shall be applied first to the
payment of the debts and liabilities of the Company (including any loans to the
Company made by the Member), the expenses of liquidation, and the establishment
of any reserves that the liquidator deems necessary for potential or contingent
liabilities of the Company. Remaining proceeds shall be distributed to the
Member as provided in Section 4.1. Upon the dissolution and winding up of the
Company, the liquidator shall file a certificate of cancellation with the
Secretary of State of Delaware in accordance with Section 18-203 of the Act.
Upon the completion of the distribution of Company assets and the proceeds of
liquidation as provided in this Section 8.2, the Company shall be terminated.
SECTION 9
BOOKS, RECORDS, AND RETURNS
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9.1 Books of Account and Records.
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A copy of this Agreement and any other records required to be maintained by
the Act shall be maintained at the principal office of the Company at the
location specified in Section 2.7. All such books and records shall be available
for inspection and copying by the Member or his duly authorized representatives
during ordinary business hours. The Company shall keep accurate books and
records of the operation of the Company which shall reflect all transactions, be
appropriate and adequate for the Company's business and for carrying out the
provisions of this Agreement.
9.2 Deposit of Company Funds.
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All revenues, assessments, loan proceeds, and other receipts of the Company
will be maintained on deposit in interest-bearing and non-interest bearing
accounts and other investments as the Member deems appropriate.
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SECTION 10
MISCELLANEOUS
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10.1 Captions.
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All section or paragraph captions contained in this Agreement are for
convenience only and shall not be deemed part of this Agreement.
10.2 Pronouns, Singular and Plural Form.
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All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, and neuter as the identity of the Person or Persons
referred to may require, and all words shall include the singular or plural as
the context or the identity of Persons may require.
10.3 Further Action.
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The parties shall execute and deliver all documents, provide all
information, and take, or forbear from, all actions that may be necessary or
appropriate to achieve the purposes of this Agreement.
10.4 Entire Agreement.
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This Agreement contains the entire understanding among the parties and
supersede any prior understandings and agreements between them regarding the
subject matter of this Agreement.
10.5 Agreement Binding.
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This Agreement shall be binding upon the successors and assigns of the
parties.
10.6 Severability.
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If any provision or part of any provision of this Agreement shall be
invalid or unenforceable in any respect, such provision or part of any provision
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provision of this Agreement.
10.7 Counterparts.
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This Agreement may be signed in counterparts with the same effect as if the
signature on each counterpart were upon the same instrument.
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10.8 Governing Law.
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This Agreement shall be governed, construed, and enforced in accordance
with the laws of the State of Delaware (without regard to the choice of law
provisions thereof).
10.9 No Third-Party Beneficiaries.
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This Agreement is not intended to, and shall not be construed to, create
any right enforceable by any Person not a party hereto, including any creditor
of the Company or of the Member.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
/s/ X. Xxxxxxx XxXxx
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X. Xxxxxxx XxXxx
COAXIAL DSM LLC
By:/s/ X. Xxxxxxx XxXxx
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X. Xxxxxxx XxXxx,
its sole member
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