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EXHIBIT 10.20(b)
SECOND AMENDMENT TO THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
FOR
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Second Amendment to the Amended and Restated Limited Liability Company
Agreement for Charter Communications Holding Company, LLC, a Delaware limited
liability company ("COMPANY"), is adopted effective as of October 24, 2000
("EFFECTIVE DATE") by Charter Communications, Inc., a Delaware corporation
("PUBLICCO"), with reference to the following facts:
A. The Company is being operated pursuant to that certain Amended and
Restated Limited Liability Company Agreement entered into and made effective as
of February 14, 2000, by and among Charter Investment, Inc, Vulcan Cable III
Inc., PublicCo, and certain other parties, as amended (the "LLC AGREEMENT").
Unless otherwise defined, capitalized terms used herein have the meanings
assigned to them in the LLC Agreement.
B. In connection with certain transactions entered into or to be entered
into by PublicCo and its subsidiaries, the certificate of incorporation of
PublicCo has been amended. PublicCo desires to make certain conforming changes
to the LLC Agreement.
C. Section 10.11 of the LLC Agreement provides that an amendment to the LLC
Agreement to incorporate the changes made by this Second Amendment shall be
effective as an amendment upon the approval of Members holding more than fifty
percent (50%) of the Class B Common Units. On the Effective Date, PublicCo owns
all outstanding Class B Common Units and desires to approve the amendments to
the LLC Agreement made by this Second Amendment.
NOW, THEREFORE, the LLC Agreement is hereby amended as follows:
1. Section 2.5 of the LLC Agreement is amended and restated in its
entirety to read as follows:
2.5 Purpose of Company. The Company may carry on any lawful
business, purpose, or activity that may be carried on by a limited
liability company under applicable law; (i) provided, however, that,
until all outstanding shares of Class B Common Stock have been converted
into shares of Class A Common Stock in accordance with Clause (b)(viii)
of Article Fourth of PublicCo's certificate of incorporation as
constituted as of the Class B Common Measuring Date, without the
Approval of the Class A Common Members, the Company shall not engage
directly or indirectly, including without limitation through any
Subsidiary, in any business other than (A) the Cable Transmission
Business (as defined below), (B) as a member or shareholder of, and
subscriber to, the portal joint venture with Broadband Partners, (C) as
an owner and operator of the business of Interactive Broadcaster
Services Corporation, a California corporation, which shall include
solely the ownership of its assets and continuation of its business
substantially as owned and conducted as of September 13, 2000, (D) as a
member of and service provider to the joint venture for the development
of a licensable reference design for a cable set-top box with
functionalities of a video cassette recorder and a personal video
recorder, (E) as a member of Cable Sports Southeast, LLC, a Delaware
limited liability company ("Cable Sports"), so long as Cable Sports
continues to conduct substantially the same business conducted by it on
October 24, 2000, and (F) as a shareholder of High Speed Access Corp., a
Delaware corporation ("HSA"), so long as HSA continues to conduct
substantially the same business as conducted by it at the time of the
consummation of the transactions contemplated by the Stock Purchase
Agreement dated as of October 19, 2000 among Charter Communications
Ventures, LLC, HSA and Vulcan Ventures Incorporated, as it may be
amended from time to time; (ii) provided further, that to the extent
that, as of the Class B Common Measuring Date, the Company was directly
or indirectly engaged in or had agreed to acquire directly
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or indirectly any business other than the Cable Transmission Business or
as a member of, and subscriber to, the portal joint venture with
Broadband Partners (any such other business, an "INCIDENTAL BUSINESS,"
and collectively, "INCIDENTAL BUSINESSES"), so long as (a) such
Incidental Businesses so engaged in by the Company on the Class B Common
Measuring Date in the aggregate on such date accounted for less than ten
percent (10%) of the consolidated revenues of the total business engaged
in by the Company or (b) such Incidental Businesses which on the Class B
Common Measuring Date the Company had agreed to acquire in the aggregate
on such date accounted for less than ten percent (10%) of the
consolidated revenues of the total businesses to be acquired, as
applicable, the Company may, directly or indirectly, including through
any Subsidiary, continue to conduct any such Incidental Business and the
foregoing limitation on the business and purpose of the Company shall
not require that any such Incidental Business be divested by the
Company, but the Company shall not, directly or indirectly, expand any
such Incidental Business by means of any acquisition or any commitment
of the Company or its Subsidiaries' resources or financial support.
"CABLE TRANSMISSION BUSINESS" means the transmission of video, audio
(including telephony) and data over cable television systems owned,
operated or managed by the Company or its Subsidiaries; provided, that
the businesses of RCN Corporation and its Subsidiaries shall not be
deemed to be a Cable Transmission Business.
2. The first two paragraphs of Section 5.7 are amended and restated in
their entirety to read as follows:
5.7 Competing Activities. Except as provided by any individual
contract: (i) any Manager or Member (and their respective officers,
directors, agents, shareholders, members, partners or Affiliates) may
engage or invest in, independently or with others, any business activity
of any type or description, including without limitation those that
might be the same as or similar to the Company's business or the
business of any Subsidiary and that might be in direct or indirect
competition with the Company or any Subsidiary; (ii) neither the Company
or any Subsidiary nor any Member shall have any right in or to such
other ventures or activities or to the income or proceeds derived
therefrom; (iii) no Manager or Member (and their respective officers,
directors, agents, shareholders, members, partners or Affiliates) shall
be obligated to present any investment opportunity or prospective
economic advantage to the Company or any Subsidiary, even if the
opportunity is of the character that, if presented to the Company or any
Subsidiary, could be taken by the Company or any Subsidiary; and (iv)
any Manager or Member (and their respective officers, directors, agents,
shareholders, members, partners or Affiliates) shall have the right to
hold any investment opportunity or prospective economic advantage for
such Manager's or Member's (and their respective officers', directors',
agents', shareholders', members', partners' or Affiliates') own account
or to recommend such opportunity to Persons other than the Company or
any Subsidiary; (i) provided that as a condition to election as Manager
and receiving a Membership Interest in the Company upon consummation of
the IPO, PublicCo agrees that until all outstanding shares of Class B
Common Stock have been converted into shares of Class A Common Stock in
accordance with Clause (b)(viii) of Article Fourth of PublicCo's
certificate of incorporation as constituted as of the Class B Common
Measuring Date, it shall not engage directly or indirectly, including
without limitation through any Subsidiary, in any business other than
(A) the Cable Transmission Business, (B) as a member or shareholder of,
and subscriber to, the portal joint venture with Broadband Partners; (C)
as an owner and operator of the business of Interactive Broadcaster
Services Corporation, a California corporation, which shall include
solely the ownership of its assets and continuation of its business
substantially as owned and conducted as of September 13, 2000; (D) as a
member of and service provider to the joint venture for the development
of a licensable reference design for a cable set-top box with
functionalities of a video cassette recorder and a personal video
recorder; (E) as a member of Cable Sports Southeast, LLC, a Delaware
limited liability company ("Cable Sports"), so long as Cable Sports
continues to conduct substantially the same business conducted by it on
October 24, 2000; and (F) as a shareholder of High Speed Access Corp., a
Delaware corporation ("HSA"), so long as HSA continues to conduct
substantially the same business as conducted by it at the time of the
consummation of the transactions contemplated by the
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Stock Purchase Agreement dated as of October 19, 2000 among Charter
Communications Ventures, LLC, HSA and Vulcan Ventures Incorporated, as
it may be amended from time to time; (ii) provided further, that to the
extent that, as of the Class B Common Measuring Date, PublicCo was
directly or indirectly engaged in, or had agreed to acquire directly or
indirectly, an Incidental Business, so long as (a) such Incidental
Businesses so engaged in by PublicCo on the Class B Common Measuring
Date in the aggregate on such date accounted for less than ten percent
(10%) of the consolidated revenues of the total business engaged in by
PublicCo, or (b) such Incidental Businesses which on the Class B Common
Measuring Date PublicCo had agreed to acquire in the aggregate on such
date accounted for less than ten percent (10%) of the consolidated
revenues of the total businesses to be acquired, as applicable, PublicCo
may, directly or indirectly, including through any Subsidiary, continue
to conduct any such Incidental Business and the foregoing limitation on
the business and purpose of PublicCo shall not require that any such
Incidental Business be divested by PublicCo, but PublicCo shall not,
directly or indirectly, expand any such Incidental Business by means of
any acquisition or any commitment of PublicCo or its Subsidiaries'
resources or financial support. PublicCo also agrees that it shall not
(i) hold any assets, other than (a) working capital cash and cash
equivalents held for the payment of current obligations and receivables
from the Company; (b) Common Units; (c) back-to-back obligations and
mirror equity interests of the Company, consisting of obligations and
equity securities (other than Common Units, but including convertible
securities), which are substantially equivalent to liabilities or
obligations or securities of PublicCo to third parties; (d) assets
subject to an existing obligation to contribute such assets (or
successor assets) to the Company in exchange for Units; (e) assets
acquired as a result of the issuance of (x) common stock of PublicCo
and/or preferred stock of PublicCo and/or (y) liabilities or obligations
of PublicCo, subject to an existing obligation to contribute such assets
(or successor assets) to the Company in exchange for Common Units (in
respect of the common stock of PublicCo issued) and/or for mirror equity
securities (other than Common Units, but including convertible
securities, in respect of the mirror equity securities issued) of the
Company and/or liabilities or obligations of the Company (in respect of
the liabilities or obligations incurred), which are substantially
equivalent to the equity securities and/or liabilities and obligations
of PublicCo issued to acquire such assets; or (f) goodwill or deferred
tax assets, or (ii) incur any liabilities or obligations for borrowed
money, for acquisition of assets or under any capital lease, other than
(a) in connection with back-to-back obligations of the Company to
PublicCo consisting of liabilities or obligations of the Company which
are substantially equivalent to liabilities or obligations of PublicCo
to a third party; (b) liabilities or obligations incident to the
acquisition of Units in exchange for common stock of PublicCo; or (c)
liabilities or obligations as contemplated by Clauses (i)(d) and (e)
immediately above. PublicCo further agrees (x) that it shall not issue,
transfer from treasury stock or repurchase shares of its common stock
unless in connection with any such issuance, transfer, or repurchase
PublicCo takes all requisite action such that, after giving effect to
all such issuances, transfers or repurchases, the number of outstanding
shares of common stock will equal on a one-for-one basis the number of
Common Units owned by PublicCo; (y) that it shall not issue, transfer
from treasury stock or repurchase shares of preferred stock of PublicCo
unless in connection with any such issuance, transfer or repurchase
PublicCo takes all requisite action such that, after giving effect to
all such issuances, transfers or repurchases, PublicCo holds mirror
equity interests of the Company which are in the aggregate substantially
equivalent to the outstanding preferred stock of PublicCo; and (z) upon
any reclassification of the Common Units, whether by combination,
division or otherwise, it shall take all requisite action so that the
number of outstanding shares of common stock will equal on a one-for-one
basis the number of Common Units owned by PublicCo.
The Company agrees that, until all outstanding shares of Class B
Common Stock have been converted into shares of Class A Common Stock in
accordance with Clause (b)(viii) of Article Fourth of PublicCo's
certificate of incorporation as constituted as of the Class B Common
Measuring Date, without the Approval of the Class A Common Members, (i)
the Company shall not engage directly or indirectly, including without
limitation through any Subsidiary, in any
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business other than (A) the Cable Transmission Business, (B) as a member
or shareholder of and subscriber to, the portal joint venture with
Broadband Partners, (C) as an owner and operator of the business of
Interactive Broadcaster Services Corporation, a California corporation,
which shall include solely the ownership of its assets and continuation
of its business substantially as owned and conducted as of September 13,
2000, (D) as a member of and service provider to the joint venture for
the development of a licensable reference design for a cable set-top box
with functionalities of a video cassette recorder and a personal video
recorder, (E) as a member of Cable Sports Southeast, LLC, a Delaware
limited liability company ("Cable Sports"), so long as Cable Sports
continues to conduct substantially the same business conducted by it on
October 24, 2000, and (F) as a shareholder of High Speed Access Corp., a
Delaware corporation ("HSA"), so long as HSA continues to conduct
substantially the same business as conducted by it at the time of the
consummation of the transactions contemplated by the Stock Purchase
Agreement dated as of October 19, 2000 among the Charter Communications
Ventures, LLC, HSA and Vulcan Ventures Incorporated, as it may be
amended from time to time; and (ii) to the extent that, as of the Class
B Common Measuring Date, the Company was directly or indirectly engaged
in, or had agreed to acquire directly or indirectly, an Incidental
Business, so long as (a) such Incidental Businesses so engaged in by the
Company on the Class B Common Measuring Date in the aggregate on such
date accounted for less than ten percent (10%) of the consolidated
revenues of the total business engaged in by the Company or (b) such
Incidental Businesses which on the Class B Common Measuring Date the
Company had agreed to acquire in the aggregate on such date accounted
for less than ten percent (10%) of the consolidated revenues of the
total businesses to be acquired, as applicable, the Company may,
directly or indirectly, including through any Subsidiary, continue to
conduct any such Incidental Business and the foregoing limitation on the
business and purpose of the Company shall not require that any such
Incidental Business be divested by the Company, but the Company shall
not, directly or indirectly, expand any such Incidental Business by
means of any acquisition or any commitment of the Company or its
Subsidiaries' resources or financial support.
IN WITNESS WHEREOF, the undersigned has executed this Second Amendment,
effective as of the date first written above.
Charter Communications, Inc.
By: /s/ CURTIS S. SHAW
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Curtis S. Shaw
Senior Vice President