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Exhibit 10.22(a)
FIRST AMENDMENT TO THE
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
FOR
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This First 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 September 13,
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 (the "LLC AGREEMENT"). Unless
otherwise defined, capitalized terms used herein have the meanings assigned to
them in the LLC Agreement.
B. Pursuant to that certain Merger Agreement and Plan of Reorganization
dated as of August 11, 2000, among PublicCo, Interactive Broadcaster Services
Corporation, and Xxxxx X. Xxxxxxxxx, the certificate of incorporation of
PublicCo is being amended as of the Effective Date. 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 First 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 First 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 and (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
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assets and continuation of its business substantially as owned and
conducted as of September 13, 2000; (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 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;
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(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;
and (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;
(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
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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 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, and
(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; 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.
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IN WITNESS WHEREOF, the undersigned has executed this First Amendment,
effective as of the date first written above.
Charter Communications, Inc.
By: /s/ Xxxxxx X. Xxxx
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Name: Cutis X. Xxxx
Title: Senior Vice President
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