EXHIBIT 2
FIBR HOLDINGS, LLC
FIRST AMENDMENT TO
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
THIS FIRST AMENDMENT TO THE LIMITED LIABILITY OPERATING
AGREEMENT OF FIBR HOLDINGS, LLC., is made and entered into as of the 18th day of
February, 2000. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Operating Agreement of the Company.
WHEREAS, the Company was organized to pool the capital of the
Members to acquire Securities of FIBR and to realize the income and gains to be
derived therefrom for the mutual benefit of the Members;
WHEREAS, the Securities were acquired in December, 1999, and
are now valued substantially in excess of cost, but prior to any proposed
disposition, certain Members have petitioned the Company to distribute
Securities to the Members so that each Member will be in a position to realize
the income or gains to be derived therefrom in accordance with such Member's own
schedule; and
WHEREAS, under the Operating Agreement, Xxxxxxxx Xxxxxxxx, the
sole Voting Member of the Company, is entitled to an allocation of 20% of
Cumulative Gains realized by the Company upon the disposition of the Securities,
and a distribution of the Securities in accordance with the wishes of the
Members may diminish the amount of Gain otherwise allocable to Xxxxxxxx
Xxxxxxxx.
NOW, THEREFORE, the Members unanimously agree to amend the
Operating Agreement as follows:
1. The Company shall immediately upon the execution of
this Amendment and subject to obtaining the necessary
legal clearance to do so distribute 79% of the
Securities to the Members in accordance with their
Participation Percentages; and Xxxxxxxx Xxxxxxxx
shall receive no allocation of the unrealized Gain
inherent in the Securities so distributed. Such
distribution shall be accounted for as a return of
79% of the Capital Contributions of the Members.
2. Paragraphs 4.6(b) 4.6(c) and 4.6(e) shall be deleted
and the following provisions shall be substituted
therefor: Upon any sale, exchange or other
disposition by the Company of the Securities retained
by the Company following the distribution provided
for in paragraph 1, if the Company does not have
Cumulative Loss, Gain shall be allocated 95.24% to
Xxxxxxxx Xxxxxxxx, and 4.76% to the Members in
accordance with their Participation Percentages; and
if the Company has Cumulative Gain, Loss shall be
allocated 95.24% to Xxxxxxxx Xxxxxxxx and 4.76% to
the Members in accordance with their Participation
Percentages until such Cumulative Gain is eliminated.
3. Sections 2.3, 5.5, 5.6, 5.8, 5.9, 5.10 and 5.11 are
hereby deleted from the Operating Agreement, it being
the agreement of the Members that no additional
Issuance of Interests shall be made by the Company
and that a Transfer of Interests shall not be
encumbered by the Right of First Refusal or Tag-Along
right as provided therein.
4. Except as modified by the provisions of this
Amendment and any conforming changes required hereby,
the Operating Agreement is hereby ratified and
affirmed.
5. This Amendment 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.
IN WITNESS WHEREOF, the undersigned Members have executed and
adopted this Amendment as of the date first above written.
MEMBER:
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(Print Name)
By:
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Name:
Title:
EXHIBIT 3
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