SECOND AMENDMENT
TO THE THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
COMPLETEL LLC
This Second Amendment to the Third Amended and Restated Limited
Liability Company Agreement of CompleTel LLC (the "Company") is made as of
November 27, 2000 (this "Second Amendment"), by and among the Company and the
other Persons listed on the signature pages hereto (the "Parties").
Whereas the Parties, as members of the Company, are party to a Third
Amended and Restated Limited Liability Company Agreement dated as of November
23, 1999, as amended by the First Omnibus Amendment dated as of March 24, 2000,
governing the affairs and conduct of the business of the Company (as amended the
"LLC Agreement"). Capitalized terms used herein and not otherwise defined have
the meanings given in the LLC Agreement.
Whereas, prior to the date hereof, the Company issued Units to its
members, which Units represent indirect beneficial ownership interests in shares
of CompleTel Europe N.V. ("Europe NV") indirectly owned by the Company through
its wholly owned subsidiary CompleTel (N.A.) N.V.
Whereas, the Company and the Parties, who collectively represent the
Required Vote, now desire to amend the LLC Agreement to permit holders of Units
to receive in a tax efficient manner Europe NV shares beneficially owned as set
forth herein.
NOW THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Section 1. Amendments.
1.1 Section 3.1(j) of the LLC Agreement is hereby amended
in its entirety to read as follows:
"3.1(j) Notwithstanding the foregoing, in the event that the
Company's ownership interest in any Subsidiary of the Company
shall consist of publicly traded securities (a "Public
Subsidiary"), the Company shall make a Distribution of such
securities to the Members (valued for such purpose at Fair
Market Value determined in accordance with Section 7.3) in
accordance with the provisions of Section 3.1, which
Distribution shall be effected as soon as practicable
following the expiration of any contractual underwriter
"holdback" period applicable to such securities; provided that
the Company will not be required to make such a Distribution
of publicly traded securities with respect to any Units that
are (i) subject to performance vesting or forfeiture under the
provisions of the Performance Vesting Agreement or (ii)
subject to time vesting under the provisions of the Executive
Securities Agreements, so long as such Units continue to be
subject to any such restrictions; further provided, however,
that if adequate provision shall be made to cause the vesting
agreements and the repurchase rights of the Company under the
Executive Securities Agreement to continue to apply to such
distributed publicly traded securities in substantially the
same manner as applicable to such Units, as determined by the
Board of Managers in its sole discretion, then such a
Distribution may be made upon the request of a Member with
respect to such Member's Units that are subject solely to time
vesting. The Board of Managers in its sole discretion may
instead permit Members that are not residents of the United
States ("Contributors") to contribute their fully vested units
and, subject to the second proviso above, their unvested units
subject solely to time vesting, to any Public Subsidiary that
will issue its publicly traded securities in consideration of
the contributed Units. In the event Units are contributed to a
Public Subsidiary as provided in the foregoing sentence, any
Units so contributed will not be subject to vesting and shall
represent the unrestricted right of the Public Subsidiary to
cause the Company to exchange the Units for the number of
publicly traded securities of such Public Subsidiary that the
Contributor was entitled to receive in a Distribution under
this Section 3.1(j). Any Distribution to a Member pursuant to
this Section 3.1(j) shall be treated as an advance on
distributions to which such Member is entitled under the
provisions of Section 3.1 (other than Section 3.1(b)) and
Section 7.2 in the order that such amounts would otherwise be
received."
1.2 Section 6.3(a) shall be amended by adding the
following at the beginning of the first sentence: "EXCEPT AS PROVIDED
IN SECTION 3.1(j),"
1.3 Section 6.3(b) shall be amended by adding the following at
the end of the sentence: "; provided that in the event of a transfer
upon a contribution made pursuant to Section 3.1(j), the requirements
of this Section 6.3(b) shall be waived solely with respect to such
contributions."
Section 2. Effectiveness of Amendment. Pursuant to Section 10.17 of the
LLC Agreement this Second Amendment shall be valid, binding, and effective
against all Members when it has been signed by Members constituting a Required
Vote.
Section 3. Miscellaneous.
3.1. Counterparts. This Amendment may be executed in two
or more counterparts, any one of which need not contain the signatures of more
than one Party hereto, but each of which will be considered an original and all
of which taken together will constitute one and the same Amendment.
3.2. Descriptive Headings. The descriptive headings of
this Second Amendment are inserted for convenience only and do not constitute a
substantive part of this Second Amendment.
3.3. Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Second Amendment
will be governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
3.4. Delivery by Facsimile. This Second Amendment and each
other agreement or instrument entered into in connection herewith or
contemplated hereby or thereby, and any amendments hereto or thereto, to the
extent signed and delivered by means of a facsimile machine, will be treated in
all manner and respects as an original agreement or instrument and will be
considered to have the same binding legal effect as if it were the original
signed version thereof delivered in person. At the request of any Party hereto
or to any such agreement or instrument, each other Party hereto or thereto will
reexecute original forms thereof and deliver them to all other Parties. No Party
hereto or to any such agreement or instrument will raise the use of a facsimile
machine to deliver a signature or the fact that any signature or agreement or
instrument was transmitted or communicated through the use of a facsimile
machine as a defense to the formation or enforceability of a contract and each
such party forever waives any such defense.
* * * *
IN WITNESS WHEREOF, the Parties hereto have executed this
Second Amendment as of the date first written above.
COMPANY:
COMPLETEL, LLC
By /s/Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx, its Chairman
PARTIES:
XXXXXXXX TELCOM HOLDINGS LIMITED
PARTNERSHIP
By XxXxxxxx Telcom, LLC, its general partner
By /s/Xxxxxxxx X. XxXxxxxx
---------------------------------------------
Xxxxxxxx X. XxXxxxxx, its Manager
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
By Madison Dearborn Partners II, L.P., its
general partner
By Madison Dearborn Partners, Inc., its general
partner
By /s/Xxxx Xxxxxxxx
---------------------------------------------
Xxxx Xxxxxxxx, its Managing Director
MERITAGE PRIVATE EQUITY FUND, L.P.
By Meritage Investment Partners, LLC, its general
partner
By: _____________________________________________
Managing Member
MERITAGE PRIVATE EQUITY PARELLEL
FUND, L.P.
By Meritage Investment Partners, LLC, its general
partner
By: _____________________________________________
Managing Member
MERITAGE ENTREPRENEURS FUND, L.P.
By Meritage Investment Partners, LLC, its general
partner
By: _____________________________________________
Managing Member
-----------------------------------------------
Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxx
-----------------------------------------------
Xxxx X. Xxxxx
DOVEY FAMILY PARTNERS LLLP
By /s/Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx, its general partner
DOVEY COMPANY LLC
By /s/Xxxxx X. Xxxxx
---------------------------------------------
Xxxxx X. Xxxxx, its manager
/s/Xxxxx X. Xxxxx
-------------------------------------------------
Xxxxx X. Xxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxx
HAJ XXXXXXX LLC
By ___________________________________________
Xxxxxxx X. Xxxxxxx, its manager
HAJ LLC
By ___________________________________________
Xxxxxxx X. Xxxxxxx, its manager
XXXXXXXXX COMPANY LLC
By ___________________________________________
Xxxxxxx X. Xxxxxxxxx, its manager
XXXXXXXXX FAMILY LLLP
By ___________________________________________
Xxxxxxx X. Xxxxxxxxx, its general partner
-----------------------------------------------
Xxxxx Xxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
NORTHWESTERN UNIVERSITY
By ____________________________________________
Its ___________________________________________
SILVER CROSS INVESTORS LLC
By ____________________________________________
Its ___________________________________________
