<PAGE> 1
EXHIBIT 10.23
FIRST AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
<PAGE> 2
FIRST AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
A DELAWARE LIMITED LIABILITY COMPANY
This First Amendment to Limited Liability Company Agreement (this
"AMENDMENT") of Qwest Cyber.Solutions LLC (the "COMPANY"), is made effective as
of July 8, 1999 by and among Qwest Communications International Inc., a Delaware
corporation, KPMG LLP, a Delaware limited liability partnership, and Softline
Consulting & Integrators, Inc., a California corporation (collectively, the
"INITIAL MEMBERS").
WHEREAS, the Initial Members wish to make certain amendments to the Limited
Liability Company Agreement of the Company (the "LLC AGREEMENT"), effective as
of June 3, 1999, as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein made and intending to be legally bound, the Initial Members hereby agree
as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein will have
the respective meanings ascribed to such terms in the LLC Agreement.
ARTICLE 2
AMENDMENTS
SECTION 2.1 AMENDMENTS TO DEFINITIONS.
(1) The definition of "Ancillary Implementation Agreement" contained in
Section 1.1 of the LLC Agreement is hereby deleted in its entirety.
(2) The definition of "Transaction Documents" contained in Section 1.1 of
the LLC Agreement is hereby amended and restated in its entirety as
follows:
""Transaction Documents" means the Web Hosting and Internet Access
Service Agreement, the Employee Loan-Out Agreements, the Leased Line
Agreement, the IP OSS/BSS MOU, the IP OSS/BSS Sublicense, the Trademark
License Agreement, the Discounted Services Contribution Agreement, and the
Transition Services Agreement."
SECTION 2.2 AMENDMENT TO SECTION 2.4(1). The initial paragraph of Section 2.4
and subsection 2.4(l) of the LLC Agreement are hereby amended and restated in
their entirety as follows:
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"SECTION 2.4. SECOND CLOSING DATE.
Except as otherwise set forth in this Section 2.4, as soon as reasonably
practicable following the First Closing Date but in no event later than July 20,
1999 (the "SECOND CLOSING DATE"), the Initial Members will have caused the
following events to happen:
(1) As soon as reasonably practicable following the Second Closing Date,
the Initial Class A Member or the Company and the Initial Class B Member
will have entered into an agreement in form and substance reasonably
satisfactory to each such Initial Member, which agreement will provide in
part that the Initial Class B Member will perform ongoing implementation
and adjustment of certain "PeopleSoft" software (or an equivalent product)
licensed by the Initial Class A Member or by the Company, and/or the
initial and ongoing implementation and adjustment of the Global Sales Force
Automation software (or an equivalent product) licensed by the Initial
Class A Member or by the Company, on the terms and conditions set forth
therein but including the following: (i) the total commitment by the
Initial Class A Member or the Company to purchase services from the Initial
Class B Member will equal $5 million; (ii) such commitment will be retired
over time as determined by the Initial Class A Member or the Company, as
applicable, but will be fully retired prior to the third anniversary of the
Second Closing Date; and (iii) the Class B Member will provide the relevant
services based on an hourly blended rate for personnel of $164 per hour."
SECTION 2.3 AMENDMENT TO SUBSECTION 2.4(3). Subsection 2.4(3) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
"(3) As soon as reasonably practicable following the execution of the
Master Services and Outsourcing Agreement contemplated by the IP OSS/BSS
MOU, the Initial Class A Member and the Company will enter into an
agreement (the "IP OSS/BSS SUBLICENSE") in form and substance reasonably
satisfactory to each Initial Member Group, pursuant to which the Initial
Class A Member will make access to the IP OSS/BSS system available to the
Company (upon and after the completion of the IP OSS/BSS) on the terms and
conditions set forth therein."
SECTION 2.4 AMENDMENT TO SUBSECTION 4.1(d). Subsection 4.1(d) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
"(d) The Initial Members acknowledge and agree that the failure by any
Initial Member to timely make its Initial Contribution would result in
damage to the other Initial Members which would be difficult to calculate,
and therefore agree that if any contract or agreement to be assigned to the
Company which is listed on Exhibit A-2 or Exhibit A-3 is not assigned to
the Company by July 20, 1999, the Initial Class C Member and the Initial
Class B Member jointly and severally agree to pay to the Company, as
liquidated damages for the failure to assign such contract or agreement,
sums equal to the revenue assumed for purposes of calculating the total
revenue component of the financial model included in the Initial Business
Plan, net of the expenses (consistent with the assumptions contained in the
financial model) incurred by such Initial Member and not the
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Company (whether by reimbursement pursuant to Section 2.5(a) or otherwise)
in connection with servicing such Assigned Contract from and after the
Effective Date of Transfer for such period as the financial model included
in the Initial Business Plan assumes such revenue. Payments to the Company
under this Section shall be made at the time revenue would be paid to the
Company under the relevant contract or agreement."
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 REFERENCE TO AND EFFECT ON THE LLC AGREEMENT.
(1) Except as specifically amended by this Amendment, the LLC Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(2) This Amendment will be construed as one with the LLC Agreement and the
LLC Agreement will, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
(3) On and after the date hereof, each reference in the LLC Agreement to
"this Agreement", "hereunder", "hereof", "herein", or words of like
import referring to the LLC Agreement, and each reference in any of
the Transaction Documents to the LLC Agreement, "thereunder",
"thereof", or words of like import referring to the LLC Agreement,
will mean and be a reference to the LLC Agreement, as amended by this
Amendment.
SECTION 3.2 COMPLETE AGREEMENT. This Amendment, along with the LLC
Agreement and the Certificate of Formation constitute the complete and exclusive
statement of agreement among the Members with respect to the subject matter
herein and therein and replace and supersede all prior written and oral
agreements or statements by and among the Members or any of them. No
representation, statement, condition or warranty not contained in this Agreement
or the Certificate of Formation will be binding on the Members or have any force
or effect whatsoever.
SECTION 3.3 MULTIPLE COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument.
SECTION 3.4 REFERENCES TO THIS AGREEMENT. All Article, Section, subsection
or paragraph titles or other captions in this Agreement are for convenience
only, are not part of this Amendment and in no way define, limit, extend or
describe the scope or intent of any of its provisions.
SECTION 3.5 GOVERNING LAW. This Amendment will be governed by, construed
under and interpreted in accordance with the internal Laws of the State of
Delaware without regard to its conflicts of laws principles.
[Remainder of page intentionally left blank.]
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SECOND AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
<PAGE> 6
SECOND AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Second Amendment to Limited Liability Company Agreement (this
"AMENDMENT") of Qwest Cyber.Solutions LLC (the "COMPANY"), is made effective as
of July 19, 1999 by and among Qwest Communications International Inc., a
Delaware corporation, KPMG LLP, a Delaware limited liability partnership, and
Softline Consulting & Integrators, Inc., a California corporation (collectively,
the "INITIAL MEMBERS").
WHEREAS, the Initial Members wish to make certain amendments to the Limited
Liability Company Agreement of the Company, effective as of June 3, 1999 (as
amended by the First Amendment to Limited Liability Company Agreement of Qwest
Cyber.Solutions LLC, dated as of July 8, 1999, the "LLC AGREEMENT"), as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein made and intending to be legally bound, the Initial Members hereby agree
as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein will have
the respective meanings ascribed to such terms in the LLC Agreement.
ARTICLE 2
AMENDMENTS
SECTION 2.1 AMENDMENT TO SUBSECTION 2.4. The initial paragraph of Section 2.4 of
the LLC Agreement is hereby amended and restated in its entirety as follows:
"SECTION 2.4. SECOND CLOSING DATE.
Except as otherwise set forth in this Section 2.4, as soon as
reasonably practicable following the First Closing Date but in no event
later than August 6, 1999 (the "SECOND CLOSING DATE"), the Initial Members
will have caused the following events to happen:"
SECTION 2.2 AMENDMENT TO SUBSECTION 4.1(d). Subsection 4.1(d) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
"(d) The Initial Members acknowledge and agree that the failure by any
Initial Member to timely make its Initial Contribution would result in
damage to the other Initial Members which would be difficult to
calculate, and therefore agree that if any contract or agreement to be
assigned to the Company which is listed on
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Exhibit A-2 or Exhibit A-3 is not assigned to the Company by August 6,
1999, the Initial Class C Member and the Initial Class B Member
jointly and severally agree to pay to the Company, as liquidated
damages for the failure to assign such contract or agreement, sums
equal to the revenue assumed for purposes of calculating the total
revenue component of the financial model included in the Initial
Business Plan, net of the expenses (consistent with the assumptions
contained in the financial model) incurred by such Initial Member and
not the Company (whether by reimbursement pursuant to Section 2.5(a)
or otherwise) in connection with servicing such Assigned Contract from
and after the Effective Date of Transfer for such period as the
financial model included in the Initial Business Plan assumes such
revenue. Payments to the Company under this Section shall be made at
the time revenue would be paid to the Company under the relevant
contract or agreement."
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 REFERENCE TO AND EFFECT ON THE LLC AGREEMENT.
(1) Except as specifically amended by this Amendment, the LLC Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(2) This Amendment will be construed as one with the LLC Agreement and the
LLC Agreement will, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
(3) On and after the date hereof, each reference in the LLC Agreement to
"this Agreement", "hereunder", "hereof", "herein", or words of like
import referring to the LLC Agreement, and each reference in any of
the Transaction Documents to the LLC Agreement, "thereunder",
"thereof", or words of like import referring to the LLC Agreement,
will mean and be a reference to the LLC Agreement, as amended by this
Amendment.
SECTION 3.2 COMPLETE AGREEMENT. This Amendment, along with the LLC
Agreement and the Certificate of Formation constitute the complete and exclusive
statement of agreement among the Members with respect to the subject matter
herein and therein and replace and supersede all prior written and oral
agreements or statements by and among the Members or any of them. No
representation, statement, condition or warranty not contained in this Agreement
or the Certificate of Formation will be binding on the Members or have any force
or effect whatsoever.
SECTION 3.3 MULTIPLE COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument.
SECTION 3.4 REFERENCES TO THIS AGREEMENT. All Article, Section, subsection
or paragraph titles or other captions in this Agreement are for convenience
only, are not part of this
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Amendment and in no way define, limit, extend or describe the scope or intent of
any of its provisions.
SECTION 3.5 GOVERNING LAW. This Amendment will be governed by, construed
under and interpreted in accordance with the internal Laws of the State of
Delaware without regard to its conflicts of laws principles.
[Remainder of page intentionally left blank.]
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THIRD AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
<PAGE> 10
THIRD AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Third Amendment to Limited Liability Company Agreement (this
"AMENDMENT") of Qwest Cyber.Solutions LLC (the "COMPANY"), is made effective as
of August 6, 1999 by and among Qwest Communications International Inc., a
Delaware corporation, KPMG LLP, a Delaware limited liability partnership, and
Softline Consulting & Integrators, Inc., a California corporation (collectively,
the "INITIAL MEMBERS").
WHEREAS, the Initial Members wish to make certain amendments to the Limited
Liability Company Agreement of the Company, effective as of June 3, 1999 (as
amended by the First Amendment to Limited Liability Company Agreement of Qwest
Cyber.Solutions LLC, dated as of July 8, 1999, and the Second Amendment to
Limited Liability Company Agreement of Qwest Cyber.Solutions LLC, dated as of
July 19, 1999, the "LLC AGREEMENT"), as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein made and intending to be legally bound, the Initial Members hereby agree
as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein will have
the respective meanings ascribed to such terms in the LLC Agreement.
ARTICLE 2
AMENDMENTS
SECTION 2.1 AMENDMENT TO SUBSECTION 2.4. The initial paragraph of Section 2.4 of
the LLC Agreement is hereby amended and restated in its entirety as follows:
"SECTION 2.4. SECOND CLOSING DATE.
Except as otherwise set forth in this Section 2.4, as soon as
reasonably practicable following the First Closing Date but in no event
later than August 16, 1999 (the "SECOND CLOSING DATE"), the Initial Members
will have caused the following events to happen:"
SECTION 2.2 AMENDMENT TO SUBSECTION 4.1(d). Subsection 4.1(d) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
"(d) The Initial Members acknowledge and agree that the failure by any
Initial Member to timely make its Initial Contribution would result in
damage to the
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other Initial Members which would be difficult to calculate, and
therefore agree that if any contract or agreement to be assigned to
the Company which is listed on Exhibit A-2 or Exhibit A-3 is not
assigned to the Company by August 16, 1999, the Initial Class C Member
and the Initial Class B Member jointly and severally agree to pay to
the Company, as liquidated damages for the failure to assign such
contract or agreement, sums equal to the revenue assumed for purposes
of calculating the total revenue component of the financial model
included in the Initial Business Plan, net of the expenses (consistent
with the assumptions contained in the financial model) incurred by
such Initial Member and not the Company (whether by reimbursement
pursuant to Section 2.5(a) or otherwise) in connection with servicing
such Assigned Contract from and after the Effective Date of Transfer
for such period as the financial model included in the Initial
Business Plan assumes such revenue. Payments to the Company under this
Section shall be made at the time revenue would be paid to the Company
under the relevant contract or agreement."
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 REFERENCE TO AND EFFECT ON THE LLC AGREEMENT.
(1) Except as specifically amended by this Amendment, the LLC Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(2) This Amendment will be construed as one with the LLC Agreement and the
LLC Agreement will, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
(3) On and after the date hereof, each reference in the LLC Agreement to
"this Agreement", "hereunder", "hereof", "herein", or words of like
import referring to the LLC Agreement, and each reference in any of
the Transaction Documents to the LLC Agreement, "thereunder",
"thereof", or words of like import referring to the LLC Agreement,
will mean and be a reference to the LLC Agreement, as amended by this
Amendment.
SECTION 3.2 COMPLETE AGREEMENT. This Amendment, along with the LLC
Agreement and the Certificate of Formation constitute the complete and exclusive
statement of agreement among the Members with respect to the subject matter
herein and therein and replace and supersede all prior written and oral
agreements or statements by and among the Members or any of them. No
representation, statement, condition or warranty not contained in this Agreement
or the Certificate of Formation will be binding on the Members or have any force
or effect whatsoever.
SECTION 3.3 MULTIPLE COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument.
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SECTION 3.4 REFERENCES TO THIS AGREEMENT. All Article, Section, subsection
or paragraph titles or other captions in this Agreement are for convenience
only, are not part of this Amendment and in no way define, limit, extend or
describe the scope or intent of any of its provisions.
SECTION 3.5 GOVERNING LAW. This Amendment will be governed by, construed
under and interpreted in accordance with the internal Laws of the State of
Delaware without regard to its conflicts of laws principles.
[Remainder of page intentionally left blank.]
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FOURTH AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
<PAGE> 14
FOURTH AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Fourth Amendment to Limited Liability Company Agreement (this
"AMENDMENT") of Qwest Cyber.Solutions LLC (the "COMPANY"), is made effective as
of August 16, 1999 by and among Qwest Communications International Inc., a
Delaware corporation, KPMG LLP, a Delaware limited liability partnership, and
Softline Consulting & Integrators, Inc., a California corporation (collectively,
the "INITIAL MEMBERS").
WHEREAS, the Initial Members wish to make certain amendments to the Limited
Liability Company Agreement of the Company, effective as of June 3, 1999 (as
amended by the First Amendment to Limited Liability Company Agreement of Qwest
Cyber.Solutions LLC, dated as of July 8, 1999, the Second Amendment to Limited
Liability Company Agreement of Qwest Cyber.Solutions LLC, dated as of July 19,
1999, and the Third Amendment to Limited Liability Company Agreement of Qwest
Cyber.Solutions LLC, dated as of August 6, 1999, the "LLC AGREEMENT"), as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein made and intending to be legally bound, the Initial Members hereby agree
as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein will have
the respective meanings ascribed to such terms in the LLC Agreement.
ARTICLE 2
AMENDMENTS
SECTION 2.1 AMENDMENT TO SECTION 1.1.
The definition of "Leased Line Agreement" is hereby amended and restated in
its entirety as follows:
"Leased Line Agreement" is defined in Section 2.5(d).
SECTION 2.2 AMENDMENT TO SECTION 1.1.
The definition of "Transaction Documents" is hereby amended and restated in
its entirety as follows:
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"Transaction Documents" means the Ancillary Implementation Agreement, the
Employee Loan-Out Agreements, the IP OSS/BSS MOU, the IP OSS/BSS Sublicense, the
Trademark License Agreement, and the Transition Services Agreement, and, when
executed and delivered by the parties thereto, the Leased Line Agreement and the
Web Hosting and Internet Access Service Agreement.
SECTION 2.3 AMENDMENT TO SECTION 1.1.
The definition of "WEB HOSTING AND INTERNET ACCESS SERVICE AGREEMENT" is
hereby amended and restated in its entirety as follows:
"Web Hosting and Internet Access Service Agreement" is defined in Section
2.5(c)."
SECTION 2.4 AMENDMENT TO SUBSECTION 2.4(4). Section 2.4(4) of the LLC Agreement
is hereby amended and restated in its entirety as follows:
"(4) [Intentionally Omitted.]"
SECTION 2.5 AMENDMENT TO SUBSECTION 2.4(5). Section 2.4(5) of the LLC Agreement
is hereby amended and restated in its entirety as follows:
"(5) [Intentionally Omitted.]"
SECTION 2.6 AMENDMENT TO SUBSECTION 2.4(12). Section 2.4(12) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
"(12) [Intentionally Omitted.]"
SECTION 2.7 AMENDMENT TO SECTION 2.5. Section 2.5 of the LLC Agreement is hereby
amended by changing the title thereof from "Covenants Regarding Transition
Services and Assigned Contracts" to "Certain Covenants and Agreements".
SECTION 2.8 AMENDMENT TO SECTION 2.5. Section 2.5 of the LLC Agreement is hereby
amended by adding the following text to the end thereof.
"(c) The Initial Class A Member and the Company will use commercially
reasonable efforts to enter into, within the thirty day period following the
Second Closing, a "WEB HOSTING AND INTERNET ACCESS SERVICE AGREEMENT" in form
and substance reasonably satisfactory to each Initial Member Group, pursuant to
which the Initial Class A Member will provide broadband services, other
telecommunications services, and internet hosting services to the Company on the
terms and conditions set forth therein.
(d) The Initial Class A Member and the Company will use commercially
reasonable efforts to enter into, within the thirty day period following the
Second Closing, an agreement (the "LEASED LINE AGREEMENT"), in form and
substance reasonably satisfactory to each Initial Member Group, pursuant to
which the Initial Class A Member will provide to the Company connectivity to the
network operated by the Initial Class A Member and its Affiliates and to the
internet on the terms and conditions set forth therein."
(e) The Initial Member Groups will use commercially reasonable efforts to
enter into, within the thirty day period following the Second Closing, an
agreement, in form and substance
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<PAGE> 16
reasonably satisfactory to each Initial Member Group, setting forth the
valuation of each Initial Member's non-cash Initial Contributions, which
valuation will be reasonably acceptable to each Initial Member Group.
SECTION 2.9 AMENDMENT TO SUBSECTION 11.2(b). Subsection 11.2(b) of the LLC
Agreement is hereby amended and restated in its entirety as follows:
(b) The Initial Class B Member is expressly allowed to contribute all of
the assets of its consulting division, "KPMG Consulting" to a newly created
entity, including the Initial Class B Member's Membership Interest in the
Company, provided, however, that the Initial Class B Member must have caused,
simultaneously with or prior to such contribution:
(1) all assets relating to the Initial Class B Member's participation in
the Company, including but not limited to all products and services
provided to or acquired from the Company and all intellectual property
rights licensed to or licensed from the Company, to be simultaneously
and irrevocably sold, assigned, and transferred to such newly created
entity;
(2) the Initial Class B Member and such newly created entity to have
executed and delivered an assignment and assumption agreement,
reasonably satisfactory in form and content to the Company, by which
the initial Class B Member will assign all rights under this Agreement
and the Transaction Documents to which the Initial Class B Member is a
party to such newly created entity, and such newly created entity will
have assumed all liabilities and obligations under this Agreement and
the Transaction Documents to which the Initial Class B Member is a
party; and
(3) all shares of securities of the Initial Class C Member, beneficially
held or held of record by the Initial Class B Member to be
simultaneously and irrevocably sold, assigned and transferred to such
newly-created entity.
Upon the satisfaction of the conditions set forth in the immediately
preceding proviso, the Membership Interest of the Initial Class B Member
will be transferred to such entity and such entity will be admitted to the
Company as a substitute Member without further action by the Management
Committee or the Members.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 REFERENCE TO AND EFFECT ON THE LLC AGREEMENT.
(1) Except as specifically amended by this Amendment, the LLC Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(2) This Amendment will be construed as one with the LLC Agreement and the
LLC Agreement will, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
(3) On and after the date hereof, each reference in the LLC Agreement to
"this Agreement", "hereunder", "hereof", "herein", or words of like
import referring to
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<PAGE> 17
the LLC Agreement, and each reference in any of the Transaction
Documents to the LLC Agreement, "thereunder", "thereof", or words of
like import referring to the LLC Agreement, will mean and be a
reference to the LLC Agreement, as amended by this Amendment.
SECTION 3.2 COMPLETE AGREEMENT. This Amendment, along with the LLC
Agreement and the Certificate of Formation constitute the complete and exclusive
statement of agreement among the Members with respect to the subject matter
herein and therein and replace and supersede all prior written and oral
agreements or statements by and among the Members or any of them. No
representation, statement, condition or warranty not contained in this Agreement
or the Certificate of Formation will be binding on the Members or have any force
or effect whatsoever.
SECTION 3.3 MULTIPLE COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument.
SECTION 3.4 REFERENCES TO THIS AGREEMENT. All Article, Section, subsection
or paragraph titles or other captions in this Agreement are for convenience
only, are not part of this Amendment and in no way define, limit, extend or
describe the scope or intent of any of its provisions.
SECTION 3.5 GOVERNING LAW. This Amendment will be governed by, construed
under and interpreted in accordance with the internal Laws of the State of
Delaware without regard to its conflicts of laws principles.
[Remainder of page intentionally left blank.]
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<PAGE> 18
FIFTH AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A Delaware Limited Liability Company)
<PAGE> 19
FIFTH AMENDMENT
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
QWEST CYBER.SOLUTIONS LLC
(A Delaware Limited Liability Company)
This Fifth Amendment (this "Amendment") to Limited Liability Company
Agreement (the "LLC Agreement") of Qwest Cyber.Solutions LLC (the "Company"), is
made effective as of January 31, 2000 by and among Qwest Communications
International Inc., a Delaware corporation, KPMG Consulting, LLC, a Delaware
limited liability company ("KPMG Consulting"), and Softline Consulting &
Integrators, Inc., a California corporation (collectively, the "Members").
WHEREAS, pursuant to Section 11.2(b) of the LLC Agreement, the Initial
Class B Member has assigned its Class B Membership Interest to KPMG Consulting,
and the capital stock of the Initial Class C Member has been transferred to KPMG
Consulting;
WHEREAS, the Members wish to make certain amendments to the LLC Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein made and intending to be legally bound, the Members hereby agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Amendment but not defined herein will have
the respective meanings ascribed to such terms in the LLC Agreement.
ARTICLE 2
AMENDMENTS
Section 2.1 Amendments to Section 1.1 -- (Certain Definitions):
(1) A new definition is added as follows:
"Class D Member" means any Person who has become a Member (a) upon exercise
of an option or options to acquire Class D Membership Interests granted
under the Qwest Cyber.Solutions LLC Option Plan, or (b) by grant of Class D
Membership Interests by action of the Management Committee, and includes
any successor or permitted assign of any Class D Member."
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<PAGE> 20
(2) The definition of "Member Group" is hereby amended and restated in its
entirety as follows:
"Member Group" means any one or more Members, other than Class D Members,
that are Affiliates, including but not limited to the Initial Member
Groups."
(3) The definition of "Percentage Interest" is hereby amended and restated
in its entirety as follows:
"Percentage Interest" means, with respect to each Member, the Share
Equivalents held by such Member expressed as a percentage of all
outstanding Share Equivalents, as set forth opposite each Member's name on
Exhibit C (as such Exhibit may be amended from time to time)."
(4) A new definition is added as follows:
"Share Equivalent" means a unit of measurement of Membership Interests that
constitutes, together with all other outstanding Share Equivalents, the
aggregate Membership Interests in the Company. Effective as of January 1,
2000, the number of authorized Share Equivalents shall be 200,000,000. Of
such aggregate number and as of such date, 94,350,000 Share Equivalents are
held as Class A Member Interests by the Class A Member, 16,650,000 Share
Equivalents are held as Class B Member Interests by the Class B Member,
74,000,000 Share Equivalents are held as Class C Member Interests by the
Class C Member and 15,000,000 Share Equivalents are reserved for issuance
as Class D Member Interests to holders of options granted or to be granted
under the Qwest Cyber.Solutions LLC Option Plan."
(5) Clause (iv) of the definition of "Tier II Event" is hereby amended and
restated in its entirety as follows:
"(iv) a Bankruptcy Event occurring with respect to a Member other than a
Class D Member."
(6) Clause (iii) of the definition of Tier III Event is hereby amended and
restated in its entirety as follows:
"(iii) a change in applicable Law requiring a Member other than a Class D
Member to dispose of or transfer any equity interest in the Company without
respecting the approval rights of the other Members provided herein;"
Section 2.2 Amendments to Section 4.5 (Additional Capital Contributions).
(1) Paragraph (a) Financial Supports and Guarantees is amended and restated
in its entirety as follows:
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"Except for the Initial Contributions and Additional Capital Contributions
unanimously agreed to be the Members (other than the Class C Member, which
agreement will be deemed given together with the Class B Member's, and
other than the Class D Members) no Member (nor any Affiliate of a Member)
will be obligated to extend any financial support to the Company, nor to
guarantee any obligation of the Company. No Class D Members shall be
obligated to provide any Additional Capital Contributions."
(2) Paragraph (b) Capital Call is amended and restated in its entirety as
follows:
"Subject to the approval of the Class A Member and the Class B Member
(except as noted in paragraph (a) above) and to the unanimous approval of
the Management Committee pursuant to Section 5.3(f), the Management
Committee may from time to time, by the delivery of written notice to the
Class A, B and C Members (a "Capital Call Notice") require such Members,
pro rata in accordance with their respective Percentage Interests, to
contribute cash or other assets with a value assigned thereto which has
been agreed to by all Class A, B and C Members to the capital of the
Company ("Additional Capital Contributions"), all as provided for in this
Section 4.5, and in accordance with the procedures set forth in Exhibit
E-1. No Member may voluntarily make any Additional Capital Contributions."
Section 2.3 Amendment to Section 3.3 -- Voting Rights. Section 3.3 is
hereby amended by adding a new sentence as follows:
"Notwithstanding any provision in this Agreement to the contrary, Class D
Members shall not have the right to vote on any matters, except that in the
event the Company completes a Qualified Public Offering pursuant to which
equity interests in the Company we sold, Class D Members shall have voting
rights equivalent to those voting rights held by Members who acquire their
Membership Interests in such Qualified Public Offering proportional to the
Share Equivalents held by each Member."
Section 2.4 Amendment to Section 3.4 -- Admission of Additional Members.
Section 3.4 is amended by substituting "Share Equivalents" for "Membership
Interests."
Section 2.5 Amendments to Section 5.2 -- Management Committee.
(1) Section (b)(1) is amended by restating the first clause in the first
sentence as follows:
"At all times when the Initial Members and Class D Members comprise all of
the Members..."
(2) Section (b)(4) is amended by restating the parenthetical as follows:
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"...(other than an additional or successor Class A Member, Class B Member
or Class C Member, and other than a Class D Member)..."
Section 2.6 Amendment to Section 7.4 -- Members as Providers to the
Company.
The first sentence of Section 7.4(a) is amended in its entirety to read as
follows:
"Each Member, other than a Class D Member, on an ongoing basis, will offer
upon request to provide to the Company any and all products or services
which it provides to its customers in the ordinary course of business."
Section 2.7 Amendment to Section 7.5 -- Sales and Distribution Channels.
Section 7.5 is amended and restated in its entirety to read as follows.
"(a) Each Member other than a Class D Member, on an ongoing basis, will
cause sales and distribution services that such Member and its Affiliates
provide in relation to the sale and distribution of such Member's and its
Affiliates' own products and services to be provided to the Company
according to the pricing described in Section 7.4(a), and otherwise on
customary terms and conditions. All sales and marketing efforts on behalf
of the Company's products and services will be subject to the approval of
the Management Committee.
(b) Each Member other than a Class D Member, together with the Company,
will develop a sales and marketing plan regarding the use of such Member's
sales and distribution channels and other resources to market and sell the
Company's products and services that is acceptable to such Member and to
the Company, and such plan will be subject to periodic review and
adjustment.
(c) Each Member will other than a Class D Member, upon the request of the
Company, provide to the Company all information regarding such Member's
agreements with third party providers of sales and distribution services
(to the extent such services are reasonably related to the Business) that
is not subject to a contractual or other obligation that would prohibit the
disclosure of such information to the Company. Upon the request of the
Company, each Member will exercise reasonable commercial efforts to cause
any one or more third-party providers of sales and distribution services to
such Member to offer the same or similar services to the Company upon the
terms and conditions then enjoyed by such Member."
Section 2.8 Amendment to Section 7.7 -- Future Licenses
Section 7.7 is amended and restated in its entirety to read as follows:
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"Until a Qualified Public Offering, each Member other than a Class D Member
will use its commercially reasonable best efforts to cause any future
license for an individual software application within the Application
Categories to include the Company as an additional license or to otherwise
make such application available to the Company for use in its Business."
Section 2.9 Amendment to Section 12.2 -- Conversion to Corporation.
Section (c) is amended and restated in its entirety to read as follows:
"the Initial Members and the Company will negotiate in good faith with the
intent of entering into a shareholders' agreement which will contain
customary registration rights, rights of first offer, "drag along," and
"tag along" rights, which each Initial Member will enjoy as long as its
ownership percentage of the Company is in excess of thresholds to be
specified therein. Class D Members shall be subject to any "drag along"
rights to which any of the Initial Members is subject pursuant to such
shareholders' agreement."
Section 2.10 Amendment to Section 12.4 -- Equity and Voting.
Sections (a) and (b) are amended and restated in their entirety to read as
follows:
"(a) Upon formation of the Resulting Corporation, the Initial Members'
Membership Interests will be converted into the outstanding shares of
separate classes of stock, with an additional class of stock designated as
shares to be sold to the public in a Qualified Public Offering and into
which the Class D Membership Interests shall be converted. Subject to
Section 12.3, the separate classes of stock of the Resulting Corporation
will have equivalent rights and designations except for voting. The number
of shares of the relevant class to be issued to each Member will be
calculated to maintain the relative ownership ratio of the Members
immediately preceding the formation of the Resulting Corporation with pro
rata dilution for the number of shares to be sold to the public.
(b) The voting rights will be allocated among the classes (1) to ensure,
prior to the Qualified Public Offering, that each Initial Member's rights
with respect to its control over certain transactions and certain aspects
of the management of the business (including the selection and appointment
of Directors) will conform to the control each Initial Member enjoyed over
such items (including the selection and appointment of Managers) prior to
such merger or other combination, and (2) to preserve, after the Qualified
Public Offering, those of the Initial Members' rights which explicitly
survive the Qualified Public Offering, including the right to elect a
certain number of directors of the Company, which number will be agreed to
in good faith by the Initial Members at the time of formation of the
Resulting Corporation."
Section 2.11 Amendment to Section 18.6 -- Right of Inspection. Section 18.6
is amended by adding a new sentence to the end of the current Section, to read
as follows:
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"Notwithstanding the above provisions, Class D Members shall only have the
right to examine or obtain such information about the Company for a purpose
reasonably related to such Member's interest as a Member in the Company,
which interest must be set forth in a written request to the Company and
established to the satisfaction of the Managers, and only such information
directly relevant to the request of the Class D Members shall be provided.
Notwithstanding the foregoing, the Managers need not, except as required by
law or judicial order, provide to any Class D Member any information that
the Managers reasonably believe to be in the nature of trade secrets or
other confidential or proprietary information of the Company, or any
information the disclosure of which the Managers believe in good faith is
not in the best interest of the Company or could damage the Company or its
business or which the Company is required by law or by agreement with a
third party to keep confidential. This Section is in addition to the
provisions of Section 19.15, and any disclosure of information under
either this Section or Section 19.15 will be subject to execution by the
Class D Member of a confidentiality agreement in form and substance
acceptable to the Managers."
Section 2.12 Section 18.7 -- Reports
Section 18.7 is amended and restated in its entirety as follows:
"Beginning with the third fiscal quarter of the 1999 Fiscal Year, within 45
days after the end of each Fiscal Year and within 20 days after the end of
each of the first 3 fiscal quarters of each Fiscal Year, the Chief
Financial Officer will cause each Member other than Class D Members and
each Manager to be furnished with a copy of the balance sheet of the
Company as of the last day of the applicable period, a statement of income
or loss for the Company for such period and a statement of the Company's
Cash Flow for such period. Annual statements furnished pursuant to the
preceding sentence will also include (i) a statement of the Members'
Capital Accounts and changes therein for such Fiscal Year, and (ii) all
information necessary or required for the Company and each Member to comply
with its respective federal and state tax reporting obligations. Class D
Members will have the right to such reports as are required by applicable
law."
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Section 2.13 Amendment to Exhibit C. Exhibit C is amended and restated in
its entirety as follows:
EXHIBIT C
INITIAL MEMBERS, ADDRESSES AND PERCENTAGE INTERESTS AS OF
EFFECTIVE DATE AND SHARE EQUIVALENTS AS OF JANUARY 1, 2000
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------
Class of Percentage
Membership Interest held by Share
Member Interest Held such Member Equivalents
---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Qwest Communications Class A 51% 94,350,000
International, Inc.
1000 Qwest Tower
555 Seventeenth Street
Denver, CO 80202
---------------------------------------------------------------------------------------------------
KPMG Consulting, LLC Class B 9% 16,650,000
1676 International Drive,
McLean, Virginia 22102
---------------------------------------------------------------------------------------------------
Softline Consulting & Class C 40% 74,000,000
Integrators Inc.
c/o KPMG Consulting, LLC
1676 International Drive,
McLean, Virginia 22102
---------------------------------------------------------------------------------------------------
</TABLE>
Section 2.14 Amendment to Exhibit D -- Allocations. Section 1.1(a) of
Exhibit D is amended and restated in its entirety as follows:
"(a) A separate capital account shall be maintained for each Member (a
"Capital Account"). Such Member's Capital Account shall from time to
time be (i) increased by (A) the amount of money and the Book Value of
any property contributed (or deemed contributed) by the Member to the
Company (net of liabilities secured by the property or to which the
property is subject), (B) the Net Income and any other items of income
and gain specially allocated to the Member under Paragraph 1.4, and
(C) for each Class D Member, the amount by which the fair value (as
determined for tax purposes) of his or her Share Equivalents acquired
upon exercise of options granted under the Qwest Cyber.Solutions LLC
Option Plan exceeds the exercise price of the options exercised, and
(ii) decreased by (A) the amount of money and the Book Value of any
property distributed to the Member (net of liabilities secured by the
property or to which the property is
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subject), and (B) the Net Losses and any other items of deduction and
loss specially allocated to the Member under Paragraph 1.4."
ARTICLE 3
MISCELLANEOUS
Section 3.1 Reference to and Effect on the LLC Agreement.
(1) Except as specifically amended by this Amendment, the LLC Agreement
shall remain in full force and effect and is hereby ratified and
confirmed.
(2) This Amendment will be construed as one with the LLC Agreement and the
LLC Agreement will, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
(3) On and after the date hereof, each reference in the LLC Agreement to
"this Agreement," "hereunder," "hereof," "herein," or words of like
import referring to the LLC Agreement, and each reference in any of
the Transaction Documents to the LLC Agreement, "thereunder,"
"thereof," or words of like import referring to the LLC Agreement,
will mean and be a reference to the LLC Agreement, as amended by this
Amendment.
Section 3.2 Complete Agreement. This Amendment, along with the LLC
Agreement and the Certificate of Formation, constitute the complete and
exclusive statement of agreement among the Members with respect to the subject
matter herein and therein and replace and supersede all prior written and oral
agreements or statements by and among the Members or any of them. No
representation, statement, condition or warranty not contained in this Agreement
or the Certificate of Formation will be binding on the Members or have any force
or effect whatsoever.
Section 3.3 Multiple Counterparts. This Amendment may be executed in two or
more counterparts, each of which will be deemed an original, but all of which
will constitute one and the same instrument.
Section 3.4 References to this Agreement. All Article, Section, subsection
or paragraph titles or other captions in this Agreement are for convenience
only, are not part of this Amendment and in no way define, limit, extend or
describe the scope or intent of any of its provisions.
Section 3.5 Governing Law. This Amendment will be governed by, construed
under and interpreted in accordance with the internal Laws of the State of
Delaware without regard to its conflicts of laws principles.
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