LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF EUREKA NETWORKS, LLC
Exhibit 3.154
This Limited Liability Company Operating Agreement is made and entered into as of
August ___, 2005 (the “Agreement”) for Eureka Networks, LLC, a limited liability company
organized under the laws of the State of Delaware (the “Company”).
WITNESSETH:
WHEREAS, Eureka Broadband Corporation, a Delaware corporation, is the
sole member of the Company (the “Sole Member”), and desires to enter into
this Agreement to set forth its rights, obligations and duties with respect
to the Company.
NOW, THEREFORE, the Sole Member intends this Agreement to serve as a
“limited liability company agreement” as such term is defined in 18-101 (7)
of the Delaware Limited Liability Company Act (the “Act”).
ARTICLE I
The Company
Section 1.1 Name. The name of the limited liability company is:
Eureka Networks, LLC
Section 1.2 Registered Agent. The initial registered agent for the
Company shall be The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxx of Xxx Xxxxxx, Xxxxx xx Xxxxxxxx 00000. The registered office and the
registered agent may be changed from time to time by action of the Managers by
filing notice of such change with the Secretary of State of the State of
Delaware. The Managers will promptly notify the Sole Member of any change of
the registered office or registered agent. The Company may also have offices at
such other places within or outside of the State of Delaware as the Managers
may from time to time determine.
Section 1.3 Term. The Company shall have a perpetual existence
unless dissolved in accordance with the Act.
Section 1.4 Fiscal Year. The fiscal year of the Company shall end
on December 31 of each calendar year (the “Fiscal Year”).
Section 1.5 Purpose. The purpose of the Company shall be to
carry on unregulated business operations of the Sole Member and any other
lawful business, purpose or activity for which limited liability companies
may be organized under the Act.
Section 1.6 Title to Company Property. All property owned by the
Company, whether real or personal, tangible or intangible, shall be deemed to
be owned by the Company, and the Sole Member shall not have any record
ownership interest in such property. Title to all such property may be held in
the name of the Company or a designee, which designee may be the Sole Member or
an entity affiliated with the Sole Member.
ARTICLE II
Managers
Section 2.1 Management of the Company. The Company shall initially be managed
by two managers (the “Managers”). The initial Managers shall be Xxxxxxx X. Xxxxxxxx and
Xxxx Xxxxxxxx. The Managers shall have full and complete authority, power and discretion
to manage and control the business, affairs and properties of the Company, to make all
decisions regarding those matters and to perform any and all other acts or activities
customary or incident to the management of the Company’s business.
Section 2.2 Liability for Certain Acts. The Managers shall perform their
managerial duties in good faith, in a manner reasonably believed to be in the best
interests of the Company, and with such care and business judgment as an ordinarily
prudent person in a like position would use under similar circumstances. The Managers do
not, in any way, guarantee the return of the Sole Member’s capital contributions or a
profit for the Sole Member from the operations of the Company. The Manager who so performs
the duties of the Manager shall not be personally liable to the Company or to the Sole
Member for any loss or damage sustained by the Company or the Sole Member, unless (i) the
Manager has breached or failed to perform the duties of his or her position under the Act
or this Agreement; and (ii) the breach or failure to perform constitutes self-dealing or
willful misconduct by the Manager. Nothing in this paragraph shall apply to the liability
of a Manager pursuant to any criminal statute, or for the payment of taxes pursuant to
federal, state or local law.
Section 2.3 Indemnification of the Managers. Except as otherwise prohibited
by the Act, the Company shall indemnify, defend and hold harmless the Managers against all
claims, actions, proceedings, demands, losses, damages, liabilities, costs and expenses
(including, without limitation, attorneys’ fees) (together, “Losses”) to the extent the
same arise directly or indirectly from the conduct of the business of the Company, except
any Losses caused by self-dealing or willful misconduct by the Managers.
Section 2.4 Outside Interests. The Managers shall not be required to manage
the Company as their sole and exclusive function and the Managers may engage, invest and
participate in, and otherwise enter into, other business ventures of any kind, nature and
description individually and with others, whether or not any such business venture
competes with the business of the Company, and neither the Company, the Managers nor the
Sole Member shall have any right in or to any such activities or the income or profits
derived therefrom.
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Section 2.5 Reliance by Third Parties. Persons dealing with the Company are entitled
to rely conclusively upon a certificate of a Manager to the effect that he is then acting as the
Manager and upon the power of the Manager as herein set forth.
Section 2.6 Bank Accounts. The Managers may from time to time open bank accounts in
the name of the Company, and the Managers shall be the signatories thereon, unless the Managers
determine otherwise.
Section 2.7 Resignation. A Manager may resign at any time by giving written notice to
the Company. The resignation of the Manager shall be effective upon receipt of such notice or at
such later time as shall be specified in the notice. Unless otherwise specified in the notice, the
acceptance of the resignation shall not be necessary to make such resignation effective.
Section 2.8 Removal. A Manager may be removed from office at any time by the Sole
Member, without assigning any cause.
Section 2.9 Vacancies. Any vacancy occurring for any reason in the office of
Manager may be filled by written consent of the Sole Member.
Section 2.10 Compensation. The Managers will not be entitled to compensation for their
services as Manager. The Company shall, however, reimburse the Managers for their reasonable
expenses incurred in connection with their services to the Company.
ARTICLE III
Officers
Section 3.1 Officers Generally.
(a) Number, Qualifications and Designation. The Managers shall have the authority to
appoint officers of the Company as may be elected in accordance with the provisions ofSection3.2.
Officers may, but need not be Managers of the Company. Any number of offices may be held by the
same person.
(b) Bonding. The Company may secure the fidelity of any or all of its officers by bond
or otherwise.
(c) Standard of Care. Officers of the Company shall be subject to the same
standards of conduct, including standards of care and loyalty and rights of justifiable
reliance, as shall at the time be applicable to Managers of the Company.
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Section 3.2 Election, Term of Office and Resignations.
(a) Election and Term of Office. The officers of the Company shall be elected by the
Managers, and each such officer shall hold office until a successor has been selected and
qualified or until his or her earlier death, resignation or removal.
(b) Resignations. An officer of the Company may resign at any time by giving written
notice to the Company. The resignation of an officer shall be effective upon receipt of such
notice or at such later time as shall be specified in the notice. Unless otherwise specified in
the notice, the acceptance of the resignation shall not be necessary to make such resignation
effective.
Section 3.3 Removal of Officers and Agents. Any officer or agent of the Company may
be removed by the Managers with or without cause. The removal shall be without prejudice to the
contract rights, if any, of any person so removed. Election or appointment of any officer or agent
shall not of itself create contract rights.
Section 3.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification, or any other cause may be filled by the Managers or by the officer or
committee to which the power to fill such office has been delegated pursuant to 3.2, as the case
may be.
Section 3.5 Authority. All officers of the Company, as between themselves and the
Company, shall have such authority and perform such duties in the management of the Company as may
be provided by or pursuant to resolutions or orders of the Managers or, in the absence of
controlling provisions in the resolutions or orders of the Managers, as may be determined by or
pursuant to this Agreement.
Section 3.6 The Chairman. The chairman shall preside at all meetings of the
Managers, and shall perform such other duties as may from time to time be requested by the
Managers. The current chairman shall be Xxxxxxx X. Xxxxxxxx.
Section 3.7 The President. The president shall have general supervision over the
business and operations of the Company, subject, however, to the control of the Sole Member or the
Managers and the chairman. The president shall sign, execute, and acknowledge, in the name of the
Company, deeds, mortgages, bonds, contracts or other instruments, authorized by the Managers or by
this Agreement; and, in general, shall perform all duties incident to the office of the president
and such other duties as from time to time may be assigned by the Managers and the chairman. The
current president shall be Xxxx Xxxxxxxx.
Section 3.8 The Secretary. The secretary shall attend all meetings of the Managers and
all committees thereof and shall record all votes of the members and of the Managers and the
minutes of the meetings of the members and of the Managers and of committees of the Managers in a
book or books to be kept for that purpose; shall see that notices are given and records and reports
property kept and filed by the Company as required by law; and, in general, shall perform
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all duties incident to the office of secretary, and such other duties as may from time to time be
assigned by the Sole Member, the Managers or the president. The current secretary shall be Xxxx
Xxxxx.
Section 3.9 The Treasurer. The treasurer or an assistant treasurer shall have or
provide for the custody of funds or other property of the Company; shall collect and receive or
provide for the collection and receipt of moneys earned by or in any manner due to or received by
the Company; shall deposit all funds in its custody as treasurer in such banks or other places
of deposit as the Managers may from time to time designate; shall, whenever so required by the
Sole Member or the Managers, render an account showing all transactions as treasurer, and the
financial condition of the Company; and, in general, shall discharge such other duties as may from
time to time be assigned by the Managers or the president. The current treasurer shall be Xxxxxx
Xxxxx.
Section 3.10 Indemnification of the Officers. Except as otherwise prohibited by the
Act, the Company shall indemnify, defend and hold harmless the Officers against all Losses, to the
extent the same arise directly or indirectly from the conduct of the business of the Company,
except any Losses caused by self-dealing or willful misconduct by the Officers.
ARTICLE IV
Capitalization and Assignments
Section 4.1 Capital Contributions. The Sole Member shall have the right to make
capital contributions to the Company from time to time. Neither the Company nor the Managers may
require the Sole Member to make any additional capital contributions.
Section 4.2 Use of Capital Contributions. The Capital Contributions made pursuant to
this Article shall be used, together with other funds available to the Company, to engage in the
business and for the payment of the liabilities and obligations of the Company.
Section 4.3 Assignments. The Sole Member may assign in whole or in part its limited
liability company interest in the Company.
ARTICLE V
The Sole Member
Section 5.1 Activities of the Sole Member. The Sole Member and any affiliates of
the Sole Member may engage in or hold an interest in other business ventures of any nature,
including ventures and activities similar to and competitive with the Company.
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Section 5.2 Membership Interests Certificated. The Company shall be authorized to
issue 100 membership units of which all 100 membership units shall be issued to Sole Member. The
interests of the Sole Member in the Company shall be certificated. Pursuant to and in accordance
with the provisions of 6 Del. Code Section 8-103(c), all membership interests shall be considered
and treated as “securities” (within the meaning of 6 Del. Code Section 8-102 (a)(15)) governed by
Article 8 of the Delaware Uniform Commercial Code. The Manager may cause any or all membership
interests to be evidenced and represented by a certificate of limited liability company interest
issued by the Company to the Member in form and substance as determined by the Manager. Any such
certificate is intended to be and shall be considered a “security certificate” within the meaning
of 6 Del. Code Section 8-102(a)(16). The membership interests represented or evidenced by such
certificate(s) are intended to be treated as and shall be considered “certificated securities”
within the meaning of 6 Del. Code Section 8-102(a)(4). The Manager is hereby authorized, empowered
and directed to execute and deliver any such certificate.
Section 5.3 Manner of Acting. Except as otherwise provided in the Act or the
Certificate or this Agreement, whenever any Company action is to be taken by vote of the members
of the Company, it shall be authorized upon receiving the prior written consent of the Sole
Member.
Section 5.4 Indemnification of the Sole Member. Except as otherwise prohibited by the
Law, the Company shall indemnify, defend and hold harmless the Sole Member against all claims,
actions, proceedings, demands, losses, damages, liabilities, costs and expenses (including, without
limitation, attorneys’ fees) to the extent same arise directly or indirectly from the conduct of
the business of the Company, except any Losses caused by self-dealing or willful misconduct by the
Sole Member.
ARTICLE VI
Dissolution
Section 6.1 Dissolution. The Company shall be dissolved upon the occurrence of any of
the following events (“Dissolution Event”):
(a) The consent of the Managers;
(b) The consent of the Sole Member;
(c) Upon the sale by the Company of all or substantially all of its assets;
(d) Upon the Company ceasing to be taxed as a partnership for Federal income tax purposes; or
(e) Upon the entry of a decree of judicial dissolution under 18-802 of the Act.
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Section 6.2 Application of Proceeds. Upon dissolution of the Company, the Managers
shall wind up the business of the Company and the assets of the Company shall be liquidated, and
the cash proceeds applied, first to the satisfaction of creditors and then to the Sole Member.
Section 6.3 Period of Liquidation. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of liabilities to creditors so as to
enable the Company to minimize losses; provided, that liquidating distributions shall be
made within the time specified in Treas. Reg. Section 1.704-l(b)(2)(ii)(b)(2).
ARTICLE V
Miscellaneous
Section 7.1 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all prior
understandings and agreements of the parties with respect thereto.
Section 7.2 Amendments. The Certificate and this Agreement may not be amended
except by the prior written consent of the Sole Member.
Section 7.3 Headings. The titles of the Articles and the headings of the Sections of
this Agreement are for convenience of reference only and are not to be considered in construing the
terms and provisions of this Agreement.
Section 7.4 Pronouns. All pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the person or persons, firm or corporation
may require in the context thereof.
Section 7.5 Waivers. The failure of any party to seek redress for violation of or to
insist upon the strict performance of any covenant or condition of this Agreement shall not prevent
a subsequent act, that would have originally constituted a violation, from having the effect of an
original violation.
Section 7.6 Severability. If any provision of this Agreement or its application to any
person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of
this Agreement and its application shall not be affected and shall be enforceable to the fullest
extent permitted by law.
Section 7.7 Further Assurances. The Sole Member shall execute all such certificates
and other documents and shall do all such other acts as the Managers deem appropriate to comply
with (a) the requirements of law for the formation of the Company, (b) any laws, rules, regulations
and third-party requests relating to the acquisition, operation or holding of the property of the
Company or (c) the intent and purposes of this Agreement.
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Section 7.8 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one and
the same instrument.
Section 7.9 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this
Limited Liability Company Operating Agreement of Eureka Networks, LLC as of the date first written
above.
| SOLE MEMBER: EUREKA BROADBAND CORPORATION |
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| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chairman of the Board | |||
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