OPERATING AGREEMENT ZAYO GROUP, LLC
Exhibit 3.2
ZAYO GROUP, LLC
This Operating Agreement (the “Agreement”) of Zayo Group, LLC, a Delaware limited
liability company (the “Company”), is made as of February 15, 2008, by those persons or entities
set forth on Exhibit A hereto, which may be amended from time to time as set forth herein (each a
“Member” and collectively the “Members”).
Now, Therefore, the parties agree as follows:
1. Name. The name of the Company is Zayo Group, LLC.
2. Purposes and Powers. The Company is organized for the purpose of engaging in any lawful
act or activity for which a limited liability company may be organized under the laws of the State
of Delaware.
3. Term. The Company shall commence upon the filing of the Company’s Certificate of Formation
in the Office of the Secretary of State of the State of Delaware and shall continue until the
Manager (as defined below) consents to the Company’s dissolution.
4. Members; Capital Commitments; Membership Units.
(a) The economic interests in the Company shall be represented by membership interest units
(the “Units”). The Member’s interest in the Company, including the Member’s interest in income,
gains, losses, deductions and expenses of the Company and the right to vote on certain matters as
provided in this Agreement, shall be represented by the Units owned by the Member. The ownership of
Units shall entitle the Member to allocations of income and loss and other items and distributions
of cash and other property as set forth in this Agreement. Each Unit shall entitle the Member
owning such Unit to one vote on any matter voted on by the Members as provided in this Agreement or
as required by applicable law. The name, place of residence and capital commitment (“Capital
Commitment”) to the Company of the Member and the number of Units held by the Member are set forth
on Exhibit A attached hereto and incorporated herein by reference. Upon the consent of the Manager,
the Company may issue additional Units, provided, however, that no person or entity shall become a
Member unless and until such person or entity has explicitly accepted, assumed and agreed to be
subject to and bound by all of the terms, obligations and conditions of this Agreement, as the same
may have been further amended. The Member shall contribute the Member’s Capital Commitment to the
Company upon the execution of this Agreement in accordance with Exhibit A. In no event shall the
Member be required to contribute any amount in excess of the Member’s Capital Commitment as set
forth on Exhibit A.
(b) The form of Unit certificate attached hereto as Exhibit B is hereby approved and adopted
as the form of Unit certificate of the Company. The Company hereby authorizes the issuance of a
Unit certificate to the Member of the Company reflecting its membership interest in the Company.
For all purposes under this Agreement, the membership interest represented by such Unit
certificate and the certificate representing the same shall be
deemed a “security” or “securities” governed by Article 8 of the Uniform Commercial Code as in
effect from time to time in the State of Delaware.
5. Management.
(a) The Company shall be managed under the direction of a Board of Managers (the “Board,” and
each member thereof being referred to as a “Manager”) who shall be responsible for setting policies
and procedures for the operation of the Company. Except as set forth herein, the management and
operation of the Company are vested exclusively in the Board and the Board shall have the power on
behalf of and in the name of the Company to carry out and implement any and all of the objects and
purposes of the Company. The Board may, from time to time, delegate to one or more persons
(including any Member, officer or employee of the Company) such authority and responsibility as the
Board may deem advisable. Any delegation pursuant to this section may be revoked at any time by the
Board. The Board of Managers hereby designates to the officers of the Company the authority and
responsibilities for the day-to-day ordinary course operation of the Company. The officers of the
Company shall conduct the day to day operations of the Company in accordance with and subject to
the policies, procedures and guidelines approved and adopted by the Board. As of the date of this
Agreement the officers of the Company shall be: (i) ▇▇▇▇ ▇▇▇▇▇▇▇, President and Assistant
Secretary, (ii) ▇▇▇▇▇ Beer, Vice President, General Counsel and Secretary and (iii) ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Vice President and Chief Financial Officer.
(b) The Board shall initially consist of seven (7) Managers, who shall be comprised of the
same Managers that comprises the Board of Managers of Communications Infrastructure Investments,
LLC, a Delaware limited liability company (“CII”), as such Managers may be appointed and removed
pursuant to CII’s Amended and Restated Limited Liability Company Agreement dated as of May 22,
2007, as may be amended from time to time (the “CII LLC Agreement”). At any meeting of the Board,
each Manager shall have the same number of votes as such Manager shall then have as a manager of
CII pursuant to the LLC Agreement.
6. Allocations and Certain Tax Matters. A capital account will be maintained for the Member
in accordance with the rules set forth in Treasury Regulation Section 1.704-l(b)(2)(iv). All
income, gains, losses and expenses of the Company will be allocated (for capital accounting and
income tax purposes) so as to cause the sum of (1) the Member’s capital account, (2) the Member’s
share of “partnership minimum gain” (as defined in Treasury Regulation Section 1.704-2(b)(2)), and
(3) the Member’s “partner nonrecourse debt minimum gain” (as determined in accordance with
Treasury Regulation Section 1.704-2(i)(3)), to be equal to the amount that would be distributed to
the Member under this Agreement if the Company were to (a) liquidate the assets of the Company for
an amount equal to the book value of such property as determined for capital account purposes as
of the end of such fiscal period and (b) distribute the proceeds in accordance with the
distribution provision of this Agreement.
7. Distributions to Members. To the extent available after meeting the financial obligations
of the Company, and after providing any necessary reserves as determined by the Manager, the
Company shall distribute cash and other assets to the Member in a manner
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determined by the Manager, at such times and on such terms and conditions as deemed appropriate by
the Manager.
8. Liability of Members. Except as otherwise required by applicable law and as explicitly set
forth in this Agreement, no Member shall have any personal liability whatever in such Member’s
capacity as a Member, whether to the Company, to any other Member, to the creditors of the Company
or to any other third party, for the debts, liabilities, commitments or any other obligations of
the Company or for any losses of the Company, and therefore, the Member shall be liable only to
contribute the Member’s Capital Commitment to the Company as set forth on Exhibit A, subject to
the terms and conditions of this Agreement. The Member, as such, shall not be required to lend any
funds to the Company or to make any additional contribution of capital to the Company. The Member
may, with the consent of the Manager, make loans to the Company, and any loan by the Member to the
Company shall not be considered to be a capital contribution.
9. Exculpation. The Manager, the Manager’s members, directors, officers and partners
(collectively, the “Manager Affiliates”) and the officers of the Company shall not be liable to the
Member or any director, officer or partner of the Company for any conduct or actions, except for
conduct or actions adjudged not to have been undertaken in good faith or to constitute
recklessness, willful misconduct, gross negligence, a knowing violation of law or an intentional
material breach of this Agreement. The Manager, the Manager Affiliates and officers of the Company
may consult with counsel and accountants respecting Company affairs and shall be fully protected
and justified in acting in accordance with the advice of counsel or accountants, provided they have
been selected with reasonable care.
10. Indemnification. The Company shall indemnify, out of the assets of the Company only, the
Manager, the Manager Affiliates and the officers of the Company, and their respective agents, to
the fullest extent permitted by law and shall save and hold them harmless from and in respect of
all (A) reasonable fees, costs, and expenses, including legal fees, paid in connection with or
resulting from any claim, action, or demand against the Company, the Member, the Manager, the
officers of the Company, or their respective agents that arise out of or in any way relate to the
Company, the Company’s properties, business or affairs and (B) such claims, actions, and demands
and any losses or damages resulting from such claims, actions and demands, including amounts paid
in settlement or compromise (if recommended by attorneys for the Company) of any such claim, action
or demand; provided, however, that this indemnity shall not extend to conduct not undertaken in
good faith nor to any conduct that constitutes recklessness, willful misconduct, gross negligence,
a knowing violation of law or an intentional and material breach of this Agreement. Expenses
incurred by any indemnified person in defending a claim or proceeding covered by this section shall
be paid by the Company in advance of the final disposition of such claim or proceeding provided the
indemnified person undertakes to repay such amount if it is ultimately determined that such person
was not entitled to be indemnified. The provisions of this section shall remain in effect as to
each indemnified person whether or not such indemnified person continues to serve in the capacity
that entitled such person to be indemnified.
11. Liquidation. Upon termination, the Company shall be dissolved and wound-up. The Manager
shall proceed with the orderly sale or liquidation of the assets of the Company and
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shall apply and distribute the proceeds of such sale or liquidation in the following order of
priority, unless otherwise required by law: (A) first, to pay all expenses of liquidation; (B)
second, to pay all creditors of the Company in the order of priority provided by law or otherwise;
(C) third, to the establishment of any reserve that the Manager may deem necessary (such reserve
may be paid over to an escrow agent); and (D) fourth, to the Member. A reasonable amount of 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 Manager to minimize the losses attendant upon such
liquidation.
12. Amendments. The terms and provisions of this Agreement may be modified or amended at any
time and from time to time with the written consent of the Manager and the Member.
13. Miscellaneous. This Agreement constitutes the full, complete, and final operating
agreement of the Company and shall be binding upon the heirs, personal representatives and other
successors of the Member. This Agreement shall be construed in accordance with the internal laws
of the State of Delaware, without reference to such state’s conflicts of law principles.
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In Witness Whereof, this Operating Agreement has been executed as of the date first
above written.
| Member: | ||||||
| Zayo Group Holdings, Inc. | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. Beer | |||||
| Name: | ||||||
| Title: | Vice President, General Counsel and | |||||
| Secretary | ||||||
The securities evidenced by this Operating Agreement have not been registered under the United
States Securities Act of 1933, as amended (the “Act”), and may not be sold, transferred or assigned
unless pursuant to SEC Rule 144 or there is an effective registration statement under the Act
covering such securities or the company receives an opinion of counsel for the holder of these
securities reasonably satisfactory to the Company, stating that such sale, transfer, assignment or
hypothecation is exempt from the registration and prospectus delivery requirements of the Act.
Signature Page
Zayo Group, LLC Operating Agreement
Zayo Group, LLC Operating Agreement
EXHIBIT A
Zayo Group, LLC
| Member Name & Address | Units | |||
Zayo Group Holdings, Inc. |
1,000 | |||
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||
EXHIBIT B
Form of Unit Certificate
**Certificate No. **
Zayo Group, LLC
Membership Interest Units
THIS CERTIFIES THAT is the record holder of
(** **) membership
interest units (the “Units”) of Zayo GROUP, LLC, a Delaware limited liability company (the
“Company”) transferable only on the books of the Company, by the holder hereof, in person or by
duly authorized attorney, upon surrender of this Certificate properly endorsed.
The Units are issued pursuant to the terms and conditions of the Company’s Operating Agreement, as
may be amended, and the transfer of the related ownership rights may be effected in accordance
with the Company’s Operating Agreement, as may be amended. The Company’s Operating Agreement may
be obtained by the holder upon request and without charge at the principal office of the Company.
IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by its duly authorized
officer
this day
of ,
200 .
President or Vice President
|
Secretary or Assistant Secretary |
SEE ADDITIONAL LEGENDS ON REVERSE SIDE OF CERTIFICATE