OPERATING AGREEMENT OF LIMITED LIABILITY COMPANY FOR S.T.S., LLC A TENNESSEE LIMITED LIABILITY COMPANY
Exhibit 3.22
OPERATING AGREEMENT OF LIMITED LIABILITY COMPANY
FOR
S.T.S., LLC
A TENNESSEE LIMITED LIABILITY COMPANY
FOR
S.T.S., LLC
A TENNESSEE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (“Agreement”) is made and adopted as of the 16th day of December,
2002, as the Operating Agreement of S.T.S., LLC, a Tennessee limited liability company (the
“Company”), by and between the person named as a Member on Exhibit A attached hereto and
all other persons who may hereafter become Members (as defined below) (the “Member” or
collectively, the “Members”).
1. Articles of Organization. The date of formation and existence of the Company shall
be the date of filing of the Articles of Organization with the Secretary of State of Tennessee. The
Company is formed pursuant to and in accordance with the Tennessee Limited Liability Company Act,
T.C.A. §§ 00-000-000 et seq. (the “Act”).
2. Name. The name of the Company is S.T.S., LLC. The Board of Governors (as
hereinafter defined) may change the name of the Company upon ten (10) business days’ notice to the
Member.
3. Purpose and Powers. The purpose of the Company is to engage in any activity for
which limited liability companies may be organized in the State of Tennessee. The Company shall
possess and may exercise all of the powers and privileges granted by the Act or by any other law or
by this Agreement, together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion or attainment of the business
purposes or activities of the Company.
4. Term. The term of the Company commenced on the date hereof, being the date the
Articles of Organization of the Company was filed at the Office of the Secretary of State of the
State of Tennessee, and shall continue until the winding up and liquidation of the Company is
completed and its business is terminated following a dissolution event, as provided in Section 16
hereof.
5. Registered Office. The registered office of the LLC in the State of Tennessee is
located at CT Corporation System, 000 Xxxxx Xxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000.
6. Registered Agent. The name and address of the registered agent of the Company for
service of process on the Company in the State of Tennessee is CT Corporation System, 000 Xxxxx Xxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or any successor as appointed by the Board of
Governors.
7. Admission of Member. Simultaneously with the execution and delivery of this
Agreement and the filing of the Articles of Organization with the Office of the Secretary of State
of the State of Tennessee, Dycom Investments, Inc. is admitted as the sole Member of the Company in
respect of the Membership Interest (as hereinafter defined) being acquired hereunder.
8. Membership Interest. The Company shall be authorized to issue a single class of
Limited Liability Company Membership Interests (as defined in the Act, the “Membership
Interest”) that shall not be certificated, and shall include any and all benefits to which the holder of such
Membership Interest may be entitled in this Agreement, together with all obligations of such person
to comply with the terms and provisions of this Agreement. Simultaneously with the execution of
this Agreement, the sole Membership Interest of the Company is hereby issued to the Member.
9. Capital Contributions. The Member has made, or shall make, the initial Capital
Contributions described for that Member on Exhibit A at the time and on the terms specified
on Exhibit A. If no time for contribution is specified, such initial Capital Contribution
shall be made upon the filing of the Articles of Organization with the Tennessee Secretary of
State. The Member may contribute to the Company such money or property as it shall from time to
time decide.
10. Tax Characterization and Returns. It is the intention of the Member that the
Company be disregarded for federal and all relevant state income tax purposes and that the
activities of the Company be deemed to be activities of the Member for such purposes. All
provisions of the Company’s Articles of Organization and this Agreement are to be construed so as
to preserve that tax status. The Board of Governors is hereby authorized to file any necessary
elections with any tax authorities and shall be required to file any necessary tax returns on
behalf of the Company with any such tax authorities.
11. Management.
a. Board of Governors. The management of the Company shall be vested in a Board of
Governors (the “Board of Governors”) elected by the Member. The total number of members on the
Board of Governors (the “Governors”) shall initially be two unless otherwise fixed at a different
number by an amendment hereto or a resolution signed by the Member. The Member hereby elects as the
initial Governors of the Company, the individuals set forth on Exhibit B attached hereto,
who shall serve until their respective successors are elected and qualified. A Governor shall
remain in office until removed by a written instrument signed by the Member or until such Governor
resigns in a written instrument delivered to the Member or such Governor dies or is unable to
serve. In the event of any such vacancy, the Member may fill the vacancy. Each Governor shall have
one (1) vote. Except as otherwise provided in this Agreement, the Board of Governors shall act by
the affirmative vote of a majority of the total number of Governors. Each Governor shall perform
his or her duties as such in good faith, in a manner he reasonably believes to be in the best
interests of the Company, and with such care as an ordinarily prudent person in a like position
would use under similar circumstances. A person who so performs his duties shall not have any
liability by reason of serving or having served as a Governor. A Governor shall not be liable under
a judgment, decree or order of court, or in any other manner, for a debt, obligation or liability
of the Company.
b. Meetings and Powers of Board of Governors. The Board of Governors shall
establish meeting times, dates and places and requisite notice requirements and adopt rules or
procedures consistent with the terms of this Agreement and the Act. Any action required to be taken
at a meeting of the Board of Governors or any action that may be taken at a meeting of the Board of
Governors, may be taken at a meeting held by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at such meeting.
Notwithstanding anything to the contrary in
this Section 11, the Board of Governors may take
without a meeting any action that may be taken by the Board of Governors under this Agreement if
such action is approved by the unanimous written consent of the Governors.
Except as otherwise provided in this Agreement, all powers to manage the business and
affairs of the Company shall be exclusively vested in the Board of Governors and the Board of
Governors may exercise all powers of the Company and do all such lawful acts as are not by statute,
the Articles of Organization or this Agreement directed or required to be exercised or done by the
Member and in so doing shall have the right and authority to take all actions which the Board of
Governors deems necessary, useful or appropriate for the management and conduct of the business of
the Company; provided, however, that the Member may amend this Agreement at any time and thereby
broaden or limit the Board of Governors’ power and authority.
c. Managers. The Company shall have Managers who are appointed by the Board of
Governors. The Managers must include a Chief Manager and President and a Secretary and may include
one or more Vice Managers, one or more Assistant Secretaries, a Treasurer and one or more Assistant
Treasurers. The Board of Governors may elect Managers at such additional times as it deems
advisable. Each Manager shall serve until his successor is elected and qualified or until his
earlier resignation or removal. Any number of offices may be held by the same person, except the
offices of Chief Manager and President and Secretary. The initial managers of the Company shall be
as set forth on Exhibit C attached hereto. The powers and duties of the officers shall be
as follows:
(1) Chief Manager and President. The Chief Manager and President shall have, subject
to the supervision, direction and control of the Board of Governors, the general powers and duties
of supervision, direction and management of the affairs and business of the Company usually vested
in the president of a corporation, including, without limitation, all powers necessary to direct
and control the organizational and reporting relationships within the Company.
(2) Vice Manager(s). Each Vice Manager shall have such powers and perform such duties
as may from time to time be assigned to him or her by the Board of Governors or the Chief Manager
and President.
(3) Secretary. The Secretary shall attend meetings of the Board of Governors and
meetings of the Member and record all votes and minutes of all such proceedings in a book kept for
such purpose. He or she shall have all such further powers and duties as generally are incident to
the position of a secretary of a corporation or as may from time to time be assigned to him or her
by the Board of Governors or the Chief Manager and President.
(4) Assistant Secretary(ies). Each Assistant Secretary shall have such powers and
perform such duties as may from time to time be assigned to him or her by the Board of Governors,
the Chief Manager and President, or the Secretary.
(5) Treasurer. The Treasurer shall have custody of the Company’s funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit or cause to be deposited moneys or
other valuable effects in the name and to the credit of the Company in such depositories as may be designated by
the Board of Governors. The Treasurer shall also maintain adequate records of all assets,
liabilities, and transactions of the Company and shall see that adequate audits thereof are
currently and regularly made. The Treasurer shall have such other powers and perform such other
duties that generally are incident to the position of a treasurer of a corporation or as may from
time to time be assigned to him or her by the Board of Governors or the Chief Manager and
President.
(6) Assistant Treasurers. Each Assistant Treasurer shall have such powers and
perform such duties as may from time to time be assigned to him or her by the Board of Governors,
the Chief Manager and President, or the Treasurer.
d. Indemnification of the Member, Governors and Officers.
(1) Indemnification. Subject to any limitations set forth in the Articles of
Organization of the Company and Tennessee Code Annotated Section 00-000-000, the Company shall
indemnify and advance expenses (subject to the provisions of Section 11(d)(2) below) to each
present and future Governor or Manager of the Company (and, in either case, his heirs, estate,
executors or administrators) to the full extent allowed by the laws of the State of Tennessee, both
as now in effect and as hereafter adopted. The Company may indemnify and advance expenses (subject
to the provisions of Section 11(d)(2) below) to any employee or agent of the Company who is not a
Governor or Manager (and his heirs, estate, executors or administrators) to the same extent as to a
Governor or Manager, if the Board of Governors determines that it is in the best interests of the
Company to do so. The Company shall also have the power to contract with any individual Governor,
Manager, employee, or agent for whatever additional indemnification the Board of Governors shall
deem appropriate.
(2) Advancement of Expenses. Pursuant to Tennessee Code Annotated Section
48-243-101(d), the Company may pay for or reimburse the reasonable expenses incurred by a person
who can be indemnified under Section 11(d)(1) above and/or applicable Tennessee law, if (A) the
responsible person furnishes to the Company a written affirmation of good faith belief that the
person has met the standard of conduct required under Tennessee Code Annotated Section
48243-101(b); (B) the responsible person furnishes the Company a written undertaking, executed
personally or on such person’s behalf, to repay the advance if it is ultimately determined that the
person is not entitled to indemnification; and (C) a determination is made that the facts then
known to those making the determination would not preclude indemnification under applicable
Tennessee law.
(3) Claims. With respect to any person made or threatened to be made a party to
any Proceeding, by reason of the fact that such person is or was a Member, Governor or Manager of
the Company, or is or was serving at the request of the Company as a director or officer of another
corporation, partnership, limited liability company, joint venture, trust, or other enterprise, the
rights to indemnification and to the advancement of expenses conferred in subsections (1) and (2)
above shall be contract rights. If a claim under subsection (1) or (2) above with respect to such
rights is not paid in full by the Company within sixty days after a written demand has been
received by the Company, except in the case of a claim for an advancement of expenses by a Manager,
Governor or Member of the Company, in which case the applicable period shall be twenty days, the
person seeking to enforce a right to indemnification or an
advancement of expenses hereunder may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the person seeking to enforce a
right to indemnification or an advancement of expenses hereunder or the person from whom the
Company seeks to recover an advancement of expenses shall also be entitled to be paid the expenses
(including attorneys’ fees) of prosecuting or defending such suit. In any suit brought by a person
seeking to enforce a right to indemnification hereunder (but not in a suit brought by a person
seeking to enforce a right to an advancement of expenses hereunder) it shall be a defense that the
person seeking to enforce a right to indemnification has not met any applicable standard for
indemnification under applicable law. In any suit brought by the Company to recover an advancement
of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such
expenses upon a final adjudication that the person from whom the Company seeks to recover an
advancement of expenses has not met any applicable standard for indemnification under applicable
law. With respect to any suit brought by a person seeking to enforce a right to indemnification
hereunder (including any suit seeking to enforce a right to the advancement of expenses hereunder)
or any suit brought by the Company to recover an advancement of expenses pursuant to the terms of
an undertaking, neither the failure of the Company to have made a determination prior to
commencement of such suit that indemnification of such person is proper in the circumstances
because such person has met the applicable standards of conduct under applicable law, nor an actual
determination by the Company that such person has not met such applicable standards of conduct,
shall create a presumption that such person has not met the applicable standards of conduct or, in
a case brought by such person seeking to enforce a right to indemnification, be a defense to such
suit. In any suit brought by a person seeking to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Company to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the person seeking to enforce a right to
indemnification or to an advancement of expenses or the person from whom the Company seeks to
recover an advancement of expenses is not entitled to be indemnified, or to such an advancement of
expenses, under this Section 11 or otherwise shall be on the Company. Notwithstanding the
foregoing, all claims for indemnification provided for in this Section 11(d)(3) must comply with
the provisions for indemnification pursuant to Tennessee Code Annotated Section 00-000-000.
(4) Non-exclusive Rights. The indemnification and advancement of expenses
provided in this Section 11 shall not be deemed exclusive of any other rights to which any person
indemnified may be entitled under any agreement or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be such Member, Governor, Manager, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such person.
(5) Insurance. The Company may purchase and maintain insurance on behalf of any person
who is or was a Member, Governor, Manager, employee, or agent of the Company, or is or was serving
at the request of the Company as a director, manager, employee, or agent of another corporation,
partnership, limited liability company, joint venture, trust, or other enterprise against any
liability asserted against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the Company
would have the power to indemnify
such person against such liability under the provisions of this Section 11 or otherwise.
e. Rights and Powers of the Member. The Member shall not have any right or power
to take part in the management or control of the Company or its business and affairs or to act for
or bind the Company in any way. Notwithstanding the foregoing, the Member has all the rights
and powers specifically set forth in this Agreement and, to the extent not inconsistent with
this Agreement, in the Act. The Member has no voting rights except with respect to those matters
specifically set forth in this Agreement and, to the extent not inconsistent herewith, as required
in the Act. Notwithstanding any other provision of this Agreement, no action may be taken by the
Company (whether by the Board of Governors, Managers, or otherwise) in connection with any of the
following matters without the written consent of the Member:
(1) the dissolution or liquidation, in whole or in part, of the Company, or the institution of
proceedings to have the Company adjudicated bankrupt or insolvent;
(2) the filing of a petition seeking or consenting to reorganization or relief under any
applicable federal or state bankruptcy law;
(3) consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or a substantial part of its property;
(4) the merger of the Company with any other entity;
(5) the sale of all or substantially all of the Company’s assets; or
(6) the amendment of this Agreement
12. Distributions. Except as otherwise provided in Section 17 hereof, cash, if any,
shall be distributed at such time(s) as the Board of Governors may determine in accordance with the
Membership Interests of Members.
13. Assignments. The Member may assign all or any part of its Membership Interest in
the sole discretion of the Member. Any transferee of all or any portion of a Membership Interest
shall automatically be deemed admitted to the Company as a substituted Member in respect of the
Membership Interest or such portion thereof transferred by the transferring Member and the
transferring Member shall be deemed withdrawn in respect of such Membership Interest or portion
thereof; provided, in any event, that the transferee must agree in a document or instruction
reasonably acceptable to the Board of Governors to be bound by the terms of this Agreement.
14. Withdrawal. The Member may withdraw from the Company at any time. Upon any such
permitted withdrawal, the withdrawing Member shall receive the fair value of its Membership
Interest, determined as of the date it ceases to be a Member.
15. Additional Members. Additional Persons may be admitted as Members in the Company
only with the consent of the Member.
16. Dissolution. The Company shall be dissolved and its affairs wound up, upon the
first to occur of the following events (which, unless the Members agree to continue the business,
shall constitute Dissolution Events):
a. by affirmative vote of a majority of the Members entitled to vote;
b. the occurrence of any event that terminates the continued membership of a Member serving as
a Governor pursuant to the Act, unless there are at least two (2) remaining Members and the
existence and business of the Company is continued by the consent of all of the remaining Members
within 90 days after such termination; or
c. as otherwise may be required by law.
17. Distributions upon Dissolution. If dissolution occurs pursuant to Section 16 the
Company shall deliver a notice of dissolution to the Secretary of State for filing, in accordance
with the Act. Upon dissolution, the Company shall cease carrying on the Company business, except
insofar as may be necessary for the winding up of its business, but the Company is not terminated,
and continues until the winding up of the affairs of the Company is completed and articles of
termination have been accepted by the Secretary of State for filing.
a. Distribution of Assets on Dissolution. Upon the winding up of the Company, the
Company Property shall be distributed:
(1) to creditors, including Members who are creditors, to the extent and in the order
permitted by law, in satisfaction of the Company’s liabilities; and
(2) to Members in accordance with positive Capital Account balances taking into account all
Capital Account adjustments for the Company’s taxable year in which the liquidation occurs.
Liquidation proceeds shall be paid within 60 days of the end of the Company’s taxable year or, if
later, within 90 days after the date of liquidation. Such distributions shall be in cash or
Property (which need not be distributed proportionately) or partly in both, as determined by the
Board of Governors.
b. Winding Up and Articles of Termination. The winding up of the Company shall be
completed when all debts, liabilities, and obligations of the Company have been paid and discharged
or reasonably adequate provision therefore has been made, and all of the remaining property and
assets of the Company have been distributed to the Members. Upon the completion of winding up of
the Company, articles of termination shall be delivered to the Secretary of State for filing. The
articles of termination shall set forth the information required by the Act.
18. Compensation. No Member, Governor or Manager shall receive compensation for
services rendered to the Company. The Company shall reimburse the Member, any Governor or any
Manager for all expenses incurred and paid by any of them in the organization of the Company and in
the conduct of the Company’s business. The Board of Governor’s sole determination of which expenses
are allocated to and reimbursed as a result of the Company’s activities or business and the amount
of such expenses shall be conclusive. Such reimbursement shall be treated as expenses of the
Company.
19. Limited Liability. No Member, Governor or Manager shall have any liability for the
obligations of the Company except to the extent required by the Act.
20. Amendment. This Agreement may be amended only in a writing signed by the Member.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE OF TENNESSEE, EXCLUDING ANY CONFLICTS OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.
22. Severability. Except as otherwise provided in the succeeding sentence, every term
and provision of this Agreement is intended to be severable, and if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not
affect the legality or validity of the remainder of this Agreement. The preceding sentence shall be
of no force or effect if the consequence of enforcing the remainder of this Agreement without such
illegal or invalid term or provision would be to cause any party to lose the benefit of its
economic bargain.
23. Consent to Jurisdiction Provision. The Member hereby (i) irrevocably submits to
the non-exclusive jurisdiction of any Delaware State court or Federal court sitting in Wilmington,
Delaware in any action arising out of this Agreement, and (ii) consents to the service of process
by mail. Nothing herein shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other court.
IN WITNESS WHEREOF, the undersigned has caused this Agreement of Limited Liability Company to
be effective as of the 16th day of December 2002.
| DYCOM INVESTMENTS, INC. | ||||||
| By: | /s/ XXXXXXX X. XXXX | |||||
| Name: | Xxxxxxx X. Xxxx | |||||
| Title: | Vice President, Treasurer & Secretary | |||||
EXHIBIT A
INITIAL MEMBERS
| Membership | Amount of Cash | |||||||
| Member | Interest | Contribution | ||||||
Dycom Investments, Inc. |
100 | % | $100 | |||||
EXHIBIT B
INITIAL GOVERNORS
Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxx
EXHIBIT C
INITIAL MANAGERS
Chief Manager and President
|
Xxxxx Xxxxxx | |
Secretary and Treasurer
|
Xxxxxxx X. Xxxx | |
Vice Manager
|
Xxxxxx Xxxxxxx | |
Vice Manager
|
Xxxxxxx X. Store | |
Assistant Vice Manager
|
Xxxxxxx Xxxxxxx | |
Assistant Treasurer
|
Xxxx X. xxXxxx, Xx. | |
Assistant Secretary
|
Xxxxxx Xxxxxxxxxxxx |
