LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF EUREKA HOLDINGS, LLC
Exhibit 3.145
This Limited Liability Company Operating Agreement is made and entered into as of
August , 2005 (the “Agreement”) for Eureka Holdings, 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 Holdings, 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 hold securities of
operating companies of the Sole Member and to carry on any 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
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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.
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 of Section 3.2. 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
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reports properly kept and filed by the Company as required by law; and, in general, shall perform
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 the 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.l 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 VII
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 Holdings, 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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