Exhibit 3.3
Operating Agreement for
CBD Media LLC,
A Delaware Limited Liability Company
This Limited Liability Company Agreement (this "Agreement") of CBD
Media LLC is entered into as of March 7, 2002 by CBD Media Holdings LLC, a
Delaware limited liability company (the "Member").
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. (S) 18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. Name. The name of the limited liability company formed hereby is
CBD Media LLC (the "Company").
2. Certificates. An authorized person previously executed a
Certificate of Formation for the Company in accordance with Section 18-201 of
the Delaware Act which was duly filed with the Office of the Delaware Secretary
of State on February 28, 2002, as Document No. 3497538. The Member or an Officer
(as defined below) shall execute, deliver and file any other certificates (and
any amendments and/or restatements thereof) necessary for the Company to qualify
to do business in a jurisdiction in which the Company may wish to conduct
business.
3. Purpose. The purpose of the Company is to engage in any lawful
act or activity for which a limited liability company may be organized under the
Delaware Limited Liability Company Act.
4. Principal Business Office. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member. The Company may have such other or additional offices, either within or
without the State of Delaware, as the Member shall deem advisable.
5. Registered Office. The address of the registered office of the
Company in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
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 Delaware is
The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
7. Member. The mailing address of the Member is 000 Xxxx Xxxxxx,
0/xx/ Xxxxx, Xxxxxxxxxx, Xxxx 00000 or such other location as may be determined
by the Member.
8. Limited Liability. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be
solely the debts, obligations and liabilities of the Company, and the Member and
other members, if any, shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. Capital Contributions. The Member is deemed admitted as a member
of the Company upon the filing of the Certificate of Formation of the Company.
The Member and other members, if any, may each make any capital contributions in
such amounts and at such times as the Member determines advisable in its sole
and absolute discretion. The Company shall not pay any interest on any capital
contributions.
10. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated to the Member and other members, if any, as determined
by the Member.
11. Distributions.
Distributions shall be made to the Member and other members, if
any, at the times and in the aggregate amounts determined by the Board of
Directors. Notwithstanding the foregoing, the Company shall make a cash
distribution to the Member of an amount equal to forty four percent (44%) of the
Company's net taxable income for each fiscal year, such distribution to be paid
out during such fiscal year or up to ninety (90) days after the end of such
fiscal year as determined by the Member ("Tax Distribution"). Notwithstanding
the foregoing, no Member shall be obligated to contribute additional capital or
otherwise advance any funds to the Company in order to enable the Company to
make such Tax Distributions. Any and all Tax Distributions so made shall be
taken into account in calculating subsequent distributions to the Member, so
that the net amount distributed to the Member shall be equal to the net amount
that would have been distributed to the Member if the Tax Distributions not had
been distributed to the Member.
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not make a distribution to the Member or any
member, on account of their interest in the Company if such distribution would
violate Section 18-607 of the Act or other applicable law.
12. Management and Powers; Board of Directors; Bylaws. The Company
shall be manager-managed in accordance with the provisions of the Delaware Act
by a board of directors ("Board of Directors") composed of three (3) directors,
elected by the Member. In furtherance thereof, each Director is hereby deemed to
be a "manager" of the Company within the meaning of the Delaware Act. All
aspects of the business and affairs of the Company shall be managed, and all
decisions affecting the business and affairs of the Company shall be made, by
the Board of Directors. The initial directors are Xxxxx X. Xxxxxxxxx, Xxxxxxxx
Xxxxxxxx and a third director appointed by the two of them. Each director
serving on the board of directors shall hold office until a successor is duly
elected by Member. All agreements, contracts, and any and all other documents
and instruments affecting or relating to the business and affairs of the Company
shall be executed on behalf of the Company by any officer designated by the
Board of Directors alone and without execution by any Member. Any and all
documents and/or other instruments executed in accordance with the forgoing
provisions of this Section 14 shall bind the
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Company and each Member. Attached hereto as Exhibit A are the initial Bylaws of
the Company, which are hereby approved, ratified and adopted by the
Shareholders. Such Bylaws, as the same may be amended from time to time, are
hereby incorporated into this Agreement by this reference and expressly made a
part of this Agreement for all purposes.
13. Officers. The board of directors may, from time to time as it
deems advisable, appoint officers of the Company (the "Officers") and assign in
writing titles (including, without limitation, Chief Executive Officer,
President, Vice President, Secretary, and Treasurer) to any such person. Unless
the board of directors decides otherwise, if the title is one commonly used for
officers of a business corporation formed under the Delaware General Corporation
Law, the assignment of such title shall constitute the delegation to such person
of the authorities and duties that are normally associated with that office. Any
delegation pursuant to this Section 13 may be revoked at any time by the board
of directors subject to the rights, if any, of the affected officer under any
contract of employment with the Company.
14. Other Business. The Member and persons serving on the board of
directors may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
15. Exculpation and Indemnification.
a. No Member, other member, if any, director and/or officer,
shall be liable to the Company, or any other person or entity who has an
interest in the Company, for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Member, other member,
if any, director and/or officer in good faith on behalf of the Company and
in a manner reasonably believed to be within the scope of the authority
conferred on such Member, other member, if any, director and/or officer by
this Agreement, except that the Member, other member, if any, director
and/or officer shall be liable for any such loss, damage or claim incurred
by reason of his, her or its willful misconduct. To the fullest extent
permitted by applicable law, the Member, other member, if any, or person
who is or was a director and/or officer shall be entitled to
indemnification from the Company for any loss, damage or claim incurred by
the Member, other member, if any, or person who is or was a director and/or
officer by reason of any act or omission performed or omitted by the
Member, other member, if any, director and/or officer in good faith on
behalf of the Company and in a manner reasonably believed to be within the
scope of the authority conferred on the Member, other member, if any, or
person who is or was a director and/or officer by this Agreement or any
resolution of the Member or of the Board of Directors, except that no
Member, other member, if any, or person who is or was a director and/or
officer shall be entitled to be indemnified in respect of any loss, damage
or claim incurred by such Member, other member, if any, and/or officer by
reason of willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 15 shall be
provided out of and to the extent of Company assets only, and no member
shall have personal liability on account thereof.
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b. The Company may, at its expense, maintain insurance to
protect itself and the Member, other members, if any, directors and/or
officers; provided, however, that the Member, other members, if any,
directors and/or officers shall be given advance notice of the termination
or lapse of any insurance protecting such Member, other members, if any,
directors and/or officers.
c. To the fullest extent permitted by applicable law, expenses
(including legal fees and disbursements) incurred by the Member, other
members, if any, or persons who were or are directors and/or officers
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Member, other members, if any, directors
and/or officers to repay such amount if it shall be determined that the
Member, other members, if any, directors and/or officers are not entitled
to be indemnified as authorized in this Section 15.
d. The foregoing provisions of this Section 15 shall survive
any termination of this Agreement. No amendment to this Section 15 shall
affect the rights of the Member, other members, if any, or person who is or
was a director or officer under this Section 15 with respect to events or
occurrences prior to the amendment.
16. Assignments. The Member and other members, if any, may assign in
whole or in part their limited liability company interest, with the written
consent of the Member. If the Member or other member, if any, transfers all of
its interest in the Company pursuant to this Section, the transferee shall be
admitted to the Company upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement. Such
admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor member shall cease to be a
member of the Company.
17. Resignation. If the Company has more than one member, the Member
or other members, if any, may resign at anytime by submitting such resignation
in writing to the Company, the Member and the other members, if any. When a
member is permitted to resign pursuant to this Section, an additional member may
be admitted to the Company, subject to Section 18, upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. The resigning member shall cease to be a member of the Company
upon the written acceptance of the Member.
18. Admission of Additional Members. One (1) or more additional
members of the Company may be admitted to the Company with the written consent
of all other members.
19. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound
up upon the first to occur of the following: (i) the written consent of the
Member, (ii) the resignation or dissolution of the Member and all other
members, if any, or the occurrence of any other event which terminates the
continued membership of the Member and all other members, if any, in the
Company unless the business of the Company is continued
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in a manner permitted by the Act, or (iii) the entry of a decree of
judicial dissolution under Section 18-802 of the Act.
b. The bankruptcy of a member will not cause the member to
cease to be a member of the Company and upon the occurrence of such an
event, the business of the Company shall continue without dissolution.
c. In the event of dissolution, the Company shall conduct only
such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set
forth in Section 18-804 of the Act.
20. Separability of Provisions. Each provision of this Agreement
shall be considered separable and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement.
22. Entire Agreement. This Agreement constitutes the entire agreement
of the Member with respect to the subject matter hereof.
23. Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
24. Amendments. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
[Signatures Follow On Next Page]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the day and year first herein
written.
CBD MEDIA HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, President
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EXHIBIT A
BYLAWS
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