LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF OPEN SUPPORT SYSTEMS LLC
Exhibit 3.17
Open Support Systems, LLC
-34-
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (this “Agreement”) of Open Support Systems
LLC (the “Company”) is made and entered into to be effective for all purposes as of October
10, 2000 by Broadview Networks Holdings, Inc., a Delaware corporation (“Holdings”) and such
other persons as may from time to time be admitted as members of the Company in accordance with the
terms of this Agreement and the Connecticut Limited Liability Company Act, Conn. Gen. Stat, §34-100
et seq. as amended (the “Connecticut Act”). As used in this Agreement, the term
“Member” shall mean any one of Holdings (so long as it is a member of the Company) or any
other person or entity who is admitted as a member of the Company in accordance with this Agreement
and the Connecticut Act, and the term “Members” (whether one or more) shall mean Broadview
Networks Holdings, Inc. (so long as it is a member of the Company) and any other persons or
entities admitted as a member of the Company in accordance with this Agreement and the Connecticut
Act.
RECITALS:
WHEREAS, the Member desires to adopt and approve the Agreement, which shall supersede in its
entirety the Operating Agreement of the Company (f/k/a National CEJ, LLC), dated as of November
25, 1997, by and among the Member (f/k/a Coaxicom, Inc.), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇, as modified by the Exchange Agreement among such persons, dated as of January 29, 1998
(the “1997 Operating Agreement”).
NOW, THEREFORE, the undersigned hereby adopts the following as its “limited liability company
operating agreement” (as that term is used in the Connecticut Act):
1. Formation: The Company was formed as a limited liability company under the Connecticut Act
as of October 28,1997 (the “Formation Date”). The Member is hereby authorized to file and
record any amendments to the Certificate of Formation and such other documents as may be required
or appropriate under the Connecticut Act or the laws of any other jurisdiction in which the Company
may conduct business or own property.
2. Name and Principal Place of Business:
(a) The name of the Company is “OPEN SUPPORT SYSTEMS LLC”. The Members may change the name of
the Company or adopt such trade or fictitious names for use by the Company as the Members may from
time to time determine. All business of the Company shall be conducted under such name, and title
to all assets or property owned by the Company shall be held in such name.
(b) The principal place of business of the Company shall be at the Registered Office of the
Registered Agent, or at such other place or places as the Members may from time to time designate.
3. Registered Agent and Registered Office: The name of the Company’s registered agent
for service of process shall be The Corporation Trust Company (the “Registered Agent”),
and the address of the Company’s Registered Agent and the address of the Company’s registered
office in the State of Connecticut shall be ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Registered Office”). The Registered Agent and the Registered Office of the Company may be
changed from time to time by the Members.
4. Term: The term of the Company is deemed to have commenced on the Formation Date and
shall continue until terminated pursuant to the provisions of this Agreement by the Members.
5. Purpose: The principal purposes and business of the Company shall be to engage in
any lawful act or activity for which a limited liability company may be organized under the
Connecticut Act, including, without limitation, either directly or indirectly by being a member,
shareholder, partner or venturer of one or more entities, and to engage in one or more of the
following activities: acquire, own, hold, service, manage, develop, operate, lease, finance,
refinance, mortgage, market, promote, sell and otherwise deal real and personal property interests
and conduct such other activities as may be necessary, advisable, convenient or appropriate to
promote or conduct the business of the Company as set forth herein, including, but not limited to,
entering into partnership agreements in the capacity of a general or a limited partner, becoming a
member of a joint venture or a limited liability company, owning stock in corporations and the
incurring of indebtedness and the granting of liens and security interests on the real and personal
property of the Company; it being agreed that each of the foregoing is an ordinary part of the
Company’s business.
6. Member: Holdings, whose address is set forth in paragraph 17(b) of this Agreement,
is the single and sole member of the Company and shall be shown as such on the books and records of
the Company. Except as expressly permitted by this Agreement, no other person shall be
admitted as a member of the Company, and no additional interest in the Company shall be issued,
without the unanimous approval of the Members (whether one or more).
7. Management:
(a) Except as specifically limited herein or to the extent delegated by the written
agreement of the Members of the Company, (i) the business and affairs of the Company shall be
vested in and controlled by the Members (whether one or more), which shall have the exclusive
power and authority, on behalf of the Company, to take any action of any kind not inconsistent
with this Agreement and to do anything and everything they deem necessary or appropriate to
carry on
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the business of the Company, (ii) each of the Members shall have full, exclusive and complete
discretion in the management and control of the Company for the purposes set forth above in
paragraph 5, (iii) all decisions relating to the business and affairs of the Company, including,
without limitation, all decisions required or permitted to be made by the Members under this
Agreement and all decisions required or permitted to be made by the Company as a member, partner
or other beneficial owner of any other entity, may be made by, and all action proposed to be
taken by or on behalf of the Company, may be taken by any one of the Members; and (iv) any one of
the Members shall have full power and authority to execute all documents and take all other
actions on behalf of the Company and thereby bind the Company and the Members with respect
thereto.
(b) The implementation of any decision made by any Member may be through any person or entity
selected by such Member. All approvals and consents required herein may be prospective or
retroactive.
(c) The Members, to the extent of their rights and powers set forth in this Agreement, are
agents of the Company for the purpose of the Company’s business, and the actions of any Member
taken in accordance with such rights and powers shall bind the Company. The Members shall exercise
their authority as such in their capacities as members of the Company. The Company shall not have
any “managers” within the meaning of the Connecticut Act.
8. Initial Capital Contributions and Percentage Interests:
(a) Holdings is the sole Member of the Company.
(b) Each Member shall have an interest in the Company expressed as a percentage of the whole
(“Percentage Interest”). As the single and sole Member of the Company, the Percentage
Interest of Holdings is 100%.
9. Additional Capital Contributions: If, at any time or from time to time, additional
funds are required by the Company to meet the obligations or needs of the Company, including,
without limitation, to satisfy any operating deficit, and there are “not sufficient reserves held
by the Company or available cash flow (a “Shortfall”), Holdings may (but shall not be
obligated to) request that the Members make further Capital Contributions (“Additional Capital
Contributions”) in the amount of such Shortfall. If so requested by Holdings, each Member,
within fifteen (15) business days thereafter, shall contribute its pro rata share (based upon its
relative Percentage Interest) of the amount of the applicable Shortfall.
10. Tax Matters:
(a) The undersigned intends for the Company to not be regarded as an entity separate from
its owner for federal income tax purposes, pursuant to Treasury Regulation Section 301.7701-3.
However, if it is determined that the Company is a partnership for federal tax purposes, this
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Agreement shall be amended to provide for allocation provisions and other provisions necessary and
consistent with partnership status.
(b) To the extent applicable, Holdings shall act as the “tax matters partner” within the
meaning of Section 6231(a)(7) of the Code.
11. Distributions: After providing for the satisfaction of all the current debts and
obligations of the Company and after any required payments on any loan or other financing, the
Company shall make such distributions of the Company’s net cash flow available for distribution (as
determined by the unanimous consent of the Members), including distributions of net cash flow from
operations, net proceeds of any interim capital transaction and net proceeds available upon
dissolution and winding up of the Company (such net cash flow, net proceeds from interim capital
transactions and net proceeds upon dissolution and winding up of the Company being herein sometimes
referred to as the “Distributable Cash”) (in each case after establishment of appropriate
and reasonable reserves, as determined by the unanimous consent of the Members in their sole and
absolute discretion), as determined by the Members to the Members in accordance with and in
proportion to their respective Percentage Interests in the Company.
12. Dissolution and Termination:
(a) The Company shall be dissolved and its business wound up upon the earlier to occur of any
of the following events:
(i) The expiration of the term of the Company;
(ii) The written consent of all of the Members; or
(iii) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any
Member or the occurrence of any other event which terminates the continued membership of a
Member in the Company, unless within 90 days after such event, a majority-in-interest of
the remaining Members agree in writing to continue the business of the Company and there
is at least one remaining Member.
(b) Upon dissolution, the Company’s business shall be liquidated in an orderly manner. The
Members shall act jointly as the liquidator (unless they jointly elect to appoint a liquidator) to
wind up the business of the Company pursuant to this Agreement. If there shall be no remaining
Member, the successors-in-interest of the last Member may approve one or more liquidators to act as
the liquidator in carrying out such liquidation. In performing its duties, the liquidator is
authorized to sell, distribute, exchange or otherwise dispose of the assets of the Company in
accordance with the Connecticut Act and in any reasonable manner that the liquidator shall
determine to be in the best interest of the Members or their successors-in-interest.
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(c) In the event it becomes necessary in connection with the liquidation of the Company to make a
distribution of property in kind, such property shall be transferred and conveyed to the Members
so as to vest in each of them, as a tenant-in-common, an undivided interest in the whole of such
property equal to their interests in the properly based upon the amount of cash that would be
distributed to each of the Members in accordance with paragraph 11 hereof if such property were
sold for an amount of cash equal to the fair market value of such property, as determined by the
liquidator in good faith.
13. Transfers of Interests:
(a) No Member shall have the right to sell, assign, pledge, transfer or otherwise dispose of
all or any part of its interest in the Company without the unanimous approval of all Members, and
any purported sale, assignment, transfer or other disposition of all or any part of an interest in
the Company in contravention hereof shall be null and void and of no force and effect.
(b) No transferee of all or any portion of any Member’s interest in the Company shall be
admitted as a substitute or additional member of the Company unless (i) such transfer is in full
compliance with the provisions of this Agreement, (ii) such transfer has been approved in writing by
each of the other Members (which approval maybe withheld in their sole and absolute discretion) and
(iii) such transferee shall have executed and delivered to the Company such instruments as
the other Members reasonably deem necessary or desirable to effectuate the admission of such
transferee as a member of the Company and to confirm the agreement of such transferee to be bound
by all, the terms, conditions and provisions of this Agreement.
14. Liability of the Members: Except as otherwise expressly provided in the
Connecticut 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
no Member shall be obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member. Except as otherwise expressly provided in the Connecticut Act,
the liability of each Member shall be limited to the amount of capital contributions, if any,
required to be made by such Member in accordance with the provisions of this Agreement, but only
when and to the extent the same shall become due pursuant to the provisions of this Agreement.
15. Waiver of Partition and Nature of Interest in the Company. Except as otherwise
expressly provided in this Agreement, each of the Members hereby irrevocably waives any right or
power that such Member might have to cause the Company or any of its assets to be partitioned, to
cause the appointment of a receiver for all or any portion of the assets of the Company, to compel
any sale of all or any portion of the assets of the Company pursuant to any applicable law, or to
file a complaint or to institute any proceeding at law or in equity to cause the termination,
dissolution and liquidation of the Company. Each of the Members has been induced to enter into this
Agreement in reliance upon the waivers set forth in this paragraph 15, and without such waivers, no
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Member
would have entered into this Agreement. No Member shall have any interest in any specific
assets of the Company. The interest of all Members in this Company are personal property.
16. Books,
Records, Accounting And Reports:
(a) Books and Records: The Company shall maintain, or cause to be maintained, in a
manner customary and consistent with good accounting principles, practices and procedures, a
comprehensive system of office records, books and accounts (which records, books and accounts shall
be and remain the property of the Company) in which shall be entered fully and accurately each and
every financial transaction with respect to the ownership and operation of the property of the
Company. Such books and records of account shall be prepared and maintained at the principal place
of business of the Company or such other place or places as may from time to time be determined by
the Members. Each Member or its duly authorized representative shall have the right to inspect,
examine and copy such books and records of account at the Company’s office during reasonable
business hours. A reasonable charge for copying books and records may be charged by the Company.
(b) Accounting and Fiscal Year: The books of the Company shall be kept on the accrual
basis and the Company shall report its operations for tax purposes on the accrual method. The
fiscal year of the Company shall end on December 31 of each year, unless a different fiscal year
shall be required by the Code.
(c) The Company Accountant: The Company shall retain as the regular accountant and
auditor for the Company (the “Company Accountant”) the accounting firm designated by the
Members. The fees and expenses of the Company Accountant shall be a Company expense.
(d) Reserves: The Members may, subject to such conditions as they shall determine,
establish reserves for the purpose and requirements as they may deem appropriate.
17. Miscellaneous:
(a) Further Assurances: Each Member agrees to execute, acknowledge, deliver, file,
record and publish such further instruments and documents, and do all such other acts and things as
may be required by law, or as may be required to carry out the intent and purposes of this
Agreement.
(b) Notices: All notices, demands, consents, approvals, requests or other
communications which any party to this Agreement may desire or be required to give hereunder
(collectively, “Notices”) shall be in writing and
shall be given by (i) personal delivery,
(ii) facsimile transmission or (iii) a nationally recognized overnight courier service, fees
prepaid, addressed to such party at the address set forth opposite its name of the signature page
of this Agreement, with a copy to:
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If to Holdings, to:
|
Broadview Networks Holdings, Inc. | |
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | ||
| ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ | ||
with a copy to:
|
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ |
Any Member may designate another addressee (and/or change its address) for Notices hereunder by a
Notice given pursuant to this paragraph 17(b). A Notice sent in compliance with the provisions of
this paragraph 17(b) shall be deemed given on the date of receipt.
(c) Successors and Assigns: This Agreement shall be binding upon the parties hereto
and their respective executors, administrators, legal representatives, heirs, successors and
assigns, and shall inure to the benefit of the parties hereto and, except as otherwise provided
herein, their respective executors, administrators, legal representatives, heirs, successors and
assigns.
(d) Severability: In case any one or more of the provisions contained in this
Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein and other
application thereof shall not in any way be affected or impaired thereby.
(e) Amendments. This Agreement may be amended only by a written instrument executed by
a majority in interest of the Members, provided that any such amendment must be executed by
Holdings and any other Member adversely affected by such amendment.
(f) Governing Law: This Agreement shall be governed by and construed in accordance
with the laws of the State of Connecticut applicable to agreements made and to be performed wholly
within that State.
(g) Attorney
Fees: If the Company or any Member obtains a judgment against any Member
by reason of the breach of this Agreement or the failure to comply
with the terms hereof,
reasonable attorneys’ fees and costs as fixed by the court shall be included in such judgment.
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(h) Captions: All titles or captions contained in this Agreement are inserted only as
a matter of convenience and for reference and in no way define,
limit, extend, or describe the
scope of this Agreement or the intent of any provision in this Agreement.
(i) Creditors
Not Benefited: Nothing contained in this Agreement is intended or shall
be deemed to benefit any creditor of the Company or any member, and no creditor of the Company
shall be entitled to require the Company or the Members to solicit or accept any capital
contribution for the Company or to enforce any right which the Company or any Member may have
against any Member under this Agreement.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth
in the introductory paragraph hereof.
| BROADVIEW NETWORK HOLDINGS, INC. |
||||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| President | ||||