EXHIBIT 3.60
OPERATING AGREEMENT
OF
BLUE CHIP BROADCASTING LICENSES, LTD.
An Ohio Limited Liability Company
AS OF APRIL 30, 1999
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
BLUE CHIP BROADCASTING LICENSES, LTD.
THE UNDERSIGNED is executing this Limited Liability Company Operating
Agreement ("Agreement") for the purpose of forming a limited liability company
(the "Company") pursuant to the provisions of the Ohio Limited Liability Company
Act, 17 ORC Sections 1705 et seq. (the "Ohio Act"), and does hereby certify and
agree as follows:
1. Name; Formation. The name of the Company shall be Blue Chip
Broadcasting Licenses, Ltd., or such other name as the Members may
from time to time hereafter designate. The Company shall be formed
upon the execution and filing by any Member (each of which is hereby
authorized to take such action) of Articles of Organization of the
Company with the Secretary of State of the State of Ohio setting
forth the information required by Section 1705.04 of the Ohio Act.
2. Definitions: Rules of Construction. In addition to terms otherwise
defined herein, the following terms are used herein as defined
below:
"Capital Contribution" means, with respect to any Member, the
amount of capital contributed by such Member to the Company in
accordance with Section 8 hereof.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time (or any corresponding provisions of succeeding law).
"Effective Date" means the date of this Agreement.
"Event of Withdrawal of a Member" means the death, retirement,
resignation, expulsion, bankruptcy, or dissolution of a Member or
the occurrence of any other event that terminates the continued
membership of a Member in the Company.
"Initial Member" means Blue Chip Broadcasting, Ltd., an Ohio
limited liability company.
-2-
"Interest" means the ownership interest of a Member in the Company
(which shall be considered personal property for all purposes),
consisting of (i) such Member's Percentage Interest in profits,
losses, allocations, and distributions, (ii) such Member's right to
vote or grant or withhold consents with respect to Company matters
as provided herein or in the Ohio Act, and (iii) such Member's other
rights and privileges as herein provided.
"Majority in Interest of the Members" means Members whose
Percentage Interests aggregate to greater than 50 percent of the
Percentage Interests of all Members.
"Members" means the Initial Member and all other persons or
entities admitted as additional or substituted Members pursuant to
this Agreement, so long as they remain Members. Reference to a
"Member" means any one of the Members.
"Percentage Interest" means a Member's share of the profits and
losses of the Company and the Member's percentage right to receive
distributions of the Company's assets. The Percentage Interest of
each Member shall initially be the percentage set forth opposite
such Member's name on Schedule I hereto, as such Schedule shall be
amended from time to time in accordance with the provisions hereof.
The combined Percentage Interest of all Members shall at all times
equal 100 percent.
"Regulations" means the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as such may be amended from
time to time (or any corresponding provisions of succeeding law).
Words used herein, regardless of the number and gender used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the context requires, and, as
used herein, unless the context clearly requires otherwise, the words "hereof,"
"herein," and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provisions hereof.
The headings in this Agreement are inserted for convenience and
identification only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision.
3. Purpose. The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company
organized under the Ohio Act, as such business activities may be
determined by the Members from time to time.
4. Offices.
-3-
(a) The principal office of the Company, and such additional
offices as the Members may determine to establish, shall be
located at such place or places inside or outside the State of
Ohio as the Members may designate from time to time.
(b) The registered office of the Company in the State of Ohio is
located at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000
The original registered agent of the Company for service of
process is Xxxxxx X. Xxxxxx, 1900 Chemed Center, 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
5. Members. The name and business or residence address of each Member
of the Company are as set forth on Schedule I attached hereto, as
the same may be amended from time to time.
6. Term. The Term of the Company shall commence on the Effective Date
and shall continue until the Company shall be dissolved and its
affairs wound up in accordance with Section 14 of this Agreement.
7. Management of the Company.
(a) The Board of Managers has the exclusive right to manage the
Company's business. Accordingly, except as otherwise
specifically limited in this Agreement or under applicable
law, the Board of Managers shall: (i) manage the affairs and
business of the Company; (ii) exercise the authority and
powers granted to the Company; and (iii) otherwise act in all
other matters on behalf of the Company. Except as expressly
provided otherwise in this Agreement, the Board of Managers,
at times acting through the Company's officers, shall take all
actions which shall be necessary or appropriate to accomplish
the Company's purposes in accordance with the terms of this
Agreement.
(b) The operations of the Company shall be governed by the
By-laws, effective as of the Effective Date, set forth in
Exhibit A as amended from time to time in the manner set forth
in Section 17.
(c) Except as to actions herein specified to be taken by all the
Members or by the Members acting unanimously, the duties and
powers of the Members may be exercised by a Majority in
Interest of the Members (or by any Member acting pursuant to
authority delegated by a Majority in Interest of the Members).
Any action that may be taken at a meeting of the Members may
be authorized and taken without a meeting upon the
-4-
written approval of all Members who would be entitled to vote
at a meeting held for such purpose.
(d) Any Member, authorized by all Members, may execute and file on
behalf of the Company with the Secretary of State of the State
of Ohio any amendments of the Articles of Organization, or one
or more restated Articles of Organization and certificates of
merger or consolidation and, upon the dissolution and
completion of winding up of the Company as provided in the
Ohio Act, a Certificate of Dissolution canceling the Company's
Articles of Organization.
8. Capital Contributions; Capital Accounts, Administrative Matters.
(a) The Initial Member has contributed to the Company the
consideration set forth on Schedule I hereto. Except as
otherwise agreed by all Members, the Initial Member shall have
no obligation to make any further capital contributions to the
Company. Persons or entities hereafter admitted, in accordance
with Section 11 hereof, as Members of the Company shall make
such contributions of cash (or promissory obligations),
property, or services to the Company as shall be determined by
the Members, acting unanimously, at the time of each such
admission.
(b) It is the intention of the Members that the Company, as an
eligible entity with a single owner as defined under Section
301.7701-3 of the Regulations, shall be classified as
"disregarded as an entity separate from its owner" in
accordance with the default classification provided by Section
301.7701-3(b) of the Regulations.
(c) Subject to the intention expressed under Paragraph (d) hereof,
in the event an additional Member is admitted, in accordance
with Section 11 hereof, then upon the admittance of such
additional Member, it is the intention of the Members that the
Company shall thereafter be taxed as a "partnership," in
accordance with the default classification provided by Section
301.7701-3(b) of the Regulations, for federal, state, local,
and foreign income tax purposes. The Members agree to take all
reasonable actions, including the amendment of this Agreement
and the execution of other documents, as may reasonably be
required in order for the Company to qualify for and receive
"partnership" treatment for federal, state, local tax purposes
as expressed herein.
(d) In the event an additional Member is admitted, in accordance
with Section 11 hereof, then upon the admittance of such
additional Member, it is the intention of the Members that the
books and records of the
-5-
company shall thereafter be kept as set forth in Subparagraphs
(i) through (iv) following hereafter:
(i) A single, separate capital account shall be maintained
for each Member. Each Member's capital account shall be
credited with the amount of money and the fair market
value of property (net of any liabilities secured by
such contributed property that the Company assumes or
takes subject to) contributed by that Member to the
Company; the amount of any Company liabilities assumed
by such Member (other than in connection with a
distribution of Company property), and such Member's
distributive share of Company profits (including tax
exempt income). Each Member's capital account shall be
debited with the amount of money and the fair market
value of property (net of any liabilities that such
Member assumes or takes subject to) distributed to such
Member; the amount of any liabilities of such Member
assumed by the Company (other than in connection with a
contribution); and such Member's distributive share of
Company losses (including items that may be neither
deducted nor capitalized for federal income tax
purposes).
(ii) Notwithstanding any provision of this Agreement to the
contrary, each Member's capital account shall be
maintained and adjusted in accordance with the Code and
Regulations thereunder, including, without limitation,
(i) the adjustments permitted or required by Code
Section 704(b) and, to the extent applicable, the
principles expressed in Code Section 704(c) and (ii) the
adjustments required to maintain capital accounts in
accordance with the "substantial economic effect test"
set forth in the Regulations under Code Section 704(b).
(iii) Any Member, including any substitute Member, who shall
receive an Interest (or whose Interest shall be
increased) by means of a transfer to him of all or a
part of the Interest of another Member, shall have a
capital account that reflects the capital account
associated with the transferred Interest (or the
applicable percentage thereof in case of a transfer of a
part of an Interest).
(iv) All items of Company income, gain, loss, deduction,
credit, or the like shall be allocated among the Members
in accordance with their respective Percentage Interests
as set forth in Schedule I attached hereto and
incorporated herein.
-6-
(e) In the event an additional Member is admitted, in accordance
with Section 11 hereof, then upon the admittance of such
additional Member, the Company hereby designates the Member
owning the largest percentage Interest as "Tax Matters
Partner" for purposes of Code Section 6231 and the Regulations
promulgated thereunder. The Tax Matters Partner shall promptly
advise each Member of any audit proceedings proposed to be
conducted with respect to the Company.
9. Assignments of Company Interest.
(a) No Member may sell, assign, pledge, or otherwise transfer or
encumber (collectively "transfer") all or any part of its
Interest and no transferee of all or any part of an Interest
shall be admitted as a substituted Member, without, in either
event, either (i) having obtained the prior written consent of
all other Members or, if there is only one Member, (ii) having
executed a valid written assignment of all or any part of such
Interest.
(b) The Members shall amend Schedule I hereto from time to time to
reflect transfers made in accordance with, and as permitted
under, this Section 9. Any purported transfer in violation of
this Section 9 shall be null and void and shall not be
recognized by the Company.
10. Withdrawal. No Member shall have the right to withdraw from the
Company except (i) with the consent of all of the other Members and
upon such terms and conditions as may be specifically agreed upon
between such other Members and the withdrawing Member or, if there
is only one Member, (ii) in accordance with the terms of the valid
written assignment of all or any part of an Interest. The provisions
hereof with respect to distributions upon withdrawal are exclusive
and no Member shall be entitled to claim any further or different
distribution upon withdrawal under the Ohio Act or otherwise.
11. Additional Members. The Members, acting unanimously, shall have the
right to admit additional Members upon such terms and conditions, at
such time or times, and for such Capital Contributions as shall be
determined by all of the Members; and in connection with any such
admission, the Members shall amend Schedule I hereof to reflect the
name, address, and Capital Contribution of the additional Member and
any agreed upon changes in Percentage Interests.
12. Distributions. Distributions of cash or other assets of the Company
shall be made at such times and in such amounts as the Members
acting unanimously may determine. Distributions shall be made to
(and profits and losses shall be allocated among) Members pro rata
in accordance with their respective Percentage Interests.
-7-
13. Return of Capital. No Member shall have any liability for the return
of any Member's Capital Contribution which Capital Contribution
shall be payable solely from the assets of the Company at the
absolute discretion of the Members, subject to the requirements of
the Ohio Act.
14. Dissolution. The Company shall not be dissolved nor shall its
affairs be wound up and terminated until the occurrence of either of
the following:
(a) The determination of all of the Members to dissolve the
Company; or
(b) The occurrence of any event causing a dissolution of the
Company under the Ohio Act.
Upon the happening of (a) or (b) above, the Company shall be
dissolved and its affairs wound up and terminated, subject to the
provisions of Section 15 of this Agreement.
15. Continuation of the Company. Notwithstanding the provisions of
Section 14(b) hereof, the occurrence of an Event of Withdrawal of a
Member shall not dissolve the Company if within ninety (90) days
after the occurrence of such event of withdrawal the business of the
Company is continued by the agreement of all remaining Members.
16. Limitation on Liability. 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 of the Company shall be obligated personally for any
such debt, obligation, or liability of the Company solely by reason
of being a Member.
17. Amendments. This Agreement may be amended only upon the written
consent of all Members.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Ohio without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Ohio or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other
than the State of Ohio.
-8-
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of April 30, 1999.
MEMBER:
Blue Chip Broadcasting, Ltd.
By: /s/ X. Xxxx Love
----------------------------------
X. Xxxx Love, President
-9-
SCHEDULE I
MEMBERS' MEMBERS' INITIAL CAPITAL INITIAL MEMBERSHIP
NAMES AND ADDRESSES CONTRIBUTIONS INTEREST
---------------------------- --------------------------- ------------------
Blue Chip Broadcasting, Ltd. All licenses, permits and 100%
0000 Xxxxxx Xxxx, Xxxxx 000 other authorizations issued
Xxxxxxxxxx, Xxxx 00000 by the FCC for operation
of radio stations
WGZB(FM), WGZB-FM1,
WIFZ(FM), WMJM(FM),
WKYI(FM), WCKX(FM),
WCZZ(FM), WXMG(FM),
WLRS(FM), WING(AM),
WFIA(AM), WDJX(FM),
WING-FM and
WGTZ(FM)
-10-
EXHIBIT A
BYLAWS OF BLUE CHIP BROADCASTING LICENSES, LTD.
Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in the Operating Agreement of Blue Chip Broadcasting
Licenses, Ltd.
MEMBERS
MEETINGS OF MEMBERS
LOCATION OF MEETINGS. Meetings of the Members shall be held at the
principal office of the Company or at such other place, either within or
without Ohio, as specified from time to time by the Board of Managers.
MEETINGS. Meetings of the Members, for any purpose or purposes, may be
called upon the request of the officers or upon the request of not less than
25% of all the Members (based on their Membership Interests) then entitled to
vote at the meeting.
NOTICE OF MEETINGS. Notice of each meeting of Members stating the place,
date and hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be given to each Member
entitled to vote at such meeting not less than three (3) nor more than sixty
(60) days before the date of the meeting.
WAIVER OF NOTICE. Notice of the time, place and purposes of any meeting
of Members may be waived in writing by any Member, either before, during or
after such meeting. Such writing shall be filed with or entered upon the
records of the meeting. Attendance of a Member at a meeting shall constitute a
waiver of notice of such meeting, except when the Member attends a meeting for
the express and exclusive purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting was not lawfully called
or convened.
PROXIES. At all meetings of Members, a Member may vote in person or by
proxy executed in writing by a Member or such Member's duly authorized
attorney-in fact. Such proxy shall be filed with the Company before or at the
time of the meeting. No proxy shall be valid after three (3) months from the
date of its execution, unless otherwise provided in the proxy. Every
appointment of a proxy shall be revocable.
ACTION BY MEMBERS WITHOUT A MEETING. Any action that may be authorized
or taken at a meeting by the Members may be authorized or taken without a
meeting with the affirmative vote or approval of, and in a writing or writings
signed by, all the Members who would be entitled to vote at a meeting of the
Members held for such purpose, which writing or writings shall be filed with or
entered upon the records of the Company. Written consent of all the
-11-
Members entitled to vote on any matter has the same force and effect as a
unanimous vote of such Members.
TELEPHONIC MEETINGS. The Members may participate in and act at any meeting
of Members through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such meeting shall constitute attendance and
presence in person at the meeting of the person or persons so participating.
BOARD OF MANAGERS
The Board of Managers shall be composed of not less than one (1) nor more
than nine (9) Managers. The initial number of Managers shall be one (1). The
initial Manager shall be the person indicated on Schedule II hereto.
ELECTION. The Managers will be elected by the affirmative vote of a
majority of the Members.
TENURE. Each Manager shall serve as a Manager for an indefinite period of
term of years and until his or her successor shall have been appointed, or until
his or her earlier resignation, death or removal from office.
RESIGNATION. Each Manager of the Company may resign at any time by giving
written notice to the Members. The resignation of a Manager shall take effect
upon receipt of notice thereof or at such later time as shall be specified in
such notice. The resignation of a Manager who is also a Member shall not affect
the Manager's rights as a Member and shall not constitute a withdrawal of a
Member.
REMOVAL. Each Manager may be removed with or without cause by a majority
vote of the Members. The removal of a Manager who is also a Member shall not
affect the Manager's rights as a Member and shall not constitute a withdrawal of
a Member.
VACANCY. Any vacancy occurring in the position of Manager shall be filled
by a majority vote of the Members.
MANAGER COMPENSATION. No Manager shall be entitled to any compensation,
except by the affirmative vote or consent of a majority of the Members. The
Company shall promptly reimburse each Manager for the reasonable out of pocket
costs and expenses incurred by such Manager (including airfare, meals, lodging
and other travel related expenses) in connection with the performance of its
duties as Manager, including attendance at meetings of the Board.
QUORUM. Business may be conducted at a meeting of the Board only if a
quorum of the Board is present. A quorum of the Board shall be achieved only if
a majority of the Board is present, in person or by proxy, at a meeting of the
Board.
-12-
MEETINGS OF BOARD OF MANAGERS
TIME OF MEETING. The Board of Managers shall meet at the Principal Office
of the Company at least once annually. The Board of Managers shall have the
authority to set the time and place of their said meeting by resolution.
CALL AND NOTICE. Meetings of the Managers other than the quarterly meeting
may be called at any time by the President and shall be called by the President
upon the request of the lesser of two (2) or all of the Managers. Such meetings
may be held at any place within or without the State of Ohio. Regular meetings
shall be held on not less than twenty (20) business days prior notice. Any
meeting at which all of the Managers are present shall be a valid meeting
whether notice thereof was given or not and any business may be transacted at
such a meeting.
MEETINGS. Meetings of the Managers, and meetings of any Committee thereof,
may be held through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such meeting shall constitute attendance and
presence in person at the meeting of the person or persons so participating.
VOTING. The act of at least a majority vote of the Managers shall be the
act of the Managers unless otherwise specifically provided by law, the Articles
or this Agreement.
ACTION BY MANAGERS WITHOUT A MEETING. Any action that may be authorized or
taken at a meeting by the Managers may be authorized or taken without a meeting
with the affirmative vote or approval of, and in a writing or writings signed by
all the Managers who would be entitled to vote at a meeting of the Managers held
for such purpose, which writing or writings shall be filed with or entered upon
the records of the Company. Written consent of all the Managers entitled to vote
on any matter has the same force and effect as unanimous vote of such Managers.
OFFICERS
OFFICERS. The officers of the Company shall consist of a President, a
Secretary, a Treasurer and such other officers as the Board of Managers may
appoint. The officers shall be appointed by the Board of Managers and shall
exercise such powers and perform such duties as are prescribed under this
Agreement. Any number of offices may be held by the same person, as the Board of
Managers may determine, except that no person may simultaneously hold the
offices of President and Secretary. The initial officers shall be those persons
indicated on Schedule III hereto.
DUTIES OF OFFICERS. The duties of the officers are as follows:
(a) Duties of President. The President shall be the chief executive
officer of the Company and shall preside at all meetings of the Board and
Members. He shall have general
-13-
and active management of the day to day business and affairs of the Company and
shall see that all orders and resolutions of the Board of Managers are carried
into effect. The President shall execute bonds, mortgages and other contracts
except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Managers to some other officer or agent of the Company.
(b) Duties of Secretary. The Secretary shall attend all meetings of
the Members of the Board of Managers and record all the proceedings of such
meetings in a book to be kept for that purpose. Failure of the Secretary to
attend any meeting of the Members or the Board shall not affect the validity of
any action taken at such meeting. He shall give, or cause to be given, notice of
all meetings of the Members and the Board of Managers and shall perform such
other duties as may be prescribed by the Board of Managers or President.
(c) Duties of Treasurer. The Treasurer shall have the custody of the
Company funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Managers. The
Treasurer shall disburse the funds of the Company as may be ordered by the Board
of Managers, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Managers, at its regular meetings, or when the
Board of Managers so requires, an account of all his transactions as Treasurer
and of the financial condition of the Company. If required by the Board of
Managers, the Treasurer shall give the Company a bond (which shall be renewed
every six years) in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of his
office and for the restoration to the Company, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the Company.
TERM OF OFFICE. The officers shall hold office until their successors are
appointed by the Board of Managers.
RESIGNATION. Any officer of the Company may resign at any time by giving
written notice to the Board of Managers. The resignation of any officer shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice. The resignation of an officer who is also a Member
shall not affect the officer's rights as a Member and shall not constitute a
withdrawal of a Member.
REMOVAL. Any officer may be removed with or without cause by the
affirmative vote of a majority of the Board of Managers. The removal of an
officer who is also a Member shall not affect the officer's rights as a Member
and shall not constitute a withdrawal of a Member.
VACANCIES. Any vacancy occurring in any office shall be filled by a
majority vote of the Board of Managers. An officer elected to fill a vacancy
shall hold office until the earlier of his death, resignation or removal.
-14-
OFFICER COMPENSATION. The officers shall not be entitled to any
compensation, except by the affirmative vote or consent of a majority of the
Board of Managers.
FINANCIAL MATTERS
ACCOUNTING METHODS. The Company books and records shall be prepared and
maintained in accordance with generally accepted accounting principles, or such
other method of accounting as determined to be appropriate by the Board of
Managers, consistently applied, except that the Members' Capital Accounts shall
be maintained as provided in this Agreement.
FISCAL YEAR. The fiscal year of the Company shall be the twelve calendar
month period ending on December 31 in each year, except that the first year of
the Company shall be that period (even if less than twelve months) beginning on
the Original Effective Date and ending on the next following December 31, and
the final year of the Company shall be that period beginning on January 1 of
such year and ending on the date of cancellation of the Articles.
BANK ACCOUNTS. The Company may from time to time open bank accounts in the
name of the Company. All funds of the Company shall be withdrawn on the
signature of one (1) officer of the Company.
INDEMNIFICATION
(A) PROCEEDING OTHER THAN BY THE COMPANY. The Company shall indemnify or
agree to indemnify any person who was or is a party, or who is threatened to be
made a party, to any threatened, pending, or completed civil, criminal,
administrative , or investigative action, suit, or proceeding, other than an
action by or in the right of the Company, because he or she is or was a manager,
member, partner, officer, employee, or agent of the Company or is or was serving
at the request of the Company as a manager, director, trustee, officer,
employee, or agent of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise. The Company shall
indemnify or agree to indemnify a person in that position against expenses,
including attorney's fees, judgments, fines, and amounts paid in settlement that
actually and reasonably were incurred by him or her in connection with the
action, suit, or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Company and, in connection with any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, or conviction or
upon a plea of nolo contendere or its equivalent does not create of itself a
presumption that the person did not act in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company
and, in connection with any criminal action or proceeding, a presumption that he
or she had reasonable cause to believe that his or her conduct was unlawful.
-15-
(B) PROCEEDING BY THE COMPANY. The Company shall indemnify or agree to
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending, or completed action or suit by or in the right
of the Company to procure a judgment in its favor, because he or she is or was a
manager, officer, employee, or agent of the Company or is or was serving at the
request of the Company as a manager, member, partner, director, trustee,
officer, employee, or agent of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise. The Company shall
indemnify or agree to indemnify a person in that position against expenses,
including attorney's fees, that were actually and reasonably incurred by him or
her in connection with the defense or settlement of the action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Company, except that an
indemnification shall not be made in respect of any claim, issue, or matter as
to which the person is adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Company unless and only to the extent that
the court of common pleas or the court in which the action or suit was brought
determines, upon application, that, despite the adjudication of liability but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnification for expenses that the court considers proper.
(C) AMOUNT OF INDEMNIFICATION. To the extent that a manager, officer,
employee, or agent of the Company has been successful on the merits or otherwise
in defense of any action, suit, or proceeding referred to in Paragraph (A) or
(B) of this Section or has been successful in defense of any claim, issue, or
matter in an action, suit, or proceeding referred to in those Paragraphs, he or
she shall be indemnified against expenses, including attorney's fees, that were
actually and reasonably incurred by him or her in connection with the action,
suit, or proceeding.
(D) OTHER RIGHTS TO INDEMNIFICATION. The indemnification authorized by
this Section is not exclusive of and shall be in addition to any other rights
granted to those seeking indemnification under the operating agreement, any
other agreement, a vote of Members or disinterested member of the Board of
Managers of the Company, or otherwise, both as to action in their official
capacities and as to action in another capacities while holding their offices or
positions. The indemnification shall continue as to any person who has ceased to
be a manager, officer, employee, or agent of the company and shall inure to the
benefit of his heirs, executors, and administrators.
(E) INSURANCE OR FINANCIAL ARRANGEMENTS. The Company may purchase and
maintain insurance or furnish similar protection, including, but not limited to,
trust funds, letters of credit, or self-insurance, for or on behalf of any
person who is or was a manager, member, partner, officer, employee, or agent of
the Company or who is or was serving at the request of the Company as a manager,
director, trustee, officer, employee, or agent of another limited liability
company, corporation, partnership, joint venture, trust or other enterprise. The
insurance or similar protection purchased or maintained for those persons may be
for any liability asserted against them and incurred by them in any capacity
described in this Paragraph (F) or for any liability arising out of their status
as described in this Paragraph (F),
-16-
whether or not the Company would have the power to indemnify them against that
liability under this Section. Insurance may be so purchased from or so
maintained with a person in which the Company has a financial interest.
(F) ADVANCEMENT OF EXPENSES. Expenses, including attorney's fees, incurred
by a director, trustee, officer, employee, member, manager, or agent in
defending any action, suit, or proceeding referred to herein shall be paid by
the Company as they are incurred, in advance of the final disposition of the
action, suit, or proceeding upon receipt of an undertaking by or on behalf of
the director, trustee, officer, employee, member, manager, or agent to repay
such amount, if it ultimately is determined that he or she is not entitled to be
indemnified by the Company.
(G) REPEAL OR MODIFICATION. Any repeal or modification of the foregoing
indemnification provision by the Members or the Board of Managers of the Company
shall not increase the personal liability of any member of the Board of
Managers, officer or other person entitled to indemnification hereunder of the
Company for any act or occurrence taking place prior to such repeal or
modification, or otherwise adversely affect any right or protection of a manager
or officer of the Company existing at the time of such repeal or modification.
-17-
SCHEDULE II - BOARD OF MANAGERS
X. Xxxx Love
Xxxxx X. Xxxx
Xxxxxx Xxxxxx, III
J. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxxx
Xxxxx Xxxxx
Xxxx X. Xxxxx
-18-
SCHEDULE III - OFFICERS
X. Xxxx Love Chief Executive Officer, President
and Treasurer
Xxxxxx X. Xxxxxx Secretary
