EXHIBIT 3.30
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
ACS TELEVISION, LLC
FORMERLY
ALASKAN CHOICE TELEVISION L.L.C.
AMENDED AND RESTATED OPERATING AGREEMENT
OF
ACS TELEVISION, LLC
TABLE OF CONTENTS
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Article I Formation of Limited Liability Company........................... 1
1.1 Formation........................................................ 1
1.2 Name............................................................. 2
1.3 Articles of Organization......................................... 2
1.4 Principal Place of Business...................................... 2
1.5 Registered Office and Registered Agent........................... 2
1.6 Purposes and Powers.............................................. 2
1.7 Duration......................................................... 2
1.8 Title............................................................ 2
1.9 Members.......................................................... 2
Article II Definitions...................................................... 2
Article III Capital.......................................................... 4
3.1 Capital Contributions............................................ 4
3.2 Loans to the Company............................................. 4
3.3 Creditor's Interest in the Company............................... 4
3.4 Interest......................................................... 4
Article IV Allocation of Income, Gains and Losses; Distributions............ 4
4.1 General.......................................................... 4
4.2 Distributions.................................................... 4
Article V Transfers; New Members........................................... 4
5.1 Transfers........................................................ 4
5.2 New Members...................................................... 4
Article VI Management and Operation of Company Business..................... 5
6.1 Board of Directors............................................... 5
6.2 Number, Qualification; Term of Office; Vote...................... 6
6.3 Initial Board.................................................... 6
6.4 Place of Meetings................................................ 6
i
6.5 Special Meetings................................................. 6
6.6 Adjournments..................................................... 6
6.7 Notice of Meetings............................................... 6
6.8 Quorum........................................................... 6
6.9 Absent Members................................................... 7
6.10 Conference Communications........................................ 7
6.11 Removal.......................................................... 7
6.12 Acts of Directors................................................ 7
6.13 Written Action................................................... 7
6.14 Committees....................................................... 7
6.15 No Fiduciary Duty................................................ 8
6.16 Compensation..................................................... 8
Article VII Officers......................................................... 8
7.1 Number........................................................... 8
7.2 Election, Term of Office and Qualifications...................... 8
7.3 Removal and Vacancies............................................ 8
7.4 Chair............................................................ 8
7.5 President........................................................ 8
7.6 Secretary........................................................ 9
7.7 Treasurer........................................................ 9
7.8 Duties of Other Officers......................................... 9
7.9 Compensation..................................................... 9
Article VIII Indemnification.................................................. 10
8.1 Indemnification.................................................. 10
8.2 Indemnification Procedures; Survival............................. 11
Article IX Certificates..................................................... 12
Article X Books of Account; Reports and Fiscal Matters..................... 12
Article XI Amendment........................................................ 12
Article XII Liability; Tax Status............................................ 12
12.1 Liability of the Members......................................... 12
12.2 Tax Status....................................................... 12
Article XII Dissolution and Liquidation...................................... 13
13.1 Events of Dissolution............................................ 13
13.2 Continuation of Business......................................... 13
ii
13.3 Liquidation and Winding Up....................................... 13
Article XIV Miscellaneous Provisions......................................... 13
14.1 Pronouns......................................................... 13
14.2 Headings......................................................... 14
14.3 Governing Law.................................................... 14
iii
AMENDED AND RESTATED OPERATING AGREEMENT
OF
ALASKAN CHOICE TELEVISION, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT made and entered into as
of this 29 day of December, 2000, by ACS of Anchorage, Inc.
RECITALS
A. Goldbelt, Incorporated ("Goldbelt") and Vidtek Company, L.L.C.
("Vidtek" and collectively the "Original Members"), executed an Operating
Agreement dated July 20, 1995 (the "Original Operating Agreement"), relating to
the operation of Alaskan Choice Television L.L.C. ("ACTV" or "Company").
B. The Original Operating Agreement was supplemented and modified
by a Supplemental Agreement between Goldbelt, Vidtek and ACTV on September
15, 1995.
X. Xxxxxxxx, Vidtek, ACTV and ATU Communications, Inc. ("ATU")
executed an Amended and Restated Operating Agreement for ACTV dated April
11, 1997.
D. ATU has acquired the membership interests of Vidtek and
Goldbelt resulting in ATU holding a 100% interest in ACTV.
E. ATU has changed its name to ACS of Anchorage, Inc. ("ACS").
F. The Amended and Restated Operating Agreement dated April 11,
1997, has not been supplemented or amended and is presently in effect.
G. The Company has changed its name to ACS Television, LLC.
H. As the sole member of the Company, ACS desires to amend and
restate certain provisions of the Amended and Restated Operating Agreement.
AGREEMENTS
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY
--------------------------------------
1.1 FORMATION. The Original Members have formed a limited
liability company pursuant to the provisions of the Utah Limited Liability
Company Act, in accordance with the provisions of the Original Operating
Agreement, as amended and restated from time to time.
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OF ACS TELEVISION, LLC
1.2 NAME. The name of the Company is ACS Television L.L.C.
1.3 ARTICLES OF ORGANIZATION. Articles of organization for the
Company were filed with the Division of Corporations and Commercial Code of the
Utah Department of Commerce on July 21, 1995, and the Company commenced doing
business in Utah as of that date. The Company was registered as a foreign
limited liability company in Alaska on August 1, 1996, and commenced doing
business in Alaska as of that date. Amended Articles of Organization were filed
on 8/22/00 changing the name of the Company to ACS Television, L.L.C.
1.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Company shall be at 000 X Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxx 00000. The
business of the Company may also be conducted at such other or additional place
or places as may from time to time be designated by the members.
1.5 REGISTERED OFFICE AND REGISTERED AGENT. The mailing address of
the Company's registered office is c/o Snell & Xxxxxx, 000 Xxxx Xxxxxxxx, Xxxxx
000, Xxxx Xxxx Xxxx, Xxxx 00000, and the name of the registered agent at such
address is Xxxxx Xxxxxxxx.
1.6 PURPOSES AND POWERS. The Company is formed for the purpose of
engaging in the business of wireless cable subscription television in Alaska,
and doing all things necessary, incident, or in furtherance of such business.
1.7 DURATION. The term of the Company commenced on the July 20,
1995, and shall end on December 31, 2024, unless sooner terminated in accordance
with the terms and conditions of this Operating Agreement.
1.8 TITLE. Title to the property and assets of the Company shall
be held in the name of the Company.
1.9 MEMBERS. The name, present mailing address and Interest of the
Member is set forth in Schedule A.
ARTICLE II
DEFINITIONS
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Unless the context otherwise specifies or requires, the terms defined
in this Section 2 shall, for the purposes of this Agreement, have the meanings
herein specified. Certain other capitalized terms used herein are defined
elsewhere in the Agreement.
"ACT" is defined in Section 1.1.
AMENDED AND RESTATED OPERATING AGREEMENT Page 2
OF ACS TELEVISION, LLC
"AGREEMENT" means this Limited Liability Company Agreement, as it may
be amended or supplemented from time to time.
"BOARD OF DIRECTORS" means the Board of Directors of the Company
established pursuant to Article VI.
"CAPITAL CONTRIBUTION" means the amount of money or the fair market
value of any property contributed to the Company by the Member pursuant to
Section 3.1.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder. All references in this Agreement to
a section of the Code or the Treasury Regulations shall be considered to include
any subsequent amendment or replacement of that section.
"COMPANY" means ACS Television, LLC, formerly known as Alaskan Choice
Television, L.C., the Utah limited liability company formed pursuant to the
filing of the Articles of Organization in Utah and the terms of this Agreement.
"COMPANY ASSETS" means all assets and property, whether tangible or
intangible and whether real, personal or mixed, at any time owned by the
Company.
"INTEREST" means the interest of the Member in the Company, which
Interest represent the ownership interest of the Member in the Company.
"DIRECTORS" means the Persons appointed to the Board of Directors
pursuant to Section 6.2.
"MEMBER" means ACS Television, LLC.
"NAMED OFFICERS" is defined in Section 7.1.
"PERSON" means any natural person, corporation, limited liability
company, association, partnership (whether general or limited), joint venture,
proprietorship, governmental agency, trust, estate, association, custodian,
nominee or any other individual or entity, whether acting in an individual,
fiduciary, representative or other capacity.
"PRINCIPAL OFFICE" is defined in Section 1.4.
"TREASURY REGULATIONS" or "TREAS. REG." refers to the regulations
promulgated by the United States Treasury Department under the Code.
AMENDED AND RESTATED OPERATING AGREEMENT Page 3
OF ACS TELEVISION, LLC
ARTICLE III
CAPITAL
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3.1 CAPITAL CONTRIBUTIONS. The Member shall make such Capital
Contributions as it may determine from time to time.
3.2 LOANS TO THE COMPANY. The Member may make loans to the Company
from time to time. Any such loans shall not be treated as Capital Contributions
to the Company for any purpose hereunder, but the Company shall be obligated to
the Member for the amount of any such loans pursuant to the terms thereof.
3.3 CREDITOR'S INTEREST IN THE COMPANY. No creditor who makes a
loan to the Company shall have or acquire at any time as a result of making the
loan any direct or indirect interest in the profits, capital or property of the
Company, other than such interest as may be accorded to a secured creditor.
Notwithstanding the foregoing, this provision shall not prohibit in any manner
whatsoever a secured creditor from participating in the profits of operation or
gross or net sales of the Company or in the gain on sale or refinancing of the
Company, all as may be provided in its loan or security agreements.
3.4 INTEREST. No interest shall be paid on any contributions by a
Member to the capital of the Company.
ARTICLE IV
ALLOCATION OF INCOME, GAINS AND LOSSES; DISTRIBUTIONS
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4.1 GENERAL. The income, profits, gains, losses tax credits of the
Company and distributions of cash or property of the Company to the Member shall
be treated for federal income tax purposes as if the Company were a division of
the Member in accordance with Treasury Regulation Section 301.7701-2(a).
4.2 DISTRIBUTIONS. Subject to the restrictions governing
distributions under the Act, distributions of cash or property may be made from
time to time by the Company to the Member at such times and in such amounts as
the Member may determine.
ARTICLE V
TRANSFERS; NEW MEMBERS
-------------------------
5.1 TRANSFERS. The Member may at any time and from time to time
transfer all or any portion of the Member's Interest.
5.2 NEW MEMBERS. Additional Members may be admitted to the Company
as the Member may determine.
AMENDED AND RESTATED OPERATING AGREEMENT Page 4
OF ACS TELEVISION, LLC
ARTICLE VI
MANAGEMENT AND OPERATION OF COMPANY BUSINESS
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6.1 BOARD OF DIRECTORS. The business and affairs of the
Company shall be managed by or under the authority of the Member, except as
otherwise required by the Act or this Agreement. The Member shall act through a
Board of Directors. Directors, for and on behalf of the Company, shall have full
power and authority, in addition to such powers and authorities as may be
provided by law or elsewhere in this Agreement, at the expense of the Company
(by direct payment or reimbursement):
(a) to make, renew, amend, and cancel leases and
other occupancy, use, easement, and license agreements as to all or any part of
the Company property for such price or consideration, and on such terms,
covenants, and conditions as they deem advisable;
(b) to sell, exchange, assign, transfer, or
convey and otherwise dispose of or deal with all or any part of the Company
property for such price or consideration as they deem advisable;
(c) to borrow money, and as security therefor to
mortgage or otherwise hypothecate all or any part of the Company property, both
real and personal; to prepay in whole or in part, or refinance, recast,
increase, modify, renew or extend any such mortgage or secured loan, to agree to
repay any loan over a term extending longer than the stated term or extended
term of the Company; to execute mortgage notes, mortgages, collateral
assignments of rents and leases, tax and insurance escrow agreements, and do all
such other things in such form and manner as may be required by any lender; to
assign and convey Company property to a nominee for the purpose of mortgage
financing and to reacquire the Company property from such nominee;
(d) to build upon, remodel, add on, demolish,
rebuild and otherwise alter or improve any Company property and any structures
and improvements thereon;
(e) to purchase, lease, or otherwise acquire the
ownership or possession of real property, whether improved or unimproved;
(f) to employ from time to time persons, firms,
or corporations for the operation and management of the Company business or
property; and
(g) to do all other things and acts, though not
expressly authorized, as may be reasonably necessary, advisable, or incidental
to effectuate any of the foregoing, and to make, execute, and deliver such
instruments and documents as may be necessary, advisable, or incidental to carry
out the foregoing.
AMENDED AND RESTATED OPERATING AGREEMENT Page 5
OF ACS TELEVISION, LLC
6.2 NUMBER, QUALIFICATION; TERM OF OFFICE; VOTE. The
number of members of the initial Board of Directors shall be three (3). Each
Director shall be appointed from time to time by the Member. A Director shall
hold office until such Director's successor shall have been elected, or until
the earlier death, resignation, removal or disqualification of such Director.
The Member may increase the number of Directors at any time or from time to
time. Each Director shall have one vote in all matters to come before the Board
of Directors. The provisions of Sections 6.4 through. 6.10 apply (i) when more
than one Director is serving, and (ii) with respect to a any committee
established by the Board of Directors.
6.3 INITIAL BOARD. The initial Board of Directors shall
consist of the following individual(s):
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
6.4 PLACE OF MEETINGS. Meetings of the Board of Directors
shall be held at the principal executive office of the Company or at such other
place as may be agreed by the Directors from time to time.
6.5 SPECIAL MEETINGS. A special meeting of the Board of
Directors may be called for any purpose or purposes at any time by the Chair or
by the Member.
6.6 ADJOURNMENTS. Any meeting of the Board of Directors
may be adjourned from time to time to another date, time and place. If any
meeting of the Board of Directors is so adjourned, no notice as to such
adjourned meeting need be given if the date, time and place at which the meeting
will be reconvened are announced at the time of adjournment.
6.7 NOTICE OF MEETINGS. Unless otherwise required by law,
written notice of each meeting of the Board of Directors, stating the date, time
and place and, in the case of a special meeting, the purpose or purposes, shall
be given at least five (5) days and not more than ninety (90) days prior to the
meeting to every member of the Board of Directors. A member of the Board of
Directors may waive notice of the date, time, place and purpose or purposes of a
meeting of the Board of Directors. A waiver of notice is effective whether given
before, at or after the meeting, and whether given in writing, orally or by
attendance. Attendance by a member of the Board of Directors at a meeting is a
waiver of notice of that meeting, unless the member objects at the beginning of
the meeting to the transaction of business because the meeting is not lawfully
called or convened, or objects before a vote on an item of business because the
item may not lawfully be considered at that meeting and does not participate in
the consideration of the item at that meeting.
6.8 QUORUM. Members of the Board of Directors
representing 51% of all votes held by the members of the Board of Directors
shall constitute a quorum for the transaction of business at each meeting of the
Board of Directors.
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6.9 ABSENT MEMBERS. A member of the Board of Directors
may give advance written consent or opposition to a proposal to be acted on at
a meeting of the Board of Directors. If such member is not present at the
meeting, such consent or opposition to a proposal does not constitute presence
for purposes of determining the existence of a quorum, but such consent or
opposition shall be counted as a vote in favor of or against the proposal and
shall be entered in the minutes or other record of action at the meeting, if
the proposal acted on at the meeting is substantially the same or has
substantially the same effect as the proposal to which the member has consented
or objected.
6.10 CONFERENCE COMMUNICATIONS. Any or all of the members
of the Board of Directors may participate in any meeting of the Board of
Directors, or of any duly constituted committee thereof, by any means of
communication through which such members may simultaneously hear each other
during such meeting. For the purposes of establishing a quorum and taking any
action at the meeting, members of the Board of Directors participating pursuant
to this Section 6.10 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
6.11 REMOVAL. Any Director may be removed from office at
any time, with or without cause, by the action of the Member.
6.12 ACTS OF DIRECTORS. Except as otherwise provided
herein, the Board of Directors shall take action by the affirmative vote of
those Directors who have the power to vote 51% of all votes held by the
Directors, as the case may be, and any such act shall be deemed to be the action
of the Board of Directors for all purposes of this Agreement and the Act.
6.13 WRITTEN ACTION. Any action which might be taken at a
meeting of the Board of Directors, or any duly constituted committee thereof,
may be taken without a meeting if done in writing and signed by a number of the
members of the Board of Directors, or committee members, whose approval would be
sufficient to approve the action at a meeting at which all of the members of the
Board of Directors (or such committee) were present.
6.14 COMMITTEES.
(a) A resolution approved by the Board of
Directors may establish committees having the authority of the Board of
Directors in the management of the business of the Company to the extent
provided in the resolution, A committee shall consist of one or more Persons,
who need not be members of the Board of Directors. Committees are subject to the
direction and control of, and vacancies in the membership thereof shall be
filled by, the Board of Directors.
(b) A majority of the members of a committee
present at a meeting is a quorum for the transaction of business, unless a
larger or smaller proportion or number is provided in the resolution of the
Board of Directors creating the committee.
AMENDED AND RESTATED OPERATING AGREEMENT Page 7
OF ACS TELEVISION, LLC
6.15 NO FIDUCIARY DUTY No Person serving on the Board of
Directors shall incur any personal liability in such capacity to the Member or
the creditors of the Company.
6.16 COMPENSATION. Members of the Board of Directors shall
not be compensated by the Company for serving in such capacity. The Company
shall bear the expenses, if any, incurred by each Director's respective
representatives in attending meetings of the Board of Directors.
ARTICLE VII
OFFICERS
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7.1 NUMBER. The officers of the Company, all of whom
shall be natural persons, shall consist of a Chair, a President, one or more
Vice Presidents, if elected, a Secretary and a Treasurer ("Named Officers"), and
any other officers and agents as the Board of Directors may designate from time
to time by a vote of the majority of all Directors. Any person may hold two or
more offices.
7.2 ELECTION, TERM OF OFFICE AND QUALIFICATIONS. At each
annual meeting of the Board of Directors, all officers shall be elected. Such
officers shall hold office until the next annual meeting of the Directors or
until their successors are elected and qualified, or until such office is
eliminated by amendment of this Agreement, in the case of the Named Officers, or
a vote of the majority of all Directors, in the case of officers other than
Named Officers. An officer who is a Director shall hold office until the
election and qualification of his or her successor even though he or she may
cease to be a Director.
7.3 REMOVAL AND VACANCIES. Any officer may be removed
from his or her office with or without cause upon a vote of a majority of the
total number of Directors. Such removal shall be without prejudice to the
contract rights of the person so removed. A vacancy among the officers by death,
resignation, removal or otherwise shall be filled for the unexpired term by the
Board of Directors, unless such office is eliminated.
7.4 CHAIR. The Chair shall preside at all meetings of the
Member and the Board of Directors and shall have such other duties as may be
prescribed, from time to time, by the Board of Directors. The Chair shall be a
Director and shall be elected by the Board of Directors. The initial Chair shall
be Xxxxxxx X. Xxxxxxxx.
7.5 PRESIDENT.
(a) DAY-TO-DAY OPERATIONS. The Company shall be
managed by a President. The Board of Directors delegates to the President the
authority to oversee and supervise the Company's business. Except as otherwise
provided in this Agreement, the President shall be authorized to determine all
questions relating to the day-to-day conduct, operation and management of the
business of the Company. The President shall be responsible to the Board of
Directors.
AMENDED AND RESTATED OPERATING AGREEMENT Page 8
OF ACS TELEVISION, LLC
(b) GENERAL. The President shall be entitled to
delegate such part of his or her duties as he or she may deem reasonable or
necessary in the conduct of the business of the Company to one or more employees
of the Company, who shall each have such duties and authority as shall be
determined from time to time by the President or as may be set forth in any
agreement between such employee and the Company.
(c) ELECTION. The President shall be elected by
the Board of Directors and shall receive such compensation as may be determined
from time to time by the Board of Directors or as shall be set forth in any
written agreement approved by the Board of Directors. The initial President
shall be Xxxxxxx X. Xxxxxxxx.
7.6 SECRETARY. The Secretary shall be secretary of and
shall attend all meetings of the Members and Board of Directors and shall record
all proceedings of such meetings in the minute book of the Company. He or she
shall give proper notice of meetings of the Member and the Board of Directors.
He or she shall perform such other duties as may from time to time be prescribed
by the Board of Directors. The initial Secretary shall be Xxxxxxx X. Xxxxxxxxx.
7.7 TREASURER. The Treasurer shall keep or cause to be
kept accurate accounts of all moneys of the Company received or disbursed. He or
she shall deposit or cause to be deposited all moneys, drafts and checks in the
name of and to the credit of the Company in such banks and depositories as the
Board of Directors shall from time to time designate. He or she shall have power
to endorse or cause to be endorsed for deposit or collection all notes, checks
and drafts received by the Company. He or she shall disburse or cause to be
disbursed the funds of the Company as ordered by the President, making proper
vouchers therefor. He or she shall render to the Board of Directors whenever
required an account of all his or her transactions as Treasurer and of the
financial condition of the Company and shall perform such other duties as may
from time to time be prescribed by the Board of Directors. The initial Treasurer
shall be Xxxxx X. Xxxxxxxx.
7.8 DUTIES OF OTHER OFFICERS. The duties of such other
officers and agents as the Board of Directors may designate shall be set forth
in the resolution creating such office or agency or by subsequent resolution.
Initially, the Company shall have one (1) Vice President who shall be Xxxx X.
Xxxxxxxxx.
7.9 COMPENSATION. The officers, agents and employees of
the Company shall receive such compensation for their services as may be
determined from time to time by the Board of Directors or as shall be set
forth in a written agreement.
AMENDED AND RESTATED OPERATING AGREEMENT Page 9
OF ACS TELEVISION, LLC
ARTICLE VIII
INDEMNIFICATION
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8.1 INDEMNIFICATION.
(a) To the fullest extent permitted by law, each
Director and Named Officer (individually, an "Indemnitee") shall be indemnified,
held harmless and defended by the Company from and against any and all losses,
claims, damages, liabilities, whether joint or several, expenses (including
legal fees and expenses), judgments, fines and other amounts paid in settlement,
incurred or suffered by such Indemnitee, as a party or otherwise, in connection
with any threatened, pending or completed claim, demand, action, suit or
proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal, arising out of or in connection with the business or
the operation of the Company and by reason of the Indemnitee's status as a
Director or Named Officer regardless of whether the Indemnitee continues to be a
Director or Named Officer of the Company at the time any such loss, claim,
damage, liability or other expense is paid or incurred if (i) the Indemnitee
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company and, with respect to any criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful, (ii) the
Indemnitee's conduct did not constitute intentional misconduct or a material
breach of the terms of this Agreement, and (iii) the Indemnitee's conduct did
not involve a transaction from which the Director or Named Officer derived an
improper personal benefit. The termination of any action, suit or proceeding by
judgment, order, settlement or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that the Indemnitee acted
in a manner contrary to the standards specified in clauses (i), (ii) or (iii) of
this Section 8.1(a).
(b) To the fullest extent permitted by law,
expenses incurred by an Indemnitee in defending any claim, demand, action, suit
or proceeding subject to this Section 8.1 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 Indemnitee to repay such amount unless it is determined that such
Indemnitee is entitled to be indemnified therefor pursuant to this Section 8.1.
(c) The indemnification provided by this Section
8.1 shall be in addition to any other rights to which any Indemnitee may be
entitled under any other agreement, pursuant to any vote of the Directors, as a
matter of law or otherwise, and shall inure to the benefit of the heirs, legal
representatives, successors, assigns and administrators of the Indemnities.
(d) Any indemnification under this Section 8.1
shall be satisfied solely out of the assets of the Company and no Indemnitee
shall have any recourse against any Member with respect to such indemnification.
AMENDED AND RESTATED OPERATING AGREEMENT Page 10
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(e) An Indemnitee shall not be denied
indemnification in whole or in part under this Section 8.1 merely because the
Indemnitee had an interest in the transaction with respect to which the
indemnification applies, if the transaction was not otherwise prohibited by the
terms of this Agreement and the conduct of the Indemnitee satisfied the
conditions set forth in Section 8.1(a).
(f) The Company may, but shall have no
obligation to, purchase and maintain insurance covering any potential liability
of the Indemnitees for any actions or omissions for which indemnification is
permitted hereunder, including such types of insurance (including extended
coverage liability and casualty and workers' compensation) as would be customary
for any person engaged in a similar business, and may name the Indemnitees as
additional insured parties thereunder.
8.2 INDEMNIFICATION PROCEDURES; SURVIVAL.
(a) An Indemnitee shall notify the Company in
writing within 30 days after receipt by the Indemnitee of notice of the
commencement of any action that may result in a claim for indemnification
pursuant to Section 8.1; provided, however, that any omission so to notify the
Company will not relieve it of any liability for indemnification hereunder as to
the particular item for which indemnification may then be sought (except to the
extent that the failure to give notice shall have been materially prejudicial to
the Company) nor from any other liability that it may have to any Indemnitee.
(b) An Indemnitee shall have the right to employ
separate counsel in any action as to which indemnification may be sought under
any provision of this Agreement and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnitee unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed to assume the defense thereof and employ
counsel within a reasonable period of time after being given the notice required
above, or (iii) the Indemnitee shall have been advised by its counsel that
representation of such Indemnitee and other parties by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them. It is understood, however, that the
Company shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys at any time for all such
Indemnitees having actual or potential differing interests with the Company,
unless but only to the extent, the Indemnitees have actual or potential
differing interests with each other.
(c) The Company shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with such written consent, or if there is a final judgment against the
Indemnitee in any such action, the Company agrees to indemnify and hold
harmless the Indemnitee to the extent provided above from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
AMENDED AND RESTATED OPERATING AGREEMENT Page 11
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(d) The indemnification obligations set forth in
Section 8.1 and this Section 8.2 shall survive the termination of this
Agreement.
ARTICLE IX
CERTIFICATES
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The Interests in the Company shall not be represented by
certificates.
ARTICLE X
BOOKS OF ACCOUNT; REPORTS AND FISCAL MATTERS
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The Company shall maintain such books of account and such
financial information as may be required by the Member and the Act. The Member
or a designee shall retain a copy of this Agreement and all written actions of
the Member and the Board of Directors at the Principal Office or at such other
place as the Member may designate.
ARTICLE XI
AMENDMENT
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The Articles of Organization and this Agreement may be amended
by the Member. Any amendment of this Agreement shall be in writing and a copy
thereof shall be kept with a copy of this Agreement at the Principal Office of
the Company.
ARTICLE XII
LIABILITY; TAX STATUS
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12.1 LIABILITY OF THE MEMBER. Except as otherwise provided
in the Act, the Member, as such, shall have no personal liability whatsoever to
the Company or any of the creditors of the Company for the debts, liabilities,
contracts or other obligations of the Company or any of the Company's losses
beyond the Member's Capital Contribution and, solely to the extent and for the
period required by applicable law, the amount of the Member's Capital
Contribution, if any, which is returned to it.
12.2 TAX STATUS. The Member intends that the Company will
be classified solely for federal income tax purposes as an "eligible entity"
that is disregarded as an entity separate from its owner as provided in Treasury
Regulations Section 301.7701-3(a).
AMENDED AND RESTATED OPERATING AGREEMENT Page 12
OF ACS TELEVISION, LLC
ARTICLE XIII
DISSOLUTION AND LIQUIDATION
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13.1 EVENTS OF DISSOLUTION. The Company shall be dissolved
upon the occurrence of any of the following events:
(a) The written consent of the Member;
(b) By the occurrence of any event that makes it
unlawful for the business of the Company to be carried on or for the Member to
carry on the business in the form of a limited liability company.
13.2 CONTINUATION OF BUSINESS. Upon the occurrence of any
event described in Section 13.1(b), the Company shall continue unless dissolved
by the Member pursuant to Section 13.1(a).
13.3 LIQUIDATION AND WINDING UP. If dissolution of the
Company should be caused by reason of any of the events set forth in paragraphs
(a) or (b) of Section 13.1 hereof, the Company shall be liquidated and the
Person designated at such time by the Board of Directors (or other Person or
Persons designated by a decree of court) shall wind up the affairs of the
Company. The Person or Persons winding up the affairs of the Company shall
promptly proceed to the liquidation of the Company Assets and, in settling the
accounts of the Company, the Company Assets shall be distributed in the
following order of priority:
(a) To creditors to the extent otherwise
permitted by law, in satisfaction of liabilities of the Company (whether by
payment or the making of reasonable provision for payment thereof), other than
liabilities for which reasonable provision for payment has been made and
liabilities for distributions to the Member;
(b) To the repayment of outstanding loans from
the Member to the Company;
(c) The balance, if any, to the Member.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
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14.1 PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the person or entity may require.
AMENDED AND RESTATED OPERATING AGREEMENT Page 13
OF ACS TELEVISION, LLC
14.2 HEADINGS. Article and Section headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define of affect the meaning, construction or scope of any of the provisions
hereof.
14.3 GOVERNING LAW. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Utah (but not including the choice of law rules thereof).
IN WITNESS WHEREOF, the undersigned has executed this
Agreement as of the date first above written.
ACS OF ANCHORAGE, INC.
By: /s/ [ILLEGIBLE]
Its:
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AMENDED AND RESTATED OPERATING AGREEMENT Page 14
OF ACS TELEVISION, LLC
SCHEDULE A
Name and Address of Capital Agreed Fair
Member Contribution Market Value Interest
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ACS of Anchorage, Inc. 100%
