1
EXHBIT 3.3(c)
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC
A GEORGIA LIMITED LIABILITY COMPANY
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TABLE OF CONTENTS
OF THE
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC
A GEORGIA LIMITED LIABILITY COMPANY
RECITALS.......................................................................1
ARTICLE I - FORMATION..........................................................1
SECTION 1.1. Formation; Assignment..................................1
SECTION 1.2. Name...................................................2
SECTION 1.3. Purposes...............................................2
SECTION 1.4. Registered Agent; Registered Office....................2
SECTION 1.5. Commencement and Term..................................2
SECTION 1.6. Tax Classification; Requirement of Separate
Books and Records and Segregation of Assets
and Liabilities........................................2
SECTION 1.7. Title to Assets; Transactions..........................3
ARTICLE II - CAPITAL CONTRIBUTIONS.............................................3
SECTION 2.1. Capital Contributions..................................3
SECTION 2.2. Liability of Members .................................3
ARTICLE III - DISTRIBUTIONS....................................................3
SECTION 3.1. Distributions..........................................3
ARTICLE IV - MANAGEMENT........................................................4
SECTION 4.1. Management.............................................4
SECTION 4.2. Limitation of Liability; Indemnification...............4
ARTICLE V - TRANSFER OF INTERESTS .............................................4
SECTION 5.1. Transfer of Interests..................................4
ARTICLE VI - DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS.............5
SECTION 6.1. Dissolution Triggers...................................5
SECTION 6.2. Winding Up.............................................5
SECTION 6.3. Liquidating Distributions..............................5
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ARTICLE VII - BOOKS AND RECORDS................................................5
SECTION 7.1. Books and Records......................................5
ARTICLE VIII - MISCELLANEOUS...................................................5
SECTION 8.1. Binding Effect.........................................5
SECTION 8.2. Construction...........................................5
SECTION 8.3. Entire Agreement; No Oral Operating Agreements.........6
SECTION 8.4. Headings...............................................6
SECTION 8.5. Severability...........................................6
SECTION 8.6. Variation of Pronouns..................................6
SECTION 8.7. Governing Law; Consent to Jurisdiction.................6
SECTION 8.8. Counterpart Execution; Facsimile Execution.............6
SECTION 8.9. Time of the Essence....................................6
SECTION 8.10. Exhibits...............................................6
EXHIBIT A: Articles of Organization.
EXHIBIT B: Glossary of Terms.
EXHIBIT C: Indemnification Exhibit.
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC
A GEORGIA LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED OPERATING AGREEMENT is made and entered into
as of 10:00 A.M. Eastern Time, February 7, 1997, (the "Effective Time") by and
between Digital Television Services, LLC, a Delaware limited liability company
(formerly Columbia DBS Holdings, LLC (successor by conversion to DBS Holdings,
L.P., a Delaware limited partnership)) ("Holdings"), and Columbia Capital
Corporation, a Virginia corporation ("Columbia"). Unless otherwise indicated,
capitalized words and phrases in this Amended and Restated Operating Agreement
(the "Agreement") shall have the meanings set forth in the Glossary of Terms
attached hereto as Exhibit B.
RECITALS
A. DTS Management, LLC (the "LLC") was formed on June 21, 1996, upon
the filing of the Articles of Organization with the Secretary of State of
Georgia.
B. The LLC has had two members from its formation until the effective
date of this Agreement, specifically, Columbia with a 1% Interest and Holdings
with a 99% Interest.
C. The LLC is the sole manager of Holdings and Holdings is consummating
a series of transactions, including the admission of additional Members and the
amendment and restatement of Holdings' limited liability company agreement.
NOW THEREFORE, in consideration of the mutual promises of the parties
hereto, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree that the operating agreement of the LLC shall be amended
and restated to read as follows:
ARTICLE I
FORMATION
SECTION 1.1. FORMATION; ASSIGNMENT.
The LLC was formed on June 21, 1996, and shall be continued pursuant to
the terms hereof.
By virtue of its execution of this Agreement and without the necessity
of the execution or delivery of any other document or instrument, Columbia
hereby assigns and transfers all of its right, title and interest in and to its
1% member Interest in the LLC to Holdings, as a capital contribution with
respect to its interest in Holdings without any further issuance of equity
interests in Holdings, and shall be deemed to have withdrawn as a Member of the
LLC, all effective 10:01 A.M. Eastern Time, February 7, 1997, which assignment
and transfer shall be
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in all respects subject to the security interest granted under Section 3 of the
Guarantee and Collateral Agreement (the "Security Interest"), with the effect
that as of 10:01 A.M. Eastern Time, February 7, 1997, Holdings shall hold 100%
of the Interests in the LLC, and thus become the sole member of the LLC, with
its entire Interest subject to the Security Interest. Columbia hereby represents
and warrants to the LLC and to Holdings that with the exception of the Security
Interest, its Interest in the LLC assigned hereby is free and clear of all
liens, claims and encumbrances of any nature whatsoever. Columbia shall cause or
take all necessary further action as may be requested by the LLC or by Holdings
to confirm and ensure the complete assignment of its Interest as provided
herein.
The rights and obligations of the Members and the terms and conditions
of the LLC shall be governed by the Act and this Agreement, including all the
Exhibits to this Agreement. To the extent the Act and this Agreement are
inconsistent with respect to any subject matter covered in this Agreement, this
Agreement shall govern, but only to the extent permitted by law.
SECTION 1.2. NAME. The name of the LLC shall be as set forth in the
Articles of Organization, as amended, attached hereto as Exhibit A.
SECTION 1.3. PURPOSES. The purposes of the LLC shall be (i) to provide
management and administrative services to various entities operating direct
satellite broadcast businesses, including Holdings, (ii) to serve as an
intermediate holding company owning interests in entities operating direct
satellite broadcast businesses, (iii) to own, hold, maintain, encumber, lease,
sell, transfer or otherwise dispose of all property or assets or interests in
property or assets as may be necessary, appropriate or convenient to accomplish
the activities described in clauses (i) and (ii) above, (iv) to incur
indebtedness or obligations in furtherance of the activities described in
clauses (i), (ii) and (iii) above, and (v) to conduct such other activities as
may be necessary or incidental to the foregoing, all on the terms and conditions
and subject to the limitations set forth in this Agreement.
SECTION 1.4. REGISTERED AGENT; REGISTERED OFFICE. The LLC's registered
agent shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and the LLC's registered office shall be
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇. ▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The LLC's registered
agent or registered office may be changed as provided in Act Section ▇▇-▇▇-▇▇▇,
or successor provision.
SECTION 1.5. COMMENCEMENT AND TERM. The term of the LLC commenced at
the time and date appearing in the Articles of Organization and shall continue
until it is dissolved, its affairs are wound up and final liquidating
distributions are made pursuant to this Agreement but in any event, not later
than December 31, 2036.
SECTION 1.6. TAX CLASSIFICATION; REQUIREMENT OF SEPARATE BOOKS AND
RECORDS AND SEGREGATION OF ASSETS AND LIABILITIES. The parties acknowledge that
because the LLC will have a single Member pursuant to Treasury Regulations
Section 301.7701-3, the LLC shall be disregarded as an entity separate from its
owner for federal income tax purposes until the effective date of any election
it may make (but only as may be permitted under the Parent LLC Agreement) to
change its classification for federal income tax purposes to that of a
corporation by filing IRS Form 8832, Entity Classification Election or until the
LLC has more than one Member in which case it would be treated as a partnership
for federal income tax purposes
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(provided that the LLC has not elected on Form 8832 to be treated as a
corporation). In all events, however, the LLC shall keep books and records
separate from those of its Member and its Subsidiaries and shall at all times
segregate and account for all of its assets and liabilities separately from
those of its sole Member and of its Subsidiaries.
SECTION 1.7. TITLE TO ASSETS; TRANSACTIONS. The LLC shall keep title to
all of its assets in its own name and not in the name of its Member or any
Subsidiary. The LLC shall enter into and engage in all transactions in its own
name and not in the name of its Member or any Subsidiary. In furtherance
thereof, the LLC shall evidence its execution of instruments as follows:
DTS Management, LLC,
a Georgia limited liability company
By:__________________________________
Title: Manager [or other authorized person]
ARTICLE II
CAPITAL CONTRIBUTIONS
SECTION 2.1. CAPITAL CONTRIBUTIONS. As of the date hereof, the Member
has made Capital Contributions to the LLC on the dates and equal to the amounts
reflected in the books and records of the LLC. The Member shall make additional
Capital Contributions in such form and at such time as the Member and the
Managers shall determine; provided, however, that any such additional Capital
Contributions shall be evidenced in writing and recorded in the books and
records of the LLC.
SECTION 2.2. LIABILITY OF MEMBERS. No Member shall be liable for any
debts or losses of capital or profits of the LLC or be required to contribute or
lend funds to the LLC.
ARTICLE III
DISTRIBUTIONS
SECTION 3.1. DISTRIBUTIONS. Subject only to (i) the laws of fraudulent
conveyance of the State of Georgia, (ii) any and all restrictions in the Parent
LLC Agreement, and (iii) any and all other contractual restrictions agreed to by
the LLC or its Member in writing, the Member shall have authority to cause the
LLC to distribute cash or property to the Member, in such amounts, at such times
and as of such record dates as the Managers shall determine.
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ARTICLE IV
MANAGEMENT
SECTION 4.1. MANAGEMENT. The LLC shall be managed by a board of
managers, which board of managers shall consist of such individuals and shall be
governed in all respects by the Parent LLC Agreement. Except as provided in the
Parent LLC Agreement, the LLC's board of managers shall have complete authority
and exclusive control over the business and affairs of the LLC; provided,
however, in no event shall the board of managers or the Member take any action
or cause the LLC to take any action inconsistent with the relative rights,
privileges and obligations of the members of Holdings as reflected in the Parent
LLC Agreement.
SECTION 4.2. LIMITATION OF LIABILITY; INDEMNIFICATION. Notwithstanding
any other provision to the contrary contained in this Agreement, no manager or
Member shall be liable, responsible, or accountable in damages or otherwise to
the LLC or to any Member or assignee of a Member for any loss, damage, cost,
liability, or expense incurred by reason of or caused by any act or omission
performed or omitted by such manager or Member, whether alleged to be based upon
or arising from errors in judgment, negligence, or breach of duty (including
alleged breach of any duty of care or duty of loyalty or other fiduciary duty),
except for (i) acts or omissions the manager or Member knew at the time of the
acts or omissions were clearly in conflict with the interest of the LLC, or (ii)
any transaction from which the manager or Member derived an improper personal
benefit, (iii) a willful breach of this Agreement, or (iv) gross negligence,
recklessness, willful misconduct, or knowing violation of law. Without limiting
the foregoing, no manager or Member shall in any event be liable for (A) the
failure to take any action not specifically required to be taken by the manager
or Member under the terms of this Agreement, (B) any action or omission taken or
suffered by any other manager or Member, or (C) any mistake, misconduct,
negligence, dishonesty or bad faith on the part of any employee or other agent
of the LLC appointed in good faith by such manager or Member. The provisions
regarding the indemnification of certain Persons are set forth in the
Indemnification Exhibit attached hereto as Exhibit C.
ARTICLE V
TRANSFER OF INTERESTS
SECTION 5.1. TRANSFER OF INTERESTS. Subject to the Parent LLC
Agreement, the Member may transfer its Interest at such time, in such amount and
pursuant to such terms, in whole or in part, as the Member shall in its sole
discretion determine.
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ARTICLE VI
DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS
SECTION 6.1. DISSOLUTION TRIGGERS. The LLC shall dissolve only upon the
first to occur of any of the following events:
(a) Upon the delivery for filing with the Secretary of State of a
Statement of Commencement of Winding Up of the LLC pursuant to Act Section
▇▇-▇▇-▇▇▇.
(b) The entry of a decree of judicial dissolution under Act Section
14-11-603(a).
SECTION 6.2. WINDING UP. Upon dissolution of the LLC the same Persons
who are entitled to wind up the Member under the Parent LLC Agreement shall wind
up the LLC's affairs.
SECTION 6.3. LIQUIDATING DISTRIBUTIONS. Following the dissolution of
the LLC, the assets of the LLC shall be applied to satisfy claims of creditors
and distributed to the Member in liquidation as provided in the Act, by the
Persons charged with winding up the affairs of the LLC.
ARTICLE VII
BOOKS AND RECORDS
SECTION 7.1. BOOKS AND RECORDS. The LLC shall keep books and records at
its principal place of business, which shall set forth an accurate account of
all transactions of the LLC and which shall enable the LLC to comply with the
requirement under Section 1.6 above that it segregate and account for its assets
and liabilities separately from those of the Member and of its Subsidiaries. The
LLC shall prepare financial statements at least annually, which shall include at
least a balance sheet and income statement prepared in accordance with GAAP,
which financial statements need not be audited, except in connection with any
audit that the Member or the LLC's ultimate parent entity may obtain.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. BINDING EFFECT. Except as otherwise provided in this
Agreement, every covenant, term, and provision of this Agreement shall be
binding upon and inure to the benefit of the Members and their successors,
transferees, and assigns.
SECTION 8.2. CONSTRUCTION. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any
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Member. No provision of this Agreement is to be interpreted as a penalty upon,
or a forfeiture by, any party to this Agreement.
SECTION 8.3. ENTIRE AGREEMENT; NO ORAL OPERATING AGREEMENTS. This
Agreement, together with the Parent LLC Agreement, constitutes the entire
agreement with respect to the affairs of the LLC and the conduct of its
business, and supersede all prior agreements and understandings, whether oral or
written. The LLC shall have no oral operating agreements.
SECTION 8.4. HEADINGS. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
SECTION 8.5. SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement.
SECTION 8.6. VARIATION OF PRONOUNS. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the Person or Persons may require.
SECTION 8.7. GOVERNING LAW; CONSENT TO JURISDICTION. The laws of the
State of Georgia shall govern the validity of this Agreement, the construction
and interpretation of its terms, and organization and internal affairs of the
LLC and the limited liability of its managers, Members, and other owners. The
Member hereby irrevocably consents to the personal jurisdiction of the courts of
the State of Georgia with respect to matters arising out of or related to the
enforcement of the provisions of this Agreement.
SECTION 8.8. COUNTERPART EXECUTION; FACSIMILE EXECUTION. This Agreement
may be executed in any number of counterparts with the same effect as if all of
the Members had signed the same document. Such executions may be transmitted to
the LLC and/or any other Member by facsimile and such facsimile execution shall
have the full force and effect of an original signature. All fully executed
counterparts, whether original executions or facsimile executions or a
combination, shall be construed together and shall constitute one and the same
agreement.
SECTION 8.9. TIME OF THE ESSENCE. Time is of the essence with respect
to each and every term and provision of this Agreement.
SECTION 8.10. EXHIBITS. The Exhibits to this Agreement, each of which
are incorporated by reference, are:
EXHIBIT A: Articles of Organization.
EXHIBIT B: Glossary of Terms.
EXHIBIT C: Indemnification Exhibit.
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IN WITNESS WHEREOF, the Members have executed this Agreement on the
following execution page, to be effective as of the date described in Article I.
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EXECUTION PAGE
TO THE
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC,
A GEORGIA LIMITED LIABILITY COMPANY
INITIAL AND CONTINUING MEMBER:
DIGITAL TELEVISION SERVICES, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: DTS Management, LLC
Its: Manager
By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
INITIAL AND WITHDRAWING MEMBER:
(Signing solely for the purpose
of acknowledging and consenting
to the provisions of Section 1.1.)
COLUMBIA CAPITAL CORPORATION,
A VIRGINIA CORPORATION
By: ___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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EXHIBIT A
ARTICLES OF ORGANIZATION
OF
COLUMBIA DBS MANAGEMENT, LLC
ARTICLE I
NAME. The name of the Limited Liability Company is COLUMBIA DBS
MANAGEMENT, LLC.
ARTICLE II
LATEST DATE OF DISSOLUTION. The latest date upon which the Company is
to dissolve is December 31, 2036.
ARTICLE III
Management of the Company shall be vested in one or more managers.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Organization, this 21st day of June, 1996.
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Organizer
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ARTICLES OF AMENDMENT
TO
ARTICLES OF ORGANIZATION
OF
COLUMBIA DBS MANAGEMENT, LLC
I.
The name of the limited liability company is
Columbia DBS Management, LLC.
II.
The Articles of Organization were filed on June 21, 1996.
III.
Article I of the Articles of Organization shall be amended to read as
follows:
NAME. The name of the Limited Liability Company is DTS Management, LLC.
* * * * *
IN WITNESS WHEREOF, the undersigned, constituting all the members of the
Company, have executed these Articles of Amendment to Articles of Organization
of Columbia DBS Management, LLC as of February 3, 1997.
Member:
COLUMBIA CAPITAL CORPORATION,
a Virginia corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Member:
DIGITAL TELEVISION SERVICES, LLC
a Delaware limited liability company
By: Columbia DBS Management, LLC
Its: Manager
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT B
TO THE
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC
A GEORGIA LIMITED LIABILITY COMPANY
GLOSSARY OF TERMS
"Act" shall mean the Georgia Limited Liability Company Act, as in
effect in Georgia and set forth at Section ▇▇-▇▇-▇▇▇ et. seq. (or any
corresponding provision of succeeding law).
"Agreement" shall mean this Amended and Restated Operating Agreement as
amended from time to time and, as the context shall require, includes the Parent
LLC Agreement.
"Articles of Organization" shall mean the articles of organization
required to be filed by the LLC pursuant to the Act together with any amendments
thereto.
"Capital Contribution" shall mean with respect to the Member, the
amount of money and any property (other than money) contributed to the LLC with
respect to the Interest of such Member.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor federal revenue law.
"Effective Time" shall have the meaning set forth in the paragraph
immediately preceding the Recitals.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time, including without
limitation, those principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entities as approved
by a significant segment of the accounting profession.
"Guarantee and Collateral Agreement" shall mean that certain Guarantee
and Collateral Agreement made by Columbia DBS Holdings, LLC as a Grantor,
Columbia DBS Management, LLC, certain Subsidiaries of Columbia DBS Holdings,
LLC, as Guarantors and Grantors, and Columbia DBS, Inc., Columbia Capital
Corporation, Columbia DBS Investors, L.P. and certain individuals, as Investors
and Pledgors in favor of Canadian Imperial Bank of Commerce, as Administrative
Agent dated as of November 27, 1996.
"Holdings" shall mean Digital Television Services, LLC, a Delaware
limited liability company, formerly Columbia DBS Holdings, LLC, a Delaware
limited liability company, successor by conversion to DBS Holdings, L.P., a
Delaware limited partnership.
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"Interest" shall mean all of the rights, privileges, preferences and
obligations of the Member or assignee with respect to the LLC created under this
Agreement or under the Act.
"LLC" shall mean the limited liability company formed pursuant to this
Agreement.
"Managers" shall refer collectively to those individuals who constitute
the board of managers of the LLC which individuals are designated as members of
the LLC's board of managers pursuant to the provisions of that certain Amended
and Restated Limited Liability Company Agreement of Digital Television Services,
LLC, a Delaware limited liability company.
"Member" shall mean (i) at any time prior to 10:01 A.M., February 7,
1997, Holdings and Columbia, and (ii) at any time on or thereafter, Holdings.
"Parent LLC Agreement" shall mean the Amended and Restated Limited
Liability Company Agreement of Holdings dated February 10, 1997, as amended
thereafter from time to time as provided therein.
"Person" shall mean any natural person, partnership, trust, estate,
association, limited liability company, corporation, custodian, nominee,
governmental instrumentality or agency, body politic or any other entity in its
own or any representative capacity.
"Subsidiaries" shall mean Digital Television Services of Alabama, LLC,
Digital Television Services of California, LLC, Digital Television Services of
Colorado, LLC, Digital Television Services of Georgia, LLC, Digital Television
Services of Kansas, LLC, Digital Television Services of Kentucky, LLC, Digital
Television Services of New Mexico, LLC, Digital Television Services of New York
I, LLC, Digital Television Services of New York II, LLC, Digital Television
Services of South Carolina I, LLC, Digital Television Services of South Carolina
II, LLC, Digital Television Services of Vermont, LLC, Spacenet, Inc., or any
other Person all of the equity interests of which are owned directly or
indirectly by the LLC.
[THE REMAINDER OF THIS PAGE INTENTIONALLY HAS BEEN LEFT BLANK.]
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EXHIBIT C
TO THE
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
DTS MANAGEMENT, LLC
A GEORGIA LIMITED LIABILITY COMPANY
INDEMNIFICATION EXHIBIT
(a) Rights to Indemnification.
(i) Pursuant to Act Section ▇▇-▇▇-▇▇▇, and to the full
extent otherwise permitted by law, the LLC shall
indemnify and save harmless its Member, the members
of the board of managers of the LLC, its Member's
members, and all members, partners, shareholders,
directors, officers, trustees, employees and agents
of any of those Persons ("Representatives"),
(collectively, the "Indemnitees") from and against
any and all claims, liabilities, damages, losses,
costs and expenses (including amounts paid in
satisfaction of judgments, compromises and
settlements, as fines and penalties and legal or
other costs and expenses of investigating or
defending against any claim or alleged claim) of any
nature whatsoever, known or unknown, liquidated or
unliquidated, that are incurred by any Indemnitee and
arise out of or in connection with the business of
the LLC or the performance by such Indemnitee of any
of the Person's responsibilities under this
Agreement. The rights created by this Exhibit shall
continue as to an Indemnitee who has ceased to be a
Member, or a Representative and shall inure to the
benefit of such Indemnitee's heirs, executors,
administrators, legal representatives, successors and
assigns.
(ii) Without limiting any other provisions of this
Exhibit, the LLC shall pay or reimburse, and
indemnify and hold harmless each Indemnitee against,
expenses incurred by such Indemnitee in connection
with his appearances as a witness or other
participation in a Proceeding involving or affecting
the LLC at a time when the Indemnitee is not a named
defendant or respondent in the Proceeding. For the
purposes of this Exhibit, a "Proceeding" shall mean
any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative,
arbitrative or investigative, any appeal in such an
action, suit or proceeding, and any inquiry or
investigation that could lead to such an action, suit
or proceeding.
(iii) Notwithstanding any other provision of this Exhibit
any indemnification hereunder shall be provided out
of and to the extent of LLC assets only, and no
Member of the LLC shall have personal liability on
account thereof.
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(b) Indemnification Procedures.
(i) Any Person seeking indemnification pursuant to this
Exhibit (including any Advancement of Expenses as
provided in Subsection (c) of this Exhibit) shall be
subject to the procedures of this Subsection (b) for
indemnification.
(ii) Any indemnification of any Representative under this
Exhibit, unless ordered by a court or arbitration
panel, shall be made by the LLC only as authorized in
the specific case and only upon a determination by
the LLC's Member (or by special legal counsel
pursuant to Subsection (v) below if so requested by
an Indemnitee) that (1) the Indemnitee acted in good
faith, (2) the Indemnitee reasonably believed that
its conduct was in the best interests of the LLC or
at least not opposed to the best interests of the
LLC, and in the case of a criminal Proceeding, had no
cause to believe that its conduct was criminal, and
(3) Indemnitee's conduct did not constitute gross
negligence, recklessness, or intentional misconduct,
fraud, or a knowing violation or breach of this
Agreement. The termination of any Proceeding by
judgment, order, settlement, conviction or on a plea
of nolo contendere or its equivalent shall not alone
determine that Indemnitee did not meet the
requirements set forth in the preceding sentence.
(iii) To claim indemnification under this Exhibit, a
Representative shall submit to the Member a written
request for indemnification, including therewith (or
affirming that there will be made available to the
LLC) such documentation and information as is
reasonably available to Indemnitee and as the Member
may reasonably request to support such claims and
enable the Member to make or cause to be made the
determinations hereinafter provided for. If at the
time of receipt of such request, the LLC has in
effect or is entitled to claim reimbursement for such
request under any policy of insurance covering such
claim, the LLC shall thereafter take proper action to
cause such insurers to accept coverage and thereafter
shall take all necessary action to cause such
insurers to pay such claim to or on behalf of
Indemnitee.
(iv) Indemnitee and the LLC shall cooperate with each
other and the Person making the indemnification
determination, including providing upon reasonable
advance request such information that is not
privileged or otherwise protected from disclosure and
which is reasonably necessary to such determination.
(v) Any "special legal counsel" selected to make any
indemnification determination required hereunder
shall be a law firm, or member of a law firm,
experienced in matters of corporation, partnership
and LLC law and which neither presently is, nor in
the past five (5) years has been, retained to
represent the LLC, the Indemnitee or any other party
to the Proceeding
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giving rise to the claim for indemnification, and
shall not include any Person who, under prevailing
applicable standards of professional conduct, would
have a conflict of interest with Indemnitee or the
LLC or any other party to the Proceeding. Any
determination required herein, if Indemnitee has so
requested, shall be made by special legal counsel
selected by the Indemnitee and reasonably
satisfactory to the Member.
(vi) An Indemnitee shall not be denied indemnification in
whole or in part under this Subsection (b) solely on
the grounds that it had an interest in the
transaction with respect to which the indemnification
applies, if the transaction was fully disclosed to
the Member in advance and was otherwise permitted to
be carried out by the terms of the Agreement.
(vii) The indemnification provided in this Exhibit is
solely for the benefit of Indemnitees and shall not
give rise to any right to indemnification in favor of
any other Persons.
(c) Advance Payment of Expenses. Expenses incurred by an Indemnitee in
defense or settlement of any claim that may be subject to a right of
indemnification hereunder may be advanced by the LLC prior to the final
disposition thereof (an "Advancement of Expense") upon receipt of a written
agreement by the Indemnitee to repay such amount to the extent that it shall be
determined ultimately that such Indemnitee is not entitled to be indemnified
hereunder.
(d) Right of Indemnitee to Commence Proceeding.
(i) If a claim under Subsection (a) of this Exhibit is
not paid in full by the LLC within sixty (60) days
after a written claim has been received by the LLC,
except in the case of a claim for an Advancement of
Expenses, in which case the applicable period shall
be twenty (20) days, an Indemnitee may at any time
thereafter commence a Proceeding against the LLC in
the State Courts of Georgia. If successful in whole
or in part in any such Proceeding, or in a Proceeding
brought by the LLC to recover any Advancement of
Expenses, the Indemnitee shall also be entitled to be
paid the expenses of prosecuting or defending such
Proceeding.
(ii) In any Proceeding brought by an Indemnitee to enforce
a right to Indemnification hereunder (but not in a
Proceeding brought by Indemnitee to enforce a right
to an Advancement of Expenses) it shall be a defense
that (and in any Proceeding by the LLC to recover an
Advancement of Expenses, the LLC shall be entitled to
recover such expenses upon a final adjudication that)
the Indemnitee has not met the requirements for
indemnification hereunder; provided, however, that in
any such Proceeding, neither (A) the failure of the
Member to have made the determination prior to the
commencement of such Proceeding that indemnification
of Indemnitee is proper in the circumstances, (B) an
actual determination by the Member that Indemnitee
has not met such applicable requirements, nor (C)
termination of any Proceeding by any judgment,
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order, settlement, or plea therein shall, of itself,
create a presumption that Indemnitee has not met such
applicable legal requirements or, in the case of such
a Proceeding brought by Indemnitee, be a defense to
such a Proceeding.
(iii) In any Proceeding brought by Indemnitee to enforce a
right to indemnification or to an Advancement of
Expenses hereunder, or by the LLC to recover an
Advancement of Expenses, the burden of proving that
Indemnitee is not entitled to be indemnified, or to
such Advancement or Expenses, under this Exhibit or
otherwise shall be on the LLC.
(iv) Without limiting the foregoing, any action commenced
pursuant to this Subsection (d) shall be conducted in
all respects as a de novo adjudication on the merits;
provided, however, if a determination shall have been
made, or deemed to have been made pursuant to
Subsection (b) above, that a Person is entitled to
indemnification, the LLC shall be bound thereby. The
LLC and all Members shall be precluded from asserting
in any action pursuant to this Subsection (d) that
the procedures and presumptions of this Exhibit are
not valid, binding and enforceable.
(e) Non-Exclusivity of Rights. The rights to indemnification and to the
Advancement of Expenses conferred in this Exhibit shall not be exclusive of any
other right which any Person may have or hereafter acquire under applicable law,
under any other agreement, pursuant to any determination by the Member or
otherwise, provided that the Indemnitee shall not be entitled to recover more
than once for the same damage.
(f) Insurance. The LLC shall be authorized to maintain insurance, in
reasonable amounts and with responsible carriers, at the LLC's expense, to
insure any amounts indemnifiable hereunder as well as to protect the Indemnitees
or any employee or agent of the LLC or another enterprise against any expense,
liability or loss of the kind referred to in this Exhibit, whether or not the
LLC would have the power to indemnify such Person against such expense,
liability or loss under the applicable law.
(g) Contribution by LLC. The LLC hereby agrees that, in the event that
the indemnification provided for in this Exhibit is for any reason finally
judicially determined to be unavailable, the LLC shall contribute to the payment
of any and all expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA or other excise taxes or penalties, and amounts paid in
settlement) in such proportion as is appropriate to reflect the relative fault
of the LLC and the Indemnitee with respect to such expenses, liability and loss.
(h) Other Indemnification Sources. Any Indemnitees entitled to
indemnification from the LLC hereunder shall first seek recovery under any
insurance policies by which such Indemnitee is covered and shall obtain the
written consent of the Member prior to entering into any compromise or
settlement that would result in an obligation of the LLC to indemnify such
Indemnitee. If the amounts in respect of which such indemnification is sought
arise out of the conduct of the business and affairs of the LLC and also of any
other Person for which the Person entitled to indemnification from the LLC
hereunder was then acting in a similar capacity,
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the amount of the indemnification provided by the LLC shall be limited to the
LLC's proportionate share thereof as determined in good faith by the Member.
(i) Survival. The provisions of this Exhibit shall survive the
dissolution of the LLC.
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