EXHIBIT 3.4
RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
ENTERCOM RADIO, LLC
This Restated Limited Liability Company Agreement (this
"Agreement") of ENTERCOM RADIO, LLC (the "Company"), is entered into as of the
____ day of December, 1999, by ENTERCOM COMMUNICATIONS CORP., a Pennsylvania
corporation, as member (the "Member").
The Company was formed as a limited liability company under an
Operating Agreement and Certificate of Formation dated as of September 21, 1999,
pursuant to and in accordance with the Delaware Limited Liability Company Act,
as amended from time to time (the "Act"). The Member hereby amends and restates
the Operating Agreement of the Company dated as of September 21, 1999, in its
entirety and hereby agrees as follows:
1. PURPOSE. The Company is formed for the purpose of
engaging in any lawful act or activity for which limited liability companies may
be formed under the Act (including, without limitation, acquiring, operating,
managing and disposing of broadcast radio stations and related assets), and
engaging in any and all activities necessary or incidental to the foregoing.
2. MEMBER. The name and the business, residence or mailing
address of the Member of the Company is as follows:
Name Address
---- -------
Entercom Communications Corp. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. MANAGEMENT.
(a) Board of Managers.
(i) The Company will be managed by a Board of
Managers. The Board of Managers shall be elected by the Member on an annual
basis. Each Manager of the Company shall be a natural person of full age who
need not be a resident of the State of Delaware or a Member of the Company. The
Board of Managers shall have the authority to fix the compensation of Managers
for their services as Managers and a Manager may be a salaried officer of the
Company.
(ii) The Member, by written consent or at an
annual or special meeting, may, at any time (a) fix the number of Managers; (b)
elect individuals or entities to
serve on the Board of Managers; (c) remove any Manager, with or without cause;
and (d) fill vacancies in the Board of Managers, including vacancies resulting
from an increase in the size of the Board, or upon the death, resignation or
removal of a Manager.
(iii) The initial Board of Managers shall
consist of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. Field, ▇▇▇▇▇ ▇. Field and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(collectively, the "initial Managers"). The initial Managers shall serve until
the end of their initial one-year term, at which time the Member may either
re-elect any or all of the initial Members or choose to elect new Managers.
(b) Resignation; Vacancies.
A Manager may resign by providing written notice
to the Board of Managers. The resignation shall take effect when received by the
Company, or at a later date stated in the notice of resignation. Vacancies in
the Board of Managers, including vacancies resulting from an increase in the
number of Managers, may be filled by a majority vote of the remaining members of
the Board though less than a quorum, and each person so selected shall be a
Manager to serve until the next election of Managers, and until a successor has
been selected and qualified or until his or her earlier death, resignation or
removal.
(c) Authority of the Board of Managers.
(i) Except as otherwise provided herein, the
Board of Managers, acting as a group, shall have the sole authority to manage
and control the business, affairs and properties of the Company, and is
authorized to approve any contracts, enter into any transactions, and make or
obtain any commitments on behalf of the Company to conduct or further the
Company's business. Each Manager shall have one (1) vote in all Board decisions.
Notwithstanding the foregoing, the following actions shall require the consent
of the Member:
(1) Subject to Section 4 hereof, the
termination, liquidation, or dissolution of the Company.
(2) The transfer, sale or other
disposition of all or substantially all of the assets of the Company in a single
transaction or series of transactions.
(3) A merger or consolidation of the
Company.
(ii) The Board of Managers may designate one or
more committees of Managers as may be deemed desirable by the Board and may
delegate to such committees any of the Board's responsibilities and authority.
Vacancies in the membership of any committee shall be filled by the Board of
Managers at a regular or special meeting. Any such committee shall have and
exercise the authority of the Board of Managers in the management of the
business affairs of the Company. The resolution establishing a committee shall
set forth the duties and authority of the committee, its size, its members and
its chairperson, or a method by which they are determined, its frequency of
meeting, and its duration. The committee or committees designated shall keep
regular minutes of its proceedings and report the
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same to the Board when required. The foregoing provision does not alter or waive
any duty that a Manager may have to the Company concerning the Manager's
exercise of management authority.
(iii) Each Manager must discharge his or her
duties in good faith, with the care an ordinarily prudent person in a like
position would exercise under similar circumstances, and in a manner which the
Manager reasonably believes to be in the best interests of the Company. A
Manager may rely on information received from other persons if that reliance is
reasonable and consistent with the Manager's duties.
(d) Acts of Managers.
Except to the extent that the Act, the
Certificate of Formation of the Company or this Agreement requires otherwise, an
act of the Managers consists of either (i) the consent of at least a majority of
the Managers represented at a properly called meeting of the Board of Managers
when a quorum (as set forth in Section 3(e)(vi)) is present, or (ii) written
consent without a meeting in accordance with Section 3(e)(v).
(e) Meetings of Managers.
(i) The Board of Managers of the Company may
hold meetings, both regular and special, either within or without the State of
Delaware. Managers may participate in such meetings in person or by
teleconference.
(ii) At every meeting of the Board of Managers,
the Chairman of the Board, if there be one, or, in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following officers
present in the order stated: the Vice Chairman of the Board, the CEO, the
President, the COO, the CFO, the Executive Vice President, or a person chosen by
a majority of the Managers present, shall act as chairman of, and preside over,
the meeting. The Secretary or, in the absence of the Secretary, an Assistant
Secretary, or, in the absence of the Secretary and the Assistant Secretaries,
any person appointed by the chairman of the meeting, shall act as secretary of
the meeting.
(iii) Regular meetings of the Board of Managers
may be held without notice at such time and at such place as shall from time to
time be determined by the consent of at least a majority of the Board at a duly
convened meeting, or by unanimous consent of the Board of Managers at any time,
provided, however, that the dates for such meetings are fixed by the Board of
Managers or the Chairman for an ensuing period of at least twelve months, and
such dates are set forth in the minutes of the meeting at which such dates were
fixed, which minutes were distributed to each Manager.
(iv) Special meetings of the Board may be called
by the Member or any two (2) or more Managers or the President. Notice of every
special meeting of the Board of Managers shall be given to each Manager by
telephone or in writing at least 24 hours (in the case of notice by telephone,
telex, TWX or facsimile transmission) or 48 hours (in the case of notice by
telegraph, courier service or express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the
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time and place of the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board need be specified in a
notice of the meeting.
(v) Any action required or permitted to be taken
at a meeting of the Board of Managers may be taken without a meeting by written
action signed by all of the Managers of the Company. The written action is
effective when executed by all of the Managers and delivered to the Company.
(vi) Attendance and voting at any meeting of the
Board of Managers shall not be permitted by proxy. For any meeting of the
Managers, a quorum consists of a majority of the Managers then serving on the
Board of Managers.
(vii) Any action required or permitted to be
taken at a meeting of the Managers may be taken without a meeting if, prior or
subsequent to the action, a consent or consents thereto by all of the Managers
in office is filed with the Secretary of the Company or the action is ratified
by the Managers at the next regular or special meeting thereof.
(viii) A Manager of the Company who is present
at a meeting of the Board of Managers, or of a committee of the Board, at which
action on any company matter is taken on which the Manager is generally
competent to act, shall be presumed to have assented to the action taken unless
his or her dissent is entered in the minutes of the meeting or unless the
Manager files his or her written dissent to the action with the Secretary of the
meeting before the adjournment thereof or transmits the dissent in writing to
the Secretary of the Company immediately after the adjournment of the meeting.
The right to dissent shall not apply to a Manager who voted in favor of the
action. Nothing in this section shall bar a Manager from asserting that minutes
of the meeting incorrectly omitted his or her dissent if, promptly upon receipt
of a copy of such minutes, the Manger notifies the Secretary, in writing, of the
asserted omission or inaccuracy.
(ix) Waiver of Notice.
(1) Written Waiver. Whenever any written
notice is required to be given under the provisions of the Act, the Certificate
of Formation of the Company or this Agreement, a waiver thereof in writing,
signed by the person or persons entitled to the notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of the notice.
Neither the business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver notice of the meeting.
(2) Waiver by Attendance. Attendance of
a person at any meeting shall constitute a waiver of notice of the meeting
except where a person attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting was not lawfully called or convened.
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(f) Nonliability of Managers for Acts or Omissions in
their Official Capacity.
To the fullest extent permitted by Delaware law,
Managers and officers of the Company shall have no personal liability for
damages or other monetary relief on account of any act, omission, or conduct in
the Manager's or officer's official capacity, or for failure to perform in
accordance with, or comply with the terms of this Agreement, or for any other
reasons, unless such failure to perform or to comply or other reason constitutes
willful misconduct or gross negligence by the Manager or officer. No amendment
or repeal of this section affects any liability or alleged liability of any
Manager or officer for any acts, omissions, or conduct that occurred prior to
the amendment or repeal.
(g) Officers of the Company.
(i) The Board of Managers may designate one or
more individuals to serve as officers of the Company. The officers of the
Company shall be a Chairman, a Chief Executive Officer ("CEO"), a President, an
Executive Vice President, a Senior Vice President, a Chief Operating Officer
("COO"), a Chief Financial Officer ("CFO"), a Secretary, a Treasurer, and such
other officers as may be elected in accordance with the provisions of Section
3(g)(v). Officers may but need not be Managers or Members of the Company. All of
the officers shall be natural persons of full age, except that the Treasurer may
be a corporation. The Board of Managers may elect from among the members of the
Board a Chairman of the Board and a Vice Chairman of the Board who may but need
not be officers of the Company. Any number of offices may be held by the same
person. The initial officers of the Company shall be:
Name Office
---- ------
▇▇▇▇▇▇ ▇. Field Chairman and Chief Executive Officer
▇▇▇▇▇ ▇. Field President and Chief Operating Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Senior Vice President and Chief Financial
Officer
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Executive Vice President and Secretary
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Treasurer and Assistant Secretary
▇▇▇▇ ▇▇▇▇▇▇▇ Assistant Secretary
(ii) Each officer shall be appointed by, and
shall serve at the pleasure of, the Member, and may be removed with or without
cause at any time by the Member, subject to the provisions of any written
contract between the Company and such person. The officers shall have such
powers and perform such duties as from time to time may be assigned by the
Member.
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(iii) In lieu of the standards of conduct
otherwise provided by law, officers of the Company shall be subject to the same
standards of conduct, including standards of care and loyalty and rights of
justifiable reliance, as shall at the time be applicable to Managers of the
Company. An officer of the Company shall not be personally liable, as such, to
the Company or its Members for monetary damages (including, without limitation,
any judgment, amount paid in settlement, penalty, punitive damages or expenses
of any nature (including, without limitation, attorneys' fees and
disbursements)) for any action taken, or any failure to take any action, unless
the officer has breached or failed to perform the duties of his or her office
under this Agreement or the applicable provisions of law and the breach or
failure to perform constitutes self-dealing, willful misconduct or recklessness.
The provisions of this subsection shall not apply to the responsibility or
liability of an officer pursuant to any criminal statute or for the payment of
taxes pursuant to local, state or federal law.
(iv) The officers of the Company shall perform
such duties and services and exercise such powers as may be provided by the Act,
the Certificate of Formation or this Agreement, or as the Board of Managers may
from time to time determine or as may be assigned to them by any competent
superior officer. In addition to the designation of officers and the enumeration
of their respective duties, services and powers, the Board of Managers may ▇▇▇▇▇
▇▇▇▇▇▇ of attorney to individuals or entities to act as agent for or on behalf
of the Company, to do any act which would be binding on the Company, in incur
any expenditures on behalf of or for the Company, or to execute, deliver and
perform any agreements, acts, transactions or other matters on behalf of the
Company. Such powers of attorney may be revoked or modified as deemed necessary
by the Board of Managers.
(v) The Board of Managers may from time to time
appoint such other officers and such committees, employees or other agents as
the business of the Company may require, including one or more vice presidents,
assistant secretaries, and assistant treasurers, each of whom shall hold office
for such period, have such authority, and perform such duties as are provided in
this Agreement, or as the Board of Managers may from time to time determine. The
Board of Managers may delegate to any officer or committee the power to appoint
subordinate officers and to retain or appoint employees or other agents, or
committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, employees or other agents.
(vi) The Chairman of the Board or in the absence
of the Chairman, the Vice Chairman of the Board, shall preside at all meetings
of the Board of Managers, and shall perform such other duties as may from time
to time be requested by the Board of Managers.
(vii) The CEO shall be the chief executive
officer of the Company. The CEO shall have general supervision over the
business, finances, operations and welfare of the Company, subject however, to
the control of the Board of Managers. The CEO shall sign, execute, and
acknowledge, in the name of the Company, deeds, mortgages, bonds, contracts or
other instruments, authorized by the Board of Managers, except in cases where
the signing and execution thereof shall be expressly delegated by the Board of
Managers, or by this Agreement or by the CEO, to some other officer or agent of
the Company; and, in general, shall have all powers and perform all duties
incident to the position of a chief executive officer and such other powers and
duties as from time to time may be assigned by the Board of Managers.
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The CEO shall from time to time make such reports of the affairs of the Company
as the Board or the Member may require.
(viii) The President shall perform the duties of
the CEO in the absence of the CEO and such other duties as may from time to time
be assigned to the President by the CEO.
(ix) The Vice Presidents shall perform such
duties as may from time to time be assigned to them by the Board of Managers,
the CEO or the President.
(x) The Secretary or an Assistant Secretary
shall attend all meetings of the Board of Managers and all committees thereof
and shall record all the votes of the Managers and the minutes of the meetings
of the Board of Managers and of committees of the Board in a book or books to be
kept for that purpose; shall see that notices are given and records and reports
properly kept and filed by the Company as required by law; and, in general,
shall perform all duties incident to the office of Secretary, and such other
duties as may from time to time be assigned by the Board of Managers or the CEO.
(xi) The COO shall be the chief operating
officer and shall have general management and supervision of the operations of
the Company under the direction and supervision of the CEO; and, in general,
shall discharge such other duties as may from time to time be assigned by the
Board of Managers or the CEO.
(xii) The CFO shall be the chief financial
officer and shall have general management and supervision of the fiscal affairs
of the Company under the direction and supervision of the CEO. The CFO shall see
that a full and accurate accounting of all financial transactions is made; shall
oversee the investment and reinvestment of the capital funds of the Company;
shall oversee the preparation of any financial reports of the Company; shall
cooperate in the conduct of the annual audit of the Company's financial records
by the Company's certified public accountants; and in general, shall discharge
such other duties as may from time to time be assigned by the Board of Managers
or the CEO.
(xiii) The Treasurer shall perform the duties of
the CFO in the absence of the CFO and shall have or provide for the custody of
the funds or other property of the Company; shall collect and receive or provide
for the collection and receipt of moneys earned by or in any manner due to or
received by the Company; shall deposit all funds in his or her custody as
Treasurer in such banks or other places of deposit as the Board of Managers may
from time to time designate; shall, whenever so required by the Board of
Managers, render an account showing all transactions as Treasurer, and the
financial condition of the Company; and, in general, shall discharge such other
duties as may from time to time be assigned by the Board of Managers, the CEO,
or the CFO.
(xiv) The salaries of the officers elected by
the Board of Managers shall be fixed from time to time by the Board of Managers
or by such committee or officer as may be designated by resolution of the Board,
or in the absence of such designation by the CEO. The salaries or other
compensation of any other officers, employees and other agents shall be fixed
from time to time by the Board, or by the officer or committee to which the
power to
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appoint such officers or to retain or appoint such employees or other agents has
been delegated pursuant to Section 3.(h)(v), or in the absence of such
designation by the CEO or other officer designated by the CEO. No officer shall
be prevented from receiving such salary or other compensation by reason of the
fact that the officer is also a Manager of the Company.
4. DISSOLUTION. The Company shall dissolve, and its affairs
shall be wound up upon the first to occur of the following: (a) the written
consent of the Member, (b) the bankruptcy or dissolution of the Member or the
occurrence of any other event that terminates the continued membership of the
Member in the Company, or (c) the entry of an order of judicial dissolution
under Section 18-802 of the Act.
5. CAPITAL CONTRIBUTIONS. The Member has contributed the
consideration set forth in a certain Subscription Agreement with the Company to
the Company as its capital contribution to and in consideration for its interest
in the Company.
6. ADDITIONAL CONTRIBUTIONS. No Member is required to make
any additional capital contributions to the Company.
7. ALLOCATION OF PROFITS AND LOSSES. All of the Company's
profits and losses shall be allocated to the Member.
8. DISTRIBUTION. Distributions shall be made to the Member
at the times and in the amounts determined by the Member.
9. ASSIGNMENTS. The Member may assign its limited liability
company interest in whole or in part.
10. RESIGNATION. The Member may resign from the Company as
long as one or more additional members have been previously admitted to the
Company.
11. ADMISSION OF ADDITIONAL MEMBERS. One or more additional
members may be admitted to the Company with the consent of and on such terms and
conditions as may be determined by the Member.
12. LIABILITY OF MEMBERS. The Member, in its capacity as a
member of the Company, shall not have any liability for the obligations or
liabilities of the Company.
13. INDEMNIFICATION.
(a) Scope of Indemnification.
(i) General Rule. The Company shall
indemnify an indemnified representative against any liability incurred in
connection with any proceeding in which the indemnified representative may be
involved as a party or otherwise by reason of the fact that such person is or
was serving in an indemnified capacity, including, without limitation,
liabilities resulting from any actual or alleged breach or neglect of duty,
error, misstatement or
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misleading statement, negligence, gross negligence or act giving rise to strict
or products liability, except:
(a) where such indemnification is
expressly prohibited by applicable law;
(b) where the conduct of the
indemnified representative has been finally determined pursuant to Section 13(f)
or otherwise:
(i) to constitute willful
misconduct or recklessness sufficient in the circumstances to bar
indemnification against liabilities arising from the conduct; or
(ii) to be based upon or
attributable to the receipt by the indemnified representative from the Company
of a personal benefit to which the indemnified representative is not legally
entitled; or
(c) to the extent such
indemnification has been finally determined in a final adjudication pursuant to
Section 13(f) to be otherwise unlawful.
(ii) Partial Payment. If an indemnified
representative is entitled to indemnification in respect of a portion, but not
all, of any liabilities to which such person may be subject, the Company shall
indemnify such indemnified representative to the maximum extent for such portion
of the liabilities.
(iii) Presumption. The termination of a
proceeding by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent shall not of itself create a presumption that the
indemnified representative is not entitled to indemnification.
(iv) Definitions. For purposes of this
Section 13:
(a) "indemnified capacity" means any
and all past, present and future service by an indemnified representative in one
or more capacities as a member, officer, employee or agent of the Company, or,
at the request of the Company, as a member, manager, officer, director,
employee, agent, fiduciary or trustee of another company, corporation,
partnership, joint venture, trust, employee benefit plan or other entity or
enterprise;
(b) "indemnified representative"
means any and all members and officers of the Company, any member, manager,
officer, employee or agent of a member of the Company acting on behalf of a
member of the Company in its capacity as a member of the Company, and any other
person designated as an indemnified representative by the Company (which may,
but need not, include any person serving at the request of the Company, as a
member, manager, officer, director, employee, agent, fiduciary or trustee of
another Company, corporation, partnership, joint venture, trust, employee
benefit plan or other entity or enterprise);
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(c) "liability" means any damage,
judgment, amount paid in settlement, fine, penalty, punitive damages, excise tax
assessed with respect to an employee benefit plan, or cost or expense of any
nature (including, without limitation, attorneys' fees and disbursements); and
(d) "proceeding" means any
threatened, pending or completed action, suit, appeal or other proceeding of any
nature, whether civil, criminal, administrative or investigative, whether formal
or informal, and whether brought by or in the right of the Company, a class of
its security holders or otherwise.
(b) Proceedings Initiated by Indemnified
Representatives. Notwithstanding any other provision of this Section 13, the
Company shall not indemnify under this Section 13 an indemnified representative
for any liability incurred in a proceeding initiated (which shall not be deemed
to include counterclaims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless such
initiation of or participation in the proceeding is authorized, either before or
after its commencement, by the Member. This section 13(b) does not apply to
reimbursement of expenses incurred in successfully prosecuting or defending an
arbitration under Section 13(f) or otherwise successfully prosecuting or
defending the rights of an indemnified representative granted by or pursuant to
this Section 13.
(c) Advancing Expenses. The Company shall pay the
expenses (including attorneys' fees and disbursements) incurred in good faith by
an indemnified representative in advance of the final disposition of a
proceeding described in Section 13(a) or the initiation of or participation in a
proceeding which has been authorized by the Member pursuant to Section 13(b)
upon receipt of an undertaking by or on behalf of the indemnified representative
to repay the amount if it is ultimately determined pursuant to Section 13(f)
that such person is not entitled to be indemnified by the Company pursuant to
this Section 13. The financial ability of an indemnified representative to repay
an advance shall not be a prerequisite to the making of such advance.
(d) Securing of Indemnification Obligations. To
further effect, satisfy or secure the indemnification obligations provided
herein or otherwise, the Company may maintain insurance, obtain a letter of
credit, act as self-insurer, create a reserve, trust, escrow, cash collateral or
other fund or account, enter into indemnification agreements, pledge or grant a
security interest in any assets or properties of the Company, or use any other
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Member shall deem appropriate. Absent
fraud, the determination of the Member with respect to such amounts, costs,
terms and conditions shall be conclusive against all security holders, officers
and members and shall not be subject to voidability.
(e) Payment of Indemnification. An indemnified
representative who is entitled to indemnification under this Section 13 shall be
entitled to payment within 30 days after a written request for indemnification
has been delivered to the Secretary of the Company.
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(f) Arbitration.
(i) General Rule. Any dispute related to the
right to indemnification, contribution or advancement of expenses as provided
under this Section 13, except with respect to indemnification for liabilities
arising under the Securities Act of 1933, as amended, that the Company has
undertaken to submit to a court for adjudication shall be decided only by
arbitration in the metropolitan area in which the principal executive offices of
the Company are located at the time, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association, before
a panel of three arbitrators, one of whom shall be selected by the Company, the
second of whom shall be selected by the indemnified representative and the third
of whom shall be selected by the other two arbitrators. In the absence of the
American Arbitration Association, or if for any reason arbitration under the
arbitration rules of the American Arbitration Association cannot be initiated,
and if one of the parties fails or refuses to select an arbitrator or the
arbitrators selected by the Company and the indemnified representative cannot
agree on the selection of the third arbitrator within 30 days after such time as
the Company and the indemnified representative have each been notified of the
selection of the other's arbitrator, the necessary arbitrator or arbitrators
shall be selected by the presiding judge of the court of general jurisdiction in
the county in which the Company's executive office is located.
(ii) Qualifications of Arbitrators. Each
arbitrator selected as provided herein is required to be or have been a director
or executive officer of a corporation whose shares of common stock were listed
during at least one year of such service on the New York Stock Exchange or the
American Stock Exchange or quoted on the National Association of Securities
Dealers Automated Quotations System.
(iii) Burden of Proof. The party or parties
challenging the right of an indemnified representative to the benefits of this
Section 13 shall have the burden of proof.
(iv) Expenses. The Company shall reimburse an
indemnified representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration.
(v) Effect. Any award entered by the
arbitrators shall be final, binding and nonappealable and judgment may be
entered thereon by any party in accordance with applicable law in any court of
competent jurisdiction, except that the Company shall be entitled to interpose
as a defense in any such judicial enforcement proceeding any prior final
judicial determination adverse to the indemnified representative under Section
13(a)(i)(a) or Section 13(a)(i)(b). This arbitration provision shall be
specifically enforceable.
(g) Contribution. If the indemnification provided
for in this Section 13 or otherwise is unavailable for any reason in respect of
any liability or portion thereof, the Company shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Section 13 or
otherwise.
(h) Mandatory indemnification of the Member,
Officers, etc. To the extent that an authorized representative of the Company
has been successful on the merits or
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otherwise in defense of any action, suit or proceeding brought against such
person by reason of the fact that such person is or was serving on behalf of the
Company, or brought by such person by or in the right of the Company to procure
a judgment in its favor, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by such person in connection
therewith.
(i) Contract Rights; Amendment or Repeal. All rights
under this Section 13 shall be deemed a contract between the Company and the
indemnified representative pursuant to which the Company and each indemnified
representative intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not affect any rights or obligations
then existing.
(j) Scope of Section 13. The rights granted by this
Section 13 shall not be deemed exclusive of any other rights to which those
seeking indemnification, contribution or advancement of expenses may be entitled
under any statute, agreement, vote or otherwise, both as to action in an
indemnified capacity and as to action in any other capacity. The
indemnification, contribution and advancement of expenses provided by or granted
pursuant to this Section 13 shall continue as to a person who has ceased to be
an indemnified representative in respect of matters arising prior to such time,
and shall inure to the benefit of the heirs, executors, administrators and
personal representatives of such a person.
(k) Reliance on Provisions. Each person who shall
act as an indemnified representative of the Company shall be deemed to be doing
so in reliance upon the rights of indemnification, contribution and advancement
of expenses provided by this Section 13.
(l) Changes in Delaware Law. References in this
Section 13 to Delaware law or to any provision thereof shall be to such law as
it existed on the date this Section 13 was adopted or as such law thereafter may
be changed; provided that (i) in the case of any change which expands the
liability of indemnified representatives or limits the indemnification rights or
the rights to advancement of expenses which the Company may provide, the rights
to limited liability, to indemnification and to the advancement of expenses
provided in this Section 13 shall continue as theretofore to the extent
permitted by law; and (ii) if such change permits the Company without the
requirement of any further action by the Member or the officers to limit further
the liability of indemnified representatives or to provide broader
indemnification rights or rights to the advancement of expenses than the Company
was permitted to provide prior to such change, then liability thereupon shall be
so limited and the rights to indemnification and the advancement of expenses
shall be so broadened to the extent permitted by law.
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14. GENERAL PROVISIONS.
(a) The covenants and agreements contained herein shall
be binding upon and inure to the benefit of the heirs, personal representatives,
successors and assigns of the respective parties hereto.
(b) Each provision of this Agreement shall be considered
separable and if for any reason any provision or provisions herein are
determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or affect any other provisions of
this Agreement.
(c) No provision of this Agreement is intended to be for
the benefit of any unrelated creditor to whom any debts, liabilities or
obligations are owed by, or who otherwise has any claim against, the Company or
the Member, and no such creditor shall obtain any right under any such
provisions or shall by reason of such provisions make any claim in respect of
any debt, liability or obligation (or otherwise) against the Company or the
Member.
(d) Section titles herein are for descriptive purposes
only and shall not control or alter the meaning of this Agreement as set forth
in the text. In this Agreement, the singular shall include the plural and the
neuter gender shall include the masculine and feminine genders, and vice versa,
unless the context otherwise requires.
(e) This Agreement may be modified or amended only with
the Unanimous Consent of the Member(s).
(f) This Agreement shall be governed by, and interpreted
and enforced in accordance with, the substantive laws of the State of Delaware,
without reference to the principles governing the conflict of laws applicable in
that or any other jurisdiction.
IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Limited Liability Company Agreement as of
the date first set forth above.
MEMBER:
ENTERCOM COMMUNICATIONS CORP.
By:
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
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