Form T-3/A Ttwn Networks, Llc

[Amend] Application for qualification of trust indentures

Published: 2019-04-26 16:53:18
Submitted: 2019-04-26
d734481dt3a.htm T-3/A


ENT> T-3/A 1 d734481dt3a.htm T-3/A

T-3/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM

T-3

 

 

FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES

UNDER THE TRUST INDENTURE ACT OF 1939

 

 

IHEARTCOMMUNICATIONS, INC.

(Name of Applicant)*

 

 

20880 Stone Oak Parkway

San Antonio, Texas 78258

(Address of principal executive offices)

Securities to be Issued under the Indenture to be Qualified

 

Title of Class

  

Amount

6.375% Senior Secured Notes due 2026   

$800,000,000

Approximate date of proposed public offering: On, or as soon as practicable after the Effective Date under the Plan of Reorganization (as defined herein).

Name and registered address of agent for service:

Lauren E. Dean

Senior Vice President, Associate General Counsel and Assistant Secretary

iHeartCommunications, Inc.

20880 Stone Oak Parkway

San Antonio, Texas 78258

 

 

With a copy to:

James S. Rowe

Ana Sempertegui

Kirkland & Ellis LLP

Chicago, Illinois 60654

(312)

862-2000

 

 

The Applicants hereby amend this Application for Qualification on such date or dates as may be necessary to delay its effectiveness until (i) the 20th day after the filing of an amendment which specifically states that it shall supersede this Application for Qualification, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), may determine upon the written request of the Applicants.

 

 

 

 

*

The Guarantors listed on the following page are also included in this Application as Applicants.


EXPLANATORY NOTE

Reference is made to the Disclosure Statement (as may be amended or supplemented, the “Disclosure Statement”) for the Modified Fifth Amended Joint Chapter 11 Plan of Reorganization of iHeartMedia, Inc. and its Debtor Affiliates pursuant to Chapter 11 of the Bankruptcy Code (as amended or supplemented, the “Plan of Reorganization”), copies of which are included herein as Exhibits T3E.1 and T3E.2, respectively. Pursuant to the Plan of Reorganization, iHeartCommunications, Inc. will distribute an aggregate of $5,750.0 million in principal amount of new debt comprised of $3,500.0 million in principal amount of new term loans, $800.0 million in principal amount of new 6.375% senior secured notes due 2026 (the “New Secured Notes”) and $1,450.0 million in principal amount of 8.375% new senior notes due 2027 (the “New Unsecured Notes”) to certain of their creditors.

GENERAL

 

1.

General Information.

iHeartCommunications, Inc. (the “Company”) is a Texas corporation established in 1974. The guarantors identified below (the “Guarantors” and, together with the Company, the “Applicants”) have the following forms of organization and jurisdictions of formation or incorporation.

 

Guarantor

  

Form

  

Jurisdiction

AMFM Broadcasting Licenses, LLC

   Limited liability company    Delaware

AMFM Broadcasting, Inc.

   Corporation    Delaware

AMFM Operating Inc.

   Corporation    Delaware

AMFM Radio Licenses, LLC

   Limited liability company    Delaware

AMFM Texas Broadcasting, LP

   Limited partnership    Delaware

AMFM Texas Licenses, LLC

   Limited liability company    Texas

AMFM Texas, LLC

   Limited liability company    Delaware

Broader Media, LLC

   Limited liability company    Delaware

Broader Media Holdings, LLC

   Limited liability company    Delaware

Capstar Radio Operating Company

   Corporation    Delaware

Capstar TX, LLC

   Limited liability company    Texas

CC Broadcast Holdings, Inc.

   Corporation    Nevada

CC Finco, LLC

   Limited liability company    Delaware

CC Finco Holdings, LLC

   Limited liability company    Delaware

CC Licenses, LLC

   Limited liability company    Delaware

CC Outdoor Holdings, Inc.

   Limited liability company    Delaware

Christal Radio Sales, Inc.

   Corporation    Delaware

Cine Guarantors II, Inc.

   Corporation    California

Citicasters Co.

   Corporation    Ohio

Citicasters Licenses, Inc.

   Corporation    Texas

Clear Channel Broadcasting Licenses, Inc.

   Corporation    Nevada

Clear Channel Investments, Inc.

   Corporation    Nevada

Clear Channel Metro, LLC

   Limited liability company    Delaware

Clear Channel Mexico Holdings, Inc.

   Corporation    Nevada

Clear Channel Real Estate, LLC

   Limited liability company    Delaware

Clear Channel Real Estate Services, LLC

   Limited liability company    Texas

Critical Mass Media, Inc.

   Corporation    Ohio

iHeartMedia Capital I, LLC

   Limited liability company    Delaware

iHeartMedia + Entertainment, Inc.

   Corporation    Nevada

iHeartMedia Management Services, Inc.

   Corporation    Texas

iHeartMedia Tower Co. Holdings, LLC

   Limited liability company    Delaware

iHeart Operations, Inc.

   Corporation    Delaware

iHM Identity, Inc.

   Corporation    Texas

Jelli, Inc.

   Corporation    Delaware

Katz Communications, Inc.

   Corporation    Delaware

Katz Media Group, Inc.

   Corporation    Delaware

Katz Millennium Sales & Marketing Inc.

   Corporation    Delaware

Katz Net Radio Sales, Inc.

   Corporation    Delaware

M Street Corporation

   Corporation    Washington

Metro Networks Communications, LP

   Limited partnership    Delaware

Metro Networks Services, Inc.

   Corporation    Delaware

Premiere Networks, Inc.

   Corporation    Delaware

 

1


Guarantor

  

Form

  

Jurisdiction

SmartRoute Systems, Inc.

   Corporation    Delaware

Stuff Media, LLC

   Limited liability company    Delaware

Terrestrial RF Licensing, Inc.

   Corporation    Nevada

TLAC, Inc.

   Corporation    Delaware

TTWN Networks, LLC

   Limited liability company    Delaware

TTWN Media Networks, LLC

   Limited liability company    Maryland

 

2.

Securities Act Exemption Applicable.

Pursuant to the terms of the Plan of Reorganization, the Applicants intend to offer, subject to the conditions set forth in the Disclosure Statement and the Plan of Reorganization, under an indenture to be qualified hereby (the “Indenture”), the New Secured Notes to holders of Allowed Claims (as defined in the Plan of Reorganization) of Classes 4, 5A, 5B, 6 and 7E (each, as defined in the Plan of Reorganization) (collectively, the “Allowed Claimholders”), which New Secured Notes will be guaranteed by the Guarantors.

The Plan of Reorganization will become effective on the date on which all conditions to the effectiveness of the Plan of Reorganization have been satisfied or waived (the “Effective Date”).

The issuance of the New Secured Notes is exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the exemption provided by Section 1145(a)(1) of the United States Bankruptcy Code (the “Bankruptcy Code”). Section 1145(a)(1) of the Bankruptcy Code exempts an offer and sale of securities under a plan of reorganization from registration under the Securities Act and state securities laws if three principal requirements are satisfied: (i) the securities must be offered and sold under a plan of reorganization and must be securities of the debtor, an affiliate participating in a joint plan with the debtor or a successor to the debtor under the plan of reorganization; (ii) the recipients of the securities must hold a prepetition or administrative expense claim against the debtor or an interest in the debtor; and (iii) the securities must be issued entirely in exchange for the recipient’s claim against or interest in the debtor, or principally in such exchange and partly for cash or property. The Company believes that the issuance of the New Secured Notes to the Allowed Claimholders will satisfy the aforementioned requirements.

AFFILIATIONS

 

3.

Affiliates.

The diagrams filed herewith under Exhibit T3H indicate the relationship of the Applicants to each of their affiliates as of the date of this Application and after the Effective Date, as applicable. All of the entities appearing therein are expected to exist as of the consummation of the Plan of Reorganization in the ownership structure shown therein.

Certain directors and officers of the Applicants may be deemed to be “affiliates” of the Applicants by virtue of their positions with the Applicants. See Item 4, “Directors and Executive Officers.”

Certain persons may be deemed to be “affiliates” of the Applicants by virtue of their holdings of voting securities of the Applicants. See Item 5, “Principal Owners of Voting Securities.”

MANAGEMENT AND CONTROL

 

4.

Directors and Executive Officers.

The following tables list the names and offices held by all directors and executive officers of each Applicant and all persons chosen to become directors or executive officers as of the date of this Application. The mailing address for each of the individuals listed in each of the tables for each of the entities set forth below is: c/o iHeartCommunications, Inc., 20880 Stone Oak Parkway, San Antonio, Texas 78258.

 

2


The Company

As of the date of this Application, the directors and executive officers of the Company are the following individuals.

 

Name

  

Office

David C. Abrams

   Director

John N. Belitsos

   Director

Frederic F. Brace

   Director

Richard J. Bressler

   Director, President, Chief Operating Officer and Chief Financial Officer

James C. Carlisle

   Director

John P. Connaughton

   Director

Charles H. Cremens

   Director

Matthew J. Freeman

   Director

Laura Grattan

   Director

Blair E. Hendrix

   Director

Jonathon S. Jacobson

   Director

Robert W. Pittman

   Director

Scott M. Sperling

   Director

Scott T. Bick

   Senior Vice President - Tax

Brian D. Coleman

   Senior Vice President and Treasurer

Lauren E. Dean

   Senior Vice President, Associate General Counsel and Assistant Secretary

C. William Eccleshare

   Chairman and Chief Executive Officer - Clear Channel Outdoor International

Wendy Goldberg

   Executive Vice President - Communications

Scott D. Hamilton

   Senior Vice President, Chief Accounting Officer and Assistant Secretary

Juliana F. Hill

   Senior Vice President-Liquidity and Asset Management

Steven J. Macri

   Senior Vice President - Corporate Finance

Jessica Marventano

   Senior Vice President - Government Affairs

Paul McNicol

   Executive Vice President and Deputy General Counsel

Steve Mills

   Senior Vice President - Chief Information Officer

Robert W. Pittman

   Chairman and Chief Executive Officer

Duaine Smith

   Senior Vice President and General Auditor

Gayle Troberman

   Executive Vice President and Chief Marketing Officer

Robert H. Walls, Jr.

   Executive Vice President, General Counsel and Secretary

Scott R. Wells

   Chief Executive Officer - Clear Channel Outdoor Americas

As of the Effective Date, the directors and executive officers of the Company are expected to be the following individuals:

 

Name

  

Office

Richard J. Bressler    Director and President and Chief Financial Officer
Paul McNicol    Director and Executive Vice President, General Counsel and Secretary
Scott T. Bick    Senior Vice President - Tax
Scott D. Hamilton    Senior Vice President, Chief Accounting Officer and Assistant Secretary
Steven J. Macri    Executive Vice President and Chief Financial Officer - IHM

The Guarantors

As of the date of this Application, the directors and executive officers of AMFM Broadcasting, Inc., AMFM Operating Inc., Capstar Radio Operating Company, CC Broadcast Holdings, Inc., Christal Radio Sales, Inc., Cine Guarantors II, Inc., Citicasters Co., Citicasters Licenses, Inc. Clear Channel Broadcasting Licenses, Inc., Critical Mass Media, Inc., iHeartMedia+Entertainment, Inc., iHeart Operations, Inc., Katz Communications, Inc., Katz Media Group, Inc., Katz Millennium Sales & Marketing, Inc., Katz Net Radio Sales, Inc., M Street Corporation, Metro Networks Services, Inc., Premiere Networks, Inc., SmartRoute Systems Inc., Terrestrial RF Licensing, Inc. and TLAC, Inc. are the following individuals.

 

3


Name

  

Office

Richard J. Bressler

   Director, President and Chief Financial Officer

Scott T. Bick

   Senior Vice President - Tax

Brian D. Coleman

   Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

   Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

   Vice President, Associate General Counsel and Assistant Secretary

Jeff Littlejohn

   Executive Vice President - Engineering and Systems Integration - IHM

Steven J. Macri

   Executive Vice President and Chief Financial Officer - IHM

Robert H. Walls, Jr.

   Director, Executive Vice President, General Counsel and Secretary

As of the Effective Date, the directors and executive officers of the Guarantors listed above are expected to continue to serve in the offices set forth in the table above, except that Mr. Robert H. Walls, Jr. will be replaced by Mr. Paul McNicol as director and Executive Vice President, General Counsel and Secretary and Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

As of the date of this Application, the managers and executive officers of AMFM Broadcasting Licenses, LLC, AMFM Texas Licenses, LLC, Capstar TX, LLC, CC Licenses, LLC and Stuff Media LLC are the following individuals.

 

Name

  

Office

Richard J. Bressler

   Manager, President and Chief Financial Officer

Scott T. Bick

   Senior Vice President - Tax

Brian D. Coleman

   Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

   Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

   Vice President, Associate General Counsel and Assistant Secretary

Jeff Littlejohn

   Executive Vice President - Engineering and Systems Integration - IHM

Steven J. Macri

   Executive Vice President and Chief Financial Officer - IHM

Robert H. Walls, Jr.

   Manager, Executive Vice President, General Counsel and Secretary

As of the Effective Date, the managers and executive officers of the Guarantors listed above are expected to serve in the offices set forth in the table above, except that Mr. Robert H. Walls, Jr. will be replaced by Mr. Paul McNicol as manager and Executive Vice President, General Counsel and Secretary and Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

As of the date of this Application, the executive officers of AMFM Radio Licenses, LLC, AMFM Texas, LLC, TTWN Networks, LLC and TTWN Media Networks, LLC are the following individuals. These entities are managed by their sole members.

 

Name

  

Office

Richard J. Bressler

   President and Chief Financial Officer

Scott T. Bick

   Senior Vice President - Tax

Brian D. Coleman

   Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

   Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

   Vice President, Associate General Counsel and Assistant Secretary

Jeff Littlejohn

   Executive Vice President - Engineering and Systems Integration - IHM

Steven J. Macri

   Executive Vice President and Chief Financial Officer - IHM

Robert H. Walls, Jr.

   Executive Vice President, General Counsel and Secretary

As of the Effective Date, the executive officers of the Guarantors listed above are expected to serve in the offices set forth in the table above, except that Mr. Robert H. Walls, Jr. will be replaced by Mr. Paul McNicol as Executive Vice President, General Counsel and Secretary and Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

As of the date of this Application and as of the Effective Date, the general partner and limited partner of AMFM Texas Broadcasting, LP are and will be as follows.

 

Name

  

Office

AMFM Broadcasting, Inc.

   General Partner

AMFM Texas, LLC

   Limited Partner

As of the date of this Application and as of the Effective Date, the general partner and limited partner of Metro Networks Communications, LP are and will be as follows.

 

Name

  

Office

Metro Networks Communications, Inc.

  

General Partner

Metro Networks Services, Inc.

  

Limited Partner

As of the date of this Application, the managers and executive officers of Clear Channel Real Estate, LLC are the following individuals.

 

4


Name

  

Office

Richard J. Bressler

  

Manager, President and Chief Financial Officer

Scott T. Bick

  

Senior Vice President - Tax

Brian D. Coleman

  

Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

  

Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

  

Vice President, Associate General Counsel and Assistant Secretary

Robert H. Walls, Jr.

  

Manager, Executive Vice President, General Counsel and Secretary

As of the Effective Date, the managers and executive officers of the Guarantor listed above are expected to serve in the offices set forth in the table above, except that Mr. Steven J. Macri will become Executive Vice President and Chief Financial Officer - IHM, Mr. Robert H. Walls, Jr. will be replaced by Mr. Paul McNicol as manager and Executive Vice President, General Counsel and Secretary and Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

As of the date of this Application, the executive officers of Broader Media, LLC, Broader Media Holdings, LLC, CC Finco, LLC and CC Finco Holdings, LLC are the following individuals. These entities are managed by their sole members.

 

Name

  

Office

Richard J. Bressler

  

President and Chief Financial Officer

Scott T. Bick

  

Senior Vice President - Tax

Brian D. Coleman

  

Senior Vice President, Treasurer and Assistant Secretary

Lauren E. Dean

  

Vice President, Associate General Counsel and Assistant Secretary

Robert H. Walls, Jr.

  

Executive Vice President, General Counsel and Secretary

As of the Effective Date, Mr. Bressler and Mr. Bick are expected to continue in their current offices. Mr. Scott D. Hamilton will become Senior Vice President, Chief Accounting Officer and Assistant Secretary, Mr. Steven J. Macri will become Senior Vice President - Finance and Mr. Paul McNicol will replace Mr. Robert H. Walls, Jr. as Executive Vice President, General Counsel and Secretary. Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

As of the date of this Application, the directors and executive officers of Clear Channel Investments, Inc., Clear Channel Mexico Holdings, Inc., Clear Channel Real Estate Services, LLC, iHeartMedia Management Services, Inc. and iHM Identity, Inc. are the following individuals.

 

Name

  

Office

Richard J. Bressler

  

Director, President and Chief Financial Officer

Scott T. Bick

  

Senior Vice President - Tax

Brian D. Coleman

  

Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

  

Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

  

Vice President, Associate General Counsel and Assistant Secretary

Robert H. Walls, Jr.

  

Director, Executive Vice President, General Counsel and Secretary

As of the Effective Date, Mr. Bressler and Mr. Bick are expected to continue in their current offices. Mr. Scott D. Hamilton will become Senior Vice President, Chief Accounting Officer and Assistant Secretary, Mr. Steven J. Macri will become Senior Vice President - Finance and Mr. Paul McNicol will replace Mr. Robert H. Walls, Jr. as director and Executive Vice President, General Counsel and Secretary. Mr. Brian D. Coleman and Ms. Lauren E. Dean will cease to serve as executive officers.

 

5


As of the date of this Application, the managers and executive officers of iHeartMedia Capital I, LLC are the following individuals.

 

Name

  

Office

David C. Abrams

  

Manager

John N. Belitsos

  

Manager

Frederic F. Brace

  

Manager

Richard J. Bressler

  

Manager, President, Chief Operating Officer and Chief Financial Officer

James C. Carlisle

  

Manager

John P. Connaughton

  

Manager

Charles H. Cremens

  

Manager

Matthew J. Freeman

  

Manager

Laura Grattan

  

Manager

Blair E. Hendrix

  

Manager

Jonathon S. Jacobson

  

Manager

Robert W. Pittman

  

Manager

Scott M. Sperling

  

Manager

Scott T. Bick

  

Senior Vice President - Tax

Brian D. Coleman,

  

Senior Vice President and Treasurer

Lauren E. Dean

  

Senior Vice President, Associate General Counsel and Assistant Secretary

C. William Eccleshare

  

Chairman and Chief Executive Officer - Clear Channel Outdoor International

Wendy Goldberg

  

Executive Vice President - Communications

Scott D. Hamilton

  

Senior Vice President, Chief Accounting Officer and Assistant Secretary

Juliana F. Hill

  

Senior Vice President-Liquidity and Asset Management

Steven J. Macri

  

Senior Vice President - Corporate Finance

Jessica Marventano

  

Senior Vice President-Government Affairs

Paul McNicol

  

Executive Vice President and Deputy General Counsel

Steve Mills

  

Senior Vice President - Chief Information Officer

Robert W. Pittman

  

Chairman and Chief Executive Officer

Duaine Smith

  

Senior Vice President and General Auditor

Gayle Troberman

  

Executive Vice President and Chief Marketing Officer

Robert H. Walls, Jr.

  

Executive Vice President, General Counsel and Secretary

Scott R. Wells

  

Chief Executive Officer - Clear Channel Outdoor Americas

As of the Effective Date, the managers and executive officers of iHeartMedia Capital I, LLC are expected to be the following individuals.

 

Name

  

Office

Richard J. Bressler    Director, President and Chief Financial Officer
Paul McNicol    Director, Executive Vice President, General Counsel and Secretary
Scott T. Bick    Senior Vice President - Tax
Scott D. Hamilton    Senior Vice President, Chief Accounting Officer and Assistant Secretary
Steven J. Macri    Executive Vice President and Chief Financial Officer - IHM

As of the date of this Application, the managers and executive officers of iHeartMedia Tower Co. Holdings, LLC are the following individuals.

 

Name

  

Office

Richard J. Bressler

  

Manager, President and Chief Financial Officer

Scott T. Bick

  

Senior Vice President - Tax

Brian D. Coleman

  

Senior Vice President, Treasurer and Assistant Secretary

Stephen G. Davis

  

Senior Vice President - Real Estate, Facilities and Capital Management

Lauren E. Dean

  

Vice President, Associate General Counsel and Assistant Secretary

Scott D. Hamilton

  

Senior Vice President, Chief Accounting Officer and Assistant Secretary

Juliana F. Hill

  

Senior Vice President - Liquidity and Asset Management

Jeff Littlejohn

  

Executive Vice President - Engineering and Systems Integration - IHM

Steven J. Macri

  

Executive Vice President and Chief Financial Officer - IHM

Robert H. Walls, Jr.

  

Manager, Executive Vice President, General Counsel and Secretary

 

6


As of the Effective Date, the managers and executive officers of iHeartMedia Tower Co. Holdings, LLC are expected to be the following individuals.

 

Name

  

Office

Richard J. Bressler    Manager, President and Chief Financial Officer
Paul McNicol    Manager, Executive Vice President, General Counsel and Secretary
Scott T. Bick    Senior Vice President - Tax
Scott D. Hamilton    Senior Vice President, Chief Accounting Officer and Assistant Secretary
Steven J. Macri    Senior Vice President - Finance

As of the date of this Application, the directors and executive officers of CC Outdoor Holdings, Inc. are the following individuals.

 

Name

  

Office

Richard J. Bressler    Director, President, Chief Financial Officer and Chief Operating Officer
Robert H. Walls, Jr.    Director

As of the Effective Date, Mr. Bressler is expected to continue to serve in the offices set forth in the table above and Mr. Robert H. Walls, Jr. will be replaced by Mr. Paul McNicol as director.

 

5.

Principal Owners of Voting Securities.

The following tables set forth certain information regarding each person known to the Company to own 10 percent or more of the voting securities of the Applicants as of the date of this Application. The mailing address of each holder listed in each of the tables set forth below is: c/o iHeartCommunications, Inc., 20880 Stone Oak Parkway, San Antonio, Texas 78258.

The Company

 

Name and Complete Mailing Address of Equityholder

   Title of
Class Owned
     Amount Owned      Percentage of Voting
Securities Owned
 

iHeartMedia Capital I, LLC

     Common Stock        500,000,000        100

Upon consummation of the Plan of Reorganization, iHeartMedia Capital I, LLC will continue to own all of the voting securities of the Company.

The Guarantors

 

Guarantor Name

  

Name and Complete Mailing Address
of Equityholder

  

Title of Class
Owned

   Amount
Owned
     Percentage of
Voting
Securities
Owned
 

AMFM Broadcasting Licenses, LLC

  

AMFM Broadcasting, Inc.

  

Membership Interest

     N/A        100

AMFM Broadcasting, Inc.

  

AMFM Operating Inc.

  

Common Stock, $0.10 per share

     1,000        100  

AMFM Operating Inc.

  

Clear Channel Holdings, Inc.

  

Common Stock, par value $0.01 per share

     1,040        100  

AMFM Radio Licenses, LLC

  

Capstar Radio Operating Company

  

Membership Interest

     N/A        100  

AMFM Texas Broadcasting, LP

  

AMFM Texas, LLC

  

Partnership shares

     N/A        99  

AMFM Texas Licenses, LLC

  

Capstar Radio Operating Company

  

Membership Interest

     N/A        100  

AMFM Texas, LLC

  

AMFM Broadcasting, Inc.

  

Membership Interest

     N/A        100  

Broader Media, LLC

  

iHeart Operations, Inc.

  

Membership Interest

     N/A        100  

Broader Media Holdings, LLC

  

Clear Channel Holdings, Inc.

  

Membership Interest

     N/A        100  

Capstar Radio Operating Company

  

AMFM Texas Broadcasting, LP

  

Common Stock, par value $0.10 per share

     100        100  

Capstar TX, LLC

  

Capstar Radio Operating Company

  

Membership Interest

     N/A        100  

CC Broadcast Holdings, Inc.

  

CC Broadcasting Licenses, Inc.

  

Common Stock, without par value

     1,000        100  

CC Finco, LLC

  

iHeart Operations, Inc.

  

Membership Interest

     N/A        100  

CC Finco Holdings, LLC

  

iHeartCommunications, Inc.

  

Membership Interest

     N/A        100  

CC Licenses, LLC

  

iHeartMedia + Entertainment, Inc.

  

Membership Interest

     N/A        100  

CC Outdoor Holdings, Inc.

  

iHeartCommunications, Inc.

  

Common Stock, par value $0.10 per share

     1,000        100  

 

7


Guarantor Name

  

Name and Complete Mailing Address
of Equityholder

  

Title of Class
Owned

   Amount
Owned
     Percentage of
Voting
Securities
Owned
 

Christal Radio Sales, Inc.

  

Katz Communications, Inc.

  

Common Stock, par value $1.00 per share

     1,000        100  

Cine Guarantors II, Inc.

  

Citicasters Co.

  

Common Stock, par value $1.00 per share

     100        100  

Citicasters Co.

  

Clear Channel Holdings, Inc.

  

Class A Common Stock, no par value

     100        100  

Citicasters Licenses, Inc.

  

Citicasters Co.

  

Common Stock, par value $1.00 per share

     1,000        100  

Clear Channel Broadcasting Licenses, Inc.

  

Clear Channel Holdings, Inc.

  

Common Stock, par value $0.10 per share

     100        100  

Clear Channel Investments, Inc.

  

iHeartCommunications, Inc.

  

Common Stock, par value $0.10 per share

     1,000        100  

Clear Channel Metro, LLC

  

iHeartCommunications, Inc.

  

Membership Interest

     N/A        100  

Clear Channel Mexico Holdings, Inc.

  

Clear Channel Holdings, Inc.

  

Common Stock, no par value

     N/A        100  

Clear Channel Real Estate, LLC

  

Clear Channel Holdings, Inc.

  

Membership Interest

     N/A        100  

Clear Channel Real Estate Services, LLC

  

iHeartMedia Management Services, LLC

  

Membership Interest

     N/A        100  

Critical Mass Media, Inc.

  

Clear Channel Holdings, Inc.

  

Common Stock, no par value

     100        100  

iHeartMedia Capital I, LLC

  

iHeartMedia Capital II, LLC

  

Membership Interest

     N/A        100  

iHeartMedia + Entertainment, Inc.

  

CC Broadcast Holdings, Inc.

  

Common Stock, par value $0.10 per share

     100        100  

iHeartMedia Management Services, Inc.

  

iHeartCommunications, Inc.

  

Common Stock, par value $0.01 per share

     100        100  

iHeartMedia Tower Co. Holdings, LLC

  

iHeartCommunications, Inc.

  

Membership Interest

     N/A        100  

iHeart Operations, Inc.

  

iHeartCommunications, Inc.

  

Common Stock, par value $0.01 per share

     1,000        100  

iHM Identity, Inc.

  

iHeartCommunications, Inc.

  

Common Stock, par value $0.01 per share

     100        100  

Jelli, Inc.

  

Broader Media Holdings, LLC

  

Common Stock, par value $0.0001 per share

     1,000        100  

 

8


Guarantor Name

  

Name and Complete Mailing Address
of Equityholder

  

Title of Class
Owned

   Amount
Owned
     Percentage of
Voting
Securities
Owned
 

Katz Communications, Inc.

  

Katz Media Group, Inc.

  

Common Stock, par value $0.01 per share

     1,000        100  

Katz Media Group, Inc.

  

AMFM Operating, Inc.

  

Common Stock, par value $0.01 per share

     1,000        100  

Katz Millennium Sales & Marketing Inc.

  

Katz Communications, Inc.

  

Common Stock, par value $0.10 per share

     10,000        100  

Katz Net Radio Sales, Inc.

  

Katz Communications, Inc.

  

Common Stock. par value $1.00 per share

     100        100  

M Street Corporation

  

Critical Mass Media, Inc.

  

Common Stock, without par value

     1,000        100  

Metro Networks Communications, LP

  

Metro Networks Services, Inc.

  

Partnership shares

     N/A        100  

Metro Networks Services, Inc.

  

TTWN Media Networks, LLC

  

Common Stock, par value $0.01 per share

     1,000        100  

Premiere Networks, Inc.

  

Clear Channel Holdings, Inc.

  

Common Stock, par value $0.01 per share

     2,909.601        100  

SmartRoute Systems, Inc.

  

Clear Channel Metro, LLC

  

Common stock, par value $1.00 per share

     1,000        100  

Stuff Media LLC

  

iHeartMedia + Entertainment, Inc.

  

Membership Interests

     N/A        100  

Terrestrial RF Licensing, Inc.

  

iHeartMedia + Entertainment, Inc.

  

Common Stock

     1,000        100  

TLAC, Inc.

  

Clear Channel Metro, LLC

  

Common Stock, par value $0.10 per share

     100        100  

TTWN Networks, LLC

  

TTWN Networks, LLC

  

Membership Interest

     N/A        100  

TTWN Media Networks, LLC

  

Clear Channel Metro, LLC

  

Membership Interest

     N/A        100  

Upon consummation of the Plan of Reorganization, the equityholders listed above will continue to own all of the voting securities of the Guarantors.

UNDERWRITERS

 

6.

Underwriters.

(a) The following table sets forth information regarding all persons who have acted as an underwriter of any securities of the Applicants within three years prior to the date of the filing of this Application.

 

Name

  

Mailing Address

  

Offering

Moelis & Company, LLC   

399 Park Avenue

New York, New York 10022

   February 2017
Exchange Offer of 10.0% Senior Notes due 2018 for 11.25% Priority Guarantee Notes due 2021

(b) There is no proposed principal underwriter for the New Secured Notes that are to be issued under the Indenture that is to be qualified under this Application.

 

9


CAPITAL SECURITIES

 

7.

Capitalization.

(a) The following tables set forth certain information with respect to each authorized class of securities of the Applicants as of the date of this Application.

The Company

 

Title of Class

   Amount Authorized      Amount Outstanding  

Common Stock, par value $0.10 per share

     500,000,000        500,000,000  

9.0% Priority Guarantee Notes Due 2019 (1)

     N/A        1,999,815,000  

9.0% Priority Guarantee Notes Due 2021 (1)

     N/A        1,750,000,000  

11.25% Priority Guarantee Notes Due 2021 (1)(2)

     N/A        870,546,000  

9.0% Priority Guarantee Notes Due 2022 (1)

     N/A        1,000,000,000  

10.625% Priority Guarantee Notes Due 2023 (1)

     N/A        950,000,000  

14.0% Senior Notes due 2021 (1)(3)

     N/A        2,235,471,975  

Legacy Notes: (4)

     

5.50% Senior Notes due 2016 (5)

     N/A        57,100,000  

6.875% Senior Notes Due 2018

     N/A        175,000,000  

7.25% Senior Notes Due 2027

     N/A        300,000,000  

 

(1)

These securities are guaranteed on a senior basis by each of the Guarantors.

(2)

Includes $180.8 million aggregate principal amount of 11.25% Priority Guarantee Notes due 2021 held by the Company’s subsidiaries, which will be cancelled prior to the Effective Date.

(3)

Includes $453.9 million aggregate principal amount of 14% Senior Notes due 2021 held by the Company’s subsidiaries, which will be cancelled prior to the Effective Date.

(4)

These securities are not guaranteed by the Guarantors.

(5)

Held by the Company’s wholly-owned subsidiary, Clear Channel Holdings, Inc.

As of the Effective Date, pursuant to the Plan of Reorganization, all the series of notes listed below will be deemed satisfied in full, released and discharged, and the Company will issue the New Senior Secured Notes and $1,450 million in aggregate principal amount of the New Unsecured Notes, which will also be distributed to Allowed Claimholders.

The Guarantors

 

Company Name

  

Title of Class

   Amount Authorized      Amount Outstanding  

AMFM Broadcasting Licenses, LLC

  

Membership Interest

     N/A        N/A  

AMFM Broadcasting, Inc.

  

Common Stock, $0.10 per share

     1,000        1,000  

AMFM Operating Inc.

  

Common Stock, par value $0.01 per share

     1,040        1,040  

AMFM Radio Licenses, LLC

  

Membership Interest

     N/A        N/A  

AMFM Texas Broadcasting, LP

  

Partnership shares

     N/A        N/A  

AMFM Texas Licenses, LLC

  

Membership Interest

     N/A        N/A  

AMFM Texas, LLC

  

Membership Interest

     N/A        N/A  

Broader Media, LLC

  

Membership Interest

     N/A        N/A  

Broader Media Holdings, LLC

  

Membership Interest

     N/A        N/A  

Capstar Radio Operating Company

  

Common Stock, par value $0.10 per share

     1,000        100  

Capstar TX, LLC

  

Membership Interest

     N/A        N/A  

CC Broadcast Holdings, Inc.

  

Common Stock, without par value

     1,000        1,000  

CC Finco, LLC

  

Membership Interest

     N/A        N/A  

CC Finco Holdings, LLC

  

Membership Interest

     N/A        N/A  

CC Licenses, LLC

  

Membership Interest

     N/A        N/A  

CC Outdoor Holdings, Inc.

  

Common Stock, par value $0.10 per share

     1,000        1,000  

 

10


Company Name

  

Title of Class

   Amount Authorized      Amount Outstanding  

Christal Radio Sales, Inc.

  

Common Stock, par value $1.00 per share

     1,000        1,000  

Cine Guarantors II, Inc.

  

Common Stock, par value $1.00 per share

     25,000        100  

Citicasters Co.

  

Class A Common Stock, no par value

     1,000        100  
  

Class B Common Stock, no par value

     1,000        100  

Citicasters Licenses, Inc.

  

Common Stock, par value $1.00 per share

     1,000        1,000  

Clear Channel Broadcasting Licenses, Inc.

  

Common Stock, par value $0.10 per share

     1,000        100  

Clear Channel Investments, Inc.

  

Common Stock, par value $0.10 per share

     1,000        1,000  

Clear Channel Metro, LLC

  

Membership Interest

     N/A        N/A  

Clear Channel Mexico Holdings, Inc.

  

Common Stock, without par value

     1,000        2  

Clear Channel Real Estate, LLC

  

Membership Interest

     N/A        N/A  

Clear Channel Real Services, LLC

  

Membership Interest

     N/A        N/A  

Critical Mass Media, Inc.

  

Common Stock, no par value

     750        100  

iHeartMedia Capital I, LLC

  

Membership Interest

     N/A        N/A  

iHeartMedia + Entertainment, Inc.

  

Common Stock, par value $0.10 per share

     1,000        100  

iHeartMedia Management Services, Inc.

  

Common Stock, par value $0.01 per share

     1,000        100  

iHeartMedia Tower Co. Holdings, LLC

  

Membership Interest

     N/A        N/A  

iHeart Operations, Inc.

  

Common Stock, par value $0.01 per share

     1,000        1,000  

iHM Identity, Inc.

  

Common Stock, par value $0.01 per share

     1,000        100  

Jelli, Inc.

  

Common Stock, par value $0.0001 per share

     1,000        100  

Katz Communications, Inc.

  

Common Stock, par value $0.01 per share

     1,000        1,000  

Katz Media Group, Inc.

  

Common Stock, par value $0.01 per share

     1,000        1,000  

Katz Millennium Sales & Marketing Inc.

  

Common Stock, par value $0.10 per share

     10,000        10,000  

Katz Net Radio Sales, Inc.

  

Common Stock. par value $1.00 per share

     10,000        100  

M Street Corporation

  

Common Stock, without par value

     100,000        1,000  

Metro Networks Communications, LP

  

Partnership Shares

     N/A        100  

Metro Networks Services, Inc.

  

Common Stock. par value $0.01 per share

     1,000        100  

Premiere Networks, Inc.

  

Common Stock, par value $0.01 per share

     14,000        2,909.601  
  

Class A common stock, par value $0.010 per share

     20,000        0  
  

Preferred Stock, $0.01 per share

     5,000        0  

SmartRoute Systems, Inc.

  

Common Stock, par value $1.00 per share

     1,000        100  

Stuff Media, LLC

  

Membership Interest

     N/A        100  

Terrestrial RF Licensing, Inc.

  

Common Stock, par value $0.010 per share

     1,000        1,000  

TLAC, Inc.

  

Common Stock. par value $0.10 per share

     100        100  

TTWN Networks, LLC

  

Membership Interest

     N/A        N/A  

TTWN Media Networks, LLC

  

Membership Interest

     N/A        N/A  

(b) Each holder of common stock of the Company and the Guarantors that are corporations has one vote on all matters to be voted upon by stockholders with no cumulative voting rights. Except for Broader Media Holdings, LLC, which has two members and is controlled by one such member, the Guarantors that are limited liability companies have a sole member and are either controlled by such sole member (in the case of AMFM Radio Licenses, LLC, AMFM Texas, LLC, Broader Media, LLC, CC Finco, LLC, CC Finco Holdings, LLC, Clear Channel Metro, LLC, iHeartMedia Tower Co. Holdings, LLC, TTWN Networks, LLC and TTWN Media Networks, LLC) or a board of managers (in the case of AMFM Broadcasting Licenses, LLC, AMFM Texas Licenses, LLC, Capstar TX, LLC, CC Licenses, LLC, Clear Channel Real Estate, LLC, Clear Channel Real Estate Services, LLC and iHeartMedia Capital I, LLC). The Guarantors that are partnerships are controlled by their general partner.

 

11


Holders of the series of notes of the Company listed above have the voting rights with respect to the respective series of notes set forth under the respective indenture.

INDENTURE SECURITIES

 

14.

Analysis of Indenture Provisions.

The New Secured Notes will be subject to the new Indenture to be entered into among the Company, the Guarantors, and U.S. Bank National Association, as trustee (the “Trustee”) and collateral agent. The following is a general description of certain provisions included in the Indenture, and the description is qualified in its entirety by reference to the form of Indenture filed as Exhibit T3C herewith. The Company has not entered into the Indenture as of the date of this filing, and the terms of the Indenture are subject to change before it is executed. Capitalized terms used below and not defined herein have the meanings ascribed to them in the Indenture.

 

  (a)

Events of Default; Withholding of Notice.

The occurrence of any of the following events will constitute an Event of Default under the Indenture: (1) default in any payment of interest on any Senior Secured Note when due and payable, continued for 30 days; (2) default in the payment of the principal amount of or premium, if any, on any Senior Secured Note when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; (3) failure by the Company or any Guarantor to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of 25% in principal amount of the outstanding Senior Secured Notes with any agreement or obligation contained in the Indenture; provided that in the case of a failure to comply with the Indenture provisions described under Section 3.10 thereof, such period of continuance of such default or breach shall be 120 days after written notice described in this clause has been given; (4) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Parent Guarantor or a Significant Subsidiary of the Parent Guarantor other than Indebtedness owed to the Parent Guarantor or a Restricted Subsidiary whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default (a) is caused by a failure to pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness; or (b) results in the acceleration of such Indebtedness prior to its stated final maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default of principal at its stated final maturity (after giving effect to any applicable grace periods) or the maturity of which has been so accelerated, aggregates to $100 million or more at any time outstanding; (5) certain events of bankruptcy or insolvency with respect to the Parent Guarantor or a Significant Subsidiary (or a group of Restricted Subsidiaries that together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries) would constitute a Significant Subsidiary); (6) failure by the Parent Guarantor or any Significant Subsidiary (or group of Restricted Subsidiaries that together (as of the latest audited consolidated financial statements for the Parent Guarantor and its Restricted Subsidiaries) would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of $100 million other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy companies, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; (7) any Guarantee of the Senior Secured Notes by a Significant Subsidiary ceases to be in full force and effect, other than in accordance with the terms of the Indenture; (8) any Collateral Document or any material portion thereof, after delivery thereof pursuant to the terms of this Indenture or the Collateral Documents, shall for any reason cease to be in full force and effect with respect to any material portion of the Collateral; or, subject to certain exceptions, any security interest in any material portion of the Collateral created, or purported to be created, by any Collateral Document for any reason ceases to be enforceable and of the same effect and priority purported to be created thereby; or (9) the failure by the Company or any Guarantor to comply for 60 days after notice with its other agreements contained in the Collateral Documents except for a failure that would not be material to the Holders of the Senior Secured Notes and would not materially affect the value of the Collateral taken as a whole.

 

12


If any Event of Default (other than an Event of Default specified in clause (5) above occurs and is continuing under the Indenture, the Trustee by notice to the Company or the Holders of at least 25% in principal amount of the outstanding New Secured Notes (with a copy to the Company and the Trustee) may declare the principal of, premium, if any, and accrued and unpaid interest on, all of the Senior Secured Notes to be due and payable. Upon such declaration, such principal and accrued and unpaid interest shall be due and payable immediately.

Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5) above with respect to the Issuer, all outstanding New Secured Notes shall be due and payable without further action or notice.

If a Default occurs and is continuing and the Trustee is informed of such occurrence by the Company, the Trustee must give notice to Holders of Senior Secured Notes of the Default within 60 days after it occurs. The Trustee may withhold from the Holders notice of any continuing Default, except a Default relating to the payment of principal or accrued and unpaid interest, if and so long as it determines that withholding notice is in their interest.

 

  (b)

Authentication and Delivery of New Secured Notes; Application of Proceeds.

At least one Officer shall execute the New Secured Notes on behalf of the Issuer by manual, facsimile or PDF signature.

If an Officer whose signature is on a New Secured Note no longer holds that office at the time such New Secured Note is authenticated, such New Secured Note shall nevertheless be valid.

A New Secured Note shall not be valid until an authorized officer of the Trustee manually authenticates such New Secured Note. The signature shall be conclusive evidence that the New Secured Note has been duly authenticated and issued under the Indenture.

On the Effective Date, the Trustee shall, upon receipt of a Company Order (an “Authentication Order”), authenticate and make available for delivery the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon receipt of an Authentication Order authenticate and make available for delivery any Additional Notes for an aggregate principal amount specified in such Authentication Order for such Additional Notes issued under the Indenture.

The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate the New Secured Notes. An authenticating agent may authenticate the New Secured Notes whenever the Trustee may do so. Each reference in the Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.

The New Secured Notes shall be issuable in minimum denominations of $100.0 and integral multiples of $1.0 thereafter.

The Company will not receive any proceeds from the issuance of the New Secured Notes pursuant to the Plan of Reorganization.

 

  (c)

Release of Collateral.

Collateral may be released from the Lien and security interest created by the Collateral Documents at any time or from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreements or as provided in the Indenture, including (i) upon payment in full of the principal of, together with accrued and unpaid interest and any premium on, the New Secured Notes and all other Obligations under the Indenture, the Note Guarantees and the Collateral Documents, (ii) upon satisfaction and discharge of the Indenture, (iii) upon Legal Defeasance or Covenant Defeasance, (iv) with the consent of the requisite Holders of the New Secured Notes, (v) upon sale or disposal in accordance with the Indenture, the Intercreditor Agreements and the Collateral Documents, (vi) upon release of the Note Guarantee of a Guarantor that held the Collateral, or (vii) upon release in accordance with, and as expressly provided for by the terms of, the Indenture, the Intercreditor Agreements and the Collateral Documents.

 

13


  (d)

Satisfaction and Discharge.

The Indenture shall be discharged and shall cease to be of further effect as to all outstanding New Secured Notes when:

(i)     either:

(1)     all New Secured Notes that have been authenticated and delivered (other than certain lost, stolen or destroyed New Secured Notes and certain New Secured Notes for which provision for payment was previously made and thereafter the funds have been released to the Company) have been delivered to the Trustee for cancellation; or

(2)     all New Secured Notes not previously delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable at their Stated Maturity within one year or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;

(ii)     the Company has deposited or caused to be deposited with the Trustee money in Dollars or U.S. Government Obligations, or a combination thereof, as applicable, in an amount sufficient to pay and discharge the entire indebtedness without reinvestment on the New Secured Notes not previously delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of New Secured Notes that have become due and payable), or to the Stated Maturity or redemption date, as the case may be;

(iii)     the Company has paid or caused to be paid all other sums payable under the Indenture; and

(iv)     the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent relating to the satisfaction and discharge of the Indenture have been complied with.

 

  (e)

Evidence of Compliance with Conditions and Covenants.

The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that in the course of the performance by the signer of his or her duties as an Officer of the Company he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during the previous fiscal year. If such Officer does have such knowledge, the certificate shall describe the Default or Event of Default, its status and the action the Company is taking or proposes to take with respect thereto. The Company shall comply with Section 314(a)(4) of the Trust Indenture Act.

 

14


The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company becomes aware of the occurrence of any Default or Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the actions which the Company is taking or proposes to take with respect thereto.

 

15.

Other Obligors.

Other than the Applicants, no other person is an obligor with respect to the New Secured Notes.

CONTENTS OF APPLICATION FOR QUALIFICATION

This Application for Qualification comprises:

 

  (a)

Pages numbered 1 to 20, consecutively.

 

  (b)

The Statement of Eligibility and Qualification on Form

T-1
of the trustee under the Indenture to be qualified.

 

  (c)

The following exhibits in addition to those filed as part of the Statement of Eligibility and Qualification of the trustee:

 

Exhibit T3A.1    Restated Articles of Incorporation, as amended, of iHeartCommunications, Inc. (Incorporated by reference to Exhibit 3.1 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
(File
No. 333-200971)
filed on December 15, 2014).
Exhibit T3A.2    Certificate of Formation of iHeartMedia Capital I, LLC, as amended (Incorporated by reference to Exhibit 3.3 to the iHeartCommunications, Inc. Form
S-4
filed on December 16, 2014).
Exhibit T3A.3    Certificate of Incorporation of AMFM Broadcasting, Inc. (Incorporated by reference to Exhibit 3.1.5 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.4    Amended and Restated Certificate of Incorporation of AMFM Operating Inc. (Incorporated by reference to Exhibit 3.1.9 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.5    Certificate of Formation of Citicasters Licenses, Inc. (Incorporated by reference to Exhibit 3.1.29 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.6    Certificate of Incorporation of Capstar Radio Operating Company (Incorporated by reference to Exhibit 3.1.19 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.7    Articles of Incorporation of CC Broadcast Holdings, Inc. (Incorporated by reference to Exhibit 3.1.21 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.8    Certificate of Incorporation of Christal Radio Sales, Inc. (Incorporated by reference to Exhibit 3.1.26 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.9    Articles of Incorporation of Cine Guarantors II, Inc. (Incorporated by reference to Exhibit 3.1.27 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).

 

15


Exhibit T3A.10    Certificate of Amended Articles of Incorporation of Citicasters Co. (Incorporated by reference to Exhibit 3.1.28 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.11    Articles of Incorporation of Clear Channel Broadcasting Licenses, Inc., as amended (Incorporated by reference to Exhibit 3.1.31 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.12    Articles of Incorporation of iHeartMedia+Entertainment, Inc., as amended (Incorporated by reference to Exhibit 3.23 to the iHeartCommunications, Inc. Form
S-4
filed on December 16, 2014).
Exhibit T3A.13    Certificate of Formation of iHM Identity, Inc., as amended (Incorporated by reference to Exhibit 3.25 to the iHeartCommunications, Inc. Form
S-4
filed on December 16, 2014).
Exhibit T3A.14    Articles of Incorporation of Clear Channel Investments, Inc. (Incorporated by reference to Exhibit 3.1.38 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.15    Certificate of Formation of iHeartMedia Management Services, Inc., as amended. (Incorporated by reference to Exhibit 3.31 to the iHeartCommunications, Inc. Form
S-4
filed on December 16, 2014).
Exhibit T3A.16    Articles of Incorporation of Clear Channel Mexico Holdings, Inc. (Incorporated by reference to Exhibit 3.1.40 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.17    Articles of Incorporation of Critical Mass Media, Inc., as amended (Incorporated by reference to Exhibit 3.1.45 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.18    Restated Certificate of Incorporation of Katz Communications, Inc. (Incorporated by reference to Exhibit 3.1.50 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.19    Certificate of Incorporation of Katz Media Group, Inc., as amended (Incorporated by reference to Exhibit 3.1.51 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.20    Certificate of Incorporation of Katz Millennium Sales & Marketing Inc., as amended (Incorporated by reference to Exhibit 3.1.52 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009.
Exhibit T3A.21    Certificate of Incorporation of Katz Net Radio Sales, Inc., as amended (Incorporated by reference to Exhibit 3.1.53 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.22    Articles of Incorporation of M Street Corporation (Incorporated by reference to Exhibit 3.1.55 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.23    Certificate of Incorporation of Premiere Networks, Inc., as amended (Incorporated by reference to Exhibit 3.49 to the iHeartCommunications, Inc. Form
S-4
filed on December 16, 2014).
Exhibit T3A.24    Articles of Incorporation of Terrestrial RF Licensing, Inc. (Incorporated by reference to Exhibit 3.1.58 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.25    Certificate of Formation of CC Licenses, LLC (Incorporated by reference to Exhibit 3.1.23 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).

 

16


Exhibit T3A.26    Certificate of Formation of Clear Channel Real Estate, LLC, as amended (Incorporated by reference to Exhibit 3.1.41 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.27    Certificate of Formation of AMFM Broadcasting Licenses, LLC (Incorporated by reference to Exhibit 3.1.4 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.28    Certificate of Formation of AMFM Radio Licenses, LLC, as amended (Incorporated by reference to Exhibit 3.1.11 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.29    Certificate of Formation of AMFM Texas, LLC (Incorporated by reference to Exhibit 3.1.15 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.30    Certificate of Limited Partnership of AMFM Texas Broadcasting, LP, as amended (Incorporated by reference to Exhibit 3.1.13 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.31    Certificate of Formation of AMFM Texas Licenses, LLC (Incorporated by reference to Exhibit 3.65 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on June 24, 2011).
Exhibit T3A.32    Certificate of Formation of Capstar TX, LLC (Incorporated by reference to Exhibit 3.67 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on June 24, 2011).
Exhibit T3A.33    Certificate of Formation of CC Finco Holdings, LLC (Incorporated by reference to Exhibit 3.1.22 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3A.34    Certificate of Formation of Broader Media, LLC (Previously filed as Exhibit T3A.34).
Exhibit T3A.35    Certificate of Formation of CC Finco, LLC (Previously filed as Exhibit T3A.35).
Exhibit T3A.36    Certificate of Incorporation of Clear Channel Metro, LLC (Previously filed as Exhibit T3A.37).
Exhibit T3A.37    Certificate of Formation of iHeartMedia Tower Co. Holdings, LLC (Previously filed as Exhibit T3A.38).
Exhibit T3A.38    Articles of Organization of TTWN Media Networks, LLC (Previously filed as Exhibit T3A.39).
Exhibit T3A.39    Certificate of Formation of TTWN Networks, LLC (Previously filed as Exhibit T3A.40).
Exhibit T3A.40    Certificate of Incorporation of iHeart Operations, Inc. (Filed herewith).
Exhibit T3A.41    Certificate of Formation of Broader Media Holdings, LLC (Filed herewith).
Exhibit T3A.42    Certificate of Incorporation of CC Outdoor Holdings, Inc. (Filed herewith).
Exhibit T3A.43    Certificate of Formation of Clear Channel Real Estate Services, LLC (Filed herewith).
Exhibit T3A.44    Amended and Restated Certificate of Incorporation of Jelli, Inc. (Filed herewith).
Exhibit T3A.45    Certificate of Formation of Metro Networks Communications, LP (Filed herewith).
Exhibit T3A.46    Certificate of Incorporation of Metro Networks Services, Inc. (Filed herewith).
Exhibit T3A.47    Certificate of Incorporation of SmartRoute Systems, Inc. (Filed herewith).
Exhibit T3A.48    Certificate of Formation of Stuff Media LLC (Filed herewith).
Exhibit T3A.49    Certificate of Incorporation of TLAC, Inc. (Filed herewith).
Exhibit T3B.1    Seventh Amended and Restated Bylaws, as amended, of iHeartCommunications, Inc. (Incorporated by reference to Exhibit 3.2 to the iHeartCommunications, Inc. Annual Report on Form
10-K
for the year ending December 31, 2007).
Exhibit T3B.2    Limited Liability Company Agreement of iHeartMedia Capital I, LLC (Incorporated by reference to Exhibit 3.2.33 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.3    Amended and Restated Bylaws of AMFM Broadcasting, Inc. (Incorporated by reference to Exhibit 3.2.5 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.4    Bylaws of AMFM Operating Inc. (Incorporated by reference to Exhibit 3.2.9 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.5    Bylaws of Citicasters Licenses, Inc. (Incorporated by reference to Exhibit 3.2.29 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).

 

17


Exhibit T3B.6    Bylaws of Capstar Radio Operating Company (Incorporated by reference to Exhibit 3.2.19 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.7    Bylaws of CC Broadcast Holdings, Inc. (Incorporated by reference to Exhibit 3.2.21 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.8    Amended and Restated Bylaws of Christal Radio Sales, Inc. (Incorporated by reference to Exhibit 3.2.26 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.9    Amended and Restated Bylaws of Cine Guarantors II, Inc. (Incorporated by reference to Exhibit 3.2.27 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.10    Amended and Restated Regulations of Citicasters Co. (Incorporated by reference to Exhibit 3.2.28 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.11    Amended and Restated Bylaws of Clear Channel Broadcasting Licenses, Inc. (Incorporated by reference to Exhibit 3.2.31 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.12    Amended and Restated Bylaws of iHeartMedia+Entertainment, Inc. (Incorporated by reference to Exhibit 3.2.32 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.13    Bylaws of iHM Identity, Inc. (Incorporated by reference to Exhibit 3.2.37 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.14    Bylaws of Clear Channel Investments, Inc. (Incorporated by reference to Exhibit 3.2.38 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.15    Bylaws of iHeartMedia Management Services, Inc. (Incorporated by reference to Exhibit 3.2.39 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.16    Bylaws of Clear Channel Mexico Holdings, Inc. (Incorporated by reference to Exhibit 3.2.40 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.17    Amended and Restated Regulations of Critical Mass Media, Inc. (Incorporated by reference to Exhibit 3.2.45 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.18    Bylaws of Katz Communications, Inc. (Incorporated by reference to Exhibit 3.2.50 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.19    Bylaws of Katz Media Group, Inc. (Incorporated by reference to Exhibit 3.2.51 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.20    Amended and Restated Bylaws of Katz Millennium Sales & Marketing Inc. (Incorporated by reference to Exhibit 3.2.52 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.21    Amended and Restated Bylaws of Katz Net Radio Sales, Inc. (Incorporated by reference to Exhibit 3.2.53 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.22    Amended and Restated Bylaws of M Street Corporation (Incorporated by reference to Exhibit 3.2.55 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).

 

18


Exhibit T3B.23    Amended and Restated Bylaws of Premiere Networks, Inc. (Incorporated by reference to Exhibit 3.2.56 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.24    Amended and Restated Bylaws of Terrestrial RF Licensing, Inc. (Incorporated by reference to Exhibit 3.2.58 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.25    Limited Liability Company Agreement of CC Licenses, LLC (Incorporated by reference to Exhibit 3.2.23 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.26    Limited Liability Company Agreement of Clear Channel Real Estate, LLC (Incorporated by reference to Exhibit 3.2.41 to the iHeartCommunications, Inc. Registration Statement on Form S-4 filed on March 30, 2009).
Exhibit T3B.27    Amended and Restated Limited Liability Company Agreement of AMFM Broadcasting Licenses, LLC (Incorporated by reference to Exhibit 3.2.4 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30.
Exhibit T3B.28    Limited Liability Company Agreement of AMFM Radio Licenses, LLC, as amended (Incorporated by reference to Exhibit 3.2.11 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.29    Amended and Restated Limited Liability Company Agreement of AMFM Texas, LLC (Incorporated by reference to Exhibit 3.2.15 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.30    Agreement of Limited Partnership of AMFM Texas Broadcasting, LP (Incorporated by reference to Exhibit 3.2.13 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.31    Company Agreement of AMFM Texas Licenses, LLC (Incorporated by reference to Exhibit 3.66 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on June 24, 2011).
Exhibit T3B.32    Company Agreement of Capstar TX, LLC (Incorporated by reference to Exhibit 3.68 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on June 24, 2011).
Exhibit T3B.33    Limited Liability Company Agreement of CC Finco Holdings, LLC (Incorporated by reference to Exhibit 3.2.22 to the iHeartCommunications, Inc. Registration Statement on Form
S-4
filed on March 30, 2009).
Exhibit T3B.34    Limited Liability Company Agreement of Broader Media, LLC (Previously filed as Exhibit T3B.34)
Exhibit T3B.35    Limited Liability Company Agreement of CC Finco, LLC (Previously filed as Exhibit T3B.35)
Exhibit T3B.36    Limited Liability Company Agreement of Clear Channel Metro, LLC (Previously filed as Exhibit T3B.37).
Exhibit T3B.37    Limited Liability Company Agreement of iHeartMedia Tower Co. Holdings, LLC (Previously filed as Exhibit T3B.38).
Exhibit T3B.38    Limited Liability Company Agreement of TTWN Media Networks, LLC (Previously filed as Exhibit T3B.39).
Exhibit T3B.39    Limited Liability Company Agreement of TTWN Networks, LLC (Previously filed as Exhibit T3B.40).
Exhibit T3B.40    Bylaws of iHeart Operations, Inc. (Filed herewith).
Exhibit T3B.41    Amended and Restated Limited Liability Company Agreement of Broader Media Holdings, LLC (Filed herewith).
Exhibit T3B.42    Bylaws of CC Outdoor Holdings, Inc. (Filed herewith).
Exhibit T3B.43    Limited Liability Company Agreement of Clear Channel Real Estate Services, LLC (Filed herewith).
Exhibit T3B.44    Amended and Restated Bylaws of Jelli, Inc. (Filed herewith).
Exhibit T3B.45    Amended and Restated Limited Partnership Agreement of Metro Networks Communications, LP (Filed herewith).
Exhibit T3B.46    Bylaws of Metro Networks Services, Inc. (Filed herewith).
Exhibit T3B.47    Bylaws of SmartRoute Systems, Inc. (Filed herewith).
Exhibit T3B.48    Amended and Restated Limited Liability Company Agreement of Stuff Media LLC (Filed herewith).
Exhibit T3B.49    Bylaws of TLAC, Inc. (Filed herewith).
Exhibit T3C    Form of new Indenture Governing the New Secured Notes (Filed herewith).
Exhibit T3D    Not applicable.

 

19


Exhibit T3E.1    Disclosure Statement relating to the Amended Joint Plan of Reorganization of iHeartMedia, Inc., et al. pursuant to Chapter 11 of the Bankruptcy Code (Filed herewith).
Exhibit T3E.2    Amended Joint Plan of Reorganization of iHeartMedia, Inc., et al. pursuant to Chapter 11 of the Bankruptcy Code (Incorporated by reference to Exhibit 2.1 to the iHeartMedia, Inc. Current Report on Form 8-K filed on January 28, 2019).
Exhibit T3F    Cross-reference sheet (included in Exhibit T3C).
Exhibit T3G    Form
T-1
qualifying the Trustee under the new Indenture to be qualified pursuant to this Form
T-3
(Filed herewith).
Exhibit T3H    Structure Chart (Filed herewith).

 

20


SIGNATURES

Pursuant to the requirements of the Trust Indenture Act of 1939, iHeartCommunications, Inc., a corporation incorporated under the laws of Texas, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of San Antonio, Texas on April 26, 2019.

 

(SEAL)         IHEARTCOMMUNICATIONS, INC.
Attest:  

/s/ Lauren E. Dean

      By:  

/s/ Richard J. Bressler

Name:   Lauren E. Dean         Name:    Richard J. Bressler
          Title:    President, Chief Financial Officer and Chief Operating Officer


Pursuant to the requirements of the Trust Indenture Act of 1939, the undersigned Guarantors have duly caused this Application to be signed on their behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of San Antonio, Texas on April 26, 2019.

 

(SEAL)

     

AMFM BROADCASTING LICENSES, LLC

     

AMFM BROADCASTING, INC.

Attest:

 

/s/ Lauren E. Dean

   

AMFM OPERATING INC.

Name:

 

Lauren E. Dean

   

AMFM RADIO LICENSES, LLC

     

AMFM TEXAS BROADCASTING, LP

     

AMFM TEXAS LICENSES, LLC

     

AMFM TEXAS, LLC

     

BROADER MEDIA, LLC

     

BROADER MEDIA HOLDINGS, LLC

     

CAPSTAR RADIO OPERATING COMPANY

     

CAPSTAR TX, LLC

     

CC BROADCAST HOLDINGS, INC.

     

CC LICENSES, LLC

     

CC FINCO, LLC

     

CC FINCO HOLDINGS, LLC

     

CC OUTDOOR HOLDINGS, INC.

     

CHRISTAL RADIO SALES, INC.

     

CINE GUARANTORS II, INC.

     

CITICASTERS CO.

     

CITICASTERS LICENSES, INC.

     

CLEAR CHANNEL BROADCASTING LICENSES, INC.

     

CLEAR CHANNEL INVESTMENTS, INC.

     

CLEAR CHANNEL METRO, LLC

     

CLEAR CHANNEL MEXICO HOLDINGS, INC.

     

CLEAR CHANNEL REAL ESTATE, LLC

     

CLEAR CHANNEL REAL ESTATE SERVICES, LLC

     

CRITICAL MASS MEDIA, INC.

     

IHEARTMEDIA + ENTERTAINMENT, INC.

     

IHEARTMEDIA MANAGEMENT SERVICES, INC.

     

IHEARTMEDIA TOWER CO. HOLDINGS, LLC

     

IHEART OPERATIONS, INC.

     

IHM IDENTITY, INC.

     

JELLI, INC.

     

KATZ COMMUNICATIONS, INC.

     

KATZ MEDIA GROUP, INC.

     

KATZ MILLENNIUM SALES & MARKETING INC.

     

KATZ NET RADIO SALES, INC.

     

M STREET CORPORATION

     

METRO NETWORKS COMMUNICATIONS, LP

     

METRO NETWORKS SERVICES, INC.

     

PREMIERE NETWORKS, INC.

     

SMARTROUTE SYSTEMS, INC.

     

STUFF MEDIA, LLC

     

TERRESTRIAL RF LICENSING, INC.

     

TLAC, INC.

     

TTWN NETWORKS, LLC

     

TTWN MEDIA NETWORKS, LLC

   

By:

 

/s/ Richard J. Bressler

      Name:   Richard J. Bressler
      Title:   President, Chief Financial Officer and Chief Operating Officer


Pursuant to the requirements of the Trust Indenture Act of 1939, the undersigned Guarantor has duly caused this Application to be signed on their behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of San Antonio, Texas on April 26, 2019.

 

(SEAL)         

IHEARTMEDIA CAPITAL I, LLC

Attest:   

/s/ Lauren E. Dean

      By:   

/s/ Richard J. Bressler

Name:    Lauren E. Dean          Name:    Richard J. Bressler
            Title:    President, Chief Financial Officer and Chief Operating Officer
d734481dex99t3a40.htm EX-99.T3A.40


ENT> EX-99.T3A.40 2 d734481dex99t3a40.htm EX-99.T3A.40

EX-99.T3A.40

Exhibit T3A.40

CERTIFICATE OF INCORPORATION

OF

iHEART OPERATIONS, INC.

ARTICLE ONE

The name of the corporation is iHeart Operations, Inc.

ARTICLE TWO

The address of the corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the corporation has authority to issue is one thousand (1,000) shares of Common Stock, par value one cent ($0.01) per share.

ARTICLE FIVE

The name and mailing address of the sole incorporator are as follows:

Laura-Jayne Urso

c/o Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

ARTICLE SIX

The corporation is to have perpetual existence.

ARTICLE SEVEN

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the corporation is expressly authorized to make, alter or repeal the bylaws of the corporation.


ARTICLE EIGHT

Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the corporation may provide. The books of the corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the corporation. Election of directors need not be by written ballot unless the bylaws of the corporation so provide.

ARTICLE NINE

To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this corporation shall not be liable to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the corporation existing at the time of such repeal or modification.

ARTICLE TEN

The corporation expressly elects not to be governed by §203 of the General Corporation Law of the State of Delaware.

ARTICLE ELEVEN

The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE TWELVE

To the maximum extent permitted from time to time under the laws of the State of Delaware, the corporation renounces any interest or expectancy of the corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors or stockholders, other than those officers, directors or stockholders who are employees of the corporation. No amendment or repeal of this ARTICLE TWELVE shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of the corporation for or with respect to any opportunities or which such officer, director, or stockholder becomes aware prior to such amendment or repeal.

* * * * *


I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts stated herein are true, and accordingly have hereunto set my hand on the 25th day of February, 2019.

 

/s/ Laura-Jayne Urso

Laura-Jayne Urso
Sole Incorporator
d734481dex99t3a41.htm EX-99.T3A.41


ENT> EX-99.T3A.41 3 d734481dex99t3a41.htm EX-99.T3A.41

EX-99.T3A.41

Exhibit T3A.41

 

               

State of Delaware

Secretary of State

Division of Corporations

Delivered 07:00 PM 12/03/2015

FILED 07:00 PM 12/03/2015

SR 20151188231 - File Number 5897897

CERTIFICATE OF FORMATION

OF

BROADER MEDIA HOLDINGS, LLC

This Certificate of Formation is being executed as of December 3, 2015 for the purpose of forming a limited liability company pursuant to the Delaware Limited Liability Company Act, 6 Del. C. §§

18-101,
et seq.

The undersigned, being duly authorized to execute and file this Certificate, does hereby certify as follows:

1. Name. The name of the limited liability company is Broader Media Holdings, LLC (the “Company”).

2. Registered Office and Registered Agent. The Company’s registered office in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The registered agent of the Company for service of process at such address is The Corporation Trust Company.

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of the day and year first above written.

 

By:  

/s/ Joan D. Donovan

  Joan D. Donovan, an Authorized Person
d734481dex99t3a42.htm EX-99.T3A.42


ENT> EX-99.T3A.42 4 d734481dex99t3a42.htm EX-99.T3A.42

EX-99.T3A.42

Exhibit T3A.42

State of Delaware

Secretary of State

Division of Corporations

Delivered 02:14 PM 01/19/2017

FILED 02:14 PM 01/19/2017

SR 20170324299 - File Number 6280884

CERTIFICATE OF INCORPORATION

OF

CC OUTDOOR HOLDINGS, INC.

ARTICLE ONE

The name of the corporation is CC Outdoor Holdings, Inc. (hereinafter called the “Corporation”).

ARTICLE TWO

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE THREE

The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

ARTICLE FOUR

The total number of shares of stock which the Corporation has authority to issue is 1,000 shares of Common Stock, with a par value of $.01 per share.

ARTICLE FIVE

The name and mailing address of the sole incorporator are as follows:

 

NAME

  

        MAILING ADDRESS        

Robert A. Jannusch    300 N. LaSalle St.
   Chicago, IL 60654

ARTICLE SIX

The Corporation is to have perpetual existence.

ARTICLE SEVEN

In furtherance and not in limitation of the powers conferred by statute, the board of directors of the Corporation is expressly authorized to make, alter or repeal the

by-laws
of the Corporation.


ARTICLE EIGHT

Meetings of stockholders may be held within or without the State of Delaware, as the

by-laws
of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the
by-laws
of the Corporation. Election of directors need not be by written ballot unless the
by-laws
of the Corporation so provide.

ARTICLE NINE

To the fullest extent permitted by the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended, a director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this ARTICLE NINE shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

ARTICLE TEN

The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware.

ARTICLE ELEVEN

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE TWELVE

To the maximum extent permitted from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors or stockholders, other than those officers, directors or stockholders who are employees of the Corporation. No amendment or repeal of this ARTICLE TWELVE shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of the Corporation for or with respect to any opportunities of which such officer, director, or stockholder becomes aware prior to such amendment or repeal.

*        *        *         *        *

 

2


I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts stated herein are true, and accordingly have hereunto set my hand on the 19th day of January, 2017.

 

/s/ Robert A. Jannusch

Robert A. Jannusch, Sole Incorporator
d734481dex99t3a43.htm EX-99.T3A.43


ENT> EX-99.T3A.43 5 d734481dex99t3a43.htm EX-99.T3A.43

EX-99.T3A.43

Exhibit T3A.43

FILED                

In the Office of the      

Secretary of State of Texas

JAN 13 2012            

Corporations Section      

CERTIFICATE OF FORMATION

OF

CLEAR CHANNEL REAL ESTATE SERVICES, LLC

THE UNDERSIGNED, acting as the organizer of a limited liability company under and in accordance with the Business Organizations Code of the State of Texas (the “TBOC”), hereby adopts the following Certificate of Formation (this “Certificate”).

ARTICLE ONE

ENTITY NAME AND TYPE

The name of the entity is Clear Channel Real Estate Services, LLC (the “Company”). The entity is a limited liability company.

ARTICLE TWO

REGISTERED AGENT AND REGISTERED OFFICE

The initial registered agent is an organization by the name of CT Corporation System, which business address is set forth below:

 

NAME

  

ADDRESS

CT Corporation System   

350 N. St. Paul Street, Suite 2900

Dallas, Texas 75201-4234

ARTICLE THREE

GOVERNING AUTHORITY

The Company will initially have managers. The name and address of each initial manager are set forth below:

 

NAME

  

ADDRESS

Mike Lish   

200 East Basse Road

San Antonio, Texas 78209

Tom Casey   

200 East Basse Road

San Antonio, Texas 78209

Robert H. Walls   

200 East Basse Road

San Antonio, Texas 78209


ARTICLE FOUR

PURPOSE

The purpose for which the Company is organized is the transaction of any or all lawful business for which a limited liability company may be formed under the TBOC, except as may be limited in the company agreement (“Company Agreement”) that shall govern the regulation and management of the affairs of the Company.

ARTICLE FIVE

INDEMNIFICATION

The Company shall, to the fullest extent permitted by applicable law, indemnify and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, an action by or in the right of the Company, or by any member) by reason of the fact that he or she is or was a manager of the Company or is or, was serving at the request of the Company as a manager, or officer, by virtue of acts performed by such person or omitted to be performed by such person, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or it in connection with such action, suit or proceeding, and the Company shall reimburse each such person for any legal or other expenses reasonably incurred by such person in connection with investigating, defending or preparing to defend against any such action, suit or proceeding; provided, however, that the Company shall not be liable to any such person to the extent that in the final judgment of a court of competent jurisdiction such claim is found to arise from such person’s breach of his fiduciary duties, and his breach of those duties involved intentional misconduct, fraud or a knowing violation of law. The right to indemnification under this Article Five shall be a contract right and shall not be deemed exclusive of any other right to which those seeking indemnification may be entitled under the Company Agreement or any law, agreement, vote of members or disinterested managers or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

ARTICLE SIX

COMPANY AGREEMENT

The initial member or manager(s) of the Company shall adopt the Company Agreement, provided, however, that the failure to adopt the Company Agreement prior to the date on which the Secretary of the State of Texas issues a Certificate of Formation shall not affect the Company’s commencement of existence on such date. The Company Agreement shall provide for all the terms and conditions for the regulation and management of the affairs of the Company not inconsistent with applicable law or with this Certificate of Formation. The power to adopt, alter, amend or repeal the Company Agreement shall be vested in the members of the Company unless vested in whole or part in the managers of the Company by the Company Agreement.

 

2


ARTICLE SEVEN

ORGANIZER

The name and address of the organizer is as follows:

 

NAME

  

ADDRESS

Hamlet T. Newsom, Jr.    200 East Basse Road
   San Antonio, Texas 78209

This document becomes effective when the document is filed by the Secretary of State of the State of Texas.

[SIGNATURE PAGE FOLLOWS]

 

3


[SIGNATURE PAGE TO CERTIFICATE OF FORMATION OF

CLEAR CHANNEL REAL ESTATE SERVICES, LLC]

IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly executed on the 12th day of January 2012.

 

ORGANIZER:

/s/ Hamlet T. Newsom, Jr.

Hamlet T. Newsom, Jr.

 

4

d734481dex99t3a44.htm EX-99.T3A.44


ENT> EX-99.T3A.44 6 d734481dex99t3a44.htm EX-99.T3A.44

EX-99.T3A.44

Exhibit T3A.44

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

JELLI, INC.

ARTICLE I

The name of this Corporation is Jelli, Inc. (the “Corporation”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware, New Castle County, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE III

The purpose of this Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.

ARTICLE IV

The total number of shares of capital stock which the Corporation shall have authority to issue is one thousand (1,000), all of which shares shall be Common Stock having a par value per share of $0.01.

ARTICLE V

In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained elsewhere in this certificate of incorporation, bylaws of the Corporation may be adopted, amended or repealed by a majority of the board of directors of the Corporation. Election of directors need not be by written ballot.

ARTICLE VI

(a) Director Liability. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exculpation from liability or limitation of liability is not permitted under the DGCL as in effect at the time such liability is determined. No repeal, amendment or modification of the foregoing provisions of this ARTICLE SIXTH, nor the adoption of any provision in this Certificate of Incorporation inconsistent with this clause (a) of this ARTICLE SIXTH, shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such repeal, amendment, or modification or adoption of an inconsistent provision.


(b) Indemnification.

(i) To the fullest extent permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director

(ii) The Corporation shall indemnify to the fullest extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director or officer of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.

(iii) Neither any amendment nor repeal of this ARTICLE SIXTH, nor the adoption of any provision of this Restated Certificate inconsistent with this ARTICLE SIXTH, shall eliminate or reduce the effect of this ARTICLE SIXTH in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this ARTICLE SIXTH, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.

ARTICLE VII

The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.

*         *         *         *         *

d734481dex99t3a45.htm EX-99.T3A.45


ENT> EX-99.T3A.45 7 d734481dex99t3a45.htm EX-99.T3A.45

EX-99.T3A.45

Exhibit T3A.45

 

     

State of Delaware

Secretary of State

Division of Corporations

Delivered 03:56 PM 05/19/2003

FILED 03:41 PM 05/19/2003

SRV 030323693 - 2915599 FILE

CERTIFICATE OF AMENDMENT

TO

CERTIFICATE OF LIMITED PARTNERSHIP

OF

METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP

It is hereby certified that:

FIRST: The name of the limited partnership (hereinafter called the “partnership”) is: METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP.

SECOND: Pursuant to the provisions of

Section 17-202,
Title 6, Delaware Code, the amendment to the Certificate of Limited partnership effected by this Certificate of Amendment is to change the address of the registered office of the partnership in the State of Delaware to 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, and to change the name of the registered agent of the partnership in the State of Delaware at the said address to Corporation Service Company.

The undersigned, a general partner of the partnership, executes this Certificate of Amendment on May 16, 2003.

 

/s/ Tina Haut

Name: Tina Haut

Capacity: Ex. Vice President on behalf of: Metro Networks

Communications, Inc.

General Partner

DE LP D-:COA CERTIFICATE OF AMENDMENT TO CHANGE AGENT 09/00 (#670)


METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP

CERTIFICATE OF LIMITED PARTNERSHIP

 

1.

The name of the limited partnership is Metro Networks Communications, Limited Partnership.

 

2.

The address of the registered office is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware and the records of the limited partnership are to be kept or made available at that office.

 

3.

The name of the registered agent is The Corporation Trust Company with an address of 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801.

 

4.

The name, mailing address and street address of the business or residence of the general partner is: Metro Networks Communications, Inc., 2800 Post Oak Blvd., Suite 4000, Houston, Texas 77056.

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership as of the 29th day of June, 1998.

 

  METRO NETWORKS COMMUNICATIONS, INC.
  GENERAL PARTNER
By:   /s/ Illegible
Its:   Attorney-in-fact

 

     

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 06:30 PM 06/29/1998

981253128 - 2915599

d734481dex99t3a46.htm EX-99.T3A.46


ENT> EX-99.T3A.46 8 d734481dex99t3a46.htm EX-99.T3A.46

EX-99.T3A.46

Exhibit T3A.46

CERTIFICATE OF INCORPORATION

OF

METRO NETWORKS SERVICES, INC.

I, the undersigned, for the purpose of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do hereby certify as follows:

FIRST: The name of the corporation (the “Corporation”) is Metro Networks Services, Inc.

SECOND: The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH: The total number of shares which the Corporation shall have the authority to issue is 1000 shares. All such shares shall have $.01 par value.

FIFTH: The name and mailing address of the incorporator is David P. Steiner, 400 Poydras Street, Suite 2800, New Orleans, Louisiana 70130-3245. The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation, and the first director of the Corporation shall be David I. Saperstein, with an address of 3525 Sage Street, #1709, Houston, Texas 77051, to serve until the first annual meeting of shareholders or until his successor has been elected and qualified.

SIXTH: To the full extent permitted by the General Corporation Law of the State of Delaware, including, without limitation, Section 102(b)(7), or any other applicable laws presently or hereafter in effect, no director of the Corporation shall be personally liable to the Corporation or its stockholders for or with respect to any acts or omissions in the performance of his or her duties as a director of the Corporation. Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director of the Corporation existing immediately prior to such repeal or modification.

 

     

STATE OF DELAWARE

SECRETARY OF STATE

DIVISION OF CORPORATIONS

FILED 06:30 PM 06/29/1998

981253129 – 2915015


SEVENTH: Each person who is or was or had agreed to become a director or officer of the Corporation, or each such person who is or was serving or had agreed to serve at the request of the Board of Directors or an officer of the Corporation as an employee or agent of the Corporation or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, benefit plan or other enterprise (including the heirs, executors, administrators and estate of such person), may be indemnified by the Corporation to the full extent permitted by the General Corporation Law of the State of Delaware and/or any other applicable laws as presently or hereafter in effect and as set forth in the

by-laws
of the Corporation. Without limiting the generality or the effect of the foregoing, the Corporation may enter into one or more agreements with any person which provides for indemnification greater or different than that provided in this Article. Any repeal or modification of this Article Seventh shall not adversely affect any right or protection existing hereunder immediately prior to such repeal or modification.

EIGHTH: In furtherance and not in limitation of the rights, powers, privileges and discretionary authority granted or conferred by the General Corporation Law of the State of Delaware or other statutes or laws of the State of Delaware, the Board of Directors is expressly authorized to make, alter, amend or repeal the

by-laws
of the Corporation, without any action on the part of the stockholders, but the stockholders may make additional
by-laws
and may alter, amend or repeal any
by-law
whether adopted by them or otherwise. The Corporation may in its
by-laws
confer powers upon its Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law.

IN WITNESS WHEREOF, the undersigned, being the incorporator hereinabove named, does hereby execute this Certificate of Incorporation this 29th day of June, 1998.

 

/s/ David P. Steiner

David P. Steiner, Incorporator
d734481dex99t3a47.htm EX-99.T3A.47


ENT> EX-99.T3A.47 9 d734481dex99t3a47.htm EX-99.T3A.47

EX-99.T3A.47

Exhibit T3A.47

 

     

STATE OF DELAWARE

SECRETARY OF STATE

DIVlSION OF CORPORATIONS

FILED 07:30 PM 03/13/2001

010125249 - 2162415

CERTIFICATE OF AMENDMENT

OF

CERTIFICATE OF INCORPORATION

*        *        *         *        *

WESTWOOD ONE STATIONS GROUP, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST: That the Board of Directors of said corporation, by the unanimous written consent of its members, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation:

RESOLVED, that the Certificate of Incorporation of WESTWOOD ONE STATIONS GROUP, INC. be amended by changing the First Article thereof so that, as amended, said Article shall be and read as follows:

“1. The name of the Corporation is SMARTROUTE SYSTEMS, INC.”

SECOND: That in lieu of a meeting and vote of the sole stockholder of the corporation, the stockholder has given unanimous written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.

THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said SECRETARY has caused this certificate to be signed by GARY YUSKO, its ASSISTANT SECRETARY, this 12TH day of DECEMBER, 2000.

 

By:  

/s/ Gary Yusko

  ASSISTANT SECRETARY


CERTIFICATE OF AMENDMENT TO CERTIFICATE

OF INCORPORATION OF WESTWOOD ONE STATIONS, INC.,

A DELAWARE CORPORATION

Pursuant to Section 103(a) of the General Corporation Law of the State of Delaware, the undersigned do hereby certify that the following resolution was duly adopted by the board of directors of Westwood One Stations, Inc., a Delaware corporation (the “Corporation”), and authorized and approved by the written consent of the sole stockholder of the Corporation:

RESOLVED, that the First Article of the Certificate of Incorporation of this Corporation be amended to read in its entirety as follows:

“1. The name of the Corporation is Westwood One Stations Group, Inc.”

The undersigned further certify that such amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, the undersigned, constituting the President and Secretary, respectively, of Westwood One Stations, Inc. declare under penalty of perjury that the matters set forth in the foregoing certificate are true and correct of his own knowledge as of this 8th day of February, 1989.    

 

/s/ William J. Battison

 

William J. Battison

President

 

ATTEST:
/s/ Eric R. Weiss

 

Eric R. Weiss
Secretary

0505J-3


CERTIFICATE OF INCORPORATION

OF

WESTWOOD ONE STATIONS, INC.

1. The name of the corporation is Westwood One Stations, Inc.

2. The address of the corporation’s registered office in Delaware is 410 South State Street, Dover (Kent County), Delaware 19901. United Corporate Services, Inc. is the corporation’s registered agent at that address.

3. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.

4. The corporation shall have authority to issue a total of 1,000 shares of common stock of the par value of $1.00 per share.

5. The name of the sole incorporator is Estelita J. Salwen and her mailing address is c/o Kaye, Scholer, Fierman, Hays & Handler, 425 Park Avenue, New York, New York 10022.

6. The Board of Directors shall have the power to make, alter or repeal the

by-laws
of the corporation.

7. The election of the Board of Directors need not be by written ballot.

8. The corporation shall indemnify to the fullest extent permitted by Section 145 of the General Corporation Law of Delaware as amended from time to time each person that such Section grants the corporation the power to indemnify.

9. No director shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that he may be liable (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit.

Dated: May 27, 1988

 

/s/ Estelita J. Salwen

Estelita J. Salwen
Sole Incorporator
d734481dex99t3a48.htm EX-99.T3A.48


ENT> EX-99.T3A.48 10 d734481dex99t3a48.htm EX-99.T3A.48

EX-99.T3A.48

Exhibit T3A.48

 

     

State of Delaware

Secretary of State

Division of Corporations

Delivered 01:50 PM 03/29/2017

FILED 01:50 PM 03/29/2017

SR 20172106868 - File Number 6363957

STATE OF DELAWARE

CERTIFICATE OF FORMATION

OF

STUFF MEDIA LLC

This Certificate of Formation of Stuff Media LLC (the “LLC”), dated as of March 29, 2017, is being duly executed and filed by Michael Blend, as an authorized person, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §

18-101
et seq.).

FIRST: The name of the limited liability company formed hereby is Stuff Media LLC.

SECOND: The address of the registered office of the LLC in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.

THIRD: The name and address of the registered agent for service of process of the LLC in the State of Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.

IN WITNESS WHEREOF, the undersigned has executed this Certification of Formation as of the date first above written.

 

/s/ Michael Blend

Name: Michael Blend

Title: Authorized Person

d734481dex99t3a49.htm EX-99.T3A.49


ENT> EX-99.T3A.49 11 d734481dex99t3a49.htm EX-99.T3A.49

EX-99.T3A.49

Exhibit T3A.49

 

     

State of Delaware

Secretary of State

Division of Corporations

Delivered 07:27 PM 12/12/2008

FILED 06:50 PM 12/12/2008

SRV 081192914 - 4633307 FILE

CERTIFICATE OF INCORPORATION

OF

TLAC, INC.

 

 

FIRST: The name of the corporation shall be: TLAC, INC. (the “Corporation”).

SECOND: The Corporation’s registered office in the State of Delaware is to be located at 2711 Centerville Road, Suite 400, Wilmington, DE 19808, County of New Castle, and its registered agent at such address is: Corporation Service Company.

THIRD: The purpose or purposes of the Corporation shall be:

To carry on any and all business and to engage in any lawful act or activity for which Corporations may be organized under the General Corporation Law of the State of Delaware.

FOURTH: The total number of shares of stock which the Corporation is authorized to issue is:

100 shares of common stock, par value $0.01 per share.

FIFTH: The name and mailing address of the sole incorporator is as follows:

 

NAME    MAILING ADDRESS
Joseph Mignone   

c/o Lowenstein Sandler PC

1251 Avenue of the Americas, 19th Floor

New York, New York 10020

SIXTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware:

 

  A.

The management of the business and the conduct of the affairs of the Corporation shall be vested in the Board of Directors of the Corporation (the “Board”). The number of directors which shall constitute the whole Board shall be fixed by, or in the manner provided in, the Corporation’s bylaws (the “Bylaws”).

 

  B.

The Board of the Corporation is expressly authorized to adopt, amend, or repeal the Bylaws of the Corporation.

 

  C.

Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.


  D.

The books of the Corporation may be kept at such place within or without the State of Delaware as the Bylaws of the Corporation may provide or as may be designated from time to time by the Board of the Corporation.

 

  E.

The Corporation hereby elects not to be governed by Section 203 of the General Corporation Law of the State of Delaware as from time to time in effect or any successor provision thereto.

SEVENTH: The Corporation is to have perpetual existence.

EIGHTH: To the fullest extent permitted by applicable law, the Corporation shall indemnify and upon request shall advance expenses to any person who is or was a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding, or claims, whether civil, criminal, administrative, or investigative, by reason of the fact that such person is or was or has agreed to be a director or officer of the Corporation or while a director or officer is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, or agent of any corporation, partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees and expenses), judgments, fines, penalties, and amounts paid in settlement incurred in connection with the investigation, preparation to defend, or defense of such action, suit, proceeding, or claim; provided, however, that the foregoing shall not require the Corporation to indemnify or advance expenses to any person in connection with any action, suit, proceeding, claim, or counterclaim initiated by or on behalf of such person. Such indemnification shall not be exclusive of other indemnification rights arising under any bylaw, agreement, vote of directors or stockholders, or otherwise, and shall inure to the benefit of the heirs and legal representatives of such person. Any repeal or modification of the foregoing provisions of this paragraph shall not adversely affect any right or protection of a director or officer of the Corporation with respect to any acts or omissions of such director or officer occurring prior to such repeal or modification.

NINTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon a stockholder herein are granted subject to this reservation.

IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named, has executed, signed, and acknowledged this Certificate of Incorporation this 12th day of December, 2008.

 

/s/ Joseph Mignone

Joseph Mignone

Sole Incorporator

 

-2-

d734481dex99t3b40.htm EX-99.T3B.40


ENT> EX-99.T3B.40 12 d734481dex99t3b40.htm EX-99.T3B.40

EX-99.T3B.40

Exhibit T3B.40

BYLAWS

OF

IHEART OPERATIONS, INC.

A Delaware Corporation

ARTICLE I

OFFICES

Section 1.1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at 251 Little Falls Drive, Wilmington Delaware 19808, in the County of New Castle. The name of the corporation’s registered agent at such address shall be Corporation Service Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 1.2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 2.1 Place and Time of Meetings. An annual meeting of the stockholders shall be held each year for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place of the annual meeting may be determined by resolution of the board of directors or as set by the chief executive officer of the corporation.

Section 2.2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships), and may be held at such time and place, within or without the State of Delaware, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by two or more members of the board of directors or the chief executive officer and shall be called by the chief executive officer upon the written request of holders of shares entitled to cast not less than fifty percent (50%) of the outstanding shares of any series or class of the corporation’s capital stock.

Section 2.3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.


Section 2.4 Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the board of directors, the chief executive officer or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 2.5 Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

Section 2.6 Quorum. Except as otherwise provided by applicable law or by the Certificate of Incorporation, a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time in accordance with Section 7 of this Article, until a quorum shall be present or represented.

Section 2.7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 2.8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question. Where a separate vote by class is required, the affirmative vote of the majority of shares of such class present in person or represented by proxy at the meeting shall be the act of such class.

 

2


Section 2.9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the Certificate of Incorporation of the corporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 2.10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him, her or it by proxy. Every proxy must be signed by the stockholder granting the proxy or by his, her or its

attorney-in-fact.
No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally.

Section 2.11 Action by Written Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than a majority of the shares entitled to vote, or, if greater, not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested provided, however, that no consent or consents delivered by certified or registered mail shall be deemed delivered until such consent or consents are actually received at the registered office. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

 

3


ARTICLE III

DIRECTORS

Section 3.1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 3.2 Number, Election and Term of Office. The number of directors which shall constitute the board as of the effective date of these

by-laws
shall be four (4). Thereafter, the number of directors shall be established from time to time by resolution of the board. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3.3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s Certificate of Incorporation, the provisions of this section shall apply, in respect to the removal without cause or a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation.

Section 3.4 Vacancies. Except as otherwise provided by the Certificate of Incorporation of the corporation or any amendments thereto, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority vote of the holders of the corporation’s outstanding stock entitled to vote thereon or by a majority of the members of the board of directors. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 3.5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without other notice than this

by-law
immediately after, and at the same place as, the annual meeting of stockholders.

Section 3.6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board. Special meetings of the board of directors may be called by or at the request of the chief executive officer or president on at least 24 hours notice to each director, either personally, by telephone, by mail, or by telegraph; in like manner and on like notice the chief executive officer must call a special meeting on the written request of at least a majority of the directors.

 

4


Section 3.7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office (without regard to any then vacancies on the board) shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 3.8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these

by-laws
shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 3.9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

Section 3.10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 3.11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

 

5


Section 3.12 Action by Written Consent. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all the then members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

Section 4.1 Number. The officers of the corporation shall be elected by the board of directors and may consist of a chairman, a chief executive officer, a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.

Section 4.2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 4.3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4.4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

Section 4.5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 4.6 The Chairman of the Board. The Chairman of the Board, if one shall have been elected, shall be a member of the board, may be an officer of the corporation, and, if present, shall preside at each meeting of the board of directors or stockholders. He shall advise the chief executive officer, and in the chief executive officer’s absence, other officers of the corporation, and shall perform such other duties as may from time to time be assigned to him by the board of directors.

Section 4.7 The Chief Executive Officer. In the absence of the Chairman of the Board or if a Chairman of the Board shall have not been elected, the chief executive officer shall

 

6


preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these

by-laws.

Section 4.8 President; Vice Presidents. The president shall, in the absence or disability of the chief executive officer, act with all of the powers and be subject to all of the restrictions of the chief executive officer. The president shall also perform such other duties and have such other powers as the board of directors, the chief executive officer or these

by-laws
may, from time to time, prescribe. The vice-president, if any, or if there shall be more than one, the vice-presidents in the order determined by the board of directors shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these
by-laws
may, from time to time, prescribe.

Section 4.9 The Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officer’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these

by-laws
or by law; shall have such powers and perform such duties as the board of directors, the chief executive officer or these
by-laws
may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the chief executive officer, or secretary may, from time to time, prescribe.

Section 4.10 The Treasurer and Assistant Treasurer. The treasurer shall have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the chief executive officer and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; shall have such powers and perform such duties as the board of directors, the chief executive officer or these

by-laws
may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the

 

7


office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the chief executive officer, the president or treasurer may, from time to time, prescribe.

Section 4.11 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, which officers may include officers of any division of the corporation, other than those whose duties are provided for in these

by-laws,
shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 4.12 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 5.1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or a person of whom he is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, fiduciary or agent or in any other capacity while serving as a director, officer, employee, fiduciary or agent, shall be indemnified and held harmless by the corporation to the fullest extent which it is empowered to do so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 2 hereof, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final

 

8


disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 5.2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation under Section 1 of this Article V or advance of expenses under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 5.3 Nonexclusivity of Article V. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation,

by-law,
agreement, vote of stockholders or disinterested directors or otherwise.

Section 5.4 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

 

9


Section 5.5 Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.

Section 5.6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors.

Section 5.7 Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article V or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing.

Section 5.8 Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

ARTICLE VI

CERTIFICATES OF STOCK

Section 6.1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by the chairman of the board, the chief executive officer, the president or a vice-president and the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such chairman of the board, chief executive officer, president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death,

 

10


resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 6.3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.

Section 6.4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of

 

11


directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

Section 6.5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6.6 Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 7.1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

 

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Section 7.2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 7.3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

Section 7.4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 7.5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 7.6 Corporate Seal. The board of directors may provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7.7 Voting Securities Owned By Corporation. Voting securities in any other corporation held by the corporation shall be voted by the chief executive officer, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 7.8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

 

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Section 7.9 Section Headings. Section headings in these

by-laws
are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 7.10 Inconsistent Provisions. In the event that any provision of these

by-laws
is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these
by-laws
shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

ARTICLE VIII

AMENDMENTS

These

by-laws
may be amended, altered, or repealed and new
by-laws
adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the
by-laws
has been conferred upon the board of directors shall not divest the stockholders of the same powers.

 

14

d734481dex99t3b41.htm EX-99.T3B.41


ENT> EX-99.T3B.41 13 d734481dex99t3b41.htm EX-99.T3B.41

EX-99.T3B.41

Exhibit T3B.41

BROADER MEDIA HOLDINGS, LLC

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) dated and effective as of December 13, 2018 by and between Clear Channel Holdings, Inc. and Clear Channel Mexico Holdings, Inc. (collectively, the “Members”).

W I T N E S S E T H:

WHEREAS, Broader Media Holdings, LLC (the “Company”) was formed by the filing of a Certificate of Formation (the “Certificate of Formation”) pursuant to the Delaware Limited Liability Company Act (the “Delaware Act”) on December 3, 2015;

WHEREAS, Clear Channel Holdings, Inc. entered into a Limited Liability Company Agreement of the Company on December 13, 2018;

WHEREAS, the parties hereto desire Clear Channel Mexico Holdings, Inc. to become a member of the Company and party to this Agreement; and

WHEREAS, the signatories hereto desire to set forth certain of their respective rights and obligations with respect to the Company pursuant to the Delaware Act.

NOW, THEREFORE, the signatories hereto agree as follows:

1. Formation. [RESERVED]

2. Name. The name of the Company is Broader Media Holdings, LLC.

3. Term. The term of the Company commenced upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware, and shall be perpetual, unless sooner dissolved in accordance with Section 13 hereof.

4. Principal Place of Business, Registered Office; Registered Agent.

(a) The principal place of business of the Company shall be located at such place as the Members shall determine and the Company may change such principal place of business or establish other places of business as the Members may from time to time deem advisable.

(b) The address of the registered office of the Company in the State of Delaware is as set forth in the Certificate of Formation.

(c) The name and address of the registered agent for service of process on the Company in the State of Delaware is as set forth in the Certificate of Formation.


5. Nature of Business Permitted; Powers. The Company shall (i) have the power and authority to carry on any lawful business, purpose or activity not prohibited under the Delaware Act and (ii) possess and may exercise all the powers and privileges granted by the Delaware Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Company.

6. Members. Clear Channel Holdings, Inc. and Clear Channel Mexico Holdings, Inc. shall each be a “member” (as such term is defined in the Delaware Act) of the Company.

7. Management. The management of the Company shall be vested in Clear Channel Holdings, Inc. (in such capacity, the “Manager”), which may from time to time engage or employ such other agents and employees (“Representatives”) as it may deem advisable, each of whom shall perform such duties as the Manager may from time to time determine. The Manager may, at any time, remove, with or without cause, any person serving as a Representative. As used herein, “person” shall mean any individual, corporation, partnership, association, limited liability company, trust or other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.

8. Officers. The Members shall have the power to appoint agents (who may be referred to as officers) to act for the Company with such titles, if any, as the Members deem appropriate and to delegate to such officers or agents. The officers or agents so appointed may include persons holding titles such as Chair, Chief Executive Officer, President, Executive Vice President, Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer, Secretary or Controller. Any officers so appointed will have such authority and perform such duties as the Members may, from time to time, delegate to them. Any number of offices may be held by a single person. The Members may, at any time, remove, with or without cause, any person serving as an officer or an agent. The initial officers are set forth on the attached Schedule 1.

9. Capital Contribution. The initial capital contribution of each Member to the Company is reflected on the books and records of the Company. Except as the Members may otherwise agree in writing, the Members shall not be under any obligation to make any further capital contributions to the Company. The Company shall maintain a separate capital account for the Members. If any Member makes additional capital contributions to the Company, such Member’s Capital Account and the Members’ Percentage Interests (as defined below) shall be adjusted accordingly. “Capital Account” shall mean the account maintained for each Member in accordance with Section 704(b) of the Internal Revenue Code of 1986 (the “Code”), as amended, and the rules of Treasury Reg.

Section 1.704-1(b),
which account (i) is increased by the amount of cash and the fair market value of property contributed to the Company as shown on the books of the Company upon such contribution (net of liabilities assumed by the Company and liabilities to which such contributed property is subject) by such Member and such Member’s share of Profits (as defined below), including income exempt from tax, and (ii) is decreased by the amount of cash and the fair market value of property distributed to such Member as shown on the books of the Company (net of liabilities assumed by such Member and liabilities to which such distributed property is subject) and such Member’s share of Losses (as defined below).

 

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10. Allocation of Profits and Losses.

(a) The Company’s profits and losses for federal income tax purposes, including, without limitation, each item of Company income, gain, loss, or deduction (as applicable, the “Profits” or “Losses”) shall be allocated to the Capital Accounts of the Members pro rata in accordance with each Member’s Percentage Interest. “Percentage Interest” shall mean the interest of a Member expressed as a percentage of the whole. The initial Percentage Interest of each Member as of the date hereof is set forth on Schedule 2, which schedule shall be amended from time to time in accordance with the terms of this Agreement.

(b) Profits and Losses with respect to any property contributed to the capital of the Company shall be allocated among the Members in accordance with Section 704(c) of the Code so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its book value in the manner determined by the Manager.

11. Distributions. Distributions shall be made to the Members at the times and in the amounts determined by the Manager. Such distributions shall be apportioned between the Members pro rata in accordance with their respective Percentage Interests. Distributions shall not constitute a return of capital contributions by the Members unless specifically designated as such by the Manager.

12. Withholding and Certain Taxes.

(a) If the Company or any other person in which the Company holds an interest is obligated to pay any amount to a governmental agency or body or to any other person (or otherwise makes a payment) because of a Member’s status or otherwise specifically attributable to a Member (including

non-U.S.
taxes, U.S. federal withholding taxes with respect to
non-U.S.
Members, U.S. state withholding taxes, U.S. state unincorporated business taxes and any taxes arising under Sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015, together with any guidance issued thereunder or successor provisions and any similar provision of state or local tax laws (the “Partnership Tax Audit Rules”)), then such Member (the “Reimbursing Member”) shall reimburse the Company in full for the entire amount paid (including any interest, penalties and expenses associated with such payment) or such amount shall be offset against distributions to which such Member is otherwise entitled under Section 11 hereof.

(b) A Reimbursing Member’s obligation to make reimbursements to the Company under this Section 12 shall survive the transfer, forfeiture or other disposition of the Reimbursing Member’s interest and the dissolution, liquidation, winding up and termination of the Company, and, to the maximum extent not prohibited by applicable law, for purposes of this Section 12, the Company shall be treated as continuing in existence.

13. Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the first to occur of the following:

(a) the written consent of the Members;

 

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(b) the dissolution or withdrawal of the Members; or

(c) the entry of a decree of judicial dissolution of the Company pursuant to

Section 18-802
of the Delaware Act.

14. Winding Up. Upon the dissolution of the Company, the Members may, in the name of and for and on behalf of the Company, prosecute and defend suits, whether civil, criminal or administrative, sell and close the Company’s business, dispose of and covey the Company’s property, discharge the Company’s liabilities and distribute to the Members any remaining assets of the Company, all without affecting the liability of the Members. Upon winding up of the Company, the assets shall be distributed as follows:

(a) first, to the payment of the expenses of the

winding-up,
liquidation and dissolution of the Company;

(b) second, to the payment and discharge of the claims of all creditors of the Company (other than the Members); and

(c) third, to the Members in accordance with their respective positive Capital Account balances, after taking into account all adjustments to their Capital Accounts for all periods (including any allocations for the fiscal year in which such dissolution occurs), in compliance with Treasury Reg.

Section 1.704-1(b)(2)(ii)(b)(2).

15. Articles of Dissolution. Within ninety days following the dissolution and the commencement of winding up of the Company, or at any other time there are no members of the Company, articles of dissolution shall be filed with the Delaware Secretary of State pursuant to the Delaware Act.

16. Termination. Upon completion of the dissolution, winding up, liquidation, and distribution of the assets of the Company, the Company shall be deemed terminated.

17. Liability.

(a) Except as otherwise provided in the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and neither the Members nor any partner, manager or other affiliate, agent or representative of the Members, nor any officer, director, manager, employee, stockholder, member, partner or other affiliate, agent or representative of any such person, nor any of the heirs, executors, successors or assigns of any of the foregoing (together with the Representatives, the “Indemnified Persons”), shall be obligated personally for any such debt, obligation or liability.

(b) Except as otherwise expressly required by law, or as otherwise agreed to by the Members in writing, the Members, in their capacity as the members of the Company, shall have no liability in excess of (i) the amount of their respective capital contribution to the Company, (ii) the amount standing in its Capital Account with the Company and (iii) the amount of any distributions made by the Company to the Members in violation of

Section 18-607
of the Delaware Act.

 

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18. Exculpation. Neither the Members nor any other Indemnified Person shall be personally liable to the Company for the repayment of any distributions made by the Company to the Members or for any other act or omission by such Indemnified Person in connection with the conduct of affairs of the Company, this Agreement or the matters contemplated herein except as a result of such person’s willful misfeasance, bad faith or gross negligence.

19. Indemnification.

(a) The Company shall indemnify and hold harmless each Member and each other Indemnified Person from and against any and all losses, claims, demands, costs, damages, liabilities (joint or several), expenses of any nature (including reasonable attorneys’ fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative, in which such Indemnified Person is or was involved, may be involved, or is threatened to be involved, as a party or otherwise, arising out of (i) any action or inaction on the part of the Company, (ii) any action or inaction on the part of the Indemnified Person in connection with the business and affairs of the Company, (iii) this Agreement, (iv) any Member’s status as a member or Manager of the Company or any Representative’s status as a representative of the Company or (v) any action taken by the Members or any Representative under this Agreement or otherwise on behalf of the Company (collectively, “Liabilities”), regardless of whether the Members continue to be members of the Company and regardless of whether the Indemnified Person continues to fall within the definition of Indemnified Person contained in Section 17 hereof, to the fullest extent permitted by the Delaware Act and all other applicable laws; provided, that an Indemnified Person shall be entitled to indemnification hereunder only to the extent that such Indemnified Person’s conduct did not constitute willful misfeasance, bad faith or gross negligence. The termination of any proceeding by settlement, judgment, order, conviction, or upon a plea of nolo  contendere or its equivalent shall not, in and of itself, create a presumption that such Indemnified Person’s conduct constituted willful misfeasance, bad faith or gross negligence.

(b) Expenses incurred by an Indemnified Person in defending any claim, demand, action, suit or proceeding subject to Section 19(a) 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 Indemnified Person to repay such amount if it shall be determined that such person is not entitled to be indemnified as authorized in Section 19(a).

(c) The indemnification provided by this Section 19 shall be in addition to any other rights to which an Indemnified Person may be entitled under any agreement, as a matter of law or equity or otherwise, and shall inure to the benefit of the heirs, successors, assigns and administrators of each Indemnified Person.

(d) The Company may purchase and maintain insurance, at the Company’s expense, on behalf of one or more of the Indemnified Persons and such other persons as the Members shall determine, against any liability that may be asserted against, or any expense that may be incurred by, such person in connection with the activities of the Company or such persons’ acts or omissions in respect of the Company regardless of whether the Company would have the power to indemnify such person against such liability or expense under the provisions of this Agreement.

 

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(e) Any indemnification under this Section 19 shall be satisfied solely out of the assets of the Company. The Members shall not be subject to personal liability or required to fund or cause to be funded any obligation by reason of these indemnification provisions.

20. Other Activities Permitted. This Agreement shall not be construed in any manner to preclude any Member, any Representative or any of other Indemnified Person from engaging in any activity whatsoever permitted by applicable law (whether or not such activity might compete, or constitute a conflict of interest, with the Company) and no such person shall have any obligation to present or otherwise make available to the Company any business opportunity of which that such person may become aware.

21. Governing Law. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of Delaware, without regard to conflicts of laws or choice of law rules or provisions.

[The remainder of page intentionally left blank.]

 

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IN WITNESS WHEREOF, the undersigned hereby evidences its agreement to the terms and conditions hereof by executing and delivering this Agreement as of the date first above written.

 

CLEAR CHANNEL MEXICO HOLDING, INC.
By:   /s/ Richard J. Bressler
Name:  Richard J. Bressler
Title:    Authorized Signatory

[A&R LLC Agreement of Broader Media Holdings, LLC]


IN WITNESS WHEREOF, the undersigned hereby evidences its agreement to the terms and conditions hereof by executing and delivering this Agreement as of the date first above written.

 

Members:
CLEAR CHANNEL HOLDINGS, INC.
By:   /s/ Lauren Dean
Name:  Lauren Dean
Title:    Senior Vice President and
              Associate General Counsel

[A&R LLC Agreement of Broader Media Holdings, LLC]


Schedule 1

 

Bick, Scott T.    Senior Vice
President-Tax
Bressler, Richard J.    President and Chief Financial Officer
Coleman, Brian D.    Senior Vice President, Treasurer and Assistant Secretary
Dean, Lauren E.    Vice President, Assistant General Counsel and Assistant Secretary
Walls, Robert H. Jr.    Executive Vice President, General Counsel and Secretary


Schedule 2

(as of December     , 2018)

 

Members

   Percentage Interests  

Clear Channel Holdings, Inc.

     99

Clear Channel Mexico Holdings, Inc.

     1
d734481dex99t3b42.htm EX-99.T3B.42


ENT> EX-99.T3B.42 14 d734481dex99t3b42.htm EX-99.T3B.42

EX-99.T3B.42

Exhibit T3B.42

BYLAWS

OF

CC OUTDOOR HOLDINGS, INC.

A Delaware corporation

(Adopted as of January 19, 2017)

ARTICLE I

OFFICES

Section 1. Registered Office and Agent. The address of the registered office of the corporation in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. The registered agent of the corporation for service of process at such address is The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2. Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. Meetings Generally. At least one meeting of the stockholders shall be held each year for the purpose of electing directors and conducting any other proper business as may come before the meeting. The date, time and place of such meeting shall be determined by the highest ranking officer then in office (the “Ranking Officer”); provided, however, that if the Ranking Officer does not act, the board of directors shall determine the date, time and place of such meeting. Notwithstanding the foregoing, no annual meeting of stockholders need be held if not required by the Certificate of Incorporation, as the same may be amended or amended and restated from time to time (the “Certificate of Incorporation”), or by the General Corporation Law of the State of Delaware.

Section 2. Special Meetings. Special meetings of the stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the Ranking Officer and shall be called by the Ranking Officer upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the Ranking Officer. On such written request, the Ranking Officer shall fix a date and time for such meeting within two days of the date requested for such meeting in such written request.

 

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Section 3. Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware as the place of meeting for any regular meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.

Section 4. Notice. Whenever stockholders are required or permitted to take action at a meeting, written or printed notice stating the place, date, time, and in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the chief executive officer, the president or the secretary, and if mailed, such notice shall be deemed to be delivered (i) upon confirmation of receipt if sent by facsimile, electronic mail or personal delivery or (ii) three (3) days after being deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5. Stockholders List. The officer having charge of the stock ledger of the corporation shall make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to any meeting either at a place within the city where the meeting is to be held which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

Section 6. Quorum. The holders of a majority of the issued and outstanding shares of capital stock entitled to vote at such meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the Certificate of Incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. When a quorum is once present to commence a meeting of stockholders, it is not broken by the subsequent withdrawal of any stockholders or their proxies.

Section 7. Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time and place thereof, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

 

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Section 8. Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9. Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the Certificate of Incorporation and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one (1) vote in person or by proxy for each share of common stock held by such stockholder.

Section 10. Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of the stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11. Action by Written Consent. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any regular or special meeting of the stockholders of the corporation, or any action which may be taken at any regular or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, to the corporation’s principal place of business, or to an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested, by reputable overnight courier service, or by electronic mail, with confirmation of receipt. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

 

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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

ARTICLE III

DIRECTORS

Section 1. General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2. Number, Election and Term of Office. The number of directors which shall constitute the first board shall be two (2). The number of directors shall be subject to change by the vote of holders of a majority of the shares then entitled to vote at an election of directors. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at any meeting of the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal and Resignation. The directors shall only be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, the provisions of this Section shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon written notice to the corporation.

Section 4. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled in the same manner in which directors are elected pursuant to Section 2 of this Article III. Notwithstanding the foregoing, any such vacancy shall automatically reduce the number of directors pro tanto, until such time as the holders of the class of capital stock which was entitled to elect the director whose office is vacant shall have exercised their right to elect a director to fill such vacancy, whereupon the number of directors shall be automatically increased pro tanto. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5. Meetings and Notice. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board, provided that the directors shall meet at least once per year. Special meetings of the board of directors may be called by or at the request of any two (2) directors or the Ranking Officer on at least twenty-four (24) hours notice to each director, either personally, by telephone, by mail, or by facsimile or electronic mail.

 

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Section 6. Quorum, Required Vote and Adjournment. Each director shall be entitled to one vote except as otherwise provided in the Certificate of Incorporation. Directors then in office (and specifically excluding any vacancies) and holding a majority of the votes of all directors (or such greater number required by applicable law) shall constitute a quorum for the transaction of business. The vote of directors holding a majority of votes present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 7. Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these bylaws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 8. Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 7 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

Section 9. Communications. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this Section shall constitute presence in person at the meeting.

Section 10. Waiver of Notice and Presumption of Consent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have consented to any action taken unless his or her dissent shall be entered in the minutes of the

 

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meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 11. Action by Written Consent. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.

ARTICLE IV

OFFICERS

Section 1. Number. The officers of the corporation shall be elected by the board of directors and may consist of a chairman of the board, chief executive officer, president, chief financial officer, one or more vice presidents, secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable, except that the offices of president and secretary shall be filled as expeditiously as possible.

Section 2. Election and Term of Office. The officers of the corporation shall be elected at any meeting of the board of directors. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3. Removal. Any officer elected by the board of directors may be removed by the board of directors whenever in its judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4. Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

Section 5. Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6. Chairman of the Board. The chairman of the board, if one is appointed, shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors and of the president, he shall be in the general and active charge of the entire business and affairs of the corporation. He shall preside at meetings of the board of directors and stockholders at which the president is not present, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or provided in these bylaws. Whenever the president is unable to serve, by reason of disability (as defined in any employment agreement or if there is not an employment agreement, by the corporation’s disability policy), absence or otherwise, the chairman of the board shall perform all the duties and responsibilities and exercise all the powers of the president.

 

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Section 7. Chief Executive Officer. The chief executive officer, if one is appointed, shall be the most senior officer of the corporation and, subject to the powers of the board of directors and shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The chief executive officer shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these bylaws.

Section 8. The President. The president, if one is appointed, shall be subject to the powers of the chief executive officer and the board of directors and have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these bylaws.

Section 9. Chief Financial Officer. The chief financial officer of the corporation, if one is appointed, shall, under the direction of the chief executive officer (or, in the absence of a chief executive officer, the president), be responsible for all financial and accounting matters and for the direction of the offices of treasurer and controller. The chief financial officer shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or the board of directors or as may be provided in these bylaws.

Section 10. Vice Presidents. The vice president, if one is appointed, or if there shall be more than one, the vice presidents in the order determined by the board of directors or by the president, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice presidents shall also perform such other duties and have such other powers—as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe.

 

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Section 11. Secretary and Assistant Secretaries. The secretary or an assistant secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the chief executive officer’s (or, in the absence of a chief executive officer, the president’s) supervision, the secretary or an assistant secretary shall give, or cause to be given, all notices required to be given by these bylaws or by law; shall have such powers and perform such duties as the board of directors, the chief executive officer, (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe; and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or the secretary may, from time to time, prescribe.

Section 12. Treasurer and Assistant Treasurer. The treasurer, if one if appointed, shall, subject to the authority of the chief financial officer, have the custody of the corporate funds and securities; shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation; shall deposit all monies and other valuable effects in the name and to the credit of the corporation as may be ordered by the board of directors; shall cause the funds of the corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; shall render to the chief executive officer (or, in the absence of a chief executive officer, the president), the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the corporation; and shall have such powers and perform such duties as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or these bylaws may, from time to time, prescribe. If required by the board of directors, the treasurer shall give the corporation a bond (which shall be rendered every six (6) years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the corporation. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the chief financial officer, treasurer, perform the duties and exercise the powers of the treasurer. The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the chief executive officer (or, in the absence of a chief executive officer, the president), the president or treasurer may, from time to time, prescribe.

Section 13. Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 14. Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

 

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ARTICLE V

INDEMNIFICATION OF OFFICERS. DIRECTORS AND OTHERS

Section 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including involvement as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, manager, officer, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action or omission or failure to act in an official capacity as a director or officer or in any other capacity while serving as a director or officer, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorneys’ fees, judgments, fines, excise exercise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, manager, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators; provided, however, that, except as provided in Section 2 of this Article V with respect to proceedings to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the board of directors of the corporation. The right to indemnification conferred in this Section 1 of this Article V shall be a contract right and shall include the obligation of the corporation to pay the expenses incurred in defending any such proceeding in advance of its final disposition (an “advance of expenses”); provided, however, that, if and to the extent that the Delaware General Corporation Law requires, an advance of expenses incurred by an indemnitee in his or her capacity as a director, manager or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking (an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 1 of this Article V or otherwise. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same or lesser scope and effect as the foregoing indemnification of directors and officers. The corporation hereby acknowledges that certain directors and officers affiliated with institutional investors may have certain rights to indemnification, advancement of expenses and/or insurance provided by such institutional investors or certain of their affiliates (collectively, the “Institutional Indemnitors”). The corporation hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to the indemnitee are primary and any obligation of the Institutional

 

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Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by the indemnitee in accordance with this Article V without regard to any rights the indemnitee may have against the Institutional Indemnitors and (iii) that it irrevocably waives, relinquishes and releases the Institutional Indemnitors from any and all claims against the Institutional Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The corporation further agrees that no advancement or payment by the Institutional Indemnitors on behalf of the indemnitee with respect to any claim for which the indemnitee has sought indemnification from the corporation shall affect the foregoing and the Institutional Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the indemnitee against the corporation. Notwithstanding anything to the contrary herein, the corporation shall not be required to provide any advance of expenses to a director or officer who is a party to an action, suit or proceeding brought by the corporation and approved by a majority of the board of directors not a party to such action, suit or proceeding that alleges willful misappropriation of corporate assets by such director or officer, disclosure of confidential information in violation of such director’s or officer’s fiduciary or contractual obligations to the corporation or any other willful and deliberate breach in bad faith of such director’s or officer’s duty to the corporation or its stockholders.

Section 2. Procedure for Indemnification. Any indemnification of a director or officer of the corporation or advance of expenses under Section 1 of this Article V shall be made promptly, and in any event within forty five days (or, in the case of an advance of expenses, twenty (20) days), upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within sixty days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advance of expenses, in whole or in part, or if payment in full pursuant to such request is not made within forty five days (or, in the case of an advance of expenses, twenty days), the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification or advance of expenses, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of expenses where the undertaking required pursuant to Section 1 of this Article V, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the corporation (including its board of directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. The procedure for indemnification of other employees and agents for whom indemnification is provided pursuant to Section 1 of this Article V shall be the same procedure set forth in this Section 2 of this Article V for directors or officers, unless otherwise set forth in the action of the board of directors providing indemnification for such employee or agent.

 

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Section 3. Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee or agent of the corporation or was serving at the request of the corporation as a director, manager, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any expense, liability or loss asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such expenses, liability or loss under the Delaware General Corporation Law.

Section 4. Subsidiaries. To the extent any indemnitee under Section 1 of this Article V is also entitled to indemnification from a subsidiary of the corporation or another corporation, partnership, limited liability company, joint venture, trust or other enterprise at which such indemnitee is serving at the request of the corporation as a director, manager, officer, employee or agent, such indemnitee shall first look to such subsidiary or other such entity for indemnification, and only after seeking indemnification from such subsidiary shall such indemnitee seek indemnification from the corporation.

Section 5. Reliance. Persons who, after the date of the adoption of this provision, become or remain directors or officers of the corporation or who, while a director or officer of the corporation, become or remain a director, manager, officer, employee or agent of a subsidiary or other entity at which he or she is serving as such at the request of the corporation, shall be conclusively presumed to have relied on the rights to indemnity, advance of expenses and other rights contained in this Article V in entering into or continuing such service. The rights to indemnification and to the advance of expenses conferred in this Article V shall apply to claims made against an indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.

Section 6. Non Exclusivity of Rights. The rights to indemnification and to the advance of expenses conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under the Certificate of Incorporation or under any statute, by law, agreement, vote of stockholders or disinterested directors or otherwise.

Section 7. Merger or Consolidation. For purposes of this Article V, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, manager, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

 

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ARTICLE VI

CERTIFICATES OF STOCK

Section 1. Form. The shares of stock of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. If shares are represented by certificates, the certificates shall be in such form as required by applicable law and as determined by the board of directors. Each certificate shall certify the number of shares owned by such holder in the corporation and shall be signed by, or in the name of the corporation by two authorized officers of the corporation including but not limited to the Chairman of the Board, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the corporation. Any or all signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer, transfer agent or registrar of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been issued by the corporation, such certificate or certificates may nevertheless be issued as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer, transfer agent or registrar of the corporation at the date of issue. All certificates for shares shall be consecutively numbered or otherwise identified. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation. The corporation, or its designated transfer agent or other agent, shall keep a book or set of books to be known as the stock transfer books of the corporation, containing the name of each holder of record, together with such holder’s address and the number and class or series of shares held by such holder and the date of issue. When shares are represented by certificates, the corporation shall issue and deliver to each holder to whom such shares have been issued or transferred, certificates representing the shares owned by such holder, and shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation or its designated transfer agent or other agent of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates and record the transaction on its books. When shares are not represented by certificates, shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, with such evidence of the authenticity of such transfer, authorization and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps, and within a reasonable time after the issuance or transfer of such shares, the corporation shall, if required by applicable law, send the holder to whom such shares have been issued or transferred a written statement of the information required by applicable law. Unless otherwise provided by applicable law, the Certificate of Incorporation, these Bylaws or any other instrument, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.

 

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Section 2. Lost Certificates. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates or uncertificated shares previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates or uncertificated shares, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

Section 3. Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next business day preceding the day on which notice is given, or if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

Section 4. Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by facsimile or electronic mail, with confirmation of receipt. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

 

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Section 5. Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its records as the owner of shares of stock to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by applicable law.

Section 7. Subscriptions for Stock. Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3. Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

 

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Section 4. Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 6. Corporate Seal. The board of directors may provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7. Voting Securities Owned by Corporation. Voting securities in any other corporation held by the corporation shall be voted by the president, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8. Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9. Section Headings. Section headings in these bylaws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 10. Inconsistent Provisions. In the event that any provision of these bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

 

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ARTICLE VIII

AMENDMENTS

Except for Article V hereof, these bylaws may be amended, altered, or repealed and new bylaws adopted at any meeting of the board of directors by a majority vote. Article V hereof may be amended, altered, or repealed at any meeting of the board of directors only by a unanimous vote (or unanimous written consent in lieu thereof). The fact that the power to adopt, amend, alter, or repeal the bylaws has been conferred upon the board of directors shall not divest the stockholders of the same powers.

 

16

d734481dex99t3b43.htm EX-99.T3B.43


ENT> EX-99.T3B.43 15 d734481dex99t3b43.htm EX-99.T3B.43

EX-99.T3B.43

Exhibit T3B.43

LIMITED LIABILITY COMPANY AGREEMENT

OF

CLEAR CHANNEL REAL ESTATE SERVICES, LLC

This Limited Liability Company Agreement (this “Agreement”) of Clear Channel Real Estate Services, LLC, a Texas limited liability company (the “Company”), dated as of January 2012, is adopted, executed and agreed to by the sole Member (as defined below).

1. Formation. The Company has been organized as a Texas limited liability company under and pursuant to the Texas Business Organization Code and any successor statute, as amended from time to time (the “TBOC”).

2. Purpose. The purpose and intent of the Company will be to conduct any or all lawful business which may be carried on by a limited liability company under the laws of the State of Texas.

3. Sole Member. Clear Channel Management Services, Inc., a Texas corporation, shall be the sole member of the Company (the “Member”).

4. Distributions; Federal Tax Status. The Member shall be entitled to (a) receive all distributions (including, without limitation, liquidating distributions) made by the Company, and (b) enjoy all other rights, benefits and interests in the Company. The sole Member of the Company intends that the Company shall be disregarded as an entity separate from its owner for federal income tax purposes.

5. Management.

(a) Except for situations in which the approval of the Member or the unanimous approval of the Managers (as hereinafter defined) is required by non-waivable provisions of applicable law, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company, shall be managed under the direction of the Managers. The Managers shall be appointed by the Member. Initially, the number of Managers of the Company shall be three (3) and the initial managers shall be: Mike Lish, Tom Casey and Robert H. Walls (collectively, the “Managers”). The number of Managers may be increased or decreased from time to time by the Member.

(b) A majority of the Managers shall make all decisions and take all actions for the Company not otherwise provided for in this Agreement.

6. Officers. The Managers may designate one or more persons to be officers of the Company. A Manager may hold one or more offices. No officer need be a resident of the State of Texas or a Member of the Company. An officer is not a “manager” as that term is used in the TBOC. The Managers may designate additional officers, such as vice presidents, assistant secretaries and an assistant treasurer. Any officers designated by the Managers shall have such authority and perform such duties as the Managers may delegate to them. Unless the Managers decide otherwise, if the title is one commonly used for officers of a business


corporation formed under the TBOC, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the Managers pursuant hereto. Each officer shall hold office until such officer’s death or until such officer shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person. The salaries and other compensation, if any, of the officers and agents of the Company shall be fixed by the Managers. Any officer may resign as such at any time. Designation of an officer shall not of itself create contract rights. Any vacancy occurring in any office may be filled by the Managers.

7. Winding Up. The Company shall be wound up at such time, if any, as the Member may elect or as otherwise required by the TBOC. No other event will cause the Company to be wound up.

8. Amendment. Amendments to this Agreement shall be adopted and become effective only if approved in writing and signed by the Member.

9. Entire Agreement. This Agreement contains the entire agreement among the parties with respect to its subject matter and shall bind and inure to the benefit of the parties and their respective heirs, personal representatives, successors and assigns, except as otherwise set forth herein.

10. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (EXCLUDING ITS

CONFLICT-OF-LAWS
RULES).

 

MEMBER:
CLEAR CHANNEL MANAGEMENT SERVICES, INC.
By:  

/s/ Illegible

Name:  

Illegible

Title:  

Illegible

d734481dex99t3b44.htm EX-99.T3B.44


ENT> EX-99.T3B.44 16 d734481dex99t3b44.htm EX-99.T3B.44

EX-99.T3B.44

Exhibit T3B.44

AMENDED AND RESTATED

BY-LAWS

OF

JELLI, INC.

A Delaware corporation

(Adopted as of December 14, 2018)

ARTICLE I

OFFICES

Section 1 Registered Office. The registered office of the corporation in the State of Delaware shall be located at the Corporation Service Company, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801. The name of the corporation’s registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the corporation may be changed from time to time by action of the board of directors.

Section 2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1 Annual Meetings. An annual meeting of the stockholders shall be held each year within one hundred twenty (120) days after the close of the immediately preceding fiscal year of the corporation for the purpose of electing directors and conducting such other proper business as may come before the meeting. The date, time and place, if any, and/or the means of remote communication, of the annual meeting shall be determined by the board of directors of the corporation. No annual meeting of stockholders need be held if not required by the corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware.

Section 2 Special Meetings. Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships) and may be held at such time and place, within or without the State of Delaware, and/or by means of remote communication, as shall be stated in a written notice of meeting or in a duly executed waiver of notice thereof. Such meetings may be called at any time by the board of directors or the president and shall be called by the president upon the written request of holders of shares entitled to cast not less than a majority of the votes at the meeting, which written request shall state the purpose or purposes of the meeting and shall be delivered to the president. The date, time and place, if any, and/or remote communication, of any special meeting of stockholders shall be determined by the board of directors of the corporation. On such written request, the president shall fix a date and time for such meeting within 10 days after receipt of a request for such meeting in such written request.

Section 3 Place of Meetings. The board of directors may designate any place, either within or without the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the corporation.


Section 4 Notice. Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting and to each director not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the corporation. If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting and (2) the giving of such separate notice; and (d) if by any other form of electronic transmission, when directed to the stockholder. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if (1) the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the corporation or to the transfer agent. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

Section 5 Stockholders List. The officer who has charge of the stock ledger of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, and/or (ii) during ordinary business hours, at the principal place of business of the corporation. In the event that the corporation determines to make the list available on an electronic network, the corporation may take reasonable steps to ensure that such information is available only to stockholders of the corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 6 Quorum. The holders of a majority of the issued and outstanding shares of capital stock, entitled to vote thereon, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by statute or by the corporation’s certificate of incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place.

 

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Section 7 Adjourned Meetings. When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 8 Vote Required. When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 9 Voting Rights. Except as otherwise provided by the General Corporation Law of the State of Delaware or by the corporation’s certificate of incorporation or any amendments thereto and subject to Section 3 of Article VI hereof, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.

Section 10 Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular.

Section 11 Action by Written Consent. Unless otherwise provided in the corporation’s certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent or consents, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the state of Delaware, or the corporation’s principal place of business, or an officer or agent of the corporation having custody of the book or books in which proceedings of meetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested or by reputable overnight courier service. All consents properly delivered in accordance with this section shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within 60 days after the earliest dated consent delivered to the corporation as required by this section, written consents signed by the holders of a sufficient number of shares to take such corporate action are so recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.

 

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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

Section 12 Action by Facsimile, Email or Other Electronic Transmission Consent. A facsimile, email or other electronic transmission by a stockholder or proxyholder (or by any person authorized to act on such person’s behalf) of a proxy or a written consent to an action to be taken (including the delivery of such a document in the .pdf, .tif, .gif, .peg or similar format attached to an email message) shall be deemed to be written, signed, dated and delivered to the corporation for the purposes of this Article; provided that any such facsimile, email or other electronic transmission sets forth or is delivered with information from which the corporation can determine (A) that the facsimile, email or other electronic transmission was transmitted by the stockholder or proxyholder or by a person authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person transmitted such facsimile, email or other electronic transmission. The date on which such facsimile, email or other electronic transmission is transmitted shall be deemed to be the date on which such consent or proxy was signed. Any such facsimile, email or other electronic transmission of a consent or proxy shall be treated in all respects as an original executed consent or proxy and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of the board of directors or the Secretary of the corporation, each stockholder, proxyholder or other authorized person who delivered a consent or proxy by facsimile, email or other electronic transmission shall

re-execute
the original form thereof and deliver such original to the corporation at its registered office in the State of Delaware, its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. No consent given by facsimile, email or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded.

ARTICLE III

DIRECTORS

Section 1 General Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors.

Section 2 Number, Election and Term of Office. The number of directors which shall constitute the first board shall be two (2). Thereafter, the number of directors shall be established from time to time by resolution of the board. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors. The directors shall be elected in this manner at the annual meeting of the stockholders, except as otherwise provided in Section 4 of this Article III. Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

 

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Section 3 Removal and Resignation. Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the corporation’s certificate of incorporation, the provisions of this section shall apply, in respect of the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation.

Section 4 Vacancies. Except as otherwise provided in the corporation’s certificate of incorporation, board vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.

Section 5 Annual Meetings. The annual meeting of each newly elected board of directors shall be held without notice (other than notice under these

by-laws)
immediately after, and at the same place, if any, as the annual meeting of stockholders.

Section 6 Other Meetings and Notice. Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place, if any, as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office. Special meetings of the board of directors may be called by or at the request of the president or any director on at least 24 hours notice to each director, either personally, by telephone, by mail or by electronic transmission.

Section 7 Quorum, Required Vote and Adjournment. A majority of the total number of directors then in office authorized shall constitute a quorum for the transaction of business. The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Except as otherwise required by the corporation’s certificate of incorporation, each director shall be entitled to one vote on exactly the matter presented to the board for approval.

Section 8 Committees. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation, which to the extent provided in such resolution or these

by-laws
shall have and may exercise the powers of the board of directors in the management and affairs of the corporation, except as otherwise limited by applicable law. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

Section 9 Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee. Unless otherwise provided in such a resolution, the presence of a majority of the members of the committee then in office shall be necessary to constitute a quorum. In the event that a member and such member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.

 

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Section 10 Communications Equipment. Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting.

Section 11 Waiver of Notice and Presumption of Assent. Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting, except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action.

Section 12 Action by Written Consent. Unless otherwise restricted by the corporation’s certificate of incorporation, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board, or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

ARTICLE IV

OFFICERS

Section 1 Number. The officers of the corporation shall be elected by the board of directors and shall consist of a president, one or more vice presidents, a secretary, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors. Any number of offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.

Section 2 Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be. Vacancies may be filled or new offices created and filled at any meeting of the board of directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.

Section 3 Removal. Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

Section 4 Vacancies. Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.

 

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Section 5 Compensation. Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the corporation.

Section 6 The President. The president shall preside at all meetings of the stockholders and board of directors at which he or she is present; subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the corporation, and control over its officers, agents and employees; and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. The president shall have such other powers and perform such other duties as may be prescribed by the board of directors or as may be provided in these

by-laws.

Section 7 Vice-presidents. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the board of directors, the president or these

by-laws
may, from time to time, prescribe.

Section 8 Secretary and Assistant Secretaries. The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose. Under the president’s supervision, the secretary shall give, or cause to be given, all notices required to be given by these

by-laws
or by applicable law, shall have such powers and perform such duties as the board of directors, the president or these
by-laws
may, from time to time, prescribe, and shall have custody of the corporate seal of the corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.

Section 9 Other Officers, Assistant Officers and Agents. Officers, assistant officers and agents, if any, other than those whose duties are provided for in these

by-laws,
shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.

Section 10 Absence or Disability of Officers. In the case of the absence or disability of any officer of the corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.

ARTICLE V

INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS

Section 1 Nature of Indemnity. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether brought by or in the right of the corporation or any of its subsidiaries and whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), or any appeal of such proceeding, by reason of or arising out of the fact that

 

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such person, or any other person for whom such person is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, manager, general partner, employee, fiduciary, or agent of another corporation or of a partnership, limited liability company, joint venture, trust or other enterprise, shall be indemnified and held harmless by the corporation to the fullest extent permitted under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys’ fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his or her heirs, executors and administrators; provided that, except as provided in Section 2 of this Article V, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article V shall be a contract right and, subject to Sections 2 and 5 hereof, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.

Section 2 Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation provided for under Section 1 of this Article V or advance of expenses provided for under Section 5 of this Article V shall be made promptly, and in any event within 30 days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article V is required, and the corporation fails to respond within 60 days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation wrongfully denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not properly made within 30 days, the right to indemnification or advances as granted by this Article V shall be enforceable by the director or officer in any court of competent jurisdiction. Such person’s costs and expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

Section 3 Article Not Exclusive. The rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article V shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the corporation’s certificate of incorporation,

by-law,
agreement, vote of stockholders or disinterested directors or otherwise.

 

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Section 4 Insurance. The corporation may purchase and maintain insurance on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary, or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article V.

Section 5 Expenses. Expenses incurred by any person described in Section 1 of this Article V in defending a proceeding shall be paid by the corporation in advance of such proceeding’s final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer or other person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.

Section 6 Employees and Agents. Persons who are not covered by the foregoing provisions of this Article V and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified, and may be advanced expenses, to the extent authorized at any time or from time to time by the board of directors.

Section 7 Contract Rights. The provisions of this Article V shall be deemed to be a vested contract right between the corporation and each director and officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect. Such contract right shall vest for each director and officer at the time such person is elected or appointed to such position, and no repeal or modification of this Article V or any such law shall affect any such vested rights or obligations of any current or former director or officer with respect to any state of facts or proceeding regardless of when occurring.

Section 8 Merger or Consolidation. For purposes of this Article V, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article V with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.

ARTICLE VI

CERTIFICATES OF STOCK

Section 1 Form. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by any officers of the Corporation, certifying the number of shares owned by such holder in the corporation. If such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the corporation or its employee or (2) by a registrar, other than the corporation or its employee, the signature of any such president, vice-president, secretary, or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the corporation, such certificate or certificates may

 

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nevertheless be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. Shares of stock of the corporation shall only be transferred on the books of the corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates, and record the transaction on its books. The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the corporation.

Section 2 Lost Certificates. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his or her legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against the corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.

Section 3 Fixing a Record Date for Stockholder Meetings. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the board of directors may fix a new record date for the adjourned meeting.

Section 4 Fixing a Record Date for Action by Written Consent. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by statute, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by statute, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

 

10


Section 5 Fixing a Record Date for Other Purposes. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

Section 6 Registered Stockholders. Prior to the surrender to the corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner. The corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.

Section 7 Subscriptions for Stock. Unless otherwise provided for in any subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors. Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the corporation may proceed to collect the amount due in the same manner as any debt due the corporation.

ARTICLE VII

GENERAL PROVISIONS

Section 1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the corporation’s certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to applicable law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the corporation’s certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, deem proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for any other purpose and the directors may modify or abolish any such reserve in the manner in which it was created.

Section 2 Checks, Drafts or Orders. All checks, drafts, or other orders for the payment of money by or to the corporation and all notes and other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.

Section 3 Contracts. The board of directors may authorize any officer or officers, or any agent or agents, of the corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances.

 

11


Section 4 Loans. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

Section 5 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors.

Section 6 Corporate Seal. The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

Section 7 Voting Securities Owned By Corporation. Voting securities in any other corporation or other entity (such as a limited liability company, limited partnership or trust) held by the corporation shall be voted as directed by the board of directors, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.

Section 8 Inspection of Books and Records. Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean any purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business.

Section 9 Exclusive Jurisdiction. Unless otherwise waived by resolution of the Board, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation’s certificate of incorporation or

by-laws
or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine.

Section 10 Section Headings. Section headings in these

by-laws
are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 11 Inconsistent Provisions. In the event that any provision of these

by-laws
is or becomes inconsistent with any provision of the corporation’s certificate of incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these
by-laws
shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

 

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ARTICLE VIII

AMENDMENTS

These

by-laws
may be amended, altered, or repealed and new
by-laws
adopted at any meeting of the board of directors by a majority vote. The fact that the power to adopt, amend, alter, or repeal the
by-laws
has been conferred upon the board of directors shall not divest the stockholders of the same powers.

*        *        *         *        *

 

13

d734481dex99t3b45.htm EX-99.T3B.45


ENT> EX-99.T3B.45 17 d734481dex99t3b45.htm EX-99.T3B.45

EX-99.T3B.45

Exhibit T3B.45

AGREEMENT OF LIMITED PARTNERSHIP

OF

METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP

This AGREEMENT OF LIMITED PARTNERSHIP OF METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP (the “Agreement”) is made and entered into effective as of June 30, 1998, by and among the Partners (as defined below).

WHEREAS, the Partners desire to establish a separate entity to obtain and market air time and advertising time, in order to, among other things, more effectively account for the separate activities of the Partnership and its affiliates and to manage the contract procurement, accounting, cash flow and flow of value of the entities; and

WHEREAS, after consultation with and advice from legal counsel for the entities, the entities determined that future operations are protected from catastrophic liability more effectively through the segregation of broadcasting and marketing activities into separate legal entities.

NOW, THEREFORE, in consideration of the mutual covenants, rights, and obligations set forth in this Agreement, the benefits to be derived therefrom, and other good and valuable consideration, the receipt and the sufficiency of which each Partner acknowledges and confesses, the Partners agree as follows:

ARTICLE I

DEFINITIONS

1.01 Certain Definitions. As used in this Agreement, the following terms have the following meanings:

Act” means the Delaware Revised Uniform Limited Partnership Act and any successor statute, as amended from time to time.

Affiliate” means, with respect to any Person, any other Person controlling, controlled by, or under common control with that first Person. As used in this definition, the term “control” means (a) with respect to any corporation or other entity having voting shares or the equivalent and elected directors, managers, or Persons performing similar functions, the ownership or power to vote more than 25% of shares or the equivalent having the power to vote in the election of directors, managers, or Persons performing similar functions, and (b) with respect to any other entity, the ability to direct its business and affairs.

Agreement” has the meaning given that term in the introductory paragraph hereof.

“Business Day” means any day other than a Saturday, a Sunday, or a holiday on which banks in the State of Delaware are closed.


“Capital Contribution” means any contribution by a Partner to the capital of the Partnership.

“Certificate” means the certificate of limited partnership of the Partnership, as amended or restated from time to time.

“Code” means the Internal Revenue Code of 1986 and any successor statute, as amended from time to time.

“Dispose,” “Disposing,” or “Disposition” means a sale, assignment, transfer, exchange, mortgage, pledge, grant of a security interest, or other disposition or encumbrance, or the acts thereof.

“General Partner” means any person executing this Agreement as of the date of this Agreement as a general partner or hereafter admitted to the Partnership as a general partner as provided in this Agreement, but does not include any Person who has ceased to be a general partner in the Partnership.

“Limited Partner” means any person executing this Agreement as of the date of this Agreement as a limited partner or hereafter admitted to the Partnership as a limited partner as provided in this Agreement, but does not include any Person who has ceased to be a limited partner in the Partnership.

“Managing General Partner” means Metro Networks Communications, Inc., a Maryland corporation, or any other General Partner designated as Managing General Partner, from time to time, as provided in this Agreement.

“Partner” means any General Partner or Limited Partner.

“Partnership” has the meaning given that term in Section 2.01.

“Partnership Interest” means the interest of a Partner in the Partnership, including, without limitation, rights to distributions (liquidating or otherwise), allocations, information, and to consent or approve.

“Person” means any natural or juridical person, including any entity (corporation, trust, partnership, limited liability company, business trust, association, etc.), whether foreign or domestic.

“Sharing Ratio” means with respect to any Partner executing this Agreement as of the date of this Agreement, the percentage interest set forth opposite such Partner’s name on Exhibit A hereto.

 

2


1.02 Other Definitions. Other terms defined herein have the meanings so given them.

1.03 Construction. Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter. All references to Articles and Sections refer to articles and sections of this Agreement, and all references to Exhibits are to Exhibits attached hereto, each of which is made a part hereof for all purposes.

ARTICLE II

ORGANIZATION

2.01 Formation. Effective as of the acceptance of the Certificate of Limited Partnership by the Delaware Secretary of State, the Persons executing this Agreement formed a Delaware limited partnership (the “Partnership”) for the purposes set forth in this Agreement.

2.02 Name. The name of the Partnership is Metro Networks Communications, Limited Partnership, and all Partnership business must be conducted in that name or such other names that comply with applicable law as the Managing General Partner may select from time to time.

2.03 Registered Office; Registered Agent; Other Offices. The registered office of the Partnership in the State of Delaware shall be at such place as the Managing General Partner may designate from time to time. The registered agent for service of process on the Partnership in the State of Delaware or any other jurisdiction shall be such Person or Persons as the Managing General Partner may designate from time to time. The Partnership may have such other offices as the Managing General Partner may designate from time to time.

2.04 Purposes. The purposes of the Partnership are to provide management and administrative services and to engage in any other business or activity that now or hereafter may be necessary, incidental, proper, advisable, or convenient to accomplish the foregoing purposes (including, without limitation, obtaining financing therefor) and to conduct any other business that is not forbidden by the law of the jurisdiction in which the Partnership engages in such business.

2.05 Separate Business. The Partnership shall keep its business and affairs and all of its property and operations separate and distinct from the business, affairs, assets and operations of the Partners and of any other person or entity in which any of them may be or become interested.

2.06 Certificate; Foreign Qualification. The Managing General Partner has executed and caused to be filed with the Secretary of State of the State of Delaware a certificate containing information required by the Act and such other information as the Managing General Partner has deemed appropriate. Prior to the Partnership’s conducting business in any jurisdiction other than Delaware, the Managing General Partner shall cause the Partnership to comply, to the extent required by law and to the extent that those matters are reasonably within the control of the Managing General

 

3


Partner, with all requirements necessary to qualify the Partnership as a foreign limited partnership (or a partnership in which the Limited Partners have limited liability) in that jurisdiction, under such name, assumed name or other name that it desires. At the request of the Managing General Partner, each Partner shall execute, acknowledge, swear to, and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to form, qualify, continue, and terminate the Partnership as a limited partnership under the law of the State of Delaware and to quality, continue, and terminate the Partnership as a foreign limited partnership (or a partnership in which the Limited Partners have limited liability) in all other jurisdictions in which the Partnership may conduct business, and to this end the Managing General Partner may use the power of attorney described in Section 6.05.

2.07 Term. The existence of the Partnership as a limited partnership shall commence on the date the Certificate is filed in the office of the Secretary of State of Delaware in accordance with the Act, or such other office as is appropriate under applicable state law, and shall continue until the winding up and liquidation of the Partnership and its business and affairs following a liquidating event, as provided in Article VIII hereof.

2.08 Merger or Consolidation. The Partnership may merge or consolidate with or into another limited partnership or other Person, or enter into an agreement to do so, only with the consent of all of the Partners.

ARTICLE III

PARTNERS; REPRESENTATIVES; DISPOSITIONS OF INTERESTS

3.01 Initial Partners. The initial general partners and limited partners of the Partnership are the Persons executing this Agreement as of the date of this Agreement as general partners and limited partners, respectively, each of which is admitted to the Partnership as a general partner or a limited partner, as the case may be, effective with the commencement of the Partnership.

3.02 Representations and Warranties. Each Partner represents and warrants to the Partnership and each other Partner that (a) if that Partner is a corporation, it is duly organized, validly existing, and in good standing under the law of the state of its incorporation and is duly qualified and in good standing as a foreign corporation in the jurisdiction of its principal place of business (if not incorporated therein), (b) if that Partner is a partnership, trust, or other entity, it is duly formed, validly existing, and (if applicable) in good standing under the law of the state of its formation, and if required by law is duly qualified to do business and (if applicable) in good standing in the jurisdiction of its principal place of business (if not formed therein), and the representations and warranties in clause (a) or (b), as applicable, are true and correct with respect to each partner (other than limited partners), trustee, or other member thereof, (c) that Partner has full corporate, partnership, trust, or other applicable power and authority to enter into this Agreement and to perform its obligations hereunder and all necessary actions by the board of directors, shareholders, partners, trustees, beneficiaries, or other Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Partner have been duly taken, (d) that Partner

 

4


has duly executed and delivered this Agreement, and (e) that Partner’s authorization, execution, delivery, and performance of this Agreement do not conflict with any other agreement or arrangement to which that Partner is a party or by which it is bound.

3.03 No Dispositions of Interests. Partnership Interests may not be Disposed of, and any purported Disposition of Partnership Interest shall be null and void, and shall have no legal effect. The Partners and the Partnership shall not be required to recognize any Disposition not effected in accordance with the terms hereof.

ARTICLE IV

CAPITAL CONTRIBUTIONS

4.01 Initial Contributions. Prior to or contemporaneously with the commencement of business by the Partnership, each Partner will have made the initial Capital Contributions described for that Partner in Exhibit A.

4.02 Subsequent Contributions. Without creating any rights in favor of any third party, each Partner shall contribute to the Partnership, in cash, from time to time, that Partner’s Sharing Ratio of all monies that in the judgment of the Managing General Partner are necessary to enable the Partnership to cause the assets of the Partnership to be properly operated and maintained and to discharge its costs, expenses, obligations, and liabilities. The Managing General Partner shall notify each Partner of the need for Capital Contributions pursuant to this Section 4.02 when appropriate, which notice must include a statement in reasonable detail of the proposed uses of the Capital Contributions and a date (which date may be no earlier than the fifth Business Day following each Partner’s receipt of its notice) before which the Capital Contributions must be made. Notices of Capital Contributions must be made to all Partners in accordance with their Sharing Ratios.

4.03 Return of Contributions. A Partner is not entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its capital account or its Capital Contributions. An unrepaid Capital Contribution is not a liability of the Partnership or of any Partner. A Partner is not required to contribute or to lend any cash or property to the Partnership to enable the Partnership to return any Partner’s Capital Contributions.

4.04 Capital Accounts. A capital account shall be established and maintained for each Partner. Each Partner’s capital account (a) shall be increased by (i) the amount of money contributed by that Partner to the Partnership, (ii) the fair market value of property contributed by that Partner to the Partnership (net of liabilities secured by such contributed property that the Partnership is considered to assume to take subject to under section 752 of the Code), and (iii) allocations to that Partner of Partnership income and gain (or items thereof), including income and gain exempt from tax and income and gain described in Treas. Reg. §

1.704-1(b)(2)(iv)(g),
but excluding income and gain described in Treas. Reg. §
1.704-1(b)(4)(i),
and (b) shall be decreased by (i) the amount of money distributed to that Partner by the Partnership, (ii) the fair market value of property distributed to that Partner by the Partnership (net of liabilities secured by such distributed property that such

 

5


Partner is considered to assume or take subject to under section 752 of the Code), (iii) allocations to that Partner of expenditures of the Partnership described in section 705(a)(2)(B) of the Code, and (iv) allocations of Partnership loss and deduction (or items thereof), including loss and deduction described in Treas. Reg. §

1.704-1(b)(2)(iv)(g),
but excluding items described in b(iii) above and loss or deduction described in Treas. Reg. §
1.704-1(b)(4)(i)
or
1.704-1(b)(4)(iii).
The Partners’ capital accounts shall also be maintained and adjusted as permitted by the provisions of Treas. Reg. §
1.704-1(b)(2)(iv)(f)
and as required by the other provisions of Treas. Reg. §§
1.704-1(b)(2)(iv)
and
1.704-1(b)(4),
including adjustments to reflect the allocations to the Partners of depreciation, depletion, amortization, and gain or loss as computed for book purposes rather than the allocation of the corresponding items as computed for tax purposes, as required by Treas. Reg.
§1.704-1(b)(2)(iv)(g).
A partner who has more that one interest in the Partnership shall have a single capital account that reflects all such interests, regardless of the class of interests owned by such Partner and regardless of the time or manner in which such interests were acquired. Upon the transfer of all or part of an interest in the Partnership, the capital account of the transferor that is attributable to the transferred interest in the Partnership shall carry over to the transferee Partner in accordance with the provisions of Treas. Reg. §
1.704-1(b)(2)(iv)(l).

ARTICLE V

ALLOCATION AND DISTRIBUTIONS

5.01 Allocations. Except as may be required by section 704(c) of the Code and Treas. Reg. §

1.704-1(b)(2)(iv)(f)(4),
all items of income, gain, loss, deduction, and credit of the Partnership shall be allocated among the Partners in accordance with their Sharing Ratios.

5.02 Distributions. (a) From time to time prior to commencement of liquidation under Section 8.02, the Managing General Partner shall determine in its reasonable judgment to what extent (if any) the Partnership’s cash on hand exceeds its current and anticipated needs, including, without limitation, for operating expenses, debt service, acquisitions, and a reasonable contingency reserve. If such an excess exists, the Managing General Partner shall cause the Partnership to distribute to the Partners, in accordance with their Sharing Ratios, an amount in cash equal to that excess.

(b) From time to time the Managing General Partner also may cause property of the Partnership other than cash to be distributed to the Partners, which distribution must be made in accordance with their Sharing Ratios and may be made subject to existing liabilities and obligations.

ARTICLE VI

MANAGEMENT AND OPERATION

6.01 Management of Partnership Affairs. (a) Except for situations in which the approval of other Partners is expressly required by this Agreement or by nonwaivable provisions of applicable law, the Managing General Partner shall have full, complete, and exclusive authority to manage and control the business, affairs, and properties of the Partnership, to make all decisions regarding those

 

6


matters, and to perform any and all other acts or activities customary or incident to the management of the Partnership’s business. The Managing General Partner may make all decisions and take all actions for the Partnership not otherwise provided for in this Agreement, including, without limitation, the following:

(i) entering into, making, and performing contracts, agreements, and other undertakings binding the Partnership that may be necessary, appropriate, or advisable in furtherance of the purposes of the Partnership and making all decisions and waivers thereunder;

(ii) opening and maintaining bank and investment accounts and arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements;

(iii) maintaining the assets of the Partnership in good order;

(iv) collecting sums due the Partnership;

(v) to the extent that funds of the Partnership are available therefor, paying debts and obligations of the Partnership;

(vi) acquiring, utilizing for Partnership purposes, and Disposing of any asset of the Partnership;

(vii) borrowing money or otherwise committing the credit of the Partnership for Partnership activities, for activities of the Partnership’s Affiliates and voluntary prepayments or extensions of debt;

(viii) selecting, removing, and changing the authority and responsibility of lawyers, accountants, and other advisers and consultants;

(ix) obtaining insurance for the Partnership;

(x) determining distributions of Partnership cash and other property as provided in Section 5.02; and

(xi) appointing and electing Persons to act as agents of the Partnership to perform such duties and in such capacities and having such titles as determined by the Managing General Partner (it being agreed that any Person representing the Partnership with a given title shall have such duties and authority as contemplated by the description of such title contained in the Managing General Partner’s Bylaws as of the date of this Agreement).

 

7


(b) Unless appointed by the Managing General Partner as contemplated by Section 6.01(a)(xi) above, no Partner (other than the Managing General Partner) has the authority or power to act for or on behalf of the Partnership, to do any act that would be binding on the Partnership, or to incur any expenditures on behalf of the Partnership.

(c) Any Person dealing with the Partnership, other than a Partner, may rely on the authority of the Managing General Partner in taking any action in the name of the Partnership without inquiry into the provisions of this Agreement or compliance herewith, regardless of whether that action actually is taken in accordance with the provisions of this Agreement.

6.02 Compensation. The Managing General Partner is not entitled to compensation for its services as Managing Partner, but it is entitled to be reimbursed for

out-of-pocket
costs and expenses incurred in the course of its service in that capacity in accordance with this Agreement, including for the portion of its overhead reasonably allocable to Partnership activities.

6.03 Standards and Conflicts. (a) Except as provided otherwise in the Agreement, the Managing General Partner shall conduct the affairs of the Partnership in good faith toward the best interests of the Partnership. The Managing General Partner is liable for errors or omissions in performing its duties with respect to the Partnership only in the case of willful misconduct, but not otherwise. The Managing General Partner shall devote such time and effort to the Partnership business and operations as is necessary to promote fully the interests of the Partnership; however, neither the Managing General Partner nor any other General Partner must devote full time to Partnership business.

(b) Subject to the other provisions of this Agreement, the Managing General Partner and each other Partner at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, independently or with others, including ones in competition with the Partnership, with no obligation to offer to the Partnership or any other Partner the right to participate therein.

(c) The Partnership may transact business with any Partner or Affiliate of a Partner on terms determined necessary or desirable by the Managing General Partner.

6.04 Indemnification. To the fullest extent permitted by law, on request by the Person indemnified, the Partnership shall indemnify each General Partner, its Affiliates, and their respective officers, directors, partners, employees, and agents and hold them harmless from and against all losses, costs, liabilities, damages, and expenses (including, without limitation, costs of suit and attorney’s fees) any of them may incur as a General Partner in the Partnership or in performing the obligations of that General Partner with respect to the Partnership, and on request by the Person indemnified the Partnership shall advance expenses associated with defense of any related action; provided, however, that this indemnity does not apply to actions constituting bad faith, gross negligence, or breach of the provisions of this Agreement.

 

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6.05 Power of Attorney. Each Partner hereby appoints the Managing General Partner (and any liquidator pursuant to Section 8.02) as that Partner’s attorney-in-fact for the purpose of executing, swearing to, acknowledging, and delivering all certificates, documents, and other instruments as may be necessary, appropriate, or advisable in the judgment of the Managing General Partner (or the liquidator) in furtherance of the business of the Partnership or complying with applicable law, including, without limitation, filings of the type described in Section 2.06. This power of attorney is irrevocable and is coupled with an interest. On request by the Managing General Partner (or the liquidator), a Partner shall confirm its grant of this power of attorney or any use of it by the Managing General Partner (or the liquidator) and shall execute, swear to, acknowledge, and deliver any such certificate, document, or other instrument.

ARTICLE VII

TAXES

7.01 Tax Returns. The Managing General Partner shall cause to be prepared and filed all necessary federal and state income tax returns for the Partnership, including making the elections described in Section 7.02. Each Partner shall furnish to the Managing General Partner all pertinent information in its possession relating to Partnership operations that is necessary to enable the Partnership’s income tax returns to be prepared and filed.

7.02 Tax Elections. The Partnership shall make the following elections on the appropriate tax returns.:

(a) to adopt the calendar year as the Partnership’s fiscal year;

(b) to adopt the accrual method of accounting:

(c) if a distribution of Partnership property as described in section 734 of the Code occurs or if a transfer of a Partnership Interest as described in section 743 of the Code occurs, on request by notice from any Partner, to elect, pursuant to section 754 of the Code, to adjust the basis of Partnership properties;

(d) to elect to amortize the organization expenses of the Partnership ratably over a period of 60 months as permitted by section 709(b) of the Code; and

(e) any other election the Managing General Partner may deem appropriate and in the best interests of the Partners.

7.03 Tax Matters Partner. The Managing General Partner shall be the “tax matters partner” of the Partnership pursuant to section 6231(a)(7) of the Code. The Managing General Partner shall take such action as may be necessary to cause each other Partner to become a “notice partner” within the meaning of section 6223 of the Code. The Managing General Partner shall inform each other Partner of all significant matters that may come to its attention in its capacity as

 

9


tax matters partner by giving notice thereof on or before the fifth Business Day after becoming aware thereof and, within that time, shall forward to each other Partner copies of all significant written communications it may receive in that capacity. The preceding provisions are not intended to authorize the Managing General Partner to take any action left to the determination of an individual Partner under sections 6222 through 6232 of the Code.

ARTICLE VIII

DISSOLUTION, LIQUIDATION, AND TERMINATION

8.01 Dissolution. The Partnership shall dissolve and its affairs shall be wound up on the first to occur of the following:

(a) the written consent of all of the Partners;

(b) the sale of all or substantially all of the Partnership’s property;

(c) the bankruptcy, dissolution, liquidation or withdrawal of any Partner;

(d) the happening of any other event that makes it unlawful, impossible, or impractical to carry on the business of the Partnership; or

(e) Any event which causes there to be no General Partner.

8.02 Liquidation and Termination. On dissolution of the Partnership, the Managing General Partner shall act as liquidator or may appoint one or more other Persons as liquidator; provided, however, that if the Partnership dissolves on account of an event of the type described in section

17-402(a)(4)-(10)
of the Act with respect to the Managing General Partner, the liquidator shall be one or more Persons selected in writing by other Partners. The liquidator shall proceed diligently to wind up the affairs of the Partnership and make final distributions as provided herein. The costs of liquidation shall be borne as a Partnership expense. Until final distribution, the liquidator shall continue to operate the Partnership properties with all of the power and authority of the Managing General Partner. The steps to be accomplished by the liquidator are as follows:

(a) as promptly as possible after dissolution and gain after final liquidation, the liquidator shall cause a proper accounting to be made by a recognized firm of certified public accountants of the Partnership’s assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

(b) the liquidator shall pay from Partnership funds all of the debts and liabilities of the Partnership or otherwise make adequate provision therefor (including, without limitation, the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine); and

 

10


(c) all remaining assets of the Partnership shall be distributed to the Partners as follows:

(i) the liquidator may sell any or all Partnership property, including to Partners, and any resulting gain or loss from each sale shall be computed and allocated to the capital accounts of the Partners;

(ii) with respect to all Partnership property that has not been sold, the fair market value of that property shall be determined and the capital accounts of the Partners shall be adjusted to reflect the manner in which the unrealized income, gain, loss, and deduction inherent in that property (that has not been reflected in the capital accounts previously) would be allocated among the Partners if there were a taxable disposition of that property for the fair market value of that property on the date of its distribution; and

(iii) Partnership property shall be distributed among the Partners in accordance with the positive capital account balances of the Partners, as determined after taking into account all capital account adjustments for the taxable year of the Partnership during which the liquidation of the Partnership occurs (other than those made by reason of this clause (iii)); and those distributions shall be made by the end of the taxable year of the Partnership during which the liquidation of the Partnership occurs (or, if later, 90 days after the date of the liquidation).

All distributions in kind to the Partners shall be made subject to the liability of each distributee for its allocable share of costs, expenses, and liabilities theretofore incurred or for which the Partnership has committed prior to the date of termination and those costs, expenses, and liabilities shall be allocated to the distributee pursuant to this Section 8.02. The distribution of cash and/or property to a Partner in accordance with the provisions of this Section 8.02 constitutes a complete return to the Partner of its Capital Contributions and a complete distribution to the Partner of its Partnership Interest and all the Partnership’s property and constitutes a compromise to which all Partners have consented within the meaning of section

17-502(b)
of the Act. To the extent that a Partner returns funds to the Partnership, it has no claim against any other Partner for those funds.

8.03 Cancellation of Certificate. On completion of the distribution of Partnership assets as provided herein, the Partnership is terminated, and the General Partners (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Certificate and any other filings made as provided in Section 2.06 and shall take such other actions as may be necessary to terminate the Partnership.

 

11


ARTICLE IX

GENERAL PROVISIONS

9.01 Offset. Whenever the Partnership is to pay any sum to any Partner, any amounts that Partner owes the Partnership may be deducted from that sum before payment.

9.02 Notices. All notices, requests, or consents provided for or permitted to be given under this Agreement must be in writing and must be give either by depositing that writing in the United States mail, addressed to the recipient, postage paid, and registered or certified with return receipt requested or by delivering that writing to the recipient in person, by courier, or by facsimile transmission. A notice, request, or consent given under this Agreement is effective on receipt by the Person to receive it. All notices, requests, and consents to be sent to a Partner must be sent to or made at the addresses given for that Partner on Exhibit A or such other address as that Partner may specify by notice to the other Partners. Any notice, request, or consent to the Partnership must be given to the Managing General Partner.

9.03 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement of the Partners and their Affiliates relating to the Partnership and supersedes all prior contracts or agreements with respect to the Partnership, whether oral or written.

9.04 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Partnership is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Partnership. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Partnership, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable

statute-of-limitations
period has run.

9.05 Amendment or Modification. This Agreement may be amended or modified from time to time only by a written instrument executed by all of the Partners.

9.06 Binding Effect. Subject to the restrictions on Dispositions set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Partners and their respective heirs, legal representatives, successors, and assigns.

9.07 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY

CONFLICT-OF-LAWS
RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. If any provision of this Agreement or its application to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances is not affected and that provision shall be enforced to the greatest extent permitted by law.

 

12


9.08 Further Assurances. In connection with this Agreement and the transactions contemplated by it, each Partner shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.

9.09 Waiver of Certain Rights. Each Partner irrevocable waives any right it may have to maintain any action for dissolution of the Partnership or for partition of the property of the Partnership.

9.10 Indemnification. To the fullest extent permitted by law, each Partner shall indemnify the Partnership and each other Partner and hold them harmless from and against all losses, costs, liabilities, damages, and expenses (including, without limitation, costs of suit and attorney’s fees) they may incur on account of any breach by that Partner of this Agreement.

9.11 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument.

IN WITNESS WHEREOF, this Agreement of Limited Partnership is executed as of the date first above written.

GENERAL PARTNER:

METRO NETWORKS COMMUNICATIONS, INC.

By:  

/s/ Illegible

Its:   President

LIMITED PARTNER:

METRO NETWORKS SERVICES, INC.

 

By:  

/s/ Illegible

Its:   President

 

13


Exhibit A

 

Partner Name and Address    Sharing Ratio     Initial Contribution  

Metro Networks

Communications, Inc.

2800 Post Oak Blvd

Suite 4000

Houston, Texas 77056

     1   $ 10  

Metro Networks Services, Inc.

681 5th Avenue, 10th Floor

New York, New York 10022

     99   $ 990  

 

14

d734481dex99t3b46.htm EX-99.T3B.46


ENT> EX-99.T3B.46 18 d734481dex99t3b46.htm EX-99.T3B.46

EX-99.T3B.46

Exhibit T3B.46

BYLAWS

of

METRO NETWORKS SERVICES, INC.

a Delaware corporation


TABLE OF CONTENTS

 

     Page  

ARTICLE I—OFFICERS

     1  

Section 1.1 Registered Office

     1  

Section 1.2 Principal Office

     1  

Section 1.3 Other Offices

     1  

ARTICLE II—MEETINGS OF STOCKHOLDERS

     1  

Section 2.1 Annual Meetings

     1  

Section 2.2 Special Meetings

     1  

Section 2.3 Place of Meetings

     2  

Section 2.4 Notice of Meetings

     2  

Section 2.5 Quorum

     2  

Section 2.6 Voting

     2  

Section 2.7 List of Stockholders

     3  

Section 2.8 Inspector of Election

     4  

Section 2.9 Stockholder Action Without Meetings

     4  

Section 2.10 Notice of Business

     4  

ARTICLE III—BOARD OF DIRECTORS

     5  

Section 3.1 General Powers

     5  

Section 3.2 Number and Class of Directors

     5  

Section 3.3 Nomination of Directors

     6  

Section 3.4 Election of Directors

     6  

Section 3.5 Resignations

     6  

Section 3.6 Vacancies

     7  

Section 3.7 Place of Meeting; Telephone Conference Meeting

     7  

Section 3.8 First Meeting

     7  

Section 3.9 Regular Meetings

     7  

Section 3.10 Special Meetings

     7  

Section 3.11 Quorum and Action

     8  

Section 3.12 Action by Consent

     8  

Section 3.13 Compensation

     8  

Section 3.14 Committees

     9  

Section 3.15 Officers of the Board

     9  

ARTICLE IV—OFFICERS

     9  

Section 4.1 Officers

     9  

Section 4.2 Election

     9  

Section 4.3 Subordinate Officers

     10  

Section 4.4 Removal and Resignation

     10  

Section 4.5 Vacancies

     10  

 

i


Section 4.6 Chief Executive Officer

     10  

Section 4.7 President

     10  

Section 4.8 Vice President

     11  

Section 4.9 Secretary

     11  

Section 4.10 Chief Financial Officer

     11  

ARTICLE V—CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.

     12  

Section 5.1 Execution of Contracts

     12  

Section 5.2 Checks, Drafts, Etc.

     12  

Section 5.3 Deposit

     12  

Section 5.4 General and Special Bank Accounts

     12  

ARTICLE VI—SHARES AND THEIR TRANSFER

     13  

Section 6.1 Certificates for Stock

     13  

Section 6.2 Transfer of Stock

     13  

Section 6.3 Regulations

     13  

Section 6.4 Lost, Stolen, Destroyed and Mutilated Certificates

     14  

Section 6.5 Record Date

     14  

Section 6.6 Representation of Shares of Other Corporations

     14  

ARTICLE VII—INDEMNIFICATION

     14  

Section 7.1 Actions Other Than By or In the Right of the Corporation

     14  

Section 7.2 Actions By or In the Right of the Corporation

     15  

Section 7.3 Determination of Right of Indemnification

     15  

Section 7.4 Indemnification Against Expenses of Successful Party

     15  

Section 7.5 Advance of Expenses

     15  

Section 7.6 Other Rights and Remedies

     16  

Section 7.7 Insurance

     16  

Section 7.8 Constituent Corporations

     16  

Section 7.9 Employee Benefit Plans

     16  

Section 7.10 Broadest Lawful Indemnification

     16  

Section 7.11 Term

     17  

Section 7.12 Severability

     18  

Section 7.13 Amendments

     18  

ARTICLE VIII—MISCELLANEOUS

     18  

Section 8.1 Seal

     18  

Section 8.2 Waiver of Notices

     18  

Section 8.3 Loans and Guaranties

     18  

Section 8.4 Gender

     18  

Section 8.5 Amendments

     19  

CERTIFICATE OF SECRETARY

     20  

 

ii


BYLAWS

of

METRO NETWORKS SERVICES, INC.

a Delaware corporation

ARTICLE I—OFFICERS

Section 1.1 Registered Office. The registered office of Metro Networks Services, Inc. (hereinafter called the “Corporation”) shall be at such place in the State of Delaware as shall be designated by the Board of Directors (hereinafter called the “Board”).

Section 1.2 Principal Office. The principal office for the transaction of the business of the Corporation shall be at such location, within or without the State of Delaware, as shall be designated by the Board.

Section 1.3 Other Offices. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of the Corporation may require.

ARTICLE II—MEETINGS OF STOCKHOLDERS

Section 2.1 Annual Meetings. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution.

Section 2.2 Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board, or by a committee of the Board which has been duly designated by the Board and whose powers and authority, as provided in a resolution of the Board or in the Bylaws, include the power to call such meetings, but such special meetings may not be called by any other person or persons; provided, however, that if and to the extent that any special meeting of stockholders may be called by any other person or persons specified in any provisions of the Certificate of Incorporation or any amendment thereto or any certificate filed under Section 151(g) of the General Corporation Law of Delaware (or its successor statute as in effect from time to time hereafter), then such special meeting may also be called by the person or persons, in the manner, at the time and for the purposes so specified.


Section 2.3 Place of Meetings. All meetings of the stockholders shall be held at such places, within or without the State of Delaware, as may from time to time be designated by the person or persons calling the respective meetings and specified in the respective notices or waivers of notice thereof.

Section 2.4 Notice of Meetings. Except as otherwise required by law, notice of each meeting of the stockholders, whether annual or special, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him personally, or by depositing such notice in the United States mail, in a postage prepaid envelope, directed to him at his address furnished by him to the Secretary of the Corporation for such purpose or, if he shall not have furnished to the Secretary his address for such purpose, then at his address last known to the Secretary, or by transmitting a notice thereof to him at such address by telegraph, cable or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders shall state the place, date and hour of the meeting, and, in the case of a special meeting shall also state the purpose or purposes for which the meeting is called. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken.

Section 2.5 Quorum. The holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. In the absence of a quorum at any meeting or any adjournment thereof, a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat or, in the absence therefrom of all the stockholders, any officer entitled to preside at or to act as secretary of such meeting may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.

Section 2.6 Voting.

(a) At each meeting of the stockholders, each stockholder shall be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation which has voting rights on the matter in question and which shall have been held by him and registered in his name on the books of the Corporation.

(i) on the date fixed pursuant to Section 6.5 of these Bylaws as the record for the determination of stockholders entitled to notice of and to vote at such meeting, or

 

2


(ii) if no such record date shall have been so fixed, then (A) at the close of business on the date next preceding the day on which notice of the meeting shall be given or (B) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which the meeting shall be held.

(b) Persons holding stock of the Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon. Stock having voting power standing of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or with respect to which two or more person have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of Delaware.

(c) Any such voting rights may be exercised by the stockholder entitled thereto in person or by his proxy appointed by an instrument in writing, subscribed by such stockholder or by his attorney thereunto authorized and delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date unless such proxy shall provide for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the stockholders all matters, except as otherwise provided in the Certificate of Incorporation, in these Bylaws or by law, shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat and thereon. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. The vote at any meeting of the stockholders on any question need not be by ballot, unless so directed by the chairman of the meeting. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his proxy if there be such proxy, and it shall state the number of shares voted.

Section 2.7 List of Stockholders. The Secretary of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if no so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the entire duration thereof, and may be inspected by any stockholder who is present.

 

3


Section 2.8 Inspector of Election. If at any meeting of the stockholders a vote by written ballot shall be taken on any question, the chairman of such meeting may appoint an inspector or inspectors of election to act with respect to such vote. Each inspector so appointed shall first subscribe an oath faithfully to execute the duties of an inspector at such meeting with strict impartiality and according to the best of his ability. Such inspectors shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to vote on such question, shall conduct and accept the votes, and, when the voting is completed, shall ascertain and report the number of shares voted respectively for and against the question. Reports of the inspectors shall be in writing and subscribed and delivered by them to the Secretary of the Corporation. Inspectors need not be stockholders of the Corporation, and any officer of the Corporation may be an inspector on any question other than a vote for or against a proposal in which he shall have a material interest.

Section 2.9 Stockholder Action Without Meetings. Any action required by the General Corporation Law of Delaware to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing setting forth the action so taken shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. The election of directors at an annual or special meeting, or any other action required to be taken at an annual or special meeting, may be taken by consent as set forth herein.

Section 2.10 Notice of Business. At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than 90 days prior to the date on which, in the immediately preceding calendar year, the annual meeting of stockholders for such year was held (provided that if the date of the annual meeting is changed by more than 30 days from such anniversary date, notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made). A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting, (b) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, (c) a representation that the

 

4


stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear at the meeting to bring such business before the meeting; (d) any material interest of the stockholder in such business; and (e) such other information regarding the matter of business to be proposed as would be required in a proxy statement soliciting proxies for the approval of such business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 2.10. The Chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 2.10, and if he shall so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

ARTICLE III—BOARD OF DIRECTORS

Section 3.1 General Powers. The property, business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all of the powers of the Corporation, except such as are by the Certificate of Incorporation, by these Bylaws or by law conferred upon or reserved to the stockholders.

Section 3.2 Number and Class of Directors. The number of Directors of this Corporation shall be a minimum of three (3) and a maximum of nine (9) persons except that when all of the capital stock are owned by less than three (3) stockholders, the number of Directors may be less than three (3) but not less than the number of stockholders. The Board of Directors shall have sole authority to determine the number of Directors and may increase or decrease the exact number of Directors from time to time by resolution duly adopted by such Board. No decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. The initial number of directors shall be one, until so increased or decreased.

If there are more than three directors, the Board of Directors shall be divided into three classes, as nearly equal in number as the then total number of Directors constituting the whole Board permits, with the term of office of one class expiring each year. At each annual meeting of stockholders, the successors to the class of Directors whose term shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting and each Director so elected shall hold office until his successor is elected and qualified, or until his earlier resignation or removal.

If the number of Directors is changed, any increase or decrease in the number of Directors shall be apportioned among the three classes so as to make all classes as nearly equal in number as possible, and the Board of Directors shall decide which class shall contain an unequal number of Directors.

 

5


Section 3.3 Nomination of Directors. Only persons who are nominated in accordance with the procedures set forth in this Section 3.3 shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of stockholders by or at the direction of the Board of Directors or by any stockholder of the Corporation entitled to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section 3.3. Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation not less than 90 days prior to the date on which, in the immediately preceding calendar year, the annual meeting of stockholders for such year was held (provided that if the date of the annual meeting is changed by more than 30 days from such anniversary date, notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made). Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or

re-election
as a Director: (i) the name and address of such person, and (ii) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including without limitation such person’s written consent to being named in the proxy statement as a nominee and agreement to serve as a Director if elected); (b) as to the stockholder giving the notice: (i) the name and address, as they appear on the Corporation’s books, of such stockholder, and (ii) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear at the meeting to bring such nominations before the meeting, and (c) a description of all arrangements or understandings between the stockholder and each nominee. At the request of the Board of Directors any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary of the Corporation that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the Corporation unless nominated in accordance with the procedures set forth in this Section 3.3. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by the Bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

Section 3.4 Election of Directors. The directors shall be elected by the stockholders of the Corporation, and at each election the persons receiving the greatest number of votes, up to the number of directors then to be elected, shall be the persons then elected.

Section 3.5 Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time is not specified, it shall take effect immediately upon its receipt; and, unless otherwise specified, it shall take effect immediately upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

 

6


Section 3.6 Vacancies. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. Each directors so chosen to fill a vacancy shall hold office until successor shall have been elected and shall qualify or until he shall resign or shall have been removed. No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of his term of office.

Upon the resignation of one or more directors from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided hereinabove in the filling of other vacancies.

Section 3.7 Place of Meeting; Telephone Conference Meeting. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting.

Section 3.8 First Meeting. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required.

Section 3.9 Regular Meetings. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day which is not a legal holiday. Except as provided by law, notice of regular meetings need not be given.

Section 3.10 Special Meetings. Special meetings of the Board may be called at any time by the Chairman of the Board or the Chief Executive Officer or by any two (2) directors, to be held at the principal office of the Corporation, or at such other place or places, within or without the State of Delaware, as the person or persons calling the meeting may designate.

 

7


Notice of the time and place of special meetings shall be given to each director either (i) by mailing or otherwise sending to him a written notice of such meeting, charges prepaid, addressed to him at his address as it is shown upon the records of the Corporation, or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held, at least

seventy-two
(72) hours prior to the time of the holding of such meeting; or (ii) by orally communicating the time and place of the special meeting to him at least forty-eight (48) hours prior to the time of the holding of such meeting. Either of the notices as above provided shall be due, legal and personal notice to such director.

Whenever notice is required to be given, either to a stockholder or a director, under any provision of the General Corporation Law of Delaware, the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein or the meeting to which such waiver relates, shall be deemed equivalent to notice. Attendance of a person at a meeting, whether in person or by proxy, shall constitute a waiver of notice of such meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of directors or committee of directors need be specified in any written waiver of notice.

All such waivers shall be filed with the corporate records or made a part of the minutes of the meeting.

Section 3.11 Quorum and Action. Except as otherwise provided in these Bylaws or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such.

Section 3.12 Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or such committee. Such action by written consent shall have the same force and effect as the unanimous vote of such directors.

Section 3.13 Compensation. No stated salary need be paid to directors, as such, for their services but, as fixed from time to time by resolution of the Board, the directors may receive directors’ fees, compensation and reimbursement for expenses for attendance at directors’ meetings, for serving on committees and for discharging their duties; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

 

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Section 3.14 Committees. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have any power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the Bylaws of the Corporation; and unless the resolution of the Board expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such committee shall keep written minutes of its meetings and report the same to the Board when required.

In the absence of any member of any such committee, the members thereof present at any meeting and not disqualified from voting, whether or not they constitute a quorum, may appoint another member of the Board to act at the meeting in the place of such absent member.

A majority of the members, or replacements thereof, of any such committee shall constitute a quorum for the transaction of business. Every act or decision done or made by a majority of the members, or replacements thereof, of any such committee shall be regarded as the act or decision of the entire committee.

Section 3.15 Officers of the Board. The Board shall have a Chairman of the Board and may, at the discretion of the Board, have one or more Vice Chairmen. The Chairman of the Board and the Vice Chairmen shall be appointed from time to time by the Board and shall have such powers and duties as shall be designated by the Board.

ARTICLE IV—OFFICERS

Section 4.1 Officers. The officers of the Corporation shall be a President, a Secretary and a Treasurer or Chief Financial Officer. The Corporation may also have, at the discretion of the Board, a Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers as may be appointed in accordance with the provisions of Section 4.3 of these Bylaws. One person may hold two or more offices, except that the Secretary may not also hold the office of President. The salaries of all officers of the Corporation shall be fixed by the Board.

Section 4.2 Election. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 4.3 or Section 4.5 of these Bylaws, shall be chosen annually by the Board, and each shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve, or until his successor shall be elected and qualified.

 

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Section 4.3 Subordinate Officers. The Board may appoint, or may authorize the President to appoint, such other officers as the business of the Corporation may require, each of whom shall have such authority and perform such duties as are provided in these Bylaws or as the Board or the President from time to time may specify, and shall hold office until he shall resign or shall be removed or otherwise disqualified to serve.

Section 4.4 Removal and Resignation. Any officer may be removed, with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board, or by the President upon whom such power of removal may be conferred by the Board.

Any officer may resign at any time by giving written notice to the Board, the Chairman of the Board, the President or the Secretary of the Corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 4.5 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in the Bylaws for the regular appointments to such office.

Section 4.6 Chief Executive Officer. The Chief Executive Officer of the Corporation, if any, shall, subject to the control of the Board, have general supervision, direction and control of the business and affairs of the Corporation. He shall preside at all meetings of stockholders and the Board. He shall have the general powers and duties of management usually vested in the chief executive officer of a corporation, and shall have such other powers and duties with respect to the administration of the business and affairs of the Corporation as may from time to time be assigned to him by the Board or as prescribed by the Bylaws. In the absence or disability of the President, the Chief Executive Officer, in addition to his assigned duties and powers, shall perform all the duties of the President and when so acting shall have all the powers and be subject to all restrictions upon the President.

Section 4.7 President. The President shall exercise the powers of the Chief Executive Officer, if no person holds such office, and shall perform such powers and duties with respect to the administration of the business and affairs of the Corporation as may from time to time be assigned to him by the Chief Executive Officer (unless the President is also the Chief Executive Officer) or by the Board or as is prescribed by the Bylaws. In the absence or disability of the Chief Executive Officer, the President shall perform all of the duties of the Chief Executive Officer and when so acting shall have all the powers and be subject to all the restrictions upon the Chief Executive Officer.

 

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Section 4.8 Vice President. The Vice President(s), if any, shall exercise and perform such powers and duties with respect to the administration of the business and affairs of the Corporation as from time to time may be assigned to each of them by the President, by the Chief Executive Officer, by the Board or as is prescribed by the Bylaws. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board, or if not ranked, the Vice President designated by the Board, shall perform all of the duties of the President and when so acting shall have all of the powers of and be subject to all the restrictions upon the President.

Section 4.9 Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office for the transaction of the business of the Corporation, or such other place as the Board may order, of all meetings of directors and stockholders, with the time and place of holding, whether regular or special, and if special, how authorized and the notice thereof given, the names of those present at directors’ meetings, the number of shares present or represented at stockholders’ meetings and the proceedings thereof.

The Secretary shall keep, or cause to be kept, at the principal office for the transaction of the business of the Corporation or at the office of the Corporation’s transfer agent, a share register, or a duplicate share register, showing the names of the stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued for the same, and the number and date of cancellation of every certificate surrendered for cancellation.

The Secretary shall give, or cause to be given, notice of all the meetings of the stockholders and of the Board required by these Bylaws or by law to be given, and he shall keep the seal of the Corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws. If for any reason the Secretary shall fail to give notice of any special meeting of the Board called by one or more of the persons identified in Section 3.9 of these Bylaws, or if he shall fail to give notice of any special meeting of the stockholders called by one or more of the persons identified in Section 2.2 of these Bylaws, then any such person or persons may give notice of any such special meeting.

Section 4.10 Chief Financial Officer. The Chief Financial Officer (who may also be referred to as the Treasurer) shall keep and maintain or cause to be kept or maintained, adequate and correct accounts of the properties and business transactions of the Corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. Any surplus, including earned surplus,

paid-in
surplus and surplus arising from a reduction of capital, shall be classified according to source and shown in a separate account. The books of account at all reasonable times shall be open to inspection by any director.

The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the Corporation with such depositories as may be designated by the Board. He shall disburse the funds of the Corporation as may be ordered by the Board, shall render to the President, to the Chief Executive Officer and to the directors, whenever they request it, an account of all of his transactions as Treasurer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board or these Bylaws.

 

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ARTICLE V—CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.

Section 5.1 Execution of Contracts. The Board, except as otherwise provided in these Bylaws, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by these Bylaws, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount.

Section 5.2 Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. Each such person shall give such bond, if any, as the Board may require.

Section 5.3 Deposit. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, attorney or attorneys, of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the President, the Chief Executive Officer, any Vice President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall be determined by the Board from time to time) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation.

Section 5.4 General and Special Bank Accounts. The Board from time to time may authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by an officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient.

 

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ARTICLE VI—SHARES AND THEIR TRANSFER

Section 6.1 Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, in such form as the Board shall prescribe, certifying the number and class of shares of the stock of the Corporation owned by him. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the Chairman of the Board, the President or a Vice President and by the Secretary or an Assistant Secretary or by the Treasurer or an Assistant Treasurer. Any or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be canceled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so canceled, except in cases provided for in Section 6.4 of these Bylaws.

Section 6.2 Transfer of Stock. Transfer of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.3 of these Bylaws, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.

Section 6.3 Regulations. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. The Board may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them.

 

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Section 6.4 Lost, Stolen, Destroyed and Mutilated Certificates. In any case of loss, theft, destruction, or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sums as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper to do so.

Section 6.5 Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any other change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, the record date for determining stockholders for such purpose shall be the close of business on the day on which the Board shall adopt the resolution relating thereto. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

Section 6.6 Representation of Shares of Other Corporations. The President or any Vice President and the Secretary or any Assistant Secretary of this Corporation are authorized to vote, represent and exercise on behalf of this Corporation all rights incident to all shares of any other corporation or corporations standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares held by this Corporation in any other corporation or corporations may be exercised by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

ARTICLE VII—INDEMNIFICATION

Section 7.1 Actions Other Than By or In the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body, against expenses (including attorneys’ fees), judgments, fines and amounts pain in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful.

 

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Section 7.2 Actions By or In the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a member of any committee or similar body, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 7.3 Determination of Right of Indemnification. Any indemnification under Section 7.1 or 7.2 of these Bylaws (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 7.1 and 7.2 of these Bylaws. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders.

Section 7.4 Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article VII, to the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.1 or 7.2 of these Bylaws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

Section 7.5 Advance of Expenses. Expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VII. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate.

 

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Section 7.6 Other Rights and Remedies. The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article VII shall not be deemed exclusive and are declared expressly to be nonexclusive of any other rights to which those seeking indemnification or advancements of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

Section 7.7 Insurance. Upon resolution passed by the Board, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article VII.

Section 7.8 Constituent Corporations. For the purposes of this Article VII, references to “the Corporation” include in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or as a member of any committee or similar body shall stand in the same position under the provisions of this Article VII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

Section 7.9 Employee Benefit Plans. For the purposes of this Article VII, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VII.

Section 7.10 Broadest Lawful Indemnification. In addition to the foregoing, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same exists from time to time (but, in case of any amendment to or change in Delaware law, only to the extent that such amendment or change permits the Corporation to provide broader rights of

 

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indemnification than is permitted to the Corporation prior to such amendment or change), indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. In addition, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same may exist from time to time (but, in case of any amendment to or change in Delaware law, only to the extent that such amendment or change permits the Corporation to provide broader rights of payment of expenses incurred in advance of the final disposition of an action, suit or proceeding than is permitted to the Corporation prior to such amendment or change), pay to such person any and all expenses (including attorneys’ fees) incurred in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined by a final judgment or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized in this Section 7.10. The first sentence of this Section 710 to the contrary notwithstanding, the Corporation shall not indemnify any such person with respect to any of the following matters: (i) remuneration paid to such person if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (ii) any accounting of profits made from the purchase or sale by such person of the Corporation’s securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; or (iii) actions brought about or contributed to by the dishonesty of such person, if a final judgment or other final adjudication adverse to such person establishes that acts of active and deliberate dishonesty were committed or attempted by such person with actual dishonest purpose and intent and were material to the adjudication; or (iv) actions based on or attributable to such person having gained any person profit or advantage to which he was not entitled, in the event that a final judgment or other final adjudication adverse to such person establishes that such person in fact gained such personal profit or other advantage to which he was not entitled; or (v) any matter in respect of which a final decision by a court with competent jurisdiction shall determine that indemnification is unlawful; provided, however, that the Corporation shall perform its obligations under the second sentence of this Section 7.10 on behalf of such person until such time as it shall be ultimately determined by a final judgement or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized by the first sentence of this Section 7.10 by virtue of any of the preceding clauses (i), (ii), (iii), (iv) or (v).

Section 7.11 Term. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

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Section 7.12 Severability. If any part of this Article VII shall be found, in any action, suit or proceeding or appeal therefrom or in any other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other circumstances shall not be affected, except as otherwise required by applicable law.

Section 7.13 Amendments. The foregoing provisions of this Article VII shall be deemed to constitute an agreement between they Corporation and each of the person entitled to indemnification hereunder, for as long as such provisions remain in effect. Any amendment to the foregoing provisions of this Article VII which limits or otherwise adversely affects the scope of indemnification or rights of any such person hereunder shall, as to such persons, apply only to claims arising, or causes of action based on actions or events occurring, after such amendment and delivery of notice of such amendment is given to the person or persons so affected. Until notice of such amendment is given to the person or persons whose rights hereunder are adversely affected, such amendment shall have no effect on such rights of such persons hereunder. Any person entitled to indemnification under the foregoing provisions of this Article VII shall, as to any act or omission occurring prior to the date of receipt of such notice, be entitled to indemnification to the same extent as had such provisions continued as Bylaws of the Corporation without such amendment.

ARTICLE VIII—MISCELLANEOUS

Section 8.1 Seal. The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that the Corporation was incorporated in the State of Delaware and showing the year of incorporation.

Section 8.2 Waiver of Notices. Whenever notice is required to be given by these Bylaws or the Certificate of Incorporation or by law, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein, and such waiver shall be deemed equivalent to notice.

Section 8.3 Loans and Guaranties. The Corporation may lend money to, or guarantee any obligation of, and otherwise assist any officer or other employee of the Corporation or of its subsidiaries, including any officer who is a director, whenever, in the judgment of the Board, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty, or other assistance may be with or without interest, and may be unsecured or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of stock of the Corporation.

Section 8.4 Gender. All personal pronouns used in these Bylaws shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural, and vice versa, whenever and as often as may be appropriate.

 

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Section 8.5 Amendments. These Bylaws, or any of them, may be rescinded, altered, amended or repealed, and new Bylaws may be made (i) by the Board, by vote of a majority of the number of directors then in office as directors, acting at any meeting of the Board or (ii) by the stockholders, by the vote of a majority of the outstanding shares of voting stock of the Corporation, at an annual meeting of stockholders, without previous notice, or at any special meeting of stockholder, provided that notice of such proposed amendment, modification, repeal or adoption is given in the notice of special meeting; provided, however, that Section 2.2 of these Bylaws can only be amended if that Section as amended would not conflict with the Corporation’s Certificate of Incorporation. Any Bylaw made or altered by the stockholders may be altered or repealed by the Board or may be altered or repealed by the stockholders.

 

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d734481dex99t3b47.htm EX-99.T3B.47


ENT> EX-99.T3B.47 19 d734481dex99t3b47.htm EX-99.T3B.47

EX-99.T3B.47

Exhibit T3B.47

BY-LAWS

OF

WESTWOOD ONE STATIONS, INC.

[Renamed SmartRoute Systems, Inc.]

1. MEETINGS OF STOCKHOLDERS.

1.1 Annual Meeting. The annual meeting of stockholders shall be held on the third Wednesday of April in each year, or as soon thereafter as practicable, and shall be held at a place and time determined by the board of directors (the “Board”) .

1.2 Special Meetings. Special meetings of the stockholders may be called by resolution of the Board or by the chairman of the board and shall be called by the chairman of the board or secretary upon the written request (stating the purpose or purposes of the meeting) of a majority of the directors then in office or of the holders of 51% of the outstanding shares entitled to vote. Only business related to the purposes set forth in the notice of the meeting may be transacted at a special meeting.

1.3 Place and Time of Meetings. Meetings of the stockholders may be held in or outside Delaware at the place and time specified by the Board or the directors or stockholders requesting the meeting.

1.4 Notice of Meetings; Waiver of Notice. Written notice of each meeting of stockholders shall be given to each stockholder entitled to vote at the meeting, except that (a) it shall not be necessary to give notice to any stockholder who submits a signed waiver of notice before or after the meeting, and (b) no notice of an adjourned meeting need be given except when required under Section 1.5 of these by-laws or by law. Each notice of a meeting shall be given, personally or by mail, not less than 10 nor more than 60 days before the meeting and shall state the time and place of the meeting, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called. If mailed, notice shall be considered given when mailed to a stockholder at his address on the corporation’s records. The attendance of any stockholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened, shall constitute a waiver of notice by him.

1.5 Quorum. At any meeting of stockholders, the presence in person or by proxy of the holders of a majority of the shares entitled to vote shall constitute a quorum for the transaction of any business. In the absence of a quorum a


majority in voting interest of those present or, if no stockholders are present, any officer entitled to preside at or to act as secretary of the meeting, may adjourn the meeting until a quorum is present. At any adjourned meeting at which a quorum is present any action may be taken which might have been taken at the meeting as originally called. No notice of an adjourned meeting need be given if the time and place are announced at the meeting at which the adjournment is taken except that, if adjournment is for more than thirty days or if, after the adjournment, a new record date is fixed for the meeting, notice of the adjourned meeting shall be given pursuant to Section 1.4.

1.6 Voting; Proxies. Each stockholder of record shall be entitled to one vote for every share registered in his name. Corporate action to be taken by stockholder vote, other than the election of directors, shall be authorized by a majority of the votes cast at a meeting of stockholders, except as otherwise provided by law or by Section 1.8 of these by-laws. Directors shall be elected in the manner provided in Section 2.1 of these by-laws. Voting need not be by ballot unless requested by a stockholder at the meeting or ordered by the chairman of the meeting; however, all elections of directors shall be by written ballot, unless otherwise provided in the certificate of incorporation. Each stockholder entitled to vote at any meeting of stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person to act for him by proxy. Every proxy must be signed by the stockholder or his attorney-in-fact. No proxy shall be valid after three years from its date unless it provides otherwise.

1.7 List of Stockholders. Not less than 10 days prior to the date of any meeting of stockholders, the secretary of the corporation shall prepare a complete list of stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in his name. For a period of not less than 10 days prior to the meeting, the list shall be available during ordinary business hours for inspection by any stockholder for any purpose germane to the meeting. During this period, the list Shall be kept either (a) at a place within the city where the meeting is to be held, if that place shall have been specified in the notice of the meeting, or (b) if not so specified, at the place where the meeting is to be held. The list shall also be available for inspection by stockholders at the time and place of the meeting.

1.8 Action by Consent Without a Meeting. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the

 

2


action so taken, shall be signed and dated by each of the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voting. Such consent or consents shall be delivered to the corporation’s registered office in the State of Delaware, its principal office, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Prompt notice of the taking of any such action shall be given to those stockholders who did not consent in writing. No corporate action taken by written consent shall be effective unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 1.8 of these By-laws, a sufficient number of written consents have been delivered as provided herein.

2. BOARD OF DIRECTORS.

2.1 Number, Qualification, Election and Term of Directors. The business of the corporation shall be managed by the Board, which shall consist of three directors. The number of directors may be changed by resolution of a majority of the Board or by the stockholders, but no decrease may shorten the term of any incumbent director. Directors shall be elected at each annual meeting of stockholders by a plurality of the votes cast and shall hold office until the next annual meeting of stockholders and until the election and qualification of their respective successors, subject to the provisions of Section 2.9.

2.2 Quorum and Manner of Acting. A majority of the directors then in office shall constitute a quorum for the transaction of business at any meeting, except as provided in Section 2.10 of these by-laws. Action of the Board shall be authorized by the vote of a majority of the directors present at the time of the vote if there is a quorum, unless otherwise provided by law or these by-laws. In the absence of a quorum a majority of the directors present may adjourn any meeting from time to time until a quorum is present.

2.3 Place of Meetings. Meetings of the Board may be held in or outside Delaware.

2.4 Annual and Regular Meetings. Annual meetings of the Board, for the election of officers and consideration of other matters, shall be held either (a) without notice immediately after the annual meeting of stockholders and at the same place, or (b) as soon as practicable after the annual meeting of stockholders, on notice as provided in Section 2.6 of these bylaws. Regular meetings of the Board may be held without notice at such times and places as the Board determines. If the day fixed for a regular meeting is a legal holiday, the meeting shall be held on the next business day.

 

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2.5 Special Meetings. Special meetings of the Board may be called by the president or by any one of the directors.

2.6 Notice of Meetings; Waiver of Notice. Notice of the time and place of each special meeting of the Board, and of each annual meeting not held immediately after the annual meeting of stockholders and at the same place, shall be given to each director by mailing it to him at his residence or usual place of business at least three days before the meeting, or by delivering or telephoning or telegraphing it to him at least two days before the meeting. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called. Notice need not be given to any director who submits a signed waiver of notice before or after the meeting or who attends the meeting without protesting at the beginning of the meeting the transaction of any business because the meeting was not lawfully called or convened. Notice of any adjourned meeting need not be given, other than by announcement at the meeting at which the adjournment is taken.

2.7 Board or Committee Action Without a Meeting. Any action required or permitted to be taken by the Board or by any committee of the Board may be taken without a meeting if all of the members of the Board or of the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents by the members of the Board or the committee shall be filed with the minutes of the proceeding of the Board or of the committee.

2.8 Participation in Board or Committee Meetings by Conference Telephone. Any or all members of the Board or of any committee of the Board may participate in a meeting of the Board or of the committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at the meeting.

2.9 Resignation and Removal of Directors. Any director may resign at any time by delivering his resignation in writing to the chairman of the board or secretary of the corporation, to take effect at the time specified in the resignation; the acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective. Any or all of the directors may be removed at any time, either with or without cause, by vote of the stockholders.

2.10 Vacancies. Any vacancy in the Board, including one created by an increase in the number of directors, may be filled for the unexpired term by a majority vote of the remaining directors, though less than a quorum.

 

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2.11 Compensation. Directors shall receive such compensation as the Board determines, together with reimbursement of their reasonable expenses in connection with the performance of their duties. A director may also be paid for serving the corporation, its affiliates or subsidiaries in other capacities.

3. COMMITTEES.

3.1 Executive Committee. The Board, by resolution adopted by a majority of the entire Board, may designate an Executive Committee of one or more directors which shall have all the powers and authority of the Board, except as otherwise provided in the resolution, section 141(c) of the Delaware General Corporation Law, or any other applicable law. The members of the Executive Committee shall serve at the pleasure of the Board. All action of the Executive Committee shall be reported to the Board at its next meeting.

3.2 Other Committees. The Board, by resolution adopted by a majority of the entire Board, may designate other committees of directors of one or more directors, which shall serve at the Board’s pleasure and have such powers and duties as the Board determines.

3.3 Rules Applicable to Committees. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of a committee, the member or members present at a meeting of the committee and not disqualified, whether or not a quorum, may unanimously appoint another director to act at the meeting in place of the absent or disqualified member. All action of a committee shall be reported to the Board at its next meeting. Each committee shall adopt rules of procedure and shall meet as provided by those rules or by resolutions of the Board.

4. OFFICERS.

4.1 Number; Security. The executive officers of the corporation shall be a chairman of the board, a president, one or more vice presidents (including an executive vice president, if the Board so determines), a secretary and a treasurer. Any two or more offices may be held by the same person. The Board may require any officer, agent or employee to give security for the faithful performance of his duties.

4.2 Election; Term of Office. The executive officers of the corporation shall be elected annually by the Board and each such officer shall hold office until the next annual meeting of the Board and until the election of his successor, subject to the provisions of Section 4.4.

 

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4.3 Subordinate Officers. The Board may appoint subordinate officers (including assistant secretaries and assistant treasurers), agents or employees, each of whom shall hold office for such period and have such powers and duties as the Board determines. The Board may delegate to any executive officer or to any committee the power to appoint and define the powers and duties of any subordinate officers, agents or employees.

4.4 Resignation and Removal of Officers. Any officer may resign at any time by delivering his resignation in writing to the chairman of the board or secretary of the corporation, to take effect at the time specified in the resignation; the acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective. Any officer appointed by the Board or appointed by an executive officer or by a committee may be removed by the Board either with or without cause, and in the case of an officer appointed by an executive officer or by a committee, by the officer or committee who appointed him or by the president.

4.5 Vacancies. A vacancy in any office may be filled for the unexpired term in the manner prescribed in Sections 4.2 and 4.3 of these by-laws for election or appointment to the office.

4.6 Chairman of the Board. The chairman of the board shall be the chief executive officer of the corporation and shall preside at all meetings of stockholders and directors. He shall have such other powers and duties as the Board assigns to him.

4.7 The President. The president shall be the chief operating officer of the corporation. Subject to the control of the Board and the chairman of the board, he shall have general supervision over the business of the corporation and shall have such other powers and duties as presidents of corporations usually have or as the Board or the chairman of the board assigns to him.

4.8. Vice President. Each vice president shall have such powers and duties as the Board or the chairman of the board assigns to him.

4.9 The Treasurer. The treasurer shall be the chief financial officer of the corporation and shall be in charge of the corporation’s books and accounts. Subject to the control of the Board and the chairman of the board, he shall have such other powers and duties as the Board or the chairman of the board assigns to him.

4.10 The Secretary. The secretary shall be the secretary of, and keep the minutes of, all meetings of the Board

 

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and of the stockholders, shall be responsible for the giving of notice of all meetings of stockholders and of the Board, and shall keep the seal and, when authorized by the Board, apply it to any instrument requiring it. Subject to the control of the Board, he shall have such powers and duties as the Board or the chairman of the board assigns to him. In the absence of the secretary from any meeting, the minutes shall be kept by the person appointed for that purpose by the presiding officer.

4.11 Salaries. The Board may fix the officers’ salaries, if any, or it may authorize the chairman of the board to fix the salary of any other officer.

5. SHARES.

5.1 Certificates. The corporation’s shares shall be represented by certificates in the form approved by the Board. Each certificate shall be signed by the chairman of the board, the president or a vice president and by the secretary or an assistant secretary, or the treasurer or an assistant treasurer, and shall be sealed with the corporation’s seal or a facsimile of the seal. Any or all of the signatures on the certificate may be a facsimile.

5.2 Transfers. Shares shall be transferable only on the corporation’s books, upon surrender of the certificate for the shares, properly endorsed. The Board may require satisfactory surety before issuing a new certificate to replace a certificate claimed to have been lost or destroyed.

5.3 Determination of Stockholders of Record. The Board may fix a date as the record date for the determination of stockholders entitled to notice of or to vote at any meeting of the stockholders, or to express consent to corporate action in writing without a meeting, or to receive payment of any dividend or the allotment of any rights, or for the purpose of any other lawful action. The record date (i) may not precede the date upon which the Board resolution fixing the record date was adopted and (ii) may not be more than 60 or less than 10 days before the date of the meeting or more than 10 days after such date fixing the record date for corporate action in writing without a meeting or more than 60 days prior to any other lawful action.

 

6.

MISCELLANEOUS.

6.1 Seal. The Board shall adopt a corporate seal, which shall be in the form of a circle and shall bear the corporation’s name and the year and state in which it was incorporated .

6.2 Fiscal Year. The Board may determine the corporation’s fiscal year. Until changed by the Board, the corporation’s fiscal year shall end on December 31 of each year.

 

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6.3 Voting of Shares in Other Corporations. Shares in other corporations which are held by the corporation may be represented and voted by the chairman of the board, the president or a vice president of this corporation or by proxy or proxies appointed by one of them. The Board may, however, appoint some other person to vote the shares.

6.4 Amendments. By-laws may be amended, repealed or adopted by the stockholders or by a majority of the entire Board, but any by-law adopted by the Board may be amended or repealed by the stockholders.

6.5 “Entire Board.” As used in these By-Laws, the term “entire Board” means the total number of directors which the corporation would have if there were no vacancies on the Board.

 

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d734481dex99t3b48.htm EX-99.T3B.48


ENT> EX-99.T3B.48 20 d734481dex99t3b48.htm EX-99.T3B.48

EX-99.T3B.48

Exhibit T3B.48

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

STUFF MEDIA, LLC

This Amended and Restated Limited Liability Company Agreement (this “LLC Agreement”) of Stuff Media, LLC, a Delaware limited liability company (the “Company”), is entered into, as of October 10, 2018, by iHeartMedia+Entertainment, Inc., a Delaware corporation, as the sole member of the Company (the “Member”).

RECITALS

WHEREAS, the Company was formed on August 22, 2017, bearing the name Stuff Media, LLC, as a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the “Act”);

WHEREAS, this LLC Agreement is being adopted in order to amend and restate, in its entirety, that certain Limited Liability Company Operating Agreement, dated as of August 22, 2017, by the Members party thereto (the “Prior LLC Agreement”), and the Prior LLC Agreement shall be superseded, in its entirety, by this LLC Agreement; and

WHEREAS, the Member desires to enter into this LLC Agreement, pursuant to which the rights and obligations of the Member and certain other constituencies of the Company shall be set forth and agreed upon as of the date hereof.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby established, the Member hereby agrees as follows:

AGREEMENT

1. Formation. The Company has been organized as a Delaware limited liability company by the filing of a Certificate of Formation (the “Certificate”) under and pursuant to the Act.

2. Name. The name of the Company is “Stuff Media, LLC”.

3. Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the registered office set forth in the Certificate or such other office (which need not be a place of business of the Company) as the Member may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Member may designate from time to time in the manner provided by law. The principal office of the Company shall be at such place as the Member may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records there.

4. Purposes. The purposes of the Company are to engage in any business or activity that is not prohibited by the Act.


5. Term. The existence of the Company commenced on the date the Certificate was filed with the office of the Secretary of State of Delaware and shall continue until the Company is dissolved pursuant to Section 12 of this LLC Agreement.

6. Member. The name and the mailing address of the Member are identified on Exhibit A attached hereto.

7. Liability of Member. Except as otherwise required by applicable law and as explicitly set forth in this LLC Agreement, the Member shall not have any personal liability whatsoever in such Member’s capacity as a Member, whether to the Company, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company.

8. Management.

(a) The business and affairs of the Company shall be managed by the Member. All actions taken by the Member shall require the affirmative vote (whether by proxy or otherwise) of the Member holding all of the membership interests in the Company. The Member may appoint such officers, hire such employees, and engage such other agents of the Company as it may from time to time consider appropriate.

(b) The Member may, from time to time, designate one or more persons to be officers of the Company. The officers of the Company as of the execution of this LLC Agreement shall be Scott T. Bick (Senior Vice President-Tax), Richard J. Bressler (Chief Financial Officer and President), Brian D. Coleman (Senior Vice President, Treasurer and Assistant Secretary), Stephen G. Davis (Senior Vice President—Real Estate, Facilities and Capital Management), Lauren E. Dean (Senior Vice President, Associate General Counsel and Assistant Secretary), Jeff Littlejohn (Executive Vice President—Engineering & Systems Integration), Steven J. Macri (Executive Vice President and Chief Financial Officer—IHM), Robert H. Walls Jr. (Executive Vice President, General Counsel and Secretary). No officer need be a resident of the State of Delaware or a Member. Any officers so designated shall have such authority and perform such duties as the Member may, from time to time, delegate to them. The Member may assign titles to particular officers. Unless the Member otherwise decides, if the title is one commonly used for officers of a business entity, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the Member. Each officer shall hold office until his successor shall be duly designated and shall qualify or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same individual. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any officer may be removed as such, either with or without cause, by the Member whenever in the Member’s judgment the best interests of the Company shall be served thereby.

9. Indemnification; Exculpation.

(a) The Company hereby agrees to indemnify and hold harmless any person (each an “Indemnified Person”) to the fullest extent permitted under the Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company is providing immediately prior to such


amendment), against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, excise taxes or penalties) reasonably incurred or suffered by such person by reason of the fact that such person is or was a member of the Company, is or was serving as a Manager or officer of the Company or is or was serving at the request of the Company as an officer, director, principal, member, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise; provided that (unless the Member otherwise consents) no Indemnified Person shall be indemnified for any expenses, liabilities and losses suffered that are attributable to such Indemnified Person’s gross negligence, willful misconduct or knowing violation of law. Expenses, including attorneys’ fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company. The Company may, by action of the Member, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of members, Managers and officers.

(b) Notwithstanding anything contained herein to the contrary, any indemnity by the Company shall be provided out of and to the extent of Company assets only, and the Member shall have no personal liability on account thereof or shall be required to make additional capital contributions to help satisfy such indemnity of the Company.

(c) None of the Indemnified Persons shall be liable to the Member or the Company for mistakes of judgment, or for action or inaction, taken in good faith, or for losses due to such mistakes, action or inaction, or to the negligence, dishonesty, or bad faith of any employee, broker or other agent of the Company, provided that such employee, broker or agent was selected, engaged, or retained with reasonable care. Any party entitled to relief hereunder may consult with legal counsel and accountants in respect of affairs of the Company and be fully protected and justified in any reasonable action or inaction that is taken in good faith in accordance with the advice or opinion of such counsel or accountants, provided that they shall have been selected with reasonable care. Notwithstanding any of the foregoing to the contrary, the provisions of this paragraph shall not be construed so as to relieve (or attempt to relieve) any person of any liability (i) for conduct which is grossly negligent, reckless, or intentionally wrongful or criminally unlawful, provided that such person had no reasonable cause to believe that his or its conduct was unlawful, or (ii) to the extent (but only to the extent) that such liability may not be waived, modified, or limited under applicable law.

(d) The right to indemnification and the advancement and payment of expenses conferred in this Section 9 shall not be exclusive of any other right which an Indemnified Person may have or hereafter acquire under any law (common or statutory), agreement, vote of the Member or otherwise.

10. Membership Interests and Certificates. The membership interests of the Member as provided on Exhibit A, shall be uncertificated unless otherwise determined by the Member.

11. Distributions. Distributions shall be made at the time and in the aggregate amounts determined by the Member.

12. 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; or (b) the entry of a decree of judicial dissolution under Section 18-802 of the Act.


13. Additional Contributions. The Member is not required to make any additional capital contribution to the Company.

14. Admission of Additional Members. One or more additional members of the Company may be admitted to the Company with the consent of the Member.

15. Assignment/Pledge of Membership Interests. Notwithstanding any other provisions in this LLC Agreement, the Member shall be entitled to pledge its membership interests to, and otherwise grant a lien and security interest in, its membership interests and/or all of its right, title and/or interest under this LLC Agreement in favor of the Company’s lenders (or an agent on behalf of such lenders) without any further consents, approvals and/or actions required by such lenders (or agent), the Member, the Company and/or any other person under this LLC Agreement or otherwise. So long as any such pledge of, or security interest in, the Member’s membership interests is in effect, no consent of the Company and/or the Member shall be required to permit a pledgee thereof or any purchaser of the Member’s membership interests from such pledgee to be substituted for such Member under this LLC Agreement upon the exercise of such pledgee’s rights with respect to such membership interests, and such substituted member shall have all rights and powers as the Member under this LLC Agreement, including, without limitation, all voting rights under this LLC Agreement.

16. Governing Law. This LLC Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws.

*    *    *    *    *


IN WITNESS WHEREOF, the undersigned has executed or caused to be executed on its behalf this Limited Liability Company Agreement as of the date first written above.

 

Managing Member:
IHEARTMEDIA+ENTERTAINMENT, INC.
By:   /s/ Richard J. Bressler
Name:   Richard J. Bressler
Title:   Authorized Signatory

[SIGNATURE PAGE TO LLC AGREEMENT]


Exhibit A

Member

 

Member    Percentage Ownership

iHeartMedia+Entertainment, Inc.

125 West 55th Street

New York, New York 10019

   100%
d734481dex99t3b49.htm EX-99.T3B.49


ENT> EX-99.T3B.49 21 d734481dex99t3b49.htm EX-99.T3B.49

EX-99.T3B.49

Exhibit T3B.49

BYLAWS

OF

TLAC, INC.

(the “Corporation”)

(adopted as of December 12, 2008)

ARTICLE I

Stockholders

Section 1.1. Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such date, time and place either within or without the State of Delaware as may be designated by the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders may be called at any time by the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the Chief Executive Officer, if any, the President or the Board of Directors, to be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting. A special meeting of stockholders shall be called by the Secretary upon the written request, stating the purpose of the meeting, of stockholders who together own of record a majority in voting power of the outstanding shares of stock entitled to vote at such meeting.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the notice of any meeting shall be given not less than ten (10) days nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.


Section 1.5. Quorum. At each meeting of stockholders, except where otherwise provided by law or the certificate of incorporation or these bylaws, the holders of a majority in voting power of the outstanding shares of stock entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate vote by class or classes is required for any matter, the holders of a majority in voting power of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to that vote on that matter. Two or more classes or series of stock shall be considered a single class if the holders thereof are entitled to vote together as a single class on a matter at the meeting. In the absence of a quorum of the holders of any class of stock entitled to vote on a matter, the holders of such class so present or represented may, by majority vote, adjourn the meeting of such class from time to time in the manner provided by Section 1.4 of these bylaws until a quorum of such class shall be so present or represented. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the Chief Executive Officer, if any, or in the absence of the Chief Executive Officer by the President, or in the absence of the President by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary, the chairman of the meeting may appoint any person to act as secretary of the meeting.

The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.

Section 1.7. Inspectors. If required by applicable law, prior to any meeting of stockholders, the Board of Directors or the President shall appoint one or more inspectors to act at such meeting and make a written report thereof and may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at the meeting of stockholders, the person presiding at the meeting shall, if required by applicable law, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute

 

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the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons to assist them in the performance of their duties. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted therewith, any information provided by a stockholder who submits a proxy by telegram, cablegram or other electronic transmission from which it can be determined that the proxy was authorized by the stockholder, ballots and the regular books and records of the Corporation, and they may also consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for such purpose, they shall, at the time they make their certification, specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.

Section 1.8. Voting; Proxies. Unless otherwise provided in the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot unless the holders of a majority in voting power of the outstanding shares of all classes of stock entitled to vote thereon present in person or represented by proxy at such meeting shall so determine. Subject to the provisions of the Corporation’s certificate of incorporation, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. In all other matters, unless otherwise provided by law or by the certificate of incorporation or these bylaws, the affirmative vote of the holders of a majority in voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Where a separate vote by class or

 

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classes is required, the affirmative vote of the holders of a majority in voting power of the shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class or classes, except as otherwise provided by law or by the certificate of incorporation or these bylaws.

Section 1.9. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

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Section 1.10. List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, as required by applicable law.

Section 1.11. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the certificate of incorporation or by law, any action required by law to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to (a) its registered office in the State of Delaware by hand or by certified mail or registered mail, return receipt requested, (b) its principal place of business, or (c) an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this

by-law
to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to (i) its registered office in the State of Delaware by hand or by certified or registered mail, return receipt requested, (ii) its principal place of business, or (iii) an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing as may be required by applicable law.

ARTICLE II

Board of Directors

Section 2.1. Powers; Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by law or in the certificate of incorporation. The Board of Directors shall consist of one or more members, the number thereof to be determined in accordance with the Corporation’s certificate of incorporation or, in the absence of a specific requirement therein, then by resolution adopted by the Board of Directors. Directors need not be stockholders.

Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies. Each director shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any director may resign at any time upon written notice to the

 

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Board of Directors or to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Subject to the Corporation’s certificate of incorporation, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority in voting power of the shares then entitled to vote at an election of directors. Whenever the holders of any class or series of stock are entitled to elect one or more directors by the certificate of incorporation, the provisions of the preceding sentence shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole. Unless otherwise provided in the certificate of incorporation or these bylaws, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class or from any other cause may be filled by a majority of the directors then in office, although less than a quorum, or by the sole remaining director. Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by the sole remaining director so elected. Any director elected or appointed to fill a vacancy shall hold office until the next annual meeting of the stockholders and his or her successor is elected and qualified or until his or her earlier resignation or removal.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board may from time to time determine, and if so determined notice thereof need not be given.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, if any, by the Vice Chairman of the Board, if any, the Chief Executive Officer, if any, by the President or by any two directors. Reasonable notice thereof shall be given by the person or persons calling the meeting.

Section 2.5. Participation in Meetings by Conference Telephone Permitted. Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this

by-law
shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the entire Board shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board, unless applicable law, the certificate of incorporation or these bylaws shall require a vote of a greater number. In case at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall be present.

 

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Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the Chief Executive Officer (if he is a director), if any, or in the absence of the Chief Executive Officer, by the President (if he is a director), or in their absence by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Directors Without a Meeting. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in accordance with applicable law.

Section 2.9. Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors shall have the authority to fix the compensation of directors.

ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in these bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to (a) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law (or any successor statute) to be submitted to stockholders for approval, or (b) adopting, amending or repealing any bylaws.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the

 

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members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee, and in all other respects each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these bylaws.

ARTICLE IV

Officers

Section 4.1. Officers; Election. As soon as practicable after the annual meeting of stockholders in each year, the Board of Directors shall elect a President and a Secretary, and it may, if it so determines, elect from among its members a Chairman of the Board and a Vice Chairman of the Board. The Board may also elect a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as the Board may deem desirable or appropriate and may give any of them such further designations or alternate titles as it considers desirable. Any number of offices may be held by the same person unless the certificate of incorporation or these bylaws otherwise provide.

Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in the resolution of the Board of Directors electing any officer, each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the Board or to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Subject to the Corporation’s certificate of incorporation, the Board may remove any officer with or without cause at any time. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election of an officer shall not of itself create contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board at any regular or special meeting.

Section 4.3. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he or she shall be present and shall have and may exercise such powers as may, from time to time, be assigned to him or her by the Board or as may be provided by law.

Section 4.4. Vice Chairman of the Board. In the absence of the Chairman of the Board, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the stockholders at which he or she shall be present and shall have and may exercise such powers as may, from time to time, be assigned to him or her by the Board or as may be provided by law.

Section 4.5. Chief Executive Officer. The Chief Executive Officer shall, subject to the direction of the Board, have general charge and supervision of the business of the Corporation. Unless the Board has designated a Chairman of the Board or a Vice Chairman of

 

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the Board or as otherwise provided by the Board, the Chief Executive Officer shall preside at all meetings of the stockholders and, if he is a director, at all meetings of the Board. The Chief Executive Officer shall perform such other duties and shall have such other powers as the Board may from time to time prescribe.

Section 4.6. President. Unless the Board of Directors has designated the Chairman of the Board or another officer as Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The President shall perform such other duties and shall have such other powers as the Board of Directors may from time to time prescribe.

Section 4.7. Vice Presidents. The Vice President or Vice Presidents, at the request or in the absence of the President or during the President’s inability to act, shall perform the duties of the President, and when so acting shall have the powers of the President. If there be more than one Vice President, the Board of Directors may determine which one or more of the Vice Presidents shall perform any of such duties; or if such determination is not made by the Board, the President may make such determination; otherwise any of the Vice Presidents may perform any of such duties. The Vice President or Vice Presidents shall have such other powers and shall perform such other duties as may, from time to time, be assigned to him or her or them by the Board or the President or as may be provided by law.

Section 4.8. Secretary. The Secretary shall have the duty to record the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose, shall see that all notices are duly given in accordance with the provisions of these bylaws or as required by law, shall be custodian of the records of the Corporation, may affix the corporate seal to any document the execution of which, on behalf of the Corporation, is duly authorized, and when so affixed may attest the same, and, in general, shall perform all duties incident to the office of secretary of a corporation and such other duties as may, from time to time, be assigned to him or her by the Board or the President or as may be provided by law.

Section 4.9. Treasurer. The Treasurer shall have charge of and be responsible for all funds, securities, receipts and disbursements of the Corporation and shall deposit or cause to be deposited, in the name of the Corporation, all moneys or other valuable effects in such banks, trust companies or other depositories as shall, from time to time, be selected by or under authority of the Board of Directors. If required by the Board, the Treasurer shall give a bond for the faithful discharge of his or her duties, with such surety or sureties as the Board may determine. The Treasurer shall keep or cause to be kept full and accurate records of all receipts and disbursements in books of the Corporation, shall render to the President and to the Board, whenever requested, an account of the financial condition of the Corporation, and, in general, shall perform all the duties incident to the office of treasurer of a corporation and such other duties as may, from time to time, be assigned to him or her by the Board or the President or as may be provided by law.

Section 4.10. Other Officers. The other officers, if any, of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in a resolution of the Board of Directors which is not inconsistent with these bylaws and, to the

 

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extent not so stated, as generally pertain to their respective offices, subject to the control of the Board. The Board may require any officer, agent or employee to give security for the faithful performance of his or her duties.

ARTICLE V

Stock

Section 5.1. Stock Certificates and Uncertificated Shares. The shares of stock in the Corporation shall be represented by certificates, provided, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, every holder of stock represented by certificates, and upon request every holder of uncertificated shares, shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares of stock registered in certificate form owned by such holder. Any signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

If the Corporation is authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided, that, except as otherwise provided by law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required by law to be set forth or stated on certificates or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

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Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

ARTICLE VI

Miscellaneous

Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.

Section 6.2. Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors. The corporate seal may be used by causing it, or a facsimile thereof, to be impressed or affixed, or in any other manner reproduced.

Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given by law or under any provision of the certificate of incorporation or these bylaws, a waiver thereof, by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the 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 is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any waiver of notice unless so required by the certificate of incorporation or these bylaws.

Section 6.4. Indemnification of Directors, Officers and Employees. The Corporation shall indemnify to the full extent permitted by law any director or officer of the Corporation, and in the discretion of the Board of Directors, any employee of the Corporation, made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person or such person’s testator or intestate is or was a director, officer or employee of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer or employee. Expenses, including attorneys’ fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking of such person to repay such expenses if it shall ultimately be determined that such

 

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person is not entitled to be indemnified by the Corporation. The rights provided to any person by this

by-law
shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer or employee as provided above. No amendment of this
by-law
shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this
by-law,
the term “other enterprise” shall include any corporation, partnership, joint venture, trust or employee benefit plan; service “at the request of the Corporation” shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation.

Section 6.5. Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

-End-

 

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