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EXHIBIT 10.46
EXECUTION COPY
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of
XXXXX XXXXXX MEDIA, LLC
Dated as of February 7, 2000
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
XXXXX LAUREN MEDIA, LLC
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS.................................................................................................. 2
ARTICLE II FORMATION AND CONDUCT.............................................................................17
2.1 Formation and Purpose.......................................................................17
2.2 Name........................................................................................17
2.3 Principal Office and Place of Business......................................................18
2.4 Term........................................................................................18
2.5 Registered Office and Agent.................................................................18
2.6 Qualification in Other Jurisdictions........................................................18
2.7 No Liability to Third Parties...............................................................18
2.8 Business Purpose............................................................................18
2.9 Business Launch.............................................................................19
2.10 Initial Activities..........................................................................19
2.11 Authorization of Actions Taken by the Company...............................................19
(a) Ancillary Agreements...................................................................19
(b) Formation..............................................................................19
(c) Bank Accounts..........................................................................19
ARTICLE III
OPERATIONS...........................................................................................20
3.1 Books and Records...........................................................................20
(a) Books and Accounts......................................................................20
(b) Other Records...........................................................................20
3.2 Financial Statements; Information; Bank Accounts............................................21
(a) Preparation in Accordance with GAAP.....................................................21
(b) Monthly Reports.........................................................................21
(c) Quarterly Report........................................................................21
(d) Annual Reports..........................................................................21
(e) Other Reports...........................................................................21
(f) Bank Accounts...........................................................................22
3.3 Auditors .................................................................................22
3.4 Fiscal Year.................................................................................22
3.5 Demand Registration.........................................................................22
3.6 Piggyback Registrations.....................................................................25
3.7 Lock-Up Provision...........................................................................27
3.8 Employees and Benefit Matters...............................................................27
3.9 [Reserved .................................................................................28
3.10 Expense Reimbursement.......................................................................28
3.11 The Members as Third Party Beneficiaries....................................................28
3.12 Deadlocks .................................................................................28
(a) Deadlocks of Managers...................................................................28
(b) Deadlocks of Members....................................................................28
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(c) Continuation of Business................................................................29
(d) Polo Deadlock Call......................................................................29
(e) Media Members Sale Right................................................................30
3.13 Change of Control...........................................................................32
(a) Change of Control of a Member...............................................................32
(b) Continuation of Business....................................................................32
(c) NBC Change of Control Call..................................................................32
(d) Polo Change of Control Sale.................................................................33
3.14 Polo Buyout Right...........................................................................33
3.15 Material Deadlock, Change of Control and Polo Buyout Right, Pricing,........................
Deferred Compensation and Closing...........................................................34
(a) Price of the Media Members Membership Interests.............................................34
(b) [Reserved]..................................................................................34
(c) Closing.....................................................................................34
(d) Services Agreement..........................................................................35
3.16 Media Members IPO Right.....................................................................35
3.17 Certain Restrictions........................................................................36
ARTICLE IV
RIGHTS AND REPRESENTATIONS AND WARRANTIES OF MEMBERS.................................................36
4.1 Members' Rights.............................................................................36
4.2 Representations and Warranties..............................................................36
(a) Due Organization........................................................................37
(b) Authorization and Validity of Agreement.................................................37
(c) No Breach or Government Approvals.......................................................37
(d) Certain Fees............................................................................37
(e) Legal Proceedings.......................................................................37
(f) Employee Benefits Programs..............................................................38
(g) SEC Filings.............................................................................38
(h) Acknowledgment..........................................................................39
4.3 Title to Company Assets.....................................................................39
ARTICLE V
MANAGEMENT...........................................................................................39
5.1 Management by Managers......................................................................39
5.2 Management Committee........................................................................39
(a) Number; Composition.....................................................................39
(b) Appointment of Managers.................................................................39
(c) Voting..................................................................................40
(d) Quorum..................................................................................40
(e) Required Vote for Action................................................................40
(f) Term....................................................................................40
(g) Vacancy.................................................................................40
(h) Removal.................................................................................40
(i) Resignation.............................................................................40
5.3 Action Requiring Unanimous Vote of Polo Managers and the Media Managers;
Unanimous Vote of the Members...............................................................40
(a) Unanimous Vote of the Managers..........................................................40
(b) Unanimous Vote of the Members...........................................................43
5.4 Business Plan...............................................................................43
5.5 Limitation on Management Committee Authority................................................44
5.6 Meetings of the Management Committee........................................................44
5.7 Methods of Voting; Proxies..................................................................44
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5.8 Order of Business...........................................................................44
5.9 Actions Without a Meeting...................................................................45
5.10 Telephone and Similar Meetings..............................................................45
5.11 Compensation of Managers....................................................................45
5.12 Media Representative........................................................................45
5.13 Waiver of Certain Claims....................................................................45
ARTICLE VI
OFFICERS............................................................................................46
6.1 Designation Term; Qualifications............................................................46
6.2 Chief Executive Officer.....................................................................46
6.3 Chief Financial Officer.....................................................................47
6.4 Vice President..............................................................................47
6.5 Secretary...................................................................................47
6.6 Treasurer...................................................................................47
6.7 Other Officers..............................................................................47
6.8 Removal and Resignation.....................................................................47
6.9 Vacancies...................................................................................48
6.10 Duties......................................................................................48
ARTICLE VII
MEETINGS OF MEMBERS..................................................................................48
7.1 Meetings of Members.........................................................................48
7.2 Place of Meetings of Members................................................................48
7.3 Notice of Meetings of Members...............................................................48
7.4 Fixing of Record Date.......................................................................48
7.5 Quorum......................................................................................49
7.6 Methods of Voting; Proxies..................................................................49
7.7 Conduct of Meetings.........................................................................49
7.8 Voting on Matters...........................................................................49
7.9 Registered Members..........................................................................50
7.10 Actions Without a Meeting...................................................................50
7.11 Telephone and Similar Meetings..............................................................50
ARTICLE VIII
CONTRIBUTIONS; CAPITAL ACCOUNTS......................................................................51
8.1 Initial Contributions.......................................................................51
8.2 Additional Contributions....................................................................51
8.3 Enforcement of Commitments..................................................................51
8.4 Maintenance of Capital Accounts.............................................................52
8.5 No Obligation to Restore Deficit Balance....................................................53
8.6 Withdrawal; Successors......................................................................53
8.7 Interest....................................................................................53
8.8 Investment of Capital Contributions.........................................................53
8.9 Advances to the Company.....................................................................53
8.10 Initial Public Offering.....................................................................53
ARTICLE IX
ALLOCATIONS AND DISTRIBUTIONS........................................................................54
9.1 Profits and Losses..........................................................................54
9.2 Profits.....................................................................................54
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9.3 Losses......................................................................................54
9.4 Special Allocations.........................................................................55
(a) Qualified Income Offset.................................................................55
(b) Gross Income Allocation.................................................................55
(c) Curative Allocations....................................................................55
(d) Elective Gross Allocations..............................................................55
(e) Subsequent Adjustments to Income........................................................56
9.5 Other Allocation Rules..................................................................56
9.6 Tax Allocations.............................................................................57
(a) General Rules...........................................................................57
(b) Mandatory Allocations Under Code Section 704(c).........................................57
(c) Tax Allocations Binding.................................................................57
(d) Contributions...........................................................................57
9.7 Distributions to Members....................................................................58
(a) Amounts and Timing......................................................................58
(b) Amounts Withheld........................................................................58
(c) Draws for Payment of Estimated Taxes....................................................58
ARTICLE X
TAXES................................................................................................58
10.1 Tax Characterization........................................................................58
10.2 Tax Matters Partner, Etc....................................................................58
10.3 Tax Returns.................................................................................60
ARTICLE XI
TRANSFER OF MEMBERSHIP INTEREST......................................................................60
11.1 Compliance with Securities Laws.............................................................60
11.2 Transfer of Membership Interest.............................................................60
11.3 Obligations of a Withdrawing Member.........................................................61
(a) Generally...............................................................................61
(b) Non-Disclosure by a Withdrawing Member..................................................61
(c) Survival................................................................................61
11.4 Encumbrances................................................................................61
11.5 Effect of Unauthorized Transfer.............................................................62
11.6 Standstill Agreement........................................................................62
ARTICLE XII
DISSOLUTION..........................................................................................63
12.1 Events of Dissolution.......................................................................63
12.2 Liquidation and Distribution Following Dissolution..........................................64
12.3 Final Accounting............................................................................65
12.4 Winding Up and Certificate of Dissolution...................................................65
12.5 Use of the Company Name, Etc. Upon Dissolution, Winding Up and Termination..................65
12.6 Payments Upon Certain Dissolutions..........................................................66
ARTICLE XIII
[RESERVED]...........................................................................................67
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ARTICLE XIV
INDEMNIFICATION OF MEMBERS, MANAGERS AND OFFICERS....................................................67
14.1 Indemnification by a Member.................................................................67
14.2 Indemnification by the Company..............................................................67
14.3 Survival; Limitations; Procedures...........................................................68
14.4 Third-Party Dealings With Members...........................................................69
14.5 Insurance...................................................................................69
14.6 Report to Members...........................................................................70
ARTICLE XV CLOSING DELIVERIES................................................................................70
15.1 Closing Deliveries of Polo..................................................................70
15.2 Closing Deliveries of the Original Media Members............................................70
ARTICLE XVI MISCELLANEOUS....................................................................................71
16.1 Notices.....................................................................................71
16.2 Public Announcements and Other Disclosure...................................................71
16.3 Headings and Interpretation.................................................................72
16.4 Entire Agreement............................................................................72
16.5 Binding Agreement...........................................................................72
16.6 Saving Clause...............................................................................72
16.7 Counterparts................................................................................72
16.8 Governing Law...............................................................................73
16.9 No Membership Intended for Nontax Purposes..................................................73
16.10 No Rights of Creditors and Third Parties under Agreement....................................73
16.11 Amendment or Modification of Agreement......................................................73
16.12 Specific Performance........................................................................73
16.13 General Interpretive Principles.............................................................73
16.14 Consent to Jurisdiction.....................................................................74
16.15 Certain Obligations.........................................................................74
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
of
XXXXX XXXXXX MEDIA, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(this "Agreement") of Xxxxx Lauren Media, LLC, a Delaware limited liability
company (the "Company"), dated as of February 7, 2000, by and among Xxxx Xxxxx
Xxxxxx Corporation, a Delaware corporation ("Polo"), National Broadcasting
Company, Inc., a Delaware corporation ("NBC"), ValueVision International, Inc.
("ValueVision"), a Minnesota corporation, XXXX.xxx LLC, a Delaware limited
liability company ("XXXX.xxx"), and NBC Internet, Inc., a Delaware corporation
("NBCi" and together with NBC, XXXX.xxx and ValueVision, the "Original Media
Members"). Certain capitalized terms used herein are defined in Article I of
this Agreement and, if not otherwise defined herein, shall have the meanings
ascribed to such terms in the Operating Agreement, dated as of the date hereof,
by and among Polo, the Original Media Members and the Company (the "Operating
Agreement").
WHEREAS, Polo filed a Certificate of Formation on February 2,
2000 for the Company on behalf of itself and the Original Media Members pursuant
to the provisions of the Act;
WHEREAS, a Limited Liability Agreement for the Company was
duly adopted by Polo pursuant to and in accordance with the Act on February 2,
2000 (the "Original Agreement");
WHEREAS, Polo and the Original Media Members wish to amend and
restate in its entirety the Original Agreement in accordance with the further
provisions of this Agreement;
WHEREAS, Polo and the Original Media Members desire to
organize a joint venture which will, subject to the terms and conditions set
forth herein and in the Ancillary Agreements, among other things, establish,
design and manage the Online activities and Catalogs, and engage in direct
marketing, sales and other activities incidental to the sale in the Territory
through Catalogs and Online of Apparel, Accessories and Home Products bearing
the Polo and Xxxxx Lauren Brands as more specifically set forth herein;
WHEREAS, simultaneously with the execution of this Agreement,
Polo, the Original Media Members and the Company will execute the Operating
Agreement;
WHEREAS, simultaneously with the execution of this Agreement
(i) PRL USA Holdings, Inc., a wholly-owned Subsidiary of Polo ("Licensor"), and
the Company will enter
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into the License Agreement dated as of the date hereof (the "License
Agreement"), (ii) ValueVision and the Company will enter into the Services
Agreement dated as of the date hereof (the "Services Agreement"), (iii) Polo and
the Company will enter into the Supply Agreement dated as of the date hereof
(the "Supply Agreement"), (iv) the Company and NBCi will enter into a Promotion
Agreement pursuant to which NBCi will provide to the Company, at no cost to the
Company, $40 million in aggregate credits for Online promotions (the "Promotion
Agreement") and (v) NBC and the Company will enter into an Advertising Agreement
pursuant to which NBC will provide to the Company, at no cost to the Company,
$100 million in aggregate credits for advertising time on the NBC Properties
(the "Advertising Agreement", together with the Supply Agreement, the Services
Agreement, the License Agreement, the Promotion Agreement and the Operating
Agreement, the "Ancillary Agreements");
WHEREAS, XXXX.xxx has agreed to provide to the Company at no
cost to the Company $10 million in aggregate credits for Online promotions; and
WHEREAS, Polo and the Original Media Members desire to set
forth their respective rights and obligations as members of the Company and to
provide for the operation and governance of the Company.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, unless the context clearly
indicates otherwise, the following terms shall have the following meanings:
"Accessories": Eyewear, jewelry, watches, leather goods,
handbags, luggage, golf bags, fragrances, skin care, cosmetics and
other beauty products and any other similar products, in each case that
bear or are otherwise marketed, advertised or promoted under any of the
Polo and Xxxxx Xxxxxx Brands.
"Act": The Delaware Limited Liability Company Act, Title 6,
Chapter 18, ss. 101 et seq. of the Delaware Code, and all amendments to
the Act.
"Additional Contribution": An additional Capital Contribution
(other than a ValueVision Additional Contribution) payable by the
Members to the Company pursuant to Article VIII.
"Additional Contribution Share": A Member's proportionate
share of an Additional Contribution equal to the product of (i) such
Member's Sharing Ratio and (ii) such Additional Contribution, or as
otherwise agreed by the Members under Section 8.2.
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"Adjusted Capital Account Deficit": With respect to any
Member, the deficit balance, if any, in such Member's Capital Account
as of the end of the relevant Fiscal Year, after giving effect to the
following adjustments:
(i) credit to such Capital Account the minimum gain
chargeback that such Member is deemed to be obligated to
restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(ii) debit to such Capital Account the items
described in Sections 1.704-l(b)(2)(ii)(d)(4),
1.704-l(b)(2)(ii)(d)(5), and 1.704-l(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of Adjusted Capital Account Deficit
is intended to comply with the provisions of Section 1.704-l(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.
"Advertising Agreement": As defined in the Preamble.
"Affiliate": A Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by or under common
control with, the Person specified, for so long as such Person remains
so associated to the specified Person. Control means, with respect to a
specified Person, the possession, directly or indirectly, of the power
to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, by contract
or otherwise.
"Aggregate Contributions": As defined in Section 12.6.
"Agreement": This Amended and Restated Limited Liability
Company Agreement, as the same may be amended, modified or otherwise
supplemented from time to time, all in accordance with this Agreement
and the Act.
"Ancillary Agreements": As defined in the Preamble.
"Annual Advertising Obligation": As defined in the Operating
Agreement.
"Apparel": Clothing products, including, men's, women's,
children's apparel, swimwear, loungewear, intimate apparel, underwear,
socks, hosiery, sports specialty apparel, outerwear, footwear and all
other items included in International Trademark Class 25, in each case
that bear or are otherwise marketed, advertised or promoted under any
of the Polo and Xxxxx Xxxxxx Brands.
"Auditors": As defined in Section 3.3.
"Budget": The capital and operating budgets of the Company for
any quarterly period or Fiscal Year, prepared by the management of the
Company and approved by the Management Committee in accordance with
Section 5.4, including all amendments, modifications and revisions
thereto, as approved in accordance with Section 5.4.
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"Business": Any business that the Company operates in
accordance with the Business Purpose set forth in Section 2.8.
"Business Day": Any day other than Saturday, Sunday or any
legal holiday observed in the State of Delaware or New York.
"Business Plan": As defined in Section 5.4(a), including the
Initial Business Plan.
"Business Purpose": As defined in Section 2.8.
"Capital Account": The account maintained for a Member
determined in accordance with Article VIII.
"Capital Contribution": Any contribution of Property or
services made by or on behalf of a Member in accordance with the terms
of this Agreement.
"Catalog": One or more direct marketing publications developed
and produced, or subcontracted to a third party, by the Company for the
promotion and sale of Polo Products under the Licensed Brands.
"CEO": As defined in Section 6.1.
"Certificate of Formation": The Certificate of Formation of
the Company, as amended from time to time, and filed with the Secretary
of State of Delaware.
"CFO": As defined in Section 6.1.
"Change of Control": Either a Polo Change of Control or an NBC
Change of Control.
"Closing": The initial transfer of the ValueVision Initial
Capital Contribution to the Company as contemplated by Section 8.1(a)
and the consummation of the other transactions contemplated by this
Agreement and the Operating Agreement to be consummated on the Closing
Date and the delivery of all certificates and other documents necessary
in connection therewith. The Closing will take place at such time and
place as Polo and the Media Representative shall agree.
"Closing Date": The date on which this Agreement and the
Ancillary Agreements are executed and delivered.
"XXXX.xxx": XXXX.xxx LLC, a Delaware limited liability
company, and any successor thereof.
"Code": The Internal Revenue Code of 1986, as amended from
time to time.
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"Collection Brands": Purple Label, Black Label and Collection
and other similarly positioned premier, high-end, limited distribution
Polo and Xxxxx Lauren Brands that may be developed or acquired in the
future.
"Commitment": The Capital Contributions that a Member is
obligated to make, including the ValueVision Additional Contributions
and any Additional Contribution Share of a Member.
"Company": Xxxxx Xxxxxx Media, LLC, a limited liability
company formed under the laws of the State of Delaware, and any
successor limited liability company.
"Company Assets": Any rights or assets, whether tangible or
intangible, acquired by the Company pursuant to this Agreement or any
Ancillary Agreement, contributed by the Members in accordance with the
terms of this Agreement or any Ancillary Agreement or otherwise
acquired by the Company.
"Company Customer Data": As defined in Section 3.1(b).
"Company Securities": As defined in Section 3.5(d).
"Continuing Member": As defined in Section 11.2.
"Cumulative Losses": As defined in Section 12.6.
"Damages": As defined in Section 14.1.
"Default Interest Rate": The prime rate published by the Wall
Street Journal for the last Business Day on which a Commitment is
payable.
"Delinquent Member": A Member who has failed to meet the
Commitment of that Member.
"Demand Registration": As defined in Section 3.5.
"Disposition or Dispose": Any sale, assignment, exchange,
mortgage, pledge, grant, hypothecation, lease or other transfer,
absolute or as security or encumbrance (including dispositions by
operation of law).
"Distribution": A transfer of Property of the Company to a
Member on account of a Membership Interest as described in Article IX.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Fair Market Value":
(i) Fair Market Value of a Membership Interest means, as of
any date (the "Computation Date"), the value of a Membership Interest
as mutually determined by the
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Media Representative and Polo, or if the Media Representative and Polo
cannot agree, then the Fair Market Value of any Membership Interest
shall be (A) determined by (x) calculating the aggregate realizable
value of all Membership Interests as of the Computation Date (the
"Total Value"), assuming a sale of the Company in its entirety in a
transaction or a series of related transactions to a third party on an
arm's length basis in a controlled auction process designed to maximize
membership value by attracting all possible bidders and (y) dividing
the Total Value by the Membership Interest (the "Auction Value FMV") or
(B) that which would be negotiated in an arm's length transaction
(effected as of the Computation Date) between two willing parties
determined in accordance with the procedure set forth in clause (ii) of
this definition after giving effect to any increased cost of
ValueVision's services as provided in Section 3.15(d) (the "Private
Value FMV"), as applicable. For all determinations of Fair Market
Value, the License Agreement and the Supply Agreement shall be deemed
to run for the remaining balance of their respective terms.
(ii) If Polo and the Media Representative cannot agree on a
Fair Market Value of a Membership Interest as set forth in paragraph
(i) above within 30 days after the date of notice of the event giving
rise to such Fair Market Value determination, the Media Representative
and Polo shall each appoint a nationally recognized investment bank as
promptly as practicable and in any event within seven days following
the expiration of such 30-day period to determine the Fair Market Value
of such Membership Interest as of the Computation Date as promptly as
possible thereafter and in any event within 30 days of such
appointment. In the event that the higher of the two values determined
by the investment banks is equal to or less than 110% of the lower
value, then the Fair Market Value of such Membership Interest shall be
the average of the two. In the event that the higher value is greater
than 110% of the lower value, then the two investment banks shall
promptly appoint a third investment bank of nationally recognized
standing to determine the Fair Market Value of such Membership
Interest. The third investment bank shall have 30 days to render its
determination of the Fair Market Value and the average of the two
closest such determinations (of the three investment banks) shall be
the Fair Market Value of such Membership Interest. The third investment
bank will not be permitted to see or otherwise have access to, or be
informed of, the results of the determinations made by the first two
investment banks. Each investment bank engaged pursuant to this clause
(ii) shall promptly deliver to each of Polo and the Media
Representative a written notice in reasonable detail of its
determination of the Fair Market Value made pursuant to the foregoing.
In the event that the determination made by the third investment bank
is higher than the higher of the two previous determinations, the costs
of the third investment bank shall be borne by the Member whose
investment bank submitted the lower of the two previous determinations.
In the event that the determination made by the third investment bank
is lower than the lower of the two previous determinations, the costs
of the third investment bank shall be borne by the Member whose
investment bank submitted the higher of the two previous
determinations. Except as set forth in the two immediately preceding
sentences, each Member shall be responsible for the percentage
represented by such Member's Membership Interest of all costs incurred
in connection with the determination of the Fair Market Value set forth
herein.
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"Family Controlled Entity" means (i) any not-for-profit
corporation if at least a majority of its board of directors is
composed of Xxxxx Xxxxxx Family Members; (ii) any other corporation if
at least a majority of its outstanding voting power is held by Xxxxx
Lauren Family Members; (iii) any partnership if at least a majority of
the outstanding voting interest of its partnership interests are owned
by Xxxxx Xxxxxx Family Members; and (iv) any limited liability or
similar company if at least a majority of the outstanding voting
interest of the company is owned by Xxxxx Lauren Family Members.
"Fiscal Quarter".: As defined in Section 3.2(c).
"Fiscal Year": As defined in Section 3.4.
"GAAP": As defined in Section 3.1(a).
"Governmental Authority": Any nation or government, any state
or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holder Request": As defined in Section 3.5(a).
"Home Products": Products to furnish and/or decorate the home,
including bedding and bath products, interior decor/furniture and
tabletop items, paints, wallpaper, fabrics, curtains, home fragrance
products and other decorative accessories, in each case bearing or
otherwise marketed, advertised or promoted under any of the Polo and
Xxxxx Xxxxxx Brands.
"Indemnified Party": As defined in Section 14.3(d).
"Indemnifying Member": As defined in Section 14.1.
"Indemnitee": As defined in Section 14.2.
"Initial Business Plan": The Business Plan to be agreed among
the parties hereto.
"Initial Membership Interest": With respect to any Member, the
Initial Membership Interest of such Member set forth in Exhibit A.
"Initial Public Offering": The initial offer for sale of
capital stock of the Company pursuant to an effective registration
statement filed under the "Securities Act," which results in an active
trading market in such shares of capital stock (it being understood
that such an active trading market shall be deemed to exist if, among
other things, such shares are listed on the New York Stock Exchange or
the Nasdaq Stock Market, Inc. National Market System or another
national securities exchange). In connection with an Initial Public
Offering, the Members agree to take all actions necessary and
appropriate to convert the form of the Company to an appropriate form
required for such purpose and make such other adjustments as are
necessary in connection therewith.
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"Lauren Family Trust": includes trusts the primary
beneficiaries of which are Xxxxx Xxxxxx, the spouse of Xxxxx Lauren,
Lauren Descendants, Xxxxx Xxxxxx'x siblings, spouses of Lauren
Descendants and their respective estates, guardians, conservators or
committees and/or charitable organizations, provided that if the trust
is a wholly charitable trust, at least a majority of the trustees of
such trust consists of Xxxxx Xxxxxx, the spouse of Xxxxx Lauren and/or
Xxxxx Xxxxxx Family Member.
"License Agreement": As defined in the Preamble.
"Licensed Brands": "Polo by Xxxxx Lauren," "Xxxxx (Polo Player
Design) Lauren," "Polo," "Xxxxx," "Polo (Polo Player Design) Xxxxx
Lauren," "Xxxxx Xxxxxx," "RLX," "Polo Sport," "Polo Jeans Co," "Xxxxx
Lauren Home Collection," the Polo Player Design and such other
trademarks which Licensor licenses to the Company pursuant to the
License Agreement. The term "Licensed Brands" shall specifically
exclude the xxxx "Club Monaco."
"Licensed Materials": Any text, artwork, photographs,
transfers, transparencies, designs, graphic or pictorial or other
similar material (i) furnished to the Company by or on behalf of
Licensor for use by the Company in connection with any Catalog or the
Site pursuant to the terms of this Agreement, the Operating Agreement
or the License Agreement or (ii) created by or on behalf of the Company
during the term of the License Agreement specifically for use in
connection with any Catalog or the Site in the exercise of the
Company's rights under the License Agreement, all of which shall be
owned exclusively by Licensor, except to the extent it contains marks
or materials owned or licensed by NBC or its Affiliates.
"Licensor": PRL USA Holdings, Inc.
"Lien": As defined in Section 11.4.
"Liquidation Payment": As defined in Section 12.6.
"Litigation": As defined in Section 5.3(xx).
"Majority-Owned Affiliates": With respect to any Person, means
any Affiliate of such Person with respect to which such Person owns at
least a majority of the total voting power. For the avoidance of doubt,
NBCi shall not be considered a Majority-Owned Affiliate of NBC except,
for purposes of Section 11.6 hereof only, in the event that NBC shall
actually own a majority of the outstanding voting stock of NBCi.
"Management Committee": As defined in Section 5.1.
"Manager": Any person appointed as a Manager of the Company by
any Member as provided in Section 5.2(b), but does not include any
person who has ceased to be a Manager of the Company.
"Marks": As defined in the License Agreement.
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"Material Adverse Effect": Any material adverse effect on (A)
the assets, business, results of operations or condition (financial or
otherwise) of the Company or (B) when used with respect to any Member
or the Company, the ability of such Member or the Company to perform
its obligations hereunder or under the Ancillary Agreements to which it
is a party.
"Material Deadlock": Failure by the Members or the Management
Committee to reach agreement on any matter (i) that is of such
magnitude and is so fundamental to the Business and the Business
Purpose that failure to resolve such issue could reasonably be expected
to have a Material Adverse Effect, (ii) that is so fundamental to the
business of Polo or any Original Media Member that failure to resolve
such issue could reasonably be expected to have a material adverse
effect on the assets, business, results of operations or condition
(financial or otherwise) of Polo or any Original Media Member or (iii)
which disagreement is of such a nature that continuance of operation of
the Company as a jointly owned entity by the Members would be
unworkable as a result of the breakdown in the communications and
business relationship of the Members. For the avoidance of doubt, the
Members agree that a failure by the Managers appointed by either Polo
or the Media Members to approve an Initial Public Offering, in
accordance with Section 5.3(x), recommended in good faith by either
Polo or the Media Members, as the case may be, at any time following
the fifth anniversary of the Closing Date shall constitute a Material
Deadlock.
"Material Deadlock Event": As defined in Section 3.12(d).
"Media Competitor": Any media, telecommunications or Internet
company or similar company, or any Majority-Owned Affiliate thereof, a
significant business of which is any of the three primary businesses of
NBC and its Affiliates at the time of determination; provided, however,
that Media Competitor shall not include any Person identified by Polo
in writing to the Media Representative (a "Request Notice") that the
Media Representative does not identify as a Media Competitor in writing
to Polo within thirty (30) days of such Request Notice.
"Media Manager": Any Manager appointed by the Media Members in
accordance with Section 5.2(b).
"Media Member IPO Right": As defined in Section 3.16.
"Media Members": The Original Media Members and their
transferees.
"Media Members' Membership Interests": As defined in Section
3.12(d).
"Media Members Sale Notice": As defined in Section
3.12(e)(i).
"Media Members Sale Right": As defined in Section 3.12(e).
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"Media Representative": Initially NBC, or such other party as
is designated as representative by all of NBC, ValueVision, XXXX.xxx
and NBCi or their permitted transferees by written notice to Polo.
"Member": A Person executing this Agreement when acting in its
capacity as a member of the Company and any Person admitted as an
additional or substitute member of the Company pursuant to this
Agreement.
"Member Plans": As defined in Section 4.2(f)(iii).
"Membership Interest": The interest of a Member in the
Company, including a Member's (i) right to receive allocations of
Profit and Loss, Distributions, returns of capital and distribution of
assets upon a dissolution of the Company, (ii) right, if any, to vote
on, or to consent to, or approve or disapprove, certain actions or
decisions regarding the Company as provided in this Agreement and the
Operating Agreement or under the Act and (iii) Initial Membership
Interest.
"NBC": National Broadcasting Company, Inc., a Delaware
corporation, and any successor thereof.
"NBCi": NBC Internet, Inc., a Delaware corporation, and any
successor thereof.
"NBC Change of Control": The occurrence of any of the
following: (a) (i) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person, of 25% or more of
the voting equity or equity value of NBC, and General Electric Company
and its Affiliates own 25% or less of the voting equity or equity value
of NBC, as applicable, followed within 180 days by (ii) an event or a
series of events which results in those officers of NBC which are
actively involved in making decisions regarding the Company and this
Agreement (and the Operating Agreement), including as of the date of
this Agreement the Chief Executive Officer of NBC, the President of NBC
West Coast and the President of NBC Interactive Business Development,
who are Xxx Xxxxxx, Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx (collectively the
"NBC Executives"), respectively, as of the date of this Agreement, or
comparable positions at the relevant time, shall no longer be employees
of NBC and such persons shall be replaced by persons who were not
employees of NBC at least two months prior to the earlier of the entry
into an agreement with respect to, or consummation of, the transaction
described in clause (i) or (b) any sale, lease, exchange or transfer
(in one transaction or a series of related transactions) of control of,
whether by transfer of all or substantially all of the assets
comprising, or otherwise, the NBC Television Network other than in a
Permitted NBC Transfer.
"NBC Change of Control Call": As defined in Section 3.13(c).
"NBC Properties": The NBC Television Network, CNBC and
NBC-owned and operated television stations, and other NBC-owned
properties as they emerge in the future.
"Nonrecourse Liability": As defined in Section 1.704-2(b)(3)
of the Regulations.
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"Notice of Material Deadlock": As defined in Section 3.12(d).
"Officer": As defined in Section 6.1.
"Online": Any electronic interactive service, system, network
or medium that is available via (a) public or private computer networks
such as the Internet (including the World Wide Web), (b) proprietary
online services such as America Online and Compuserve, (c) hybrid
Internet services such as WebTV and @Home, (d) interactive cable,
satellite or broadcast television and (e) any successor technology to
any of the foregoing. "Online" does not mean traditional
person-to-person voice only telephone communications.
"Online Identifier": Any URL, keyword, logo or other
identifier selected by the Company, subject to the License Agreement,
for identifying Online the Company, the Business or any of its
services.
"Operating Agreement": As defined in the Preamble.
"Operations Manual": As defined in Section 5.4(c).
"Organization": A Person other than a natural person. The term
Organization includes corporations (both non-profit and other
corporations), partnerships (both limited and general), joint ventures,
limited liability companies, and unincorporated associations, but the
term does not include joint tenancies and tenancies by the entirety.
"Original Agreement": As defined in the Preamble.
"Original Media Members": As defined in the Preamble.
"Other Indemnified Persons": As defined in Section 14.1.
"Permitted NBC Transfer": Any sale, lease, exchange or
transfer (in one transaction or a series of related transactions) of
the NBC Television Network in which (x) NBC's Membership Interest and
all of NBC's rights and obligations hereunder are transferred to the
transferee in such transaction and (y) any NBC Executive or other
executive officer of NBC who was an officer of NBC for at least two
months prior to the public announcement or execution of a definitive
agreement regarding the transaction is employed by the transferee
following such transaction as Chief Executive Officer of NBC, President
of the NBC Television Network or in a similar (or higher) capacity for
a period of at least six months after the consummation of such
transaction.
"Person": Any natural person, corporation, partnership, joint
venture, trust, incorporated organization, limited liability company,
other form of business or legal entity or Governmental Authority.
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"Polo": Xxxx Xxxxx Lauren Corporation, a Delaware corporation,
and any successor thereof.
"Polo and Xxxxx Xxxxxx Brands": (i) The Licensed Brands and
Tradenames, (ii) any brands that are owned or licensed by Polo or an
Affiliate of Polo or any other Person bound by the License Agreement on
or after the date of this Agreement that are (A) marketed, advertised
or promoted under the Polo or Xxxxx Lauren name or any part thereof or
(B) related for purposes of Polo's marketing, advertising or
promotional strategies to the Polo or Xxxxx Xxxxxx names or any part
thereof (including initials or any other derivatives) or, as a result
of Polo's marketing, advertising or promotional strategies, are
reasonably likely to be associated by customers with the Polo and Xxxxx
Lauren Brands and (iii) any other brands that may from time to time be
licensed to the Company pursuant to the License Agreement. The term
Polo and Xxxxx Xxxxxx Brands shall specifically exclude the trademark
"Club Monaco" and shall include the trademarks "Chaps," "Lauren" and
"American Living."
"Polo Buyout Right": As defined in Section 3.14(a).
"Polo Change of Control": The occurrence of any of the
following: (a) there shall be consummated (i) any consolidation,
merger, recapitalization or other similar transaction involving Polo in
which Polo is not the continuing or surviving corporation, or pursuant
to which the shares of common stock or other equity securities of Polo
(the "Polo Equity") would be converted in whole or in part into cash,
other securities or other property, other than any such transaction in
which (1) Xxxxx Xxxxxx and his estate, guardian, conservator or
committee , (2) the spouse of Xxxxx Lauren and her estate, guardian,
conservator or committee, (3) each descendant of Xxxxx Xxxxxx and their
respective estates, guardians, conservators or committees (a "Lauren
Descendant"), (4) each Family Controlled Entity and (5) the trustees,
in their respective capacities as such, of each Lauren Family Trust
(the "Xxxxx Xxxxxx Family Members") beneficially hold at least a
majority of the voting equity of the continuing or surviving company
immediately after such transaction, (ii) any consolidation, merger,
recapitalization or other similar transaction in which Polo is the
continuing or surviving company, other than any such transaction in
which Xxxxx Lauren and/or any Xxxxx Xxxxxx Family Member beneficially
holds at least a majority of the voting equity of the continuing or
surviving company immediately after such transaction, or (iii) any
sale, lease, exchange or transfer (in one transaction or a series of
related transactions) of all or substantially all of the Licensed
Brands or assets of Polo; (b) any person, other than a Xxxxx Lauren
Family Member, shall become the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of the Polo Equity representing 50%
or more of the combined voting equity of Polo as a result of a tender
offer or exchange offer, open market purchases, privately negotiated
purchases or otherwise; (c) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Media Competitor, of 25%
or more of the voting equity of Polo, and Xxxxx Xxxxxx and/or Xxxxx
Lauren Family Members collectively own 25% or less of the voting equity
of Polo; or (d) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Media Competitor from Polo, of 10% or
more of the total equity of Polo in a negotiated transaction in which
Polo has not offered NBC a right to acquire such equity not less than
30 or more than 180 days prior to the acquisition of ownership on the
same terms and conditions; provided, however, that any transfer of Polo
Equity that occurs by
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reason of the laws of inheritance or through any bona fide testamentary
or inter vivos device to a Xxxxx Xxxxxx Family Member shall not
constitute a Polo Change of Control.
"Polo Change of Control Sale": As defined in Section 3.13(d).
"Polo Deadlock Call": As defined in Section 3.12(d).
"Polo Manager": The Manager appointed by Polo in accordance
with Section 5.2(b).
"Polo Members": Polo and its permitted transferees.
"Polo Offer Notice": As defined in Section 3.12(e)(ii).
"Polo Products": Apparel, Accessories and Home Products which
are manufactured by or under license from Polo, any Affiliate of Polo
or any other Person bound by the License Agreement or any combination
of the foregoing. The definition of Polo Products will be automatically
amended to include any additional products and services as may be
determined in accordance with Section 2.6(c) of the Operating
Agreement.
"Preservation Notice": As defined in Section 3.14(b).
"Principal Office": The principal office of the Company as set
forth in Section 2.3.
"Proceeding": Any administrative, judicial, or other adversary
proceeding, including litigation, arbitration, administrative
adjudication, mediation, and appeal or review of any of the foregoing.
"Profits or Losses": For each Fiscal Year, an amount equal to
the Company's taxable income or loss for such Fiscal Year, determined
in accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss, or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code will be included
in taxable income or loss), with the following adjustments:
(i)Any income of the Company that is exempt from federal
income tax and not otherwise taken into account in computing Profits or
Losses pursuant to this definition will be added to such taxable income
or loss;
(ii)Any expenditures of the Company described in Section
705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code
expenditures pursuant to Section 1.704-l(b)(2)(iv)(i) of the
Regulations, and not otherwise taken into account in computing Profits
or Losses pursuant to this definition, will be subtracted from such
taxable income or loss;
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(iii)Notwithstanding any other provisions of this definition,
any items which are specially allocated pursuant to paragraph 9.4 shall
not be taken into account in computing Profits or Losses.
"Promotion Agreement": As defined in the Preamble.
"Property": Any property, real or personal, tangible or
intangible, including cash, and any legal or equitable interest in such
property, but excluding services and promises to perform services in
the future.
"Purchase Price Notice": As defined in Section 3.14(b).
"Qualified Buyer": Any Person that satisfies as of the date of
determination each of the following requirements: (a) the stockholders'
equity or the market capitalization of such Person is or was, as of the
end of the most recently completed Fiscal Quarter of such Person prior
to the date of entering into any agreement for the transfer to such
Person of any interest in the Company in excess of U.S. $100 million or
U.S. $1 billion, respectively; (b) neither such Person nor any
Affiliate of such Person has been convicted within the prior five years
of any criminal violation of law in any country; (c) neither such
Person nor any Subsidiary of such Person directly or indirectly
manages, operates, owns any equity interest in excess of 10% in or has
agreed to purchase a Person listed on Schedule 1; (d) the admission of
such Person as a Member or such Person being, acting or otherwise
exercising the rights of a Member will not have a Material Adverse
Effect on Polo or the Company, or make it illegal or impossible for the
Company or Polo to do business in any country where the Company or Polo
at that time does business; (e) there is not pending any material
litigation against such Person which would be reasonably expected to
have a material adverse effect on the assets, business, results of
operations or condition (financial or otherwise) of such Person; and
(f) such Person is not bankrupt, insolvent or in similar financial
condition.
"Quiet Period": The period commencing on the date the Change
of Control notice required by Section 3.13(a) is received and ending on
the date that is 180 days thereafter.
"Regulations": The federal income tax regulations promulgated
by the United States Treasury Department under the Code as such
Regulations may be amended from time to time. All references herein to
a specific section of the Regulations will be deemed to also refer to
any corresponding provision of succeeding Regulations.
"Regulatory Allocations": As defined in Section 9.4(c).
"Requesting Holder": As defined in Section 3.5(a)(i).
"ROFR Notice": As defined in Section 3.12(e)(iii).
"SEC": The Securities and Exchange Commission.
"SEC Reports": As defined in Section 4.2(g).
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"Secretary": As defined in Section 6.5.
"Securities": As defined in Section 11.6(a).
"Securities Act": Securities Act of 1933, as amended.
"Services Agreement": As defined in the Preamble.
"Sharing Ratio": With respect to any Member, the Sharing Ratio
of each Member set forth in Exhibit A. Exhibit A will be amended as
necessary to conform to any changes agreed to by the Members. In the
event that a Membership Interest is transferred in accordance with the
terms of this Agreement, the transferee will succeed to the Membership
Interest and Sharing Ratio of the Withdrawing Member.
"Site": With respect to the World Wide Web, the website and
pages developed, produced and maintained by, or at the direction of,
the Company located at or operated under the domain name Xxxx.xxx,
xxxxxxxxxxx.xxx or any subdomains of either thereof, or any other
domain names agreed by the Members, and successors or extensions
thereof, or any comparable area, site or pages designed to promote the
Business in other Online media or services.
"Subsidiary": Any corporation, partnership, limited liability
company, joint venture or other legal entity of which a Person (either
alone, through or together with any other Subsidiary) that owns or has
the right to acquire, directly or indirectly, more than 50% of the
stock or other equity interests the holder of which is generally
entitled to vote for the election of the board of directors or other
governing body of such corporation or other legal entity.
"Supply Agreement": As defined in the Preamble.
"Tax Matters Partner": As defined in Section 10.2.
"Territory" As defined in the License Agreement.
"Third Party Claim": As defined in Section 14.3(d).
"Tradename": As defined in the License Agreement.
"Transfer": As defined in Section 11.2.
"Treasurer": As defined in Section 6.6.
"United States": The United States of America (including the
District of Columbia), its possessions and territories and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands).
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"ValueVision": ValueVision International, Inc., a Minnesota
corporation and any successor thereof.
"ValueVision Additional Contributions": As defined in Section
8.2(a).
"ValueVision Commitment": $50,000,000.
"ValueVision Initial Capital Contribution": As defined in
Section 8.1(a).
"Vice President": As defined in Section 6.4.
"Withdrawing Member": As defined in Section 11.2.
ARTICLE II
FORMATION AND CONDUCT
2.1 Formation and Purpose. The Members hereby
authorize and ratify the formation of the Company as a Delaware limited
liability company pursuant to the provisions of the Act. The original
Certificate of Formation was filed with the Secretary of State of the
State of Delaware on February 2, 2000. On the Closing Date, upon
satisfaction of the conditions contained in Section 8.1 and Article XV,
the Original Media Members and Polo will be deemed admitted as Members.
The purposes of the Company are to engage in the following activities:
(i) to conduct the Business;
(ii) to acquire, hold, own, operate, manage, finance,
encumber, sell, or otherwise Dispose of or otherwise use the Company
Assets;
(iii) to enter into any lawful transaction and engage
in any lawful activities as may be necessary, incidental or convenient
to carry out the business of the Company as contemplated by this
Agreement, the Ancillary Agreements and the Business Purpose.
The Company may do any and all acts and things
necessary, appropriate, proper, advisable, or convenient for the
furtherance and accomplishment of the purposes of the Company,
including to engage in any kind of activity and to enter into and
perform obligations of any kind necessary to or in connection with, or
incidental to, the accomplishment of the purposes of the Company, so
long as such activities and obligations may be lawfully engaged in or
performed by a limited liability company under the Act. In furtherance
of its purposes, the Company shall have and may exercise all of the
powers now or hereafter conferred by Delaware law on limited liability
companies formed under the Act.
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2.2 Name. The name of the Company is "Xxxxx Xxxxxx
Media, LLC". All business of the Company will be conducted under the
name of the Company and title to all property, real, personal or mixed,
owned by or leased to the Company will be held in such name.
2.3 Principal Office and Place of Business. The
principal office and place of business of the Company will be located
at such place or places as Polo and the Media Representative may from
time to time designate by mutual agreement.
2.4 Term. The term of the Company commenced on the
date the Certificate of Formation was filed with the Secretary of State
of the State of Delaware in accordance with the Act and will continue
until the Company is dissolved as provided in Article XII.
2.5 Registered Office and Agent. The registered agent
for the service of process and the registered office will be that
Person and location reflected in the Certificate of Formation as filed
in the office of the Secretary of State of the State of Delaware. At
any time and from time to time the Company may designate another
registered office or agent.
2.6 Qualification in Other Jurisdictions. The Company
will be qualified or registered under foreign qualification or assumed
or fictitious name statutes or similar laws in any jurisdiction in
which the Company transacts business and in which such qualification or
registration is determined by the Company to be necessary or advisable.
2.7 No Liability to Third Parties. No Member, Manager
or Officer, solely by reason of being a Member or acting as a Manager
or Officer, will be subject to any liability in connection with the
Company Assets, debts, obligations, liabilities, acts or affairs of the
Company, including under any Proceeding. The debts, obligations and
liabilities of the Company, whether arising in contract, tort or
otherwise, will be solely the debts, obligations and liabilities of the
Company.
2.8 Business Purpose. The Members hereby agree that
the following statement sets forth the purpose of the Company (the
"Business Purpose"): () the development of the Company into a world
class direct marketer of Polo and Xxxxx Lauren Brands; () the
establishment, articulation and definition of Polo and Xxxxx Xxxxxx
Brands' identity Online and, to the extent applicable, in the Catalog
and the creation of an appropriate level of awareness for both; () the
positioning of Online activities and the Catalog as integral components
of new and existing customers' shopping channels; () providing consumer
value through product sales, content and service to the same level that
Polo delivers in free-standing retail stores, but with elimination or
reduction of negative aspects of shopping in a store; () providing
format and content that promotes () the Business, () Polo's business
generally with respect to the Licensed Brands, () Collection Brands and
() in accordance with Section 2.3(a) of the Operating Agreement, any
other Polo and Xxxxx Lauren Brands provided that such promotions are
not materially competitive with the Business Online; () focusing on the
customer and developing lasting one-to-one relationships; () providing
an interactive shopping experience, comprised of
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different shopping modes and customer rapport; () the creation of a
direct-to-customer upscale shopping environment Online, offering
products and services at traditional retail prices, as distinguished
from an outlet store or other price-driven shopping facility; ()
providing entertaining and engaging experiences Online itself through
means of experience-rich promotional events that are interwoven into
the merchandising and product presentations; and () the development and
promotion, as applicable, of new products and services under the Polo
and Xxxxx Xxxxxx Brands in accordance with Section 2.6 of the Operating
Agreement.
2.9 Business Launch. The Members recognize the
competitive imperative of launching the Business as promptly as
practicable. Pursuant to a phased market entry outlined in the Initial
Business Plan, the Members shall use all commercially reasonable
efforts to launch the Site no later than October 15, 2000. With respect
to a Catalog, if the Company does not launch, or sub-contract with a
third party to launch, a Catalog by January 1, 2003, Polo shall have
the right to enter into arrangements with a third party to develop and
promote a Catalog; provided, to the extent such failure to launch was
not due to an action on the part of the Media Members or the failure on
the part of any Media Members to act and the terms of any such
arrangement with a third party are materially more favorable than those
offered to the Company, Polo shall offer the Company the opportunity to
agree to launch the Catalog in a reasonable period of time on such
terms and the Company shall have 60 days to advise Polo in writing that
it agrees to all such terms.
2.10 Initial Activities. On the Closing Date, (i)
Polo, the Original Media Members and the Company shall enter into the
Operating Agreement, (ii) Licensor and the Company shall enter into the
License Agreement, (iii) ValueVision and the Company shall enter into
the Services Agreement, (iv) Polo and the Company shall enter into the
Supply Agreement, (v) NBC and the Company shall enter into the
Advertising Agreement and (vi) NBCi and the Company shall enter into
the Promotion Agreement.
2.11 Authorization of Actions Taken by the Company.
(a) Ancillary Agreements. The Members hereby ratify,
confirm, authorize and approve the execution and delivery by any
officer or other Person duly authorized by the Company, including Polo,
on behalf of the Company of the Ancillary Agreements and the execution
and delivery of such other instruments, agreements, assignments,
certificates or other documents as any such officer or other Person
deems necessary or appropriate in connection therewith.
(b) Formation. The Members hereby ratify, confirm,
authorize and approve the formation of the Company and the
contemporaneous filing of the Certificate of Formation of the Company
with the Delaware Secretary of State. The Members hereby ratify the
designation of Polo as an authorized person, within the meaning of the
Act, to execute, deliver and file the Certificate of Formation and any
amendments and/or restatements of the Certificate of Formation and any
other certificates necessary for the Company to qualify to do business
in a jurisdiction in which the Company may wish to
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conduct business. The execution by Polo alone of any of the foregoing
certificates (and any amendments and/or restatements thereof) shall be
sufficient.
(c) Bank Accounts. The Members hereby ratify,
confirm, authorize and approve the opening of whatever bank accounts
shall be deemed necessary by Polo for the expeditious conduct of the
Company's affairs by Polo or any officer on behalf of the Company in
the name of the Company with such financial institutions selected by
Polo or any such officers from time to time, and the adoption of any
and all resolutions required to be adopted by any such financial
institution as a condition to the opening of such accounts are hereby
ratified, confirmed, authorized and approved. Any and all actions
described in this Section 2.11 heretofore taken by Polo on behalf of
the Company or by the Company's officers and agents on behalf of the
Company are approved, ratified and confirmed as the acts of the Company
without the necessity of further evidence.
ARTICLE III
OPERATIONS
3.1 Books and Records.
(a) Books and Accounts. The Company will keep, or
cause to be kept, accurate, full and complete books and accounts
showing assets, liabilities, income, operations, transactions and the
financial condition of the Company. The books, accounts and records of
the Company at all times will be maintained at the Company's principal
office. Such books and accounts will be prepared in accordance with
generally accepted accounting principles in effect in the United States
at the time of preparation of such books and accounts, consistently
applied ("GAAP"). Any Member or its designee and any Manager will have
access to the physical premises, the operations, the books, accounts
and records of the Company at any time during regular business hours
and will have the right to copy any records at its expense. No charges
will be made to such Member, its designee or Manager by the Company for
such inspection and audit other than for out-of-pocket costs of the
Company occasioned thereby. The Company will maintain all such records
for a period of three years from the date of the making or receipt
thereof, except for those records, if any, required to be kept for a
longer period under applicable law or which a Member reasonably
requests be maintained for a longer period.
(b) Other Records. The Company will provide, or will
cause to be provided, to the Members real time access to all sales,
inventory and operational data relating to the Business, any and all
information relating to customers and potential customers of the
Business or otherwise relating to Online or Catalog marketing and sales
activities of the Company, including data relating to the volume of
traffic generated by the Site, the persons visiting the Site, the
length of time spent at the Site, inventory control, sales records,
history of inventory as well as individual categories of inventory and
such other related information that is or may become available
(collectively, the "Company Customer Data"), provided that the use and
disclosure of such Company Customer Data
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shall be subject to the confidentiality and use restrictions set forth
in the Operating Agreement.
3.2 Financial Statements; Information; Bank Accounts.
(a) Preparation in Accordance with GAAP. All
financial statements prepared pursuant to this Section 3.2 will present
fairly the financial position and operating results of the Company and
will be prepared in accordance with GAAP.
(b) Monthly Reports. Within 15 Business Days after
the end of each calendar month during the term of this Agreement,
commencing with the first calendar month after the date of this
Agreement, the Company shall prepare and submit or cause to be prepared
and submitted to the Members and the Management Committee an unaudited
statement of profit and loss of the Company for such month, an
unaudited balance sheet of the Company dated as of the end of such
calendar month and an unaudited statement of cash flows for the Company
for such calendar month, in each case, certified by the CFO as true and
correct and prepared in accordance with GAAP consistently applied.
(c) Quarterly Report. Within 15 days after the end of
each quarterly period (the "Fiscal Quarter") of each Fiscal Year,
commencing with the first Fiscal Quarter after the date of this
Agreement, the Company shall prepare and submit or cause to be prepared
and submitted to the Members and the Management Committee an unaudited
statement of profit and loss for the Company for such Fiscal Quarter,
an unaudited balance sheet of the Company dated as of the end of such
Fiscal Quarter, and an unaudited statement of cash flows for the
Company for such Fiscal Quarter, in each case, certified by the CFO as
true and correct and prepared in accordance with GAAP consistently
applied.
(d) Annual Reports. Within 30 days after the end of
each Fiscal Year during the term of this Agreement, the Company shall
prepare and submit or cause to be prepared and submitted to the Members
and the Management Committee () the following audited statements: a
balance sheet, together with a statement of profit and loss, a
statement of cash flows for the Company during such Fiscal Year, a
statement of any amounts contributed and/or distributed to the Members
during such Fiscal Year and a statement of Members' equity, in each
case, prepared in accordance with GAAP consistently applied and () a
report of the activities of the Company during the Fiscal Year.
(e) Other Reports. Subject to the confidentiality and
use restrictions set forth in the Operating Agreement and elsewhere
herein, the Company shall provide to each Member and the Management
Committee such other reports and information concerning the business
and affairs of the Company as may be required by the Act or by any
other law or regulation of any regulatory body applicable to the
Company and such other information as may be reasonably requested by
any Member, it being understood that any information provided to any
Member in accordance with this Section 3.2(e) shall be simultaneously
provided to the other Members. Any Member requesting additional reports
or information in accordance with this Section 3.2(e) not otherwise
contemplated
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by this Agreement or the Operating Agreement shall be required to
reimburse the Company for any out-of-pocket costs associated with
producing such additional reports or providing such additional
information. Any such information may be used only by such Member and
its Majority-Owned Affiliates in the ordinary course of its own
business and in connection with its investment in the Company.
(f) Bank Accounts. All funds of the Company will be
deposited in the Company's name in such checking and savings accounts,
time deposits, certificates of deposit or other accounts at the banks
designated by the CEO from time to time, and the CEO will arrange for
the appropriate conduct of such account or accounts.
3.3. Auditors. The Company's independent public
accountants and auditors will be Deloitte & Touche LLP or such other
nationally recognized accounting firm as Polo and the Media
Representative may approve from time to time (the "Auditors"). The
Auditors will initially be appointed pursuant to an engagement letter
between the Company and the Auditors approved by both Polo and the
Media Representative, which letter will provide that () a copy of any
Management or Accounting Control Letters of Recommendation or Comment
from the Auditors to the Company will be delivered to the Members
approximately contemporaneously with delivery thereof to the Company,
and () the Auditors and their work papers will be available to any
Member at reasonable times and upon reasonable advance notice to the
Auditors and the Company.
3.4 Fiscal Year. The fiscal year of the Company for
financial, accounting and Federal, state and local income tax purposes
initially will be the calendar year (the "Fiscal Year"). Upon the
consent of Polo and the Media Representative as provided in Section
5.3, the beginning and ending dates of the Fiscal Year may be changed.
3.5 Demand Registration.
(a) Subject to the conditions and limitations
hereinafter set forth in this Section 3.5, at any time and from time to
time after the effectuation of an Initial Public Offering by the
Company or in accordance with and as required by Section 3.16, either
the Media Representative or Polo may request in writing that the
Company effect the registration under the Securities Act of all or part
of Polo's or the Media Members', as the case may be, registrable
securities specifying in the request the number and type of registrable
securities to be registered by each such requesting holder and the
intended method of disposition thereof (such notice is hereinafter
referred to as a "Holder Request"). Registrations requested pursuant to
this Section 3.5 are collectively referred to herein as "Demand
Registrations." Upon receipt of such Holder Request, the Company will,
within 10 days, give written notice of such requested Demand
Registration to all other holders of registrable securities, including
Polo or the Media Representative, which other holders shall have the
right (subject to the limitations set forth in subsection (f) of this
Section 3.5) to include the registrable securities held by them in such
registration and thereupon the Company will, as expeditiously as
possible and subject to the terms of this Agreement, use its best
efforts to effect the registration under the Securities Act of the
following:
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(i) the registrable securities that the Company has
been so requested to register by the holder that submitted the Holder
Request (the "Requesting Holder"); and
(ii) all other registrable securities that the
Company has been requested to register by any other holder thereof by
written request given to the Company within 30 calendar days after the
giving of such written notice by the Company (which request shall
specify the intended method of disposition of such registrable
securities), all to the extent necessary to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the
registrable securities so to be registered.
(b) Subject to the provision set forth in subsection
(f) of this Section 3.5, () the Company shall not be obligated to
effect more than (A) four (4) Demand Registrations (of which no more
than two may be shelf registrations) pursuant to this Section 3.5 at
the request of the Media Representative and (B) four (4) Demand
Registrations (of which no more than two may be shelf registrations)
pursuant to this Section 3.5 at the request of Polo, and () the Company
shall not be obligated to file a registration statement under Section
3.5(a) unless the Company shall have received requests for such
registration with respect to at least 5% of the fully diluted equity of
the Company at such time or shares having a market value of at least
$50 million.
(c) The Company shall not be obligated to file a
registration statement relating to any Holder Request under Section
3.5(a) within a period of one year after the effective date of any
registration statement relating to any previous Demand Registration or
an Initial Public Offering.
(d) In connection with any offering pursuant to this
Section 3.5, the only shares that may be included in such offering are
() registrable securities and () shares of authorized but unissued
equity that the Company elects to include in such offering ("Company
Securities").
(e) If the Company or Polo reasonably determines that
() the filing of a registration statement or the compliance by the
Company with its disclosure obligations in connection with a
registration statement would require the disclosure of material
information regarding the Company or Polo, as the case may be, that the
Company or Polo, as the case may be, has a bona fide business purpose
for preserving as confidential or () such registration would be likely
to have an adverse effect on any proposal or plan by the Company or
Polo, as the case may be, to engage in any financing transaction,
acquisition of assets (other than in the ordinary course of business)
or any merger, consolidation, tender offer or similar transaction, the
Company may delay (or Polo may instruct the Company to delay, as
applicable) the filing of a registration statement and shall not be
required to maintain the effectiveness thereof or amend or supplement a
registration statement for a period expiring upon the earlier to occur
of (A) the date on which such material information is disclosed to the
public or ceases to be material, in the case of clause (i), (B) the
date on which such transaction is completed or abandoned, in the case
of clause (ii), or (C) 120 days after the Company or Polo makes such
good faith determination, in the case of either clauses (i) or (ii);
provided that in such event, the
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holders of registrable securities initiating the request for such
registration will be entitled to withdraw such request, and if such
request is withdrawn such registration will not count as one of the
permitted registrations under this Section 3.5. In any event, the
Company will pay all registration expenses in connection with any
registration initiated under this Section 3.5, except as provided in
Section 3.5(i) below.
(f) If, in connection with any underwritten offering,
the managing underwriter shall advise the Company and any holder of
registrable securities that has requested registration that, in its
judgment, the number of securities proposed to be included in such
offering should be limited due to market conditions, the Company will
so advise each holder of registrable securities that has requested
registration, and shares shall be excluded from such offering in the
following order until such limitation has been met: first, the
registrable securities requested to be included by the Company shall be
excluded until all such registrable securities shall have been so
excluded; second, the registrable securities requested to be included
in such offering pursuant to Section 3.5(a)(ii) shall be excluded pro
rata, based on the respective number of registrable securities as to
which registration has been so requested by all such holders until all
such registrable securities have been so excluded; and thereafter, the
registrable securities requested to be included in such offering
pursuant to Section 3.5(a)(i) by the Requesting Holder shall be
excluded; provided, however, that if, in any case where registration
has been requested pursuant to Section 3.5(a)(i) by Polo or the Media
Representative, by reason of the application of this subsection (f)
more than 25% of the registrable securities requested by the Requesting
Holder to be included in such registration shall be excluded therefrom,
then such registration will not count as a Demand Registration
requested by the Requesting Holder pursuant to Section 3.5(a).
(g) A Demand Registration will not be deemed to have
been effected unless the registration statement relating thereto has
become effective; provided that if after it has become effective, the
offering of registrable securities pursuant to such registration is
interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, such
registration will be deemed not to have been effected. Additionally, a
Demand Registration shall not be deemed to have been effected if:
(i) the registration statement relating thereto does
not remain effective, current and usable by the Requesting Holder until
the earlier of (A) three (3) months following the date on which such
registration statement became effective, subject to the last sentence
of Section 3.5(a) herein and (B) the date on which all of the
registrable securities requesting in the Demand Registration to be sold
pursuant to such registration statement are sold;
(ii) after the registration statement relating
thereto has become effective, such registration statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason prior
to the earlier of (A) the four (4) months following the date on which
such registration statement became effective, subject to the last
sentence of Section 3.5(a)
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herein and (B) the date on which all of the registrable securities
requested in the Demand Registration to be sold pursuant to such
registration statement are sold; and
(iii) the conditions to closing specified in any
purchase agreement or underwriting agreement entered into in connection
with such Demand Registration are not satisfied, unless the failure to
satisfy such conditions to closing is due to some act or failure to act
of the Requesting Holder.
(h) If the Requesting Holder specifies in the Holder
Request an underwritten offering, such party or parties shall have the
right, with the approval of the Company, which approval shall not be
unreasonably withheld, to select the managing underwriter; provided,
however, in the event that the Company has elected to include Company
Securities in such offering, the Company shall have the right, with the
approval of a majority of the holders of registrable securities that
have requested to be included in such offering, which approval shall
not be unreasonably withheld, to select the managing underwriter.
(i) The Company will pay all registration expenses
incurred in connection with each Demand Registration effected by it
pursuant to this Section 3.5. The Requesting Holder will be responsible
for underwriters discounts, selling commissions and fees and
disbursements of counsel for the Requesting Holder with respect to the
registrable shares being sold by it.
(j) The Requesting Holder, upon the approval of the
Company, which shall not unreasonably be withheld, shall have the sole
right to determine the offering price per share and underwriting
discounts, if applicable, in connection with a Demand Registration
pursuant to this Section 3.5.
3.6 Piggyback Registrations.
(a) In connection with or after an Initial Public
Offering, if the Company at any time proposes to register any of its
equity securities under the Securities Act (other than a registration
on Form S-4 or S-8 or any successor or similar forms thereto), whether
or not for sale for its own account, on a form and in a manner that
would permit registration of registrable securities for sale to the
public under the Securities Act, it will, within ten days, give written
notice to all the holders of registrable securities of its intention to
do so, describing such securities and specifying the form and manner
and the other relevant facts involved in such proposed registration,
including, without limitation, (x) the intended method to dispose of
the securities offered, including whether or not such registration will
be effected through an underwriter in an underwritten offering or on a
"best efforts" basis, and, in any case, the identity of the managing
underwriter, if any, and (y) the price at which the registrable
securities are reasonably expected to be sold. Upon the written request
of any holder of registrable securities delivered to the Company within
20 calendar days after the receipt of any such notice (which request
shall specify the registrable securities intended to be disposed of by
such holder), the Company will use its commercially reasonable efforts
to effect the registration
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under the Securities Act of all the registrable securities that the
Company has been so requested to register; provided, however, that:
(i) if, at any time after giving such written notice
of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
written notice of such determination to each holder of registrable
securities who shall have made a request for registration as
hereinabove provided and thereupon the Company shall be relieved of its
obligation to register any registrable securities in connection with
such registration (but not from its obligation to pay the registration
expenses in connection therewith);
(ii) if the Company has determined in good faith (A)
that the Company then is unable to comply with its disclosure
obligations (because it would otherwise need to disclose material
information which the Company has a bona fide business purpose for
preserving as confidential) or the SEC requirements in connection with
a registration statement or (B) that the registration and distribution
of registrable securities (or the use of the registration statement or
related prospectus) would interfere with any pending material
financing, acquisition, corporate reorganization or any other material
corporate development involving the Company, the Company may, at its
election, give written notice of such determination to each holder of
registrable securities included in such registration and thereupon the
Company shall be relieved of any obligation to maintain the
effectiveness thereof or amend or supplement such registration
statement; and
(iii) if such registration involves an underwritten
offering, all holders of registrable securities requesting to be
included in the Company's registration must sell their registrable
securities to the underwriters selected by the Company on the same
terms and conditions as apply to the Company and the Requesting Holders
shall enter into the underwriting agreement agreed to between the
Company and such managing underwriter.
(b) The Company shall not be obligated to effect any
registration of registrable securities under this Section 3.6
incidental to the registration of any of its securities in connection
with mergers, acquisitions, exchange offers, dividend reinvestment
plans or stock option or other employee benefit plans.
(c) If a registration pursuant to this Section 3.6
involves an underwritten offering and the managing underwriter advises
the issuer that, in its opinion, the number of securities proposed to
be included in such registration should be limited due to market
conditions, the Company will so advise each holder of registrable
securities that has requested registration pursuant to Section 3.6(a),
and shares shall be excluded from such offering in the following order
until such limitation has been met: first, the registrable securities
requested to be included in such offering by Polo, the Media
Representative and any other holder of registrable securities
requesting to participate therein shall be excluded pro rata, based on
the respective number of registrable securities as to which
registration has been so requested by such parties, until all such
registrable securities shall have been so excluded; and thereafter, the
securities requested to be registered by the Company shall be excluded.
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(d) In connection with any underwritten offering with
respect to which holders of registrable securities shall have requested
registration pursuant to this Section 3.6, the Company shall have the
right to select the managing underwriter with respect to the offering;
provided that such managing underwriter shall be a nationally
recognized investment bank and the Company shall have the right to
choose a co-managing underwriter.
(e) The Company will pay all registration expenses
incurred in connection with each of the registrations of registrable
securities effected by it pursuant to this Section 3.6. In addition,
the Company shall have the sole right to determine the offering price
per share and underwriting discounts in connection with any resale of
registrable shares pursuant to an underwritten offering in connection
with a registration pursuant to this Section 3.6, after consultation
with the selling stockholders and due regard for their view relating
thereto.
3.7 Lock-Up Provision. The Members agree that in
connection with an Initial Public Offering or any subsequent offering
of the Company's equity (other than a demand registration) they will
each agree not to sell any shares of the Company's capital stock for a
180-day period following the consummation of such offering. In
addition, in connection with any demand registrations effected pursuant
to Sections 3.5 and 3.6, respectively, the Members shall each agree to
customary restrictions on the sale of shares of the Company's capital
stock as are determined by the lead underwriters of any such offering
to be necessary in connection therewith.
3.8 Employees and Benefit Matters.
(a) Generally. The Members will use all commercially
reasonable efforts to examine and determine the needs of the Company in
respect of employees and employee benefit matters and to reach a
written agreement on such matters at the earliest practicable date. The
Company shall provide for its management an equity incentive pool of up
to 10% of the fully diluted equity of the Company for the grant of
options, restricted units or interests or any other similar incentive
plan.
(b) Member Responsibility. Each Member will be
responsible for any rights of its (or its respective Affiliates')
respective employees who become employees of the Company which rights
accrued prior to employment by the Company and by virtue of employment
with the Member (or its respective Affiliates), as the case may be,
including any rights accrued under any pension or other benefit plan.
(c) Non-Solicitation. No Member may, directly or
indirectly, solicit the employment of, or hire, any employee of the
Company or of any other Member with whom it has had contact or who
became known to it in connection with the Business, this Agreement or
the Operating Agreement without the prior consent of Polo, in the case
of the Media Members, or the applicable Media Member, in the case of
Polo; provided, however, that the foregoing provisions will not prevent
any Member from employing any such Person (i) who contacts such Member
on his or her own initiative without any direct
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or indirect solicitation by or encouragement from such Member and who
has not been employed by such Member or the Company during the
preceding six months, (ii) who is referred to such Member by a bona
fide employee search firm not specifically directed to contact such
employee or other employees of such Member or the Company or (iii) as
a result of general solicitation, including solicitation in trade
magazines.
3.9 [Reserved]
3.10 Expense Reimbursement. Except as otherwise
provided herein or in the Operating Agreement, the Company will be
responsible for the payment of all its own expenses. The Company will
not be obligated to reimburse the Members for any expenses paid by them
on behalf of the Company, whether out-of-pocket or direct overhead,
except for such items as are agreed to by the Management Committee to
be provided by one of the Members. This provision shall not apply to
any products supplied under the Supply Agreement or services provided
under the Services Agreement.
3.11 The Members as Third Party Beneficiaries. The
Company shall ensure to the extent commercially practicable that each
contract, agreement or other arrangement the Company enters into with
any third party for the purposes of providing services to the Company
shall provide each Member with rights as a third party beneficiary to
enforce such third party contract to the extent that any party to such
third party contract shall act in a manner inconsistent with the terms
of this Agreement or any Ancillary Agreement.
3.12 Deadlocks.
(a) Deadlocks of Managers. In the event that the
Management Committee fails to agree on any matter as to which unanimous
agreement of the Managers is required under this Agreement, the
Operating Agreement or by law, and such deadlock is not resolved within
30 days of the date the Management Committee reaches such deadlock,
Polo and the Media Representative shall use their commercially
reasonable best efforts to resolve such deadlock. In the event that
Polo and the Media Representative fail to agree on any issue, and such
deadlock is not resolved within 30 days following the giving of written
notice of the existence of such deadlock (including a Material
Deadlock) from the Management Committee to the Members or by Polo to
the Media Representative, or vice versa, either Polo or the Media
Representative may request that the Chief Executive Officer of Polo and
the Chief Executive Officer of NBC, or their respective designees, seek
to resolve such deadlock. Within 30 days of the initial request, such
persons or their designees shall meet and use their reasonable best
efforts to resolve the deadlock.
(b) Deadlocks of Members. In the event that the
unanimous consent of Polo and the Media Representative is not received
on any matter as to which such consent is so required in accordance
with the terms of this Agreement, the Operating Agreement or by law,
including Section 5.3, either Polo or the Media Representative may
provide the other party with notice that a deadlock (including, if
applicable, a Material Deadlock) has occurred. Following the delivery
of such notice, Polo and the Media Representative shall
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negotiate in good faith, and shall use their commercially reasonable
best efforts, to resolve such deadlock, and shall include their senior
management in such negotiation process. In the event that Polo and the
Media Representative fail to reach agreement after a period of 30 days
following the giving of written notice of the existence of such
deadlock by Polo to the Media Representative, or vice versa, either
Polo or the Media Representative may request that the Chief Executive
Officer of Polo and the Chief Executive Officer of NBC, or their
respective designees, seek to resolve such deadlock. Within 30 days of
the initial request, such persons or their designees shall meet and
use their reasonable best efforts to negotiate in good faith to
resolve the deadlock (including Material Deadlock).
(c) Continuation of Business. While any deadlock
(including a Material Deadlock) referred to in Section 3.12(a) or
3.12(b) is pending, the Business shall continue to be operated without
interruption consistent with prudent management practices and in a
manner most likely to continue its operations in the ordinary course of
business consistent with the Business Plan and Budget most recently in
effect.
(d) Polo Deadlock Call. It is understood and agreed
that the rights provided to Polo and the Media Members in Sections
3.12(d) and 3.12(e) shall not be exercisable unless the respective
Chief Executive Officers of NBC and Polo (or designees of each) shall
have attempted in good faith to resolve matters that are the subject of
a Material Deadlock. In the event that (i) on or prior to the fifth
anniversary of the date of this Agreement, a Material Deadlock has
occurred and has been continuing uninterrupted for a period of 365 days
and (ii) after the fifth anniversary of the date of this Agreement, in
the event that a Material Deadlock has occurred and has been continuing
uninterrupted for a period of 180 days, in each case, from the date
notice (a "Notice of Material Deadlock") is first provided pursuant to
Section 3.12(b) by either Polo or the Media Representative, as the case
may be, to the other Members that a deadlock has occurred (the
expiration of either such period a "Material Deadlock Event"), Polo
shall have the right (the "Polo Deadlock Call") to purchase from the
Media Members all, but not less than all, of the Media Members'
aggregate Membership Interests in the Company (the "Media Members'
Membership Interests"). If Polo wishes to exercise the Polo Deadlock
Call, then Polo (no later than 60 days following a Material Deadlock
Event) shall provide written notice to the Media Representative, which
notice shall (A) state that Polo proposes to exercise the Polo Deadlock
Call and (B) set forth in reasonable detail the purchase price as
calculated in accordance with Section 3.15(a) and all the material
terms and conditions of the proposed purchase. For purposes of the
foregoing, a Material Deadlock shall be deemed to have occurred if the
party receiving the Notice of Material Deadlock does not dispute such
Material Deadlock by seeking a determination of an arbitrator on or
prior to the 15th day following receipt of such Notice of Material
Deadlock. The closing of such sale will take place as set forth in
Section 3.15(c). If Polo fails to give notice within 60 days following
a Material Deadlock Event, then Polo shall be deemed to have waived the
Polo Deadlock Call and shall have no further right to exercise the Polo
Deadlock Call with respect to such Material Deadlock Event.
(e) Media Members Sale Right. In the event of a
Material Deadlock Event, the Media Members shall have the right (the
"Media Members Sale Right"), at the
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election of the Media Representative, to sell or cause to be sold all,
but not less than all, of the Media Members' Membership Interests in
accordance with the following procedures:
(i) The Media Representative shall give written
notice to Polo no later than 90 days following a Material Deadlock
Event which notice shall state that Media Members propose to effect a
sale of all, but not less than all, their Membership Interest (the
"Media Members Sale Notice"). If the Media Representative fails to give
the Media Members Sale Notice within 90 days following a Material
Deadlock Event, the Media Members shall be deemed to have waived the
Media Members Sale Right and have no further right to exercise the
Media Members Sale Right with respect to such Material Deadlock Event.
The Media Members Sale Notice shall state which of the following rights
the Media Members have determined to give Polo: (x) a right to purchase
the Media Members' Membership Interests at the Fair Market Value as
determined in accordance with clause (B) of the definition of such term
or (y) a right of first refusal in connection with such sale (the
"Election Notice").
(ii) In the event that the Media Representative
elects to provide Polo a right to purchase the Media Members'
Membership Interests at the Fair Market Value as determined in
accordance with clause (B) of the definition of such term, Polo shall,
within 30 days after receiving its Election Notice, deliver to the
Media Representative a written notice stating that Polo would be
willing to buy all, but not less than all, of the Media Members'
Membership Interests at the Fair Market Value as determined in
accordance with clause (B) of the definition of such term (the "Polo
Offer Notice"). If Polo delivers such Polo Offer Notice, the closing of
such sale will take place as set forth in Section 3.15(c). If Polo
determines not to acquire the Media Members' Membership Interests at
the Fair Market Value as determined in accordance with clause (B) of
the definition of such term or does not respond to the Election Notice
within the 30-day period mentioned above, the Media Representative may
then sell to one or more Qualified Buyers (but not more than four) so
long as one of such Qualified Buyers (x) acquires at least 26% of the
Company's voting equity, (y) has an unfettered right to vote on behalf
of all the other Qualified Buyers and (z) the terms of agreement among
such Qualified Buyers are reasonably satisfactory to Polo, subject to
the provisions in this Section 3.12(e)(ii), all but not less than all,
of the Media Members' Membership Interest for any price and for any
type of consideration; provided, however, that such sale is bona fide
and that a bona fide written, binding agreement with respect to such
sale has been reached with one or more Qualified Buyers and delivered
to Polo prior to 180 days from the date of the earlier of the date on
which Polo notifies the Media Representative that it does not wish to
purchase the Media Members' Membership Interests in accordance with
this Section 3.12(e)(ii) or the expiration of the 30-day period
described above. If an agreement of sale is not reached within the
period provided for in this clause (ii), or if an agreement is reached
but the sale is not consummated, then the Media Members shall be deemed
to have waived the Media Members Sale Right with respect to such
Material Deadlock Event. The closing of any sale made in accordance
with the foregoing will take place as set forth in Section 3.15(c).
(iii) In the event that the Media Representative
elects to provide Polo a right of first refusal, the Media
Representative shall, within 180 days after giving its Election Notice,
deliver to Polo an additional written notice stating the purchase price
in
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cash at which the Media Members would be willing to sell all, but not
less than all, of their Membership Interests to a Qualified Buyer or
Buyers (as described below) and all the material terms and conditions
of the proposed sale (the "ROFR Notice"). If the Media Representative
does not deliver to Polo the ROFR Notice within such 180-day period,
the Media Members shall be deemed to have waived the Media Members
Sale Right and have no further right to exercise the Media Members
Sale Right with respect to such Material Deadlock Event. If the Media
Representative does deliver such notice, Polo shall have 30 days from
the date of receipt of the ROFR Notice to elect to acquire all, but
not less than all, of the Media Members' Membership Interests at the
price set forth in the ROFR Notice. If Polo makes such election, the
closing of such sale will take place as set forth in Section 3.15(c).
If Polo fails to notify Media Representative that it wishes to acquire
the Media Members' Membership Interests within the 30-day period
mentioned above, the Media Members, at the election of the Media
Representative, may sell to one or more Qualified Buyers (but not more
than four) so long as one of such Qualified Buyers (x) acquires at
least 26% of the Company's voting equity, (y) has an unfettered right
to vote on behalf of all the other Qualified Buyers and (z) the terms
of agreement among such Qualified Buyers are reasonably satisfactory
to Polo, subject to the provisions in this Section 3.12(e)(iii), all
but not less than all, of their Membership Interests (1) for a
purchase price in cash or marketable securities that is no less than
the aggregate purchase price payable in cash set forth in the ROFR
Notice and (2) upon terms and conditions no more favorable to any
Qualified Buyer than those stated in the ROFR Notice; provided,
however, that such sale is bona fide and that a bona fide written
agreement with respect to such sale has been reached with one or more
Qualified Buyers and delivered to Polo within 30 days from the earlier
of the date on which Polo notifies the Media Representative that it
does not wish to exercise its rights in accordance with this Section
3.12(e)(iii) or the expiration of the 30-day period described above.
If an agreement of sale is not reached within the period provided for
in this clause (iii), or if an agreement is reached but the sale is
not consummated, then the Media Members shall be deemed to have waived
the Media Members Sale Right with respect to such Material Deadlock
Event.
(iv) So long as a Qualified Buyer complies with the
last sentence of Section 3.15(c), any Qualified Buyer's purchase of the
Media Members' Membership Interests under Sections 3.12(e)(ii) and
3.12(e)(iii) shall be deemed to have been authorized by Polo for
purposes of Article XI, in which case such Qualified Buyer shall
automatically succeed to the Media Members' rights as a Member or
otherwise under this Agreement and the Operating Agreement
notwithstanding anything to the contrary that may be contained in
Article XI and the Media Members shall be released from all obligations
under this Agreement and the Operating Agreement other than Section 2.4
of the Operating Agreement (Non-Disclosure) and NBC's obligations to
provide $100 million aggregate credits for advertising time and the
obligations of NBCi and XXXX.xxx in respect of $40 million and $10
million, respectively, of credits in Online Advertising. The closing of
any sale made in accordance with the foregoing will take place as set
forth in Section 3.15(c).
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(v) In the event that the Media Members shall
exercise the Media Members Sale Right, the Company and Polo shall
cooperate with all reasonable requests of the Media Representative to
facilitate such sale.
(f) Notwithstanding the provisions in this Section
3.12 providing for the waiver of the Polo Deadlock Call or the Media
Members Sale Right if notice is not provided on a timely basis, if the
parties continue to be deadlocked with respect to a particular issue
following the occurrence of a Material Deadlock Event, after taking
into account a significant change in the facts and circumstances
surrounding such Material Deadlock Event, such continuing deadlock can
result in a subsequent Material Deadlock Event if the standards set
forth in this Section 3.12 are satisfied and, as a result of such
Material Deadlock, the Polo Deadlock Call and the Media Members Sale
Right would otherwise be exercisable.
3.13 Change of Control.
(a) Change of Control of a Member. Polo or the Media
Representative, as the case may be, shall give written notice to the
other Member no later than ten days after the earlier to occur of (i)
the event constituting a Change of Control and (ii) the execution of a
definitive agreement to effect a Change of Control. Such notice shall
set forth in reasonable detail the circumstances and terms of the
Change of Control, including the identity of the Person acquiring
control of Polo or NBC, as the case may be.
(b) Continuation of Business. Notwithstanding that a
Change of Control has occurred or an agreement to effect a Change of
Control has been executed, the Business shall continue to be operated
without interruption consistent with prudent management practices and
in a manner most likely to continue its operations in the ordinary
course of business consistent with the Business Plan and Budget most
recently in effect.
(c) NBC Change of Control Call. It is understood and
agreed that the rights provided to Polo and the Media Members in
Section 3.13(c) and (d) shall not be exercisable during the Quiet
Period. In the event of a NBC Change of Control, Polo shall have the
right (the "NBC Change of Control Call"), exercisable upon expiration
of the Quiet Period and for 365 days thereafter, to purchase all, but
not less than all, of the Media Members' Membership Interests at a
purchase price determined in accordance with Section 3.15(a). If Polo
wishes to exercise the NBC Change of Control Call, then Polo (no later
than 365 days following expiration of the Quiet Period) shall provide
written notice to the Media Representative, which notice shall (A)
state that Polo proposes to exercise the NBC Change of Control Call and
(B) set forth in reasonable detail the purchase price as calculated in
accordance with Section 3.15(a) and all the material terms and
conditions of such purchase. The closing of such sale will take place
as set forth in Section 3.15(c). If Polo fails to give notice within
365 days following expiration of the Quiet Period, then Polo shall be
deemed to have waived the NBC Change of Control Call.
(d) Polo Change of Control Sale. In the event of a
Polo Change of Control, the Media Members shall have the right (the
"Polo Change of Control Sale"), at
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the election of the Media Representative, to sell all, but not less
than all, of their Membership Interest in accordance with the
following procedures:
(i) The Media Representative shall give written
notice to Polo no later than 365 days following expiration of the Quiet
Period, which notice shall state that the Media Members propose to
effect a sale of their Membership Interest and that Polo shall have the
right to purchase all, but not less than all, the Media Members'
Membership Interests at the Fair Market Value as determined in
accordance with clause (B) of the definition of such term (the "Change
of Control Notice"). If the Media Representative fails to give the
Change of Control Notice within 365 days following expiration of the
Quiet Period, then the Media Members shall be deemed to have waived the
Polo Change of Control Sale.
(ii) Polo shall, within 60 days after receiving the
Change of Control Notice, deliver to the Media Representative a written
notice stating that Polo would be willing to buy all, but not less than
all, of the Media Members' Membership Interests at the Fair Market
Value as determined in accordance with clause (B) of the definition of
such term. If Polo delivers such notice, the closing of such sale will
take place as set forth in Section 3.15(c). If Polo notifies the Media
Representative that it has determined not to acquire the Media Members'
Membership Interests at the Fair Market Value as determined in
accordance with clause (B) of the definition of such term or does not
respond to the Change of Control Notice within the 60-day period
mentioned above, the Media Representative may then sell all but not
less than all of the Media Members' Membership Interests for any price
and for any type of consideration to one or more Qualified Buyers (but
not more than four) so long as one of such Qualified Buyers (x)
acquires at least 26% of the Company's voting equity, (y) has an
unfettered right to vote on behalf of all the other Qualified Buyers
and (z) the terms of agreement among such Qualified Buyers are
reasonably satisfactory to Polo.
3.14 Polo Buyout Right.
(a) For a 90-day period commencing upon the date of
delivery of the first set of audited financial statements after the
twelfth anniversary of this Agreement, and thereafter every three years
for a 90-day period commencing upon the date of delivery of the audited
financial statements in respect of the fifteenth and every third Fiscal
Year of the Company thereafter, Polo shall have the right (the "Polo
Buyout Right") to purchase all, but not less than all, of the Media
Members' Membership Interests at a purchase price in cash determined in
accordance with Section 3.15(a).
(b) If Polo wishes to exercise the Polo Buyout Right,
then Polo shall provide (i) a written notice to the Media
Representative within the 90-day period prior to the tenth anniversary
of the date of this Agreement and on each successive three year
anniversary of such date (the "Preservation Notice"), which notice
shall state that Polo wishes to preserve the Polo Buyout Right and (ii)
a written exercise notice to the Media Representative within the period
referred to in Section 3.14(a) (the "Purchase Price Notice"), which
notice shall set forth in reasonable detail the purchase price as
calculated in accordance with Section 3.15(a) and all the material
terms and conditions of such
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purchase. If Polo fails to give either the Preservation Notice or the
Purchase Price Notice to the Media Representative within the
applicable time period, then Polo shall be deemed to have waived the
Polo Buyout Right until the commencement of the next applicable
period. The closing of such sale will take place as set forth in
Section 3.15(c). In the event that Polo gives the Media Representative
the Preservation Notice, the Media Members shall have no further
obligations under Section 3.2 of the Operating Agreement, provided,
however, that if Polo does not give the Purchase Price Notice, or
advises the Media Representative that it has waived its right to give
the Purchase Price Notice, then Section 3.2 of the Operating Agreement
shall be reinstated except that any bona fide arrangements entered
into by any Media Member prior to the earlier of the date on which the
Polo Buyout Right Notice may be exercised or 90 days from the date of
such advice by Polo shall not be deemed to be a violation of Section
3.2 of the Operating Agreement.
3.15 Material Deadlock, Change of Control and
Polo Buyout Right, Pricing, Deferred Compensation and Closing.
(a) Price of the Media Members Membership Interests.
(i) In the event of the exercise of a Polo Deadlock Call, an NBC Change
of Control Call or a Polo Buyout Right where the purchase price is
determined by reference to Fair Market Value, the purchase price for
the Media Members' Membership Interests, which shall be payable as set
forth in Section 3.15(c), shall be equal to the Fair Market Value of
the Media Members' Membership Interests, as determined in accordance
with clause (A) of the definition of such term, as of the date of
Polo's notice of exercise of such Polo Deadlock Call, the NBC Change of
Control Call or the Polo Buyout Right; and (ii) in the event of the
exercise of the Media Members Sale Right or Polo Change of Control
Sale, the purchase price for the Media Members' Membership Interests,
which shall be payable as set forth in Section 3.15(c), shall be equal
to the Fair Market Value of the Media Members' Membership Interests as
determined in accordance with clause (B) of the definition of such
term, as of the date of the Media Representative's notice of the
exercise of the Media Members Sale Right or the Polo Change of Control
Sale.
(b) [Reserved]
(c) Closing. The closing with respect to any exercise
of the Polo Deadlock Call, the Media Members Sale Right, the NBC Change
of Control Call, the Polo Change of Control Sale or the Polo Buyout
Right shall take place at the principal office of the Company on the
later to occur of (i) the tenth Business Day after final determination
of Fair Market Value or the entering into by the Media Representative
and a Qualified Buyer of a definitive purchase agreement, whichever is
later, or (ii) the date that all orders, consents and approvals of
Governmental Authorities legally required for the closing of such sale
have been obtained and are in effect, it being understood that the
Members shall use their commercially reasonable best efforts to obtain
all such orders, consent and approvals as promptly as practicable. At
such closing, to the extent that Polo is purchasing the Media Members'
Membership Interests, Polo shall deliver cash or a certified check or
checks in the appropriate amount against the delivery of a duly
executed assignment of the Membership Interest so purchased. Such
Membership Interest shall be delivered to Polo free and clear of all
Liens of any nature whatsoever. In the case of a
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Qualified Buyer, the Qualified Buyer shall agree to be bound by, and
become a party to, all the terms of this Agreement and the Operating
Agreement.
(d) Services Agreement. The Services Agreement shall
remain in full force and effect in accordance with its terms following
the consummation of any sale pursuant to the exercise of the Polo
Deadlock Call, the Media Members Sale Right, the NBC Change of Control
Call, the Polo Change of Control Sale or the Polo Buyout Right, except
that (i) at ValueVision's option, the cost of the services provided by
ValueVision thereunder shall be modified to provide ValueVision with
payment for such services at the fair market value thereof, as would be
negotiated in an arm's length transaction between two willing parties,
(ii) the term of such continuation shall not exceed two years and (iii)
the renewal of the Services Agreement thereafter shall be subject to
the mutual consent of the Company and ValueVision.
3.16 Media Members IPO Right. In the event that (i)
the Media Representative provides Polo with a Notice of Material
Deadlock on account of the failure of Polo and the Media Representative
to agree to an Initial Public Offering after the fifth anniversary, the
tenth anniversary, the 12th anniversary and every third anniversary
thereafter, in each case of the Closing Date, (ii) after the requisite
time period has elapsed, the Media Representative exercises the Media
Members Sale Right, and (iii) neither Polo nor a Qualified Buyer
purchases the Media Members' Membership Interests at Fair Market Value
(as defined in clause (A) of the definition of such term) or greater
for a one-year period commencing on the date of the Media
Representative's notice of the exercise of the Media Members Sale
Right, the Media Representative, after such a one-year period, shall
have the right (the "Media Member IPO Right") to require the Company to
consummate an Initial Public Offering in accordance with the Demand
Registration provisions of Section 3.5 and in a manner consistent with
the prestige of the Members' brands, which the Company shall use its
reasonable best efforts to consummate within 180 days of such request
on the part of the Media Representative. The lead underwriter for any
such Initial Public Offering shall be a nationally recognized (i.e.
"bulge bracket") investment bank. Any Initial Public Offering in
connection with this Section 3.16 or otherwise shall be subject to (a)
conversion of a portion of the royalty under the License Agreement in
accordance with Section 8.10 and (b) conversion of the Company into
corporate form and the adoption of mutually acceptable governance
provisions to Polo and the Members, the approval of such governance
provisions by each Member not to be unreasonably withheld. In
connection with the conversion of the Company to a corporation for
purposes of effecting an Initial Public Offering, the Members shall
receive equity in the Company in proportion to their respective Sharing
Ratios at the time of such conversion.
3.17 Certain Restrictions. In the event that (a) (i)
one or more Members reasonably and in good faith believes that
Additional Capital Contributions are required in order to fund the
Company's reasonably anticipated capital and operating needs for the
twelve months following the request of such Member therefor (after
having exhausted the ValueVision Commitment, giving effect to any
ValueVision Additional Contributions to be made concurrently with such
proposed Additional Capital Contributions) or (ii) the Company is in
default under the License Agreement as a result of a failure to pay the
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royalties due thereunder and Additional Capital Contributions would be
required in order to provide the Company with sufficient cash to cure
such default and avoid the termination by the Licensor of the License
Agreement in accordance with its terms, (b) the Company is unable to
raise the required capital plus sufficient capital to fund its capital
and operating needs for an additional twelve months on a prudent basis
and on commercially reasonable terms through bank borrowings or
otherwise in the capital markets and (c) Polo is unwilling or unable to
commit to fund its share of any such Additional Capital Contributions
but one or more of the Original Media Members is willing and able to
fund the aggregate amount of all such Additional Capital Contributions
required of the Original Media Members, as evidenced by appropriate
supporting documentation, including all necessary corporate and
shareholder action of the Original Media Members and their shareholders
to authorize such funding and, as a result of the foregoing, in the
case of clause (a) (i), a liquidation, dissolution, winding up,
voluntary bankruptcy or insolvency of the Company occurs, or the
Company shall have ceased to have any substantial ongoing operations,
and in the case of clause (a) (ii), Licensor shall terminate the
License Agreement in accordance with its terms, neither Polo nor its
Affiliates will be permitted to engage in the Business, directly or
indirectly, or license or otherwise authorize any third party to engage
in the Business, for a period of three years following such termination
without the prior written consent of the Media Representative, and Polo
shall be relieved of its obligations under Section 2.6 of the Operating
Agreement.
ARTICLE IV
RIGHTS AND REPRESENTATIONS AND WARRANTIES OF MEMBERS
4.1 Members' Rights. No Member will have any actual,
implied or apparent authority to enter into contracts on behalf of, or
to otherwise bind, the Company, nor take any action in the name of, or
on behalf of, the Company or conduct any business of the Company other
than by action of both Polo and the Media Representative.
4.2 Representations and Warranties. Each Member
represents and warrants to the Company and the other Members as
follows:
(a) Due Organization. Such Member is a corporation
duly organized, validly existing and in good standing under the laws of
the state of its incorporation. Such Member is duly qualified to
transact business and is in good standing as a foreign corporation in
each jurisdiction where its ownership or leasing of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have, individually or in the
aggregate, a Material Adverse Effect. Such Member has the requisite
power and authority to own, lease and operate its properties and to
conduct its business as presently conducted;
(b) Authorization and Validity of Agreement. Such
Member has all requisite power and authority to enter into this
Agreement and the Ancillary Agreements to which it is a party and to
perform its obligations hereunder and thereunder. The execution,
delivery and performance by such Member of this Agreement and the
Ancillary Agreements to which it is a party and the consummation by
such Member of the
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transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action on the part of such Member. This
Agreement and the Ancillary Agreements to which such Member is a party
have been duly executed and delivered by such Member and constitute
valid and legally binding obligations of such Member, enforceable
against such Member in accordance with their respective terms;
(c) No Breach or Government Approvals. The execution,
delivery and performance by such Member of this Agreement and the
Ancillary Agreements to which such Member is a party and the
consummation by such Member of the transactions contemplated hereby and
thereby will not (i) conflict with or result in a breach of any
provision of the charter or bylaws of such Member, (ii) require any
consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, (iii) require the consent
or approval of any Person (other than a Governmental Authority) or
violate or conflict with, or result in a breach of any provision of,
constitute a default (or an event which with notice or lapse of time or
both would become a default) or give to any third party any right of
termination, cancellation, amendment or acceleration under, or result
in the creation of a lien under, any of the terms, conditions or
provisions of any contract or license to which such Member is a party
or by which it or its assets or properties are bound, or (iv) violate
or conflict with any law, order, writ, injunction, decree, statute,
rule or regulation applicable to such Member, except, in the case of
items (ii), (iii) and (iv) above only, for those which, individually or
in the aggregate, would not have a Material Adverse Effect;
(d) Certain Fees. Neither such Member nor its
officers, directors or employees, on behalf of such Member, has
employed any broker or finder or incurred any other liability for any
brokerage fees, commissions or finders' fees in connection with the
transactions contemplated hereby or by the Ancillary Agreements, except
in the case of Polo, for Credit Suisse First Boston Corporation, all of
whose fees shall be borne by Polo;
(e) Legal Proceedings. There is no litigation,
proceeding or governmental investigation to which such Member or any of
its Affiliates is a party pending or, to the knowledge of such Member
and its Affiliates, threatened against any of them that relates to the
Business or to the Capital Contribution of such party or the
transactions contemplated by this Agreement or by the Ancillary
Agreements which could, either individually or in the aggregate, result
in a Material Adverse Effect or which seeks to restrain or enjoin the
consummation of any of the transactions contemplated hereby or by the
Ancillary Agreements. Neither such Member nor any of its Affiliates is
in violation of any term of any judgment, writ, decree, injunction or
order entered by any court or Governmental Authority (domestic or
foreign) and outstanding against such Member or its Affiliates or with
respect to the Business or to the Capital Contribution of such Member,
except for such violations which could not, individually or in the
aggregate, have a Material Adverse Effect;
(f) Employee Benefits Programs.
(i) The Member Plans (as defined below) are in
compliance in all material respects with all applicable requirements of
Section 3(3) of the Employee
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Retirement Income Security Act of 1974, as amended ("ERISA"), the
Code, and other applicable laws and have been administered in all
material respects in accordance with their terms and such laws. Each
Member Plan which is intended to be qualified within the meaning of
Section 401 of the Code has received a favorable determination letter
as to its qualification, and nothing has occurred that could
reasonably be expected to cause the loss of such qualification;
(ii) There are no pending or, to the knowledge of
each of the Members, threatened claims and no pending or, to the
knowledge of each of the Members, threatened litigation with respect to
any Member Plans, other than ordinary and usual claims for benefits by
participants and beneficiaries; and
(iii) No event has occurred and no condition exists
that could reasonably be expected to result in material liability to
the Company under Title IV of ERISA. "Member Plans" shall mean each
material "employee benefit plan" (within the meaning of ERISA),
severance, change in control or employment plan, program or agreement,
and vacation, incentive, bonus, stock option, stock purchase, and
restricted stock plan, program or policy sponsored or maintained by
each Member or its Subsidiaries, in which any present or former
employee of such Member has any present or future right to benefits or
under which each Member or its Subsidiaries has any present or future
liability.
(g) SEC Filings. Polo has filed all forms, reports,
statements, schedules, registration statements and other documents
required to be filed with the SEC since April 3, 1999 (the "SEC
Reports"). Except to the extent revised or superseded by a subsequent
filing with the SEC, none of the SEC Reports filed prior to the date
hereof contains any untrue statement of a material fact or omits to
state a material fact required to be stated or incorporated by
reference therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Each of the Media Members and Polo confirms that as of the
date hereof, the Ancillary Agreements do not constitute material
agreements required to be publicly filed by any Member with the SEC as
exhibits pursuant to Item 601 of Regulation S-K.
(h) Acknowledgment. Such Member acknowledges that it
is acquiring its Membership Interest for its own account as an
investment and without an intent to distribute such Membership Interest
and that its Membership Interest has not been registered under the
Securities Act, as amended, or any state securities laws, and may not
be resold or transferred without appropriate registration or the
availability of an exemption from such requirements.
4.3 Title to Company Assets. Except as otherwise set
forth herein or in any Ancillary Agreement all Company Assets, wherever
located, will be owned by the Company as an entity, and no Member,
individually, will have, by reason of being a Member, any ownership of
such assets. The Company may hold the Company Assets in its own name or
in the name of a nominee, which may be a Member or an Affiliate thereof
or any trustee or agent, agreed upon by the Members.
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ARTICLE V
MANAGEMENT
5.1 Management by Managers. Except for situations in
which the approval of Polo and the Media Representative is expressly
required by Section 5.3, this Agreement, the Operating Agreement or by
nonwaivable provisions of applicable law, (i) the powers of the Company
will be exercised by or under the authority of, and the business and
affairs of the Company will be managed under the direction of, a
committee of Managers (the "Management Committee"), and (ii) the
day-to-day activities of the Company will be conducted by the CEO and
the other Officers, who will be agents of the Company.
5.2 Management Committee.
(a) Number; Composition. The number of Managers of
the Company will be a number agreed upon by Polo and the Media
Representative from time to time. Initially, the number of Managers
will be six. No Manager may be an Officer or employee of the Company.
(b) Appointment of Managers. Polo, on the one hand,
and the Media Members, collectively, on the other hand, shall appoint
an equal number of individuals to serve as their representative
Managers. The Media Members hereby initially appoint Xxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxxxxx as Managers (collectively, the
"Media Managers"), and Polo hereby initially appoints F. Xxxxx Xxxxx,
Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx as Managers (collectively, the
"Polo Managers"). In addition, the CEO shall have a non-voting seat on
the Management Committee.
(c) Voting. For purposes of taking any action or
voting on any matter coming before the Management Committee, the Media
Managers will collectively have one vote and the Polo Managers will
collectively have one vote.
(d) Quorum. At all meetings of the Management
Committee, the presence in person, by telephone or by proxy at a
meeting of at least one Media Manager and at least one Polo Manager
will constitute a quorum at any meeting for the transaction of
business, unless a greater number is required by law.
(e) Required Vote for Action. All Management
Committee actions will require the unanimous affirmative vote of the
Media Managers and the Polo Managers voting in accordance with clause
(c) above.
(f) Term. Each Manager will hold office until his or
her successor has been appointed and qualified, or until the earlier of
his or her death, resignation or removal as provided in this Agreement.
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(g) Vacancy. Any vacancy occurring in the Managers
may be filled only by the Member, or by the Media Representative on
behalf of the Media Members, that originally appointed such Manager.
(h) Removal. Any Manager may be removed at any time,
with or without cause, only by the Member, or by the Media
Representative on behalf of the Media Members, that appointed such
Manager.
(i) Resignation. Any Manager may resign at any time
upon written notice to the Management Committee and Polo and the Media
Representative. Such resignation will take effect at the time specified
in the written notice or, if no time is specified therein, at the time
of its receipt by Polo and the Media Representative; provided, however,
that acceptance of a resignation will not be necessary to make it
effective, unless so expressly provided in the resignation.
5.3 Action Requiring Unanimous Vote of Polo
Managers and the Media Managers; Unanimous Vote of the Members.
(a) Unanimous Vote of the Managers. The following
actions may be taken only upon the unanimous affirmative vote of the
Polo Managers and the Media Managers (voting in accordance with Section
5.2(c)) and upon such unanimous vote, the right, power and authority to
take any of such actions may be delegated to one or more Managers or
Officers:
(i) any act by the Company in contravention of this
Agreement, any Ancillary Agreement or the Business Purpose;
(ii) amendment or modification to this Agreement, the
Certificate of Formation or any Ancillary Agreement other than as set
forth in Section 2.6 of the Operating Agreement;
(iii) admission of additional Members or issuance of
additional Membership Interests or other equity securities, including
any award of equity to the Company's employees, excluding permitted
transfers of Membership Interests in accordance with Sections 3.12,
3.13, 3.14, 3.15 or Article XI;
(iv) approval of any Business Plan (other than the
Initial Plan) as provided in Section 5.4 and any amendments to, or
material deviations from, or commitments that would cause material
deviations therefrom, including the making of, or any commitment to
make, any individual or related group of capital expenditures in excess
of $75,000 above the amount(s) specified in the then current Business
Plan;
(v) declaration of Distributions to Members;
(vi) merger or consolidation into or with, or
acquisition of all or part of the business of, another Person;
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(vii) liquidation, dissolution, winding up, voluntary
bankruptcy or insolvency of the Company;
(viii) sale, lease, transfer or other Disposition of
any Company Asset or group of Company Assets having a fair market value
or a book value in excess of $100,000 in any single transaction or
series of related transactions;
(ix) other actions which materially affect all or a
substantial portion of the Company Assets or the Business;
(x) issuance, purchase or redemption by the Company
of any securities of the Company and any change, increase or reduction
in the capitalization of the Company, including any Initial Public
Offering;
(xi) incurrence or guarantee by the Company of
indebtedness for money borrowed, or incurrence of any obligation on
behalf of the Company, or the grant of any pledge, mortgage, security
interest or other encumbrance of any Company Asset, which would cause
the aggregate of all such indebtedness, obligations and security
interests (without duplication of amounts) to exceed $1,000,000, except
for obligations incurred pursuant to the then current Business Plan;
(xii) guarantee, assurance or undertaking of the
performance of any contract by any third party, any Member or any
Affiliate of any Member;
(xiii) transactions between the Company, on the one
hand, and the Company's Affiliates (other than the Company's
wholly-owned subsidiaries), a Member or a Member's Affiliates, on the
other hand, which involves an aggregate amount in excess of $100,000 in
any single transaction or series of related transactions and which is
not pursuant to the then current Business Plan;
(xiv) entrance into, amendment, modification or
termination of any agreement or group of related agreements of the
Company involving consideration in excess of $100,000 other than in the
ordinary course of business or pursuant to the then current Business
Plan or in accordance with Section 2.6 of the Operating Agreement;
(xv) employment actions with respect to the hiring,
termination and compensation of the CEO and any other senior level
officers other than those referred to in Section 6.1, and approving,
amending, modifying, waiving, renewing, extending or terminating any
employment agreement with any employee (including Officers) of the
Company which provides for annual total compensation (including payment
in kind and in equity interests) in excess of $200,000;
(xvi) change of the Fiscal Year;
(xvii) change of the Auditors;
(xviii) requiring Additional Contributions by the
Members as provided in Section 8.2;
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(xix) approval of the annual audited and unaudited
quarterly financial statements of the Company;
(xx) the initiation, commencement or settlement of
any material claim, litigation or arbitration to which the Company is,
or is to be, a party ("Litigation") involving or potentially involving
an amount in excess of $250,000, except that (A) any Litigation
relating to the Marks shall not require the consent of, and cannot be
brought by, the Media Representative, subject to Section 3.1 of the
Operating Agreement and Section 5.3 of the License Agreement, and (B)
any Litigation brought by a Member to enforce the rights of the Company
against another Member shall not require the consent of the Member
against whom the Litigation is brought, it being understood that in the
event that the Company has a claim against Polo or one of the Media
Members, the Media Representative (in the case of a claim against Polo)
or Polo (in the case of a claim against any of the Media Members),
shall have the right to control the Company's enforcement of such
claim;
(xxi) amending the Business Purpose or otherwise
entering a line of business not expressly contemplated by the terms of
this Agreement or the Operating Agreement; and
(xxii) any decision, or the entering into of any
agreement, commitment or arrangement, to effect any of the foregoing.
(b) Unanimous Vote of the Members. The following
actions may be taken only upon the unanimous affirmative vote of the
Members, and upon such unanimous vote, the right, power and authority
to take any of such actions may be delegated to one or more Managers or
Officers:
(i) amendment or modification to this Agreement, the
Certificate of Formation or any Ancillary Agreement other than
as set forth in Section 2.6 of the Operating Agreement; and
(ii) merger or consolidation into or with, or
acquisition of all or part of the business of, another Person.
5.4 Business Plan.
(a) Not later than 45 days prior to the end of each
Fiscal Year, the CEO shall present to the Management Committee a
written business plan for the Company for the following Fiscal Year
(the "Business Plan"), which will include a Budget for the following
Fiscal Year, advertising and marketing plan and three-year strategic
plan with projected capital requirements. The Management Committee
shall review such Business Plan and its adoption will be subject to the
approval of the Management Committee in accordance with Section 5.2(e).
The Members shall use commercially reasonable efforts to agree to and
adopt an "Initial Business Plan" within 90 days of the date of this
Agreement.
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(b) In the event that Polo and the Media
Representative are unable to reach agreement on the Budget for any
Fiscal Year, the Members agree that the Company shall operate without
interruption consistent with prudent management practices and in a
manner most likely to continue its operations in the ordinary course of
business consistent with past practice.
(c) In addition, the Management Committee shall adopt
an operations manual, which will set forth, in reasonable detail,
procedures relating to sales processing, billing, returns and other
similar matters, including ticketing information, purchase orders,
invoices and sales slips (the "Operations Manual"). To the extent any
business materials utilize a Xxxx, use of such Xxxx shall be in
accordance with the standards referred to in Sections 2.1(a) and 2.3(d)
of the Operating Agreement.
(d) Notwithstanding anything else set forth in this
Section 5.4 or elsewhere in this Agreement or the Operating Agreement,
the Budget for each year shall be required to include, and the Company
shall be authorized to spend, all amounts required by the Annual
Advertising Obligation and all amounts required by the License
Agreement.
5.5 Limitation on Management Committee Authority.
Except as otherwise specifically provided in this Agreement or the
Operating Agreement or by agreement of Polo and the Media
Representative, (i) no Manager or group of Managers will have any
actual, implied or apparent authority to enter into contracts on behalf
of, or to otherwise bind, the Company, nor take any action or incur any
obligation, liability, debt, cost or expense in the name of or on
behalf of the Company or conduct any business of the Company other than
by action of the Management Committee taken in accordance with the
provisions of this Agreement, and (ii) no Manager will have the power
or authority to delegate to any Person such Manager's rights and powers
as a Manager to manage the business and affairs of the Company.
5.6 Meetings of the Management Committee. The
Management Committee may meet from time to time but will meet at least
quarterly to discuss generally the business of the Company. Meetings of
the Management Committee may be called by either Polo or the Media
Representative. The Member calling any meeting will cause notice to be
given of such meeting, including therein the time, date and place of
such meeting, to each Manager at least two Business Days before such
meeting. The business to be transacted at, or the purpose of, any
meeting of the Management Committee will be specified in the notice.
Attendance of a Manager at any meeting will constitute a waiver of
notice of such meeting, except where a Manager attends a meeting for
the express purpose of objecting to the transaction of any business on
the ground that the meeting is not lawfully called or convened. All
meetings of the Management Committee may be held either within or
without the State of Delaware at such place or places as determined
from time to time by the Managers. If a quorum is not present in
person, by telephone or by proxy at any meeting of the Management
Committee, the Managers present in person, by telephone or by proxy at
the meeting may adjourn the meeting from time to time, without
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notice other than announcement at the meeting, until a quorum shall be
present in person, by telephone or by proxy.
5.7 Methods of Voting; Proxies. A Manager may vote
either in person, by telephone or by proxy executed in writing by such
Manager, provided, however, that the Person designated to act as proxy
is a Manager. A photocopy, facsimile or similar reproduction of a
writing executed by a Manager will be treated as an execution in
writing for purposes of this Section 5.7. Proxies for use at any
meeting of the Management Committee or in connection with the taking of
any action by written consent will be filed with the Management
Committee, before or at the time of the meeting or execution of the
written consent, as the case may be. No proxy will be valid after 30
calendar days from the date of its execution unless otherwise provided
in the proxy. A proxy will be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is
coupled with an interest. A proxy may designate only one Manager to act
as proxy.
5.8 Order of Business. The Management Committee may
adopt such rules and procedures relating to its activities as it may
deem appropriate, provided that such rules and procedures are not
inconsistent with or do not violate the provisions of this Agreement,
and provided that such rules and procedures permit telephonic meetings
and provided that one Media Manager and one Polo Manager will be
required to attend Management Committee meetings for a quorum to be
present. The secretary of the meeting shall prepare minutes of the
meeting and place a copy thereof in the minute books of the Company. A
copy of the minutes of the meeting will be delivered promptly to each
Manager and each Member.
5.9 Actions Without a Meeting. Any action required or
permitted to be taken at a meeting of the Management Committee may be
taken without a meeting, without notice and without a vote, if a
consent in writing, setting forth the action so taken, is signed by one
Media Manager and one Polo Manager. Such consent will have the same
force and effect, as of the date stated therein, as a vote of the
Managers and may be stated as such in any document or instrument filed
with the Secretary of State of the State of Delaware or in any
certificate or other document delivered to any person or entity. The
signed consent will be placed in the minute book of the Company.
5.10 Telephone and Similar Meetings. The Managers may
participate in and hold meetings by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other. Such participation in
any such meeting will constitute presence in person at such meeting,
except where a Person participates in such meeting for the express
purpose of objecting to the transaction of any business on the ground
that such meeting is not lawfully called or convened.
5.11 Compensation of Managers. Managers will not
receive any salary for their services.
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5.12 Media Representative. No action required to be
taken (including the granting or denial of any required consent or
approval) by the Media Representative hereunder shall be unreasonably
delayed because of the need of the Media Representative to consult with
the Media Members. The Media Representative has delivered (or will
deliver, to the extent any such agreements, arrangements or
understandings are entered into or modified after the date of this
Agreement) to Polo copies or summaries of the provisions of any
agreements, arrangements or understandings in place among any of the
Media Members and/or the Media Representative with respect to the
exercise of any of their respective governance or consent rights or
obligations hereunder.
5.13 Waiver of Certain Claims. Each Member hereby
agrees, on behalf of itself and its Affiliates, to waive and to release
and hold harmless any officers or employees of any of the Members, or
any individuals serving at the request of any of the foregoing, who
serve as Managers of the Company from any liability whatsoever in
respect of any alleged breach of fiduciary duty in the discharge of
such persons' duties as Managers of the Company.
ARTICLE VI
OFFICERS
6.1 Designation Term; Qualifications. Subject to
Section 5.3, Polo and the Media Representative together, or the
Management Committee may, from time to time, designate and appoint the
chief executive officer of the Company ("CEO"). The CEO so designated
will have the authority to retain executive-level officers and
employees of the Company (the "Officers"); provided, however, that with
respect to the Vice President of Public Relations, the Vice President
of Advertising & Marketing and the Vice President of Merchandising (i)
Polo shall propose to the CEO a number of qualified individuals for
those positions (which may involve combining two positions), (ii) the
CEO shall then choose among the nominated individuals the persons most
qualified for the positions of Vice President of Public Relations, Vice
President of Advertising & Marketing and Vice President of
Merchandising that he will then recommend to the Media Representative,
and (iii) the Media Representative's consent shall be required for each
such individual's appointment, which consent shall not be unreasonably
withheld; provided, further, that with respect to the chief financial
officer ("CFO") (A) the Media Representative shall propose to the CEO a
number of qualified individuals for the position of CFO, (B) the CEO
shall then choose among the nominated individuals the persons most
qualified for the position of CFO that he will then recommend to Polo,
and (C) Polo's consent shall be required for such individual's
appointment, which consent shall not be unreasonably withheld. Any
Officer so designated will have such authority and perform such duties
as Polo and the Media Representative together or the Management
Committee may, from time to time, delegate to them. Polo and the Media
Representative together or the Management Committee may assign titles
to particular Officers, and the assignment of such title will
constitute the delegation to such Officer of the authority and duties
that are normally associated with such office in a corporation for
profit incorporated under the General Corporation Law of the State of
Delaware, subject to any specific delegation of
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authority and duties made to such Officer by Polo and the Media
Representative together or the Management Committee pursuant to this
Section 6.1. Each Officer will hold office for the term for which such
Officer is designated and until such Officer's successor is duly
designated and qualified or until the earlier of such Officer's death,
resignation or removal as provided in this Agreement. Any person may
hold any number of offices. No Officer may be a Manager or a Member,
and an Officer need not be a Delaware resident or a United States
citizen. All Officers will be natural persons. Designation of a person
as an Officer of the Company will not of itself create any contract
rights.
6.2 Chief Executive Officer. Subject to the
supervision and authority of Polo, the Media Representative and the
Management Committee, the CEO (i) will be the chief executive officer
of the Company, (ii) will have responsibility and authority for
management of the day-to-day operations of the Company in a manner
generally consistent with the Business Plan and the Business Purpose
and in the best interests of the Company, independent of the separate
business interests of the Members, (iii) will keep the Members informed
of the affairs of the Company, (iv) subject to Section 6.1, will retain
and terminate Officers and (v) will be empowered to and will engage in
all appropriate and necessary activities to accomplish the purposes of
the Company as set forth herein. Polo and the Media Representative
shall cause the Company to employ at all times as Chief Executive
Officer an individual with suitable qualifications and experience in
the operation of an e-commerce operation such as the Site, and, if
reasonably possible, in the operation of a direct marketing vehicle
such as the Catalog, it being understood that if the CEO does not have
sufficient experience in the operation of a direct marketing vehicle,
the Company shall hire an executive to be responsible for such
operations who does.
6.3 Chief Financial Officer. Subject to the
supervision and authority of Polo, the Media Representative and the
CEO, the CFO will keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of accounts, of the
properties and business transactions of the Company, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses,
capital and Membership Interests. The CFO will perform all the duties
incident to the office of chief financial officer and such other duties
as from time to time may be assigned to the CFO.
6.4 Vice President. The CEO shall appoint one or more
Vice Presidents of the Company (a "Vice President"), except as provided
in Sections 5.3(xv) and 6.1. Each Vice President will have such powers
and duties as generally pertain to the office of Vice President and as
the CEO or the Management Committee may from time to time prescribe.
6.5 Secretary. The CEO shall appoint a secretary of
the Company (the "Secretary"). The Secretary, at the direction of the
CEO and the Management Committee, will prepare and distribute to each
Manager an agenda in advance of each meeting and will prepare and
distribute to each Manager and each Member written minutes of all
meetings of the Management Committee and the Members. The Secretary
also will be responsible for preparing and distributing to the
Managers and the Members
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any notices received by the Company or otherwise called for by this Agreement or
the Operating Agreement to be given by the Company.
6.6 Treasurer. The CEO shall appoint a treasurer of the Company (the
"Treasurer"). Subject to the supervision and authority of the CEO and the
Management Committee, the Treasurer will (i) have charge of and be responsible
for the receipt, disbursement and safekeeping of funds and securities of the
Company, (ii) deposit all funds of the Company in the name of the Company in
such banks, trust companies or other depositories as directed by the Management
Committee and (iii) perform all the duties incident to the office of treasurer
and such other duties as from time to time may be assigned to the Treasurer.
6.7 Other Officers. The Management Committee may designate any other
Officers of the Company, including one or more Assistant Secretaries and one or
more Assistant Treasurers, who will exercise the powers and will perform the
duties incident to their offices, subject to the direction of the Management
Committee.
6.8 Removal and Resignation. Any Officer may be removed as such, with
or without cause, by the CEO or the Management Committee whenever in his or
their judgment the best interests of the Company will be served thereby. Any
Officer may resign as such at any time upon written notice to the Management
Committee, and in the case of the CEO only, to Polo and the Media
Representative. Such resignation will take effect at the time specified in the
written notice or, if no time is specified therein, at the time of its receipt
by Polo and the Media Representative or the CEO, as the case may be. The
acceptance of a resignation will not be necessary to make it effective, unless
expressly so provided in the resignation.
6.9 Vacancies. Subject to Section 6.1, any vacancy occurring in any
office of the Company may be filled by the CEO.
6.10 Duties. The Officers shall manage the Company's business
activities in the Company's best interests.
ARTICLE VII
MEETINGS OF MEMBERS
7.1 Meetings of Members. A meeting of the Members may be called at any
time by Polo or the Media Representative to vote on, or to obtain consent for,
any action which, pursuant to this Agreement or the Operating Agreement, permits
or requires a vote or consent of Polo and the Media Representative or Polo and
the Media Members. The Members will meet at least once in each Fiscal Year.
7.2 Place of Meetings of Members. Unless the date, time, and place of
the meeting is designated by either Polo or the Media Representative calling a
meeting, such meeting will be held at the principal office of the Company.
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7.3 Notice of Meetings of Members.
(a) Except as otherwise provided by law, written or printed notice
stating the date, time and place of each meeting of the Members, and the purpose
or purposes for which the meeting is called, will be given to each Member not
less than five Business Days before the date of the meeting.
(b) Any notice to be given to the Members for any Meeting will be
deemed to be waived by any party who (i) attends such Meeting without protesting
prior thereto or at its commencement the lack of notice to such Member or (ii)
submits a signed waiver of notice whether before or after such Meeting, which
waiver of notice may be delivered by proxy.
7.4 Fixing of Record Date. For purposes of determining the Members
entitled to notice of or to vote at any meeting of Members or any adjournment
thereof, or Members entitled to receive payment of any Distribution, or in order
to make a determination of Members for any other proper purpose, the date on
which notice of the meeting is delivered or mailed or the date on which the
resolution declaring such Distribution or relating to such other purpose is
adopted, as the case may be, will be the record date for such determination of
Members. When a determination of Members entitled to vote at any meeting of
Members has been made as provided in this Section, such determination will apply
to any adjournment thereof.
7.5 Quorum. A quorum will be present at any meeting of the Members if
the holders of 80% of Membership Interests are represented at the meeting in
person or by proxy. Once a quorum is present at the meeting of the Members, the
Members represented in person or by proxy and entitled to vote at the meeting
may conduct such business as properly may be brought before the meeting until it
is adjourned, and the subsequent withdrawal from the meeting of any Member prior
to adjournment or the refusal of any Member to vote will not affect the presence
of a quorum at the meeting. If, however, such quorum is not present at any
meeting of the Members, the Members represented in person or by proxy and
entitled to vote at such meeting will have the power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until all
Members are present or represented.
7.6 Methods of Voting; Proxies. A Member, or the Media Representative
on behalf of the Media Members, may vote either in person, by telephone or by
proxy executed in writing by the Member or the Media Representative on behalf of
the Media Members. A photocopy, facsimile or similar reproduction of a writing
executed by a Member, or the Media Representative on behalf of the Media
Members, will be treated as an execution in writing for purposes of this Section
7.6. Proxies for use at any meeting of Members or in connection with the taking
of any action by written consent will be filed with the Management Committee,
before or at the time of the meeting or execution of the written consent, as the
case may be. All proxies will be received and taken charge of and all ballots
will be received and canvassed by the Management Committee, which will decide
all questions touching upon the qualification of voters, the
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validity of the proxies, and the acceptance or rejection of votes. No proxy will
be valid after 11 months from the date of its execution unless otherwise
provided in the proxy. A proxy will be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is coupled with
an interest. A proxy may designate only one Person to act as proxy.
7.7 Conduct of Meetings. Meetings of the Members may be presided over
by a chairman of the meeting, who may be designated by the Member who called
such meeting. Such chairman of the meeting shall determine the order of business
and the procedure at the meeting, including regulation of the manner of voting
and the conduct of discussion.
7.8 Voting on Matters. Each Member will be entitled to vote at any
meeting of the Members in person or by proxy. Each Member shall be entitled to
vote its percentage interest in the Company in accordance with its Sharing Ratio
as set forth in Exhibit A. For purposes of voting on matters, at any meeting of
the Members at which a quorum is present, the act of the Members will be the
affirmative vote of 80% of the Membership Interests represented in person, by
telephone or by proxy at such meeting.
7.9 Registered Members. The Company will be entitled to treat the
holder of record of any Membership Interest as the holder in fact of such
Membership Interest for all purposes, and, accordingly, will not be bound to
recognize any equitable or other claim to interest in such Membership Interest
on the part of any other Person, whether or not the Company has express or other
notice of such claim or interest, except as expressly provided in this Agreement
or the laws of the State of Delaware.
7.10 Actions Without a Meeting.
(a) Except as otherwise provided by law or by the Certificate of
Formation, any action required or permitted to be taken, or which may be taken,
by law or the Certificate of Formation or this Agreement or the Operating
Agreement, at any meeting of Members, 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, is signed by the holder or holders of Membership
Interests constituting not less than the minimum amount of Membership Interests
that would be necessary to authorize or take such action at a meeting at which
the holders of all Membership Interests entitled to vote on the action were
present and voted. Every written consent will bear the date of signature of each
Member who signs the consent. The signed consent or consents of Members will be
placed in the minute book of the Company. The record date for determining
Members entitled to take action without a meeting will be the date the first
Member signs a written consent. A photocopy, facsimile or similar reproduction
of a writing signed by a Member will be regarded as signed by the Member for
purposes of this Section 7.10.
(b) If any action by Members is taken by written consent, any articles
or documents filed with the Secretary of State of the State of Delaware as a
result of the taking of the action will state, in lieu of any statement required
by applicable law concerning any vote of Members, that written consent has been
given in accordance with
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the provisions of applicable law and that any written notice required by
applicable law has been given.
7.11 Telephone and Similar Meetings. The Members may participate in and
hold meetings by means of conference telephone or similar communications
equipment by means of which all Persons participating in the meeting can hear
each other. Participation in any such meeting will constitute presence in person
at such meeting, except where a Person participates in such meeting for the
express purpose of objecting to the transaction of any business on the ground
that such meeting is not lawfully called or convened.
ARTICLE VIII
CONTRIBUTIONS; CAPITAL ACCOUNTS
8.1 Initial Contributions.
(a) Subject to the terms and conditions contained herein, on the
Closing Date, concurrently with the execution of this Agreement, ValueVision
shall contribute to the Company and the Company shall receive an amount in cash
equal to $10,000,000 (the "ValueVision Initial Capital Contribution").
No Member will have the right to withdraw or be repaid any Capital
Contribution, except as provided in this Agreement.
(b) The initial Sharing Ratio of each Member in the Company shall be as
set forth on Exhibit A.
8.2 Additional Contributions.
(a) ValueVision shall make additional Capital Contributions in cash, in
addition to the ValueVision Initial Capital Contribution ("ValueVision
Additional Contributions"), consistent with the Business Plan (except as may
otherwise be agreed to by the Members) as may be requested by the CEO in writing
(stating that in the CEO's business judgment further cash contributions in the
amount specified are reasonably required by the Company under the current
Business Plan and that such amounts will be used in accordance with the current
Business Plan) at any time and from time to time upon not less than 20 days
prior notice to ValueVision; provided, however, that in no event shall the
ValueVision Initial Capital Contribution and the aggregate ValueVision
Additional Contribution(s) total more than $50 million. If the Members agree to
make any Additional Contributions to the Company, the Members' respective amount
of the proposed Additional Contribution shall be funded by the Members in
proportion to their respective Sharing Ratios on the fifth Business Day
following such agreement. Any such Additional Contribution agreed to by the
Members shall not reduce the ValueVision Commitment.
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(b) None of the Members will be obligated to make Additional
Contributions other than as set forth herein.
8.3 Enforcement of Commitments. In the event any Member fails to
perform its Commitment, the Management Committee shall give such Delinquent
Member a notice of such failure. If the Delinquent Member fails to perform the
Commitment (including the payment of any costs associated with the failure and
interest at the Default Interest Rate) within ten Business Days of the giving of
such notice, the Management Committee and/or the non-delinquent Member may take
such action as deemed appropriate, including enforcing the Commitment in the
court of appropriate jurisdiction in the state in which the Principal Office is
located or the state of the Delinquent Member's address as reflected in this
Agreement. Each Member expressly agrees to the jurisdiction of such courts but
only for purposes of such enforcement.
8.4 Maintenance of Capital Accounts.
A separate capital account shall be maintained for each Member
throughout the term of the Company in accordance with the rules of Section
1.704-1(b)(2)(iv) of the Regulations as in effect from time to time, and, to the
extent not inconsistent therewith, to which the following provisions apply:
(a) To each Member's Capital Account there will be credited (i) the
amount of money contributed by such Member to the Company (including liabilities
of the Company assumed by such Member as provided in Section
1.704-1(b)(2)(iv)(c) of the Regulations); (ii) the fair market value of any
property contributed to the Company by such Member (net of liabilities secured
by such contributed property that the Company is considered to assume or take
subject to under Section 752 of the Code); and (iii) such Member's share of
Profits and items of income and gain that are specially allocated to such Member
pursuant to Section 9.4 hereof or otherwise pursuant to this Agreement (other
than items of income or gain allocated pursuant to Section 9.6(b)).
(b) To each Member's Capital Account there will be debited (i) the
amount of money distributed by the Company to such Member other than amounts
which are in repayment of debt obligations of the Company to such Member; (ii)
the fair market value of property distributed to such Member (net of liabilities
secured by such distributed property that such Member is considered to assume or
take subject to under Section 752 of the Code); (iii) such Member's share of
Losses or items of loss or deduction that are specially allocated pursuant to
Section 9.4 hereof or otherwise pursuant to this Agreement (other than items of
loss or deduction allocated pursuant to Section 9.6(b)); and (iv) such Member's
share of any excess of depreciation or amortization expense reflected in the
Company's financial statements prepared in accordance with generally accepted
accounting principles over such Member's share under Section 9.6(b) of the
corresponding depreciation or amortization expense allowable for federal income
tax purposes with respect to the related property.
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(c) The Capital Account of a transferee Member will include the
appropriate portion of the Capital Account of the Members from whom the
transferee Member's interest was obtained.
(d) The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-1(b) of the Regulations, and will be interpreted and applied in a
manner consistent with such Regulations. Consistent with the Members' intention
of maintaining Capital Accounts in a manner consistent with the principles of
Section 1.704-1(b) of the Regulations, the value of any Property (other than
cash) (i) contributed to the Company by a Member, (ii) distributed to a Member
from the Company or (iii) owned by the Company and subject to a revaluation upon
the occurrence of certain events shall be the fair market value of such Property
(net of liabilities secured by such property that the Company or such Member, as
the case may be, is considered to assume or take subject to under Section 752 of
the Code) on the date of contribution, distribution or revaluation, as
applicable.
8.5 No Obligation to Restore Deficit Balance. Except as required by law
or as otherwise provided in this Agreement, no Member will be required to
restore any deficit balance in its Capital Account.
8.6 Withdrawal; Successors. A Member will not be entitled to withdraw
any part of its Capital Account or to receive any distribution from the Company,
except as specifically provided in this Agreement, and no Member will be
entitled to or required to make any capital contribution to the Company other
than the Commitments. Any Member, including any additional or substitute Member,
who receives an interest in the Company or whose interest in the Company is
increased by means of a transfer to it of all or part of the interest of another
Member, will have a Capital Account with respect to such interest initially
equal to the Capital Account with respect to such interest of the Member from
whom such interest is acquired.
8.7 Interest. No Member will be entitled to interest on such Member's
Capital Contribution or on any Profits retained by the Company.
8.8 Investment of Capital Contributions. The cash portion of the
Capital Contributions of the Members will be invested by the Management
Committee in demand, money market or time deposits, obligations, securities,
investments or other instruments constituting cash equivalents, until such time
as such funds are used by the Management Committee for Company purposes. Such
investments will be made by the Management Committee for the benefit of the
Company.
8.9 Advances to the Company. Except with the express written consent of
Polo, in the case of the Media Members, or the Media Representative, in the case
of Polo, no Member may make loans or advance funds to the Company other than the
ValueVision Initial Capital Contribution, the ValueVision Additional
Contributions and any Additional Contributions required to be contributed to the
Company pursuant to this Agreement.
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8.10 Initial Public Offering. In the event that Polo and the Media
Representative agree in accordance with Section 5.3, or the Media Representative
determines in accordance with Section 3.16, to conduct an Initial Public
Offering, Polo shall have the right to increase its total equity investment in
the Company by contribution, by way of conversion, of a portion of its royalty
under the License Agreement into additional equity in the Company. The amount of
such additional equity shall be calculated, taking into account the valuation of
the Company for purposes of the Initial Public Offering and the totality of the
circumstances, by a reputable, nationally recognized investment banking firm
chosen by Polo and the Media Representative in good faith at the time of such
conversion; provided, however, if Polo and the Media Representative are unable
to agree on the selection of an investment banking firm, each party shall
appoint one nationally recognized investment banking firm, each of which shall
select a third investment banking firm, which shall calculate the amount of
additional equity. All costs associated with the valuation process shall be paid
by the Company.
In order to effect the foregoing, Polo shall have the right to require
the Company to agree to an amendment of the License Agreement in which the
royalty is reduced in accordance with the foregoing procedure. Polo shall have
30 days after the determination by the Company or, in the case of Section 3.16,
the Media Representative, to conduct an Initial Public Offering in accordance
with this Agreement to exercise its conversion option. If Polo exercises its
conversion option, the closing with respect to such exercise shall take place no
earlier than the consummation of the Initial Public Offering.
ARTICLE IX
ALLOCATIONS AND DISTRIBUTIONS
9.1 Profits and Losses. Profits and Losses, and each item of Company
income, gain, loss, deduction, credit and tax preference with respect thereto,
for each Fiscal Year (or shorter period in respect of which such items are to be
allocated) will be allocated among the Members as provided in Sections 9.1
through 9.5 for tax accounting purposes.
9.2 Profits. After giving effect to the special allocations set forth
in Section 9.4, the allocation of Profits for any Fiscal Year will be allocated
among the Members, pro rata, in proportion to their respective Sharing Ratios;
provided, however, that if there is an Initial Public Offering, sale or other
disposition of substantially all of the assets of the Company or a liquidation
of the Company pursuant to Article XII, Profits shall be allocated (i) first, to
Polo until the ratio of Polo's Capital Account balance to the sum of the
Members' Capital Account balances equals Polo's Sharing Ratio and (ii) second,
to the Members in accordance with their respective Sharing Ratios (provided
that, for purposes of this clause (ii), Profits shall be reallocated among NBC,
NBCi, XXXX.xxx and ValueVision so as to cause, as nearly as possible, the
balances in such
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entities' Capital Accounts to bear the same ratios to one another as do such
entities' respective Sharing Ratios).
9.3 Losses. After giving effect to the special allocations set forth in
Section 9.4, Losses will be allocated (i) first, so as to cause, as nearly as
possible, the balances in the Members' respective Capital Accounts to bear the
same ratios to one another as do the Members' respective Sharing Ratios and (ii)
second, pro rata in accordance with the Members' respective Sharing Ratios.
9.4 Special Allocations. The following special allocations will be
made:
(a) Qualified Income Offset. In the event any Member unexpectedly
receives any adjustments, allocations or distributions described in Section
1.704-l(b)(2)(ii)(d)(4), Section 1.704-l(b)(2)(ii)(d)(5), or Section
1.704-l(b)(2)(ii)(d)(6) of the Regulations, items of Company income and gain
will be specially allocated to the Member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital
Account Deficit of the Member as quickly as possible, provided that an
allocation pursuant to this Section 9.4(a) will be made only if and to the
extent that the Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Article IX have been tentatively made as
if this Section 9.4(a) were not in this Agreement.
(b) Gross Income Allocation. In the event any Member has a deficit
Capital Account at the end of any Fiscal Year which is in excess of the sum of
the amounts such Member is deemed to be obligated to restore pursuant to the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations, each such Member will be specially allocated items of Company
income and gain in the amount of such excess as quickly as possible, provided
that an allocation pursuant to this Section 9.4(b) will be made only if and to
the extent that such Member would have a deficit Capital Account in excess of
such sum after all other allocations provided for in this Article IX have been
made as if Section 9.4(a) and this Section 9.4(b) were not in this Agreement.
(c) Curative Allocations. The allocations set forth in Sections 9.4 (a)
and (b) (the "Regulatory Allocations") are intended to comply with certain
requirements of the Regulations. It is the intent of the Members that, to the
extent possible, all Regulatory Allocations will be offset either with other
Regulatory Allocations or with special allocations of other items of Company
income, gain, loss, or deduction pursuant to this Section 9.4(c). Therefore,
notwithstanding any other provision of this Article IX (other than the
Regulatory Allocations), the Managers may make such offsetting special
allocations of Company income, gain, loss or deduction in any manner they
determine appropriate so that, after such offsetting allocations are made, each
Member's Capital Account balance is, to the extent possible, equal to the
Capital Account balance such Member would have had if the Regulatory Allocations
were not part of this Agreement.
(d) Elective Gross Allocations. The Members will have the ability to
make reasonable allocations of Company income and expense (including, without
limitation, amortization deductions under Section 195 of the Code) pursuant to
Section 9.3 and the proviso of Section 9.2 in order to cause the balances in the
Members'
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respective Capital Accounts to bear the same ratio to one another as do
the Members' respective Sharing Ratios.
(e) Subsequent Adjustments to Income.
(i) To the extent, if any, that the taxable income of a Member is
deemed to be increased by any taxing authority pursuant to Section 482 of the
Code or other similar provision (other than an increase described in subsection
(ii) below), then the correlative deduction shall be specially allocated to such
Member.
(ii) To the extent, if any that the taxable income of Polo arising out
of a transfer of inventory to the Partnership is increased, directly or
indirectly, by any taxing authority pursuant to Section 482 of the Code or other
similar provision and such adjustment or reallocation results in increased
cost-of-goods-sold with respect to such inventory, then income or gain of the
Partnership upon the sale or disposition of such inventory shall be specially
allocated to NBC to the extent of such deemed increase. If there are
insufficient items of income or gain attributable to such inventory sale or
disposition to specially allocate to NBC an amount of income or gain equal to
the amount of such Section 482 adjustment, then any other Company items of
income or gain for such taxable year shall be specially allocated to NBC to the
extent of such shortfall.
9.5 Other Allocation Rules.
(a) The allocation provisions set forth in this Article IX are intended
to comply with Regulations Section 1.704-1(b) and shall be interpreted and
applied in a manner consistent with such Regulations (including the "minimum
gain chargeback" provisions set forth in Regulations Sections 1.704-2(f) and
1.704-2(i)(4)).
(b) For purposes of determining the Profits, Losses, or any other item
allocable to any period (including allocations to take into account any changes
in any Member's Sharing Ratio during a Fiscal Year and any transfer of any
interest in the Company), Profits, Losses, and any such other item will be
determined on a daily, monthly, or other basis, as determined by the Managers
using any permissible method under Section 706 of the Code and the Regulations
thereunder.
(c) Except as otherwise provided in this Article IX, an allocation of
Profits or Losses to a Member will be treated as an allocation to such Member of
the same share of each item of income, gain, loss and deduction taken into
account in computing such Profits or Losses.
(d) For purposes of determining the character (as ordinary income or
capital gain) of any Profits allocated to the Members pursuant to this Article
IX, such portion of Profits that is treated as ordinary income attributable to
the recapture of depreciation, to the extent possible, will be allocated among
the Members in the proportion which (i) the amount of depreciation previously
allocated to each Member bears to (ii) the total of such depreciation allocated
to all Members. This Section 9.5(d)
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will not alter the amount of allocations among the Members pursuant to this
Article IX, but merely the character of income so allocated. (e) The allocation
of Profits and Losses to any Member will appropriately reflect adjustments
required as a result of any Section 754 election filed on behalf of the Company.
9.6 Tax Allocations.
(a) General Rules. Except as otherwise provided in Section 9.6(b), for
each fiscal period, items of the Company's income, gain, loss, deduction and
expense shall be allocated, for federal, state and local income tax purposes,
among the Members in the same manner as the Profits (and items thereof) or
Losses (and items thereof) of which such items are components were allocated
pursuant to this Article IX.
(b) Mandatory Allocations Under Code Section 704(c). Income, gains,
losses and deductions with respect to any property (other than cash) contributed
or deemed contributed to the capital of the Company shall, solely for income tax
purposes, be allocated among the Members 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 fair market value at the time of the contribution or deemed
contribution in accordance with Section 704(c) of the Code and the Treasury
regulations promulgated thereunder. If there is a revaluation of property
pursuant to Section 8.4(d) hereof, subsequent allocations of income, gains,
losses or deductions with respect to such property shall be allocated among the
Members so as to take account of any variation between the adjusted tax basis of
such property to the Company for federal income tax purposes and its fair market
value in accordance with Section 704(c) of the Code and the Regulations
promulgated thereunder. Except as otherwise agreed by the Members, such
allocations shall be made using the "traditional method" described in Section
1.704-3(b) of the Regulations.
(c) Tax Allocations Binding. The Members are aware of the income tax
consequences of the allocations made by this Article IX and hereby agree to be
bound by the provisions of this Article IX in reporting their shares of the
Company's income and loss for income tax purposes.
(d) Contributions. The Members agree to treat contributions made
pursuant to this Agreement as governed by Section 721 of the Code, unless a
final determination (which shall include the execution of a Form 870-AD or
successor form) requires a different treatment for U.S. Federal income tax
purposes. In the event that any taxing authority contests such agreed treatment
of the contributions or the treatment of any other item as agreed to by the
Members in this Agreement, a Member receiving notice of such contest from such
taxing authority shall promptly give written notice of such contest to each
other Member. Such other Members may, at their own expense, participate in the
defense of such contest. The Members shall reasonably cooperate in defending any
such contest, and no Member shall settle or otherwise compromise such a contest
without the written consent of the other Members (which shall not be
unreasonably delayed or withheld). In the event of a Member's refusal to consent
to a settlement, such Member shall, to the extent permitted by law, assume
control of the
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defense of such contest, and such Member shall bear any legal fees incurred by
such Member in undertaking such defense to the extent incurred after the
assumption.
9.7 Distributions to Members.
(a) Amounts and Timing. If decided by the Members in accordance with
Section 5.3, Distributions will be made to the Members in proportion to their
respective Sharing Ratios. Such Distributions will be made from time to time to
those Persons recognized on the books of the Company as Members as of the
applicable record date.
(b) Amounts Withheld. All amounts withheld pursuant to the Code or any
provision of any state or local tax law with respect to any payment,
distribution, or allocation to the Company or the Members will be treated as
amounts distributed to the Members pursuant to this Section 9.7 for all purposes
under this Agreement. The Company is authorized to withhold from Distributions
to the Members and to pay over to any federal, state, or local government any
amounts required to be so withheld pursuant to the Code or any provisions of any
other federal, state, or local law, and shall allocate any such amounts to the
Members with respect to which such amount was withheld.
(c) Draws for Payment of Estimated Taxes. Unless Polo and the Media
Representative otherwise agree, the Company shall pay to each Member a quarterly
draw, not to exceed the amount reasonably necessary to provide for payment by
the Members of any federal, state and local estimated taxes with respect to
Profits allocated to the Members pursuant to this Article IX. All draws
hereunder will be made to the Members pro rata based on their estimated
respective shares of Profits allocated to each of them for such Fiscal Year
under this Article IX. Any draw by any Member made pursuant to this Section
9.7(c) will not result in any decrease in the Sharing Ratio of such Member.
ARTICLE X
TAXES
10.1 Tax Characterization. It is intended that the Company be
characterized and treated as a partnership for, and solely for, federal, state
and local income tax purposes. For such purposes, (i) the Company will be
subject to all of the provisions of Subchapter K of Chapter 1 of Subtitle A of
the Code, (ii) all references to a "Partner," to "Partners" and to the
"Partnership" in this Agreement (including Article IX) and in the provisions of
the Code and Regulations cited in this Agreement will be deemed to refer to a
Member, the Members and the Company, respectively.
10.2 Tax Matters Partner, Etc. (a) NBC is hereby appointed the "Tax
Matters Partner" within the meaning of Section 6231(a)(7) of the Code. NBC will
act in good faith in fulfilling the responsibilities of a Tax Matters Partner
under the Code, the
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Regulations and pursuant to this Agreement and in fulfilling any similar role
under state, local or foreign law.
(b) NBC shall promptly take such action as may be necessary to cause
NBC to become a "Notice Partner" within the meaning of Section 6231(a)(8) of the
Code. NBC shall keep the other Members informed of all material matters that may
come to its attention in its capacity as Tax Matters Partner by giving the other
Members notice thereof within five Business Days after it becomes informed of
any such matter or within such shorter period as may be required to comply with
any appropriate statutory or regulatory provisions NBC shall furnish the other
Members copies of all written communications from the Internal Revenue Service
within ten Business Days after the receipt thereof or within such shorter period
as may be required to comply with any appropriate statutory or regulatory
provisions. NBC also shall provide the other Members with reasonable advance
notice of meetings and conferences with the Internal Revenue Service so that the
other Members will have a reasonable opportunity to participate in such meetings
and conferences. Without limiting the generality of the foregoing, NBC and the
other Members shall each give to the other prompt notice of receipt of any
written notice that the Internal Revenue Service or any other taxing authority
intends to examine any federal, state, local or foreign tax return, or the books
and records, of the Company.
(c) NBC, in its capacity as Tax Matters Partner, shall not take any
action contemplated by Section 6222 through Section 6233, inclusive, of the Code
without the approval of Polo; provided, however, that nothing contained herein
will be construed to limit the ability of Polo or NBC to take any action under
Section 6222 through Section 6233, inclusive, of the Code that is left to the
determination of a Member so long as such action is not legally binding on the
other Member or the Company. Without limiting the generality of the foregoing,
NBC shall not, and will have no power to, enter into any extension of the period
of limitations for making assessments on behalf of another Member, or any
settlement agreement that binds another Member.
(d) If any Member enters into a written settlement or closing agreement
with the Internal Revenue Service with respect to any partnership tax item in
respect of the Company, it shall notify the other Member of such agreement and
its terms at least ten Business Days prior to the execution of such written
agreement.
(e) In the event that NBC ceases to be a Member, Polo will become the
Tax Matters Partner, unless NBC has transferred its Membership Interest to a
wholly-owned Affiliate in accordance with the terms of this Agreement, in which
case such Affiliate will become the Tax Matters Partner.
(f) The provisions of this Section 10.2 will survive the termination of
the Company, and will remain binding on the Members for a period of time
necessary to resolve with the Internal Revenue Service or the Department of the
Treasury or other taxing authority any and all matters regarding the Federal
income taxation of the Company and any state, local, or foreign tax matters.
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10.3 Tax Returns. As soon as practicable after the end of each Fiscal
Year, the Company shall cause to be prepared and filed, to the extent required,
tax returns for the Company and shall supply copies of all United States
Federal, state and local income tax returns to the Members for their review 30
days prior to the filing thereof with the appropriate governmental agencies. In
preparing and filing such tax returns, the Company shall reasonably consult with
the Members. All returns filed by the Company in respect of Federal income taxes
will be filed on the basis that the Company is a partnership for Federal income
tax purposes.
ARTICLE XI
TRANSFER OF MEMBERSHIP INTEREST
11.1 Compliance with Securities Laws. No Membership Interest has been
registered under the Securities Act or under any applicable state securities
laws. A Member may not transfer (a transfer, for purposes of this Agreement,
shall be deemed to include, but not be limited to, any sale, transfer,
assignment, pledge, creation of a security interest or other disposition) all or
any part of such Member's Membership Interest, except upon compliance with the
applicable federal and state securities laws and the provisions of this Article
XI; provided further, however, each of the Original Media Members may freely
transfer their respective Membership Interests amongst themselves without regard
to the restrictions in Section 11.2. The Managers will have no obligation to
register any Member's interest under the Securities Act, as amended, or under
any applicable state securities laws, or to make any exemption therefrom
available to any Member.
11.2 Transfer of Membership Interest. A Member may not sell, transfer,
assign or otherwise dispose, directly or indirectly, of all or any portion of
its Membership Interest, except in accordance with the provisions of Sections
3.12, 3.13, 3.14 and 3.15 or this Article XI. Except as otherwise provided
below, a Member may sell, transfer, assign or otherwise dispose of all or any
portion of its Membership Interest (a "Transfer") only if such Member (the
"Withdrawing Member") obtains the prior written consent of Polo, in the case of
transfers by any Media Member, or the Media Representative on behalf of the
Media Members, in the case of transfers by Polo (the "Continuing Member"), which
consent may be given or withheld in the sole and absolute discretion of the
Continuing Member; provided, however, that no prior written consent of the
Continuing Member shall be required in the case of any transfer specifically
contemplated by this Agreement as not requiring consent. Upon any acquisition of
a Withdrawing Member's Membership Interest by a transferee in accordance with
this Article XI, such transferee will be admitted as a Member of the Company for
purposes of this Agreement, with the same rights, privileges, duties and
obligations of the Withdrawing Member and immediately following such admission,
the Withdrawing Member will cease to be a Member of the Company; provided,
however, that no Transfer shall be made if such Transfer would, in the opinion
of counsel to the Company, jeopardize the status of the Company as a partnership
for United States federal income tax purposes. A Transfer by a Withdrawing
Member of its entire Membership Interest to a Majority-Owned Affiliate of such
Member may be made
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without the prior written consent of the Continuing Member if (i) the
Withdrawing Member executes and delivers to the Continuing Member a guaranty of
the performance by such Majority-Owned Affiliate of its obligations under this
Agreement and the Operating Agreement in form and substance reasonably
satisfactory to the Continuing Member, (ii) such Majority-Owned Affiliate
executes an instrument pursuant to which it agrees to adopt and to be bound by,
and to perform, all the obligations of the Withdrawing Member under this
Agreement and the Operating Agreement, (iii) the Withdrawing Member agrees to
indemnify the Continuing Member for any Damages suffered by the Continuing
Member if such Transfer results in a termination of the status of the Company as
a partnership for United States federal income tax purposes and (iv) the other
owners of such Majority-Owned Affiliate do not include, in the case of a
Transfer by Polo, a Media Competitor, and in the case of a Transfer by any of
the Media Members, any of Polo's competitors (as agreed to by the parties
hereto); provided, however, that in no event shall Polo transfer its Membership
Interest to a Majority-Owned Affiliate and subsequently transfer its interest in
such Majority-Owned Affiliate to a Media Competitor nor shall any Media Member
transfer its Membership Interest to a Majority-Owned Affiliate and subsequently
transfer its interest in such Majority-Owned Affiliate to any of Polo's
competitors (as agreed to by the parties hereto). Notwithstanding any of the
foregoing, no Transfer shall relieve NBC of its obligations to provide $100
million aggregate credits for advertising time or NBCi and XXXX.xxx of their
obligations to provide $40 million and $10 million, respectively, of credits in
Online services as provided in the Operating Agreement and, where applicable,
the other applicable Ancillary Agreement.
11.3 Obligations of a Withdrawing Member.
(a) Generally. No disposition by a Withdrawing Member of its Membership
Interest will relieve such Withdrawing Member of any of its liabilities and
obligations, including those to the Company or to the Continuing Member, which
arose or accrued from events, acts or omissions occurring prior to the effective
date of such disposition. The Withdrawing Member will be responsible for all
costs incurred by the Company in connection with any Transfer.
(b) Non-Disclosure by a Withdrawing Member. In the case of a sale or
other transfer of a Withdrawing Member's Membership Interest pursuant to this
Article XI, the Withdrawing Member will continue to be subject to the provisions
of Section 2.4 of the Operating Agreement (Non-Disclosure).
(c) Survival. The rights and obligations of the Members under this
Section 11.3 will survive any termination of this Agreement and the Operating
Agreement.
11.4 Encumbrances. No Member will at any time mortgage, pledge, charge
or encumber, or create or suffer to exist a mortgage, pledge, lien, charge,
encumbrance or security interest ("Lien"), with respect to all or any part of
its Membership Interest. If a Lien attaches to a Member's Membership Interest,
such Member agrees to cause such Lien to be discharged promptly at its own
expense.
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11.5 Effect of Unauthorized Transfer. No transfer or other disposition
of any Membership Interest in violation of any provision of this Agreement will
be effective to pass any title to, or create any interest in favor of, any
Person, but the Member which attempted to so effect such transfer or other
disposition will be deemed to have committed a material breach of its
obligations to the other Member hereunder.
11.6 Standstill Agreement.
(a) From the date hereof and continuing until one year after the
earlier of the termination of this Agreement or, with respect to any Original
Media Member, the date on which such Original Media Member ceases to be a
Member, none of the Original Media Members, their Majority-Owned Affiliates and
their representatives (to the extent such representatives are acting on behalf
of any of the Original Media Members or their Majority-Owned Affiliates) will,
except as expressly set forth in this Agreement and except in accordance with
the terms of a specific written approval or request made by Polo, initiate
contact with any director, officer, employee, or Person or group or Persons
known by such Original Media Member or who reasonably should be known by such
Original Media Members, to beneficially own (within the meaning of Rule 13d-3 of
the General Rules and Regulations under the Exchange Act as in effect on the
date of this Agreement) Securities (as hereinafter defined) of Polo representing
in excess of 10% of the total voting power or total equity value of Polo in
connection with any matter relating to the purchase, sale or voting of such
Securities representing 10% of the total voting power of Polo or total equity
value of Polo. For purposes of this Section 11.6, the term "Securities" means
any equity securities of Polo or any Affiliate of Polo, and any direct or
indirect options or other rights to acquire any equity securities of Polo,
including any securities that are exercisable or exchangeable for or convertible
into, such equity securities.
(b) As of the date of this Agreement and for so long as any Original
Media Member is a Member, each Original Media Member confirms to Polo that it
does not beneficially own any Securities of Polo representing in excess of 10%
of the total voting power or total equity power of Polo. Each Original Media
Member agrees that for the duration of this Agreement, except in accordance with
the terms of a specific request or approval by Polo, it will not:
(i) propose or publicly announce or otherwise disclose an intent to
propose or enter into or agree to enter into, singly or with any other Person,
directly or indirectly, (A) any form of business combination, acquisition, or
other transaction relating to Polo or any of its Majority-Owned Affiliates,
excluding the Company and the Business, (B) any form of restructuring,
recapitalization, or similar transaction with respect to Polo or any
Majority-Owned Affiliate thereof, excluding the Company and the Business or (C)
make, initiate, or participate in any demand, request or proposal to amend,
waive or terminate any provision of this Section 11.6, or
(ii) (A) acquire, or offer, propose or agree to acquire, by purchase or
otherwise, any Securities of Polo (now existing or hereafter created)
representing in excess of 10% of the total voting power or total equity value of
Polo, (B) make, initiate,
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or in any way participate in, any solicitation of proxies with respect to any
Securities of Polo (now existing or hereafter created) (including by the
execution of action by written consent), (C) become a participant in any
election contest with respect to Polo, (D) seek to influence any Person with
respect to any Securities of Polo, (E) demand a copy of a list of stockholders
of Polo or other books and records, (F) participate in or encourage the
formation of any partnership, syndicate, or other group which owns or seeks or
offers to acquire beneficial ownership of any Securities of Polo or which seeks
to effect control of Polo for the purpose of circumventing any provision of this
Agreement or (G) otherwise act, alone or in concert with others (including by
providing financing for another Person), to seek or to offer to control or
influence, in any manner, the management, board of directors, or policies of
Polo, except with respect to the Company and the Business in accordance with
this Agreement and the Operating Agreement.
(c) The provisions of this Section 11.6 shall survive with respect to
the Original Media Members until one year after the earlier of the termination
of this Agreement and the date on which any Original Media Member ceases to be a
Member. This Section 11.6 shall also apply to any transferee of any of the
Original Media Members in accordance with the terms of this Agreement mutatis
mutandis.
(d) Notwithstanding any other provisions of this Agreement, nothing
herein shall restrict any pension or other employee benefit plan of any of the
Media Members or their Affiliates from acquiring or beneficially owning any
Securities of Polo and otherwise taking any actions with respect to such
Securities, except to the extent done with an intent to circumvent the
provisions of this Section 11.6.
ARTICLE XII
DISSOLUTION
12.1 Events of Dissolution. (a) The Company will be dissolved and this
Agreement and the Operating Agreement will terminate upon the occurrence of any
of the following events:
(i) the written agreement of Polo and the Media Representative to
dissolve the Company;
(ii) the Delaware Court of Chancery has entered a final
decree pursuant to Section 18-802 of the Act;
(iii) the sale of all or substantially all of the Company's assets; or
(iv) the termination of the License Agreement in accordance with its
terms.
(b) The withdrawal, resignation, expulsion, bankruptcy or dissolution
of a Member or the occurrence of any other event which terminated the Member's
continued membership in the Company shall not result in the dissolution of the
Company.
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(c) As soon as possible after the occurrence of any of the events
specified in Section 12.1(a) above, the Company shall make any filings required
by the Act and shall cease to carry on its business, except insofar as may be
necessary for the winding-up of its business, but the Company's separate
existence will continue until the certificate of cancellation of the Certificate
of Formation has been filed by the Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction, as
the case may be.
12.2 Liquidation and Distribution Following Dissolution. If an event of
dissolution has occurred pursuant to Section 12.1, the Company will be wound up
and liquidated in accordance with applicable law and the following provisions
(unless the Company is continued on a basis mutually acceptable to Polo and the
Media Representative):
(a) each Member shall pay to the Company all amounts owed by it to the
Company, if any;
(b) the CFO shall be directed to prepare a balance sheet of the Company
in accordance with GAAP as of the date of dissolution, which balance sheet shall
be reported upon by the Company's Auditors;
(c) the Company Assets, including any monies received pursuant to
Section 12.2(a), will be applied in the following order:
First, to the payment of creditors of the Company, including Members
who are creditors, in the order of priority provided by law;
Second, to the establishment of any reserves that the Members, in
accordance with sound business judgment, deem reasonably necessary to provide
for the payment when due of any contingent liabilities or obligations of the
Company (which reserves may be paid over by the Members to a trustee or escrow
agent selected by them to be held by such trustee or escrow agent for purposes
of (i) distributing such reserves in payment of the aforementioned
contingencies, and (ii) distributing the balance of such reserves in the manner
provided herein upon the expiration of such period as the Members may deem
advisable).
Third, to the Members in accordance with their positive Capital Account
balances.
Consistent with the regulations pursuant to Section 704 of the Code, in
the event of a liquidation, as defined in Treasury Regulations Section
1.704-1(b)(2)(ii)(g), the value of all property of the Company to be distributed
will be, or will have been, appropriately reflected in the Capital Accounts.
(d) In the event of any liquidation pursuant to this Section 12.2, the
Company Assets (other than as may otherwise be provided in this Agreement or any
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Ancillary Agreement) will be sold or otherwise liquidated as promptly as
possible without material sacrifice, and any receivables will be collected or
sold, all in an orderly and businesslike manner. Notwithstanding the foregoing,
the Members may agree not to sell all or any portion of the Company Assets, in
which event such Company Assets will be distributed in kind.
(e) Notwithstanding anything to the contrary in this Agreement or the
Operating Agreement, upon a liquidation (within the meaning of Treasury
Regulations ss. 1.704-1(b)(2)(ii)(g)), if any Member has a deficit Capital
Account (after giving effect to all contributions, distributions, allocations
and other Capital Account adjustments for all Fiscal Years, including the year
in which such liquidation occurs), such Member will have no obligation solely as
a result of such deficit to make any capital contribution, and the negative
balance of such Capital Account will not be considered a debt owed by the Member
to the Company or to any other Person for any purpose whatsoever.
(f) Any distributions to the Members in respect of their Capital
Accounts pursuant to this Section 12.2 will be made in accordance with the time
requirements set forth in Treasury Regulations ss. 1.704-1(b)(2)(ii)(b)(2).
12.3 Final Accounting. Upon the liquidation of the Company, the
Auditors shall prepare a final accounting statement as soon as reasonably
practicable after all of the business of the Company has been concluded, all
monies payable to the Company have been received and all expenses and
obligations of the Company have been paid, satisfied or otherwise provided for.
12.4 Winding Up and Certificate of Dissolution. The winding up of the
Company will be completed when all debts, liabilities, and obligations of the
Company have been paid and discharged or reasonably adequate provision therefor
has been made, and all of the remaining Company Assets have been distributed to
the Members. Upon the completion of the winding up of the Company, a certificate
of dissolution will be delivered to the Secretary of State of the State of
Delaware for filing. The certificate of dissolution will set forth the
information required by the Act.
12.5 Use of the Company Name, Etc. Upon Dissolution, Winding Up and
Termination. Each Media Member hereby agrees that neither it nor any of its
Affiliates shall, after dissolution of the Company in accordance with this
Article XII, without the prior written consent of Polo, use or exploit the
Company name or any Polo and Xxxxx Xxxxxx Brand or other intellectual property
that is or has been provided or licensed to the Company under the License
Agreement, and in the case of Polo, Polo agrees not to use or exploit any Media
Member's trademarks or any other of the Media Members' intellectual property
that is or has been provided or licensed to the Company; provided, however, that
this Section shall not apply in the context of a separate commercial
relationship between Polo and any Media Member, such as an advertising
relationship.
12.6 Payments Upon Certain Dissolutions. In the event that, any time
prior to the fourth anniversary of the Closing Date, (a) the Members shall agree
to a liquidation, dissolution, winding up, bankruptcy, insolvency or similar
event involving the
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Company or (b) the Company shall be the subject of an involuntary liquidation,
dissolution, winding up, bankruptcy, insolvency or similar event, or the Company
shall have ceased to have any substantial ongoing operations, in either of cases
(a) or (b) following the refusal or inability of Polo to commit to fund its
share of any Additional Capital Contributions (after having exhausted the
ValueVision Commitment, giving effect to any ValueVision Additional
Contributions to be made concurrently with such proposed Additional Capital
Contributions) that are required in order to fund the Company's reasonably
anticipated capital and operating needs (including, without limitation, any
amounts needed to avoid or cure a payment default under the License Agreement)
for the twelve months following any request of the Company or the Media
Representative for such Additional Capital Contributions but only in the event
that (i) the Company is unable to raise the required capital plus sufficient
capital to fund its capital and operating needs for an additional 12 months on a
prudent basis and on commercially reasonable terms through bank borrowings or
otherwise in the capital markets and (ii) one or more of the Original Media
Members is willing and able to fund the aggregate amount of all such Additional
Capital Contributions required of the Original Media Members, as evidenced by
appropriate supporting documentation, including all necessary corporate and
shareholder action of the Original Media Members and their shareholders to
authorize such funding, Polo agrees to pay to ValueVision 50% of the excess of
the aggregate amount of actual cash Capital Contributions ("Aggregate
Contributions") made by the Original Media Members to the Company, net of
distributions made to ValueVision with respect to which, and only to the extent
that, Polo does not receive a corresponding distribution in proportion to its
Sharing Ratio, over the Aggregate Contributions made by Polo to the Company, net
of distributions made to Polo with respect to which, and only to the extent
that, ValueVision does not receive a corresponding distribution in proportion to
its Sharing Ratio, which payment by Polo shall not exceed $25 million (the
"Liquidation Payment"). In consideration for the Liquidation Payment,
ValueVision or any permitted transferee of ValueVision shall, if requested by
Polo in its sole discretion, transfer to Polo that percentage of ValueVision's
Membership Interest equal to (a) the Liquidation Payment, divided by (b) the
aggregate cash Capital Contributions made to the Company by ValueVision and such
permitted transferees (the "ValueVision Contributions"). In the event that, for
U.S. federal income tax purposes, the Liquidation Payment is treated as a
contribution by Polo to the Company and a distribution to ValueVision, the
Liquidation Payment shall be treated as a "guaranteed payment" under section
707(c) of the Code and any deduction taken by the Company in respect of such
payment shall be specially allocated to Polo. This Section 12.6 shall be binding
upon any transferee of ValueVision's or Polo's Membership Interest.
ARTICLE XIII
[RESERVED]
ARTICLE XIV
INDEMNIFICATION OF MEMBERS, MANAGERS AND OFFICERS
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14.1 Indemnification by a Member. Subject to Section 14.3, each Member
(the "Indemnifying Member") shall indemnify, defend and hold harmless the
Company, the other Members, the other Members' Affiliates, and the other
Members' and each such Affiliate's officers, directors, employees, agents and
representatives, and the Company's Managers and officers (collectively the
"Other Indemnified Persons") from and against any and all claims, demands,
actions, suits, damages, liabilities, losses, costs and expenses (including
reasonable attorneys' fees and out-of-pocket disbursements), judgments, fines,
settlements and other amounts (collectively "Damages"), to the extent caused by,
resulting from or arising out of or in connection with any of the following:
(a) the material breach of, or material misrepresentation contained in,
any written representation or warranty made by the Indemnifying Member or its
Affiliate in this Agreement or any Ancillary Agreement, or in any officer's
certificate delivered hereunder;
(b) the breach or default in any material respect in performance of any
covenant or agreement required to be performed by the Indemnifying Member or its
Affiliate contained in this Agreement or in any Ancillary Agreement; or
(c) any claim, action, suit or proceeding or threat thereof, made or
instituted as a result of acts or omissions of the Indemnifying Member or its
Affiliates unrelated to the business and operations of the Company or outside
the scope of the Indemnifying Member's rights or authority conferred by this
Agreement, any Ancillary Agreement or any other understanding, agreement or
arrangement between the Members and/or the Company and in which the Company,
such Member, such Member's Affiliates or such Other Indemnified Persons may be
involved or be made a party by reason of such Member being, or having been in
the past, a Member.
14.2 Indemnification by the Company. Subject to Section 14.3, the
Company shall indemnify, defend and hold harmless each Member (including any
Person who has been but is no longer a Member), each Member's Affiliates and the
officers, directors, employees, agents and representatives and the heirs,
executors, successors and assigns of each of the foregoing (individually an
"Indemnitee") from and against all Damages to the extent caused by, resulting
from or arising out of or in connection with any of the following:
(a) any claim, action, suit or proceeding or threat thereof, made or
instituted in which such Member, such Member's Affiliates or Indemnitee may be
involved or be made a party by reason of such Member being, or having been in
the past, a Member, or by reason of any action alleged to have been taken or
omitted by such Member in such capacity, or by such Member's Affiliates or
Indemnitees acting on behalf of the Company, provided that a Member, Member's
Affiliate or Indemnitee shall only be entitled to indemnification hereunder to
the extent such Indemnitee's conduct did not constitute bad faith, willful
misconduct, gross negligence or a material breach of this Agreement or the
Operating Agreement. The termination of any proceeding by settlement, judgment,
order, conviction or upon a plea of nolo contendere or its equivalent
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shall not, of itself, create a presumption that such Member's, Member's
Affiliate's or Indemnitee's conduct constituted bad faith, willful misconduct,
gross negligence or a material breach of this Agreement or the Operating
Agreement, such Member's Affiliate or such Indemnitee;
(b) any guarantees or promises of performance of any obligations of the
Company; and
(c) any actions or omissions to act by the Company in connection with
its business or operations, or the ownership of its assets and properties;
provided, however, that nothing in this Section 14.2 will be construed to
require the Company to reimburse, defend, indemnify or hold harmless any Member,
its Affiliates, or Indemnitee with respect to any Damages in any circumstance in
which this Agreement or any Ancillary Agreement requires such Member to
reimburse, defend, indemnify or hold harmless any other Member, its Affiliates
or Indemnitee or the Company in respect of such Damages.
14.3 Survival; Limitations; Procedures.
(a) The indemnification obligations contained in Section 14.1 will
survive any termination of this Agreement and the Operating Agreement or the
dissolution and winding up of the Company. The indemnification obligations
contained in Section 14.2 will survive any dissolution of the Company until its
affairs have been fully wound up and all of its properties and assets
distributed in accordance with this Agreement.
(b) The rights and remedies provided to the Members and the Company in
this Agreement and the Operating Agreement are cumulative and non-exclusive and
will not preclude any other right or remedy available to any Member or the
Company at law or in equity.
(c) Notwithstanding any other provision hereof, neither the Company nor
any Member will be liable to any other Member or its Affiliates, the Company, or
any Other Indemnified Person for special, indirect, punitive or consequential
damages, including but not limited to loss of profit.
(d) If a Member or the Company is obligated hereunder to indemnify any
other Member, the Company, a Member's Affiliate or any Other Indemnified Person
or Indemnitee (in any case the "Indemnified Party") from any claim, suit, action
or proceeding brought by any other Person (a "Third Party Claim"), the
Indemnified Party shall give notice as promptly as is reasonably practicable to
the Indemnifying Party of such Third Party Claim; provided that the failure of
the Indemnified Party to give notice shall not relieve the Indemnifying Party of
its obligations under this Article XIV except to the extent (if any) that the
Indemnifying Party shall have been prejudiced thereby. Such Indemnifying Member
or the Company, as the case may be, will have the right to control the defense
and settlement of such Third Party Claim with counsel reasonably acceptable to
the Indemnified Party, provided that (i) such Indemnified Party may retain
counsel at its expense to assist in the defense and settlement of such Third
Party Claim and (ii) no settlement of any Third Party Claim will contain terms
or provisions requiring the
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Indemnified Party to take any action or perform any undertaking, or prohibit or
restrain the Indemnified Party from taking any action, without the written
consent of the Indemnified Party.
(e) Without the prior written consent of the Indemnifying Party, the
Indemnified Party shall not accept any settlement or compromise of any claim,
suit, action or proceeding of the nature referred to in paragraph (d) above;
provided that if such proposed settlement or compromise is rejected by the
Indemnifying Party, from and after such rejection, at the request of the
Indemnified Party, the Indemnifying Party shall assume the defense of and full
and complete liability and responsibility for such claim, suit, action or
proceeding, including any and all losses in connection therewith in excess of
the amount of losses which would have been payable under the proposed settlement
or compromise.
14.4 Third-Party Dealings With Members. Except as permitted by this
Agreement or the Operating Agreement, no Member will have any right or authority
to take any action on behalf of the Company with respect to third parties.
14.5 Insurance.
(a) Generally. The Company may purchase and maintain insurance or other
arrangements or both, at its expense, on behalf of itself or any Person who is
or was serving as a Manager, Officer, employee or agent of the Company, or is or
was serving at the request of the Company as a manager, director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic limited liability company, partnership,
corporation, partnership, joint venture sole proprietorship, trust, employee
benefit plan or other enterprise, against any liability, expense or loss,
whether or not the Company would have the power to indemnify such Person against
such liability under the provisions of this Article XIV. In addition, the
Company shall purchase such other insurance, in such amounts and with such
deductibles as is customary and prudent for Persons involved in conducting the
same business as the Company (i.e., Internet high-end apparel and other goods).
(b) Liability Insurance. The Company shall obtain, as soon as possible
after the execution of this Agreement, and maintain in full force and effect for
the duration of this Agreement, liability insurance naming each Member as an
additional insured in the minimum amount, in addition to defense costs, of
$25,000,000 per occurrence and $25,000,000 per Person in order to protect each
Indemnified Party, including the Company, against any obligations, liabilities
or damages with which it or he may be charged in connection with Internet and
network activities, including the conduct of the business contemplated
hereunder. The maximum deductible with respect to such insurance shall be
$25,000. The Company shall cause each Indemnified Party to be entered in such
policy as additional named insureds and deliver to each Member a certificate of
insurance with respect thereto. Said insurance shall provide that it cannot be
amended or canceled without the insurer first giving each Member, not less than
thirty (30) days' advance notice thereof.
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14.6 Report to Members. Any indemnification of or payment of expenses
to a Person in accordance with this Article XIV will be reported in writing to
the Members with or before the notice or waiver of notice of the next Members'
meeting or with or before the next submission to Members of a consent to action
without a meeting pursuant to this Agreement and, in any case, within the
twelve-month period immediately following the date of the indemnification or
payment.
ARTICLE XV
CLOSING DELIVERIES
15.1 Closing Deliveries of Polo.
(a) At the Closing, Polo shall deliver to the Original Media Members a
certificate, dated the Closing Date, from an authorized officer of Polo to the
effect that, to the best of such officer's knowledge, (i) Polo has performed in
all material respects its obligations under this Agreement and the Operating
Agreement required to be performed by it at the Closing or prior to the Closing
Date; and (ii) the representations and warranties applicable to Polo in this
Agreement and the Operating Agreement and to Licensor in the License Agreement
are true and correct in all material respects at and as of the Closing Date,
except to the extent that any such representation or warranty is made as of a
specified date, in which case such representation or warranty was true and
correct as of such date.
(b) Concurrently with the Closing, the Operating Agreement and the
Supply Agreement are to be executed and delivered by Polo, and Polo shall cause
the License Agreement to be executed and delivered by PRL USA Holdings, Inc.
15.2 Closing Deliveries of the Original Media Members.
(a) At the Closing, each Original Media Member shall deliver to Polo a
certificate, dated the Closing Date, from an authorized officer of such Media
Member to the effect that, to the best of such officer's knowledge, (i) such
Media Member has performed in all material respects its obligations under this
Agreement and the Operating Agreement required to be performed by it at the
Closing or prior to the Closing Date and (ii) the representations and warranties
applicable to such Media Member in this Agreement and the Operating Agreement
and each other applicable Ancillary Agreement are true and correct in all
material respects at and as of the Closing Date, except to the extent that any
such representation or warranty is made as of a specified date, in which case
such representation or warranty was true and correct as of such date.
(b) Concurrently with the Closing, the Operating Agreement shall be
executed and delivered by the Media Members.
(c) Concurrently with the Closing, the Services Agreement shall be
executed and delivered by ValueVision.
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(d) Concurrently with the Closing, the Advertising Agreement shall be
executed and delivered by NBC.
(e) Concurrently with the Closing, the Promotion Agreement shall be
executed and delivered by NBCi.
ARTICLE XVI
MISCELLANEOUS
16.1 Notices. Notices to the Managers (i) appointed by the Media
Members will be sent to the principal office of NBC and (ii) appointed by Polo
will be sent to the principal office of Polo. Notices to the Members will be
sent to their addresses set forth on Exhibit A. Any Member may require notices
to be sent to a different address by giving notice to the other Members in
accordance with this Section 16.1. Any notice or other communication required or
permitted hereunder will be in writing, and will be deemed to have been given
upon receipt if and when delivered personally, sent by facsimile transmission
(the confirmation being deemed conclusive evidence of such delivery) or by
courier service or three Business Days after being sent by registered or
certified mail (postage prepaid, return receipt requested), to such Members at
such address.
16.2 Public Announcements and Other Disclosure. None of the Members
will make any press release, public announcement or other disclosure (including
any SEC filings referred to below) with respect to this Agreement or any
Ancillary Agreement or the business operations and plans of the Company without
obtaining the prior written consent of either Polo or the Media Representative,
as the case may be, except as may be required by law or by the regulations of
any securities exchange or national market system upon which the securities of
such Member shall be listed or quoted.
16.3 Headings and Interpretation. All Article and Section headings in
this Agreement are for convenience of reference only and are not intended to
qualify the meaning of any Article or Section. Both parties have participated
substantially in the negotiation and drafting of this Agreement and each party
hereby disclaims any defense or assertion in any litigation or arbitration that
any ambiguity herein should be construed against the draftsman.
16.4 Entire Agreement. This Agreement, together with the Ancillary
Agreements (including all schedules and exhibits hereto and thereto), contain
the entire and only agreements between the parties concerning the subject matter
hereof, and any oral statements or representations or prior written matter with
respect thereto not contained herein or therein shall have no force and effect.
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16.5 Binding Agreement. This Agreement will be binding upon, and inure
to the benefit of, the parties hereto, their successors, heirs, legatees,
devisees, assigns, legal representatives, executors and administrators, except
as otherwise provided herein, including any successor in interest to the
Licensed Brands. Other than in accordance with the terms hereof, including
Sections 3.12, 3.13, 3.14 and 3.15, this Agreement and the rights hereunder
shall not be assignable or transferable, in whole or in part, by any of the
Media Members or Polo (including by operation of law in connection with a
merger, or sale of all or substantially all the assets, of the Media Members or
Polo) without the prior written consent of the other parties hereto; provided,
however, that either party may assign or transfer this Agreement and the rights
hereunder to a wholly-owned Affiliate in accordance with Section 11.2 so long as
such wholly-owned Affiliate is not subsequently sold to a Media Competitor, in
the case of Polo, or any of Polo's competitors (as agreed by the parties
hereto), in the case of the Media Members; provided, further, that such
transferor party will remain jointly and severally liable for any of its and its
wholly-owned Affiliate's obligations under this Agreement. Any actual or
purported transfer or assignment not complying with the requirements of Article
XI and this Section 16.5 will be void and will not bind any party hereto.
16.6 Saving Clause. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, is held invalid,
the remainder of this Agreement, or the application of such provision to Persons
or circumstances other than those as to which it is held invalid, will not be
affected thereby. If the operation of any provision of this Agreement would
contravene the provisions of the Act, such provision will be void and
ineffectual. In the event that the Act is subsequently amended or interpreted in
such a way to make any provision of this Agreement that was formerly invalid
valid, such provision will be considered to be valid from the effective date of
such interpretation or amendment.
16.7 Counterparts. This Agreement may be executed in several
counterparts, and all so executed will constitute one agreement, binding on all
the parties hereto, even though all parties are not signatory to the original or
the same counterpart.
16.8 Governing Law. The construction and interpretation of this
Agreement shall be governed by the laws of the State of New York. The internal
affairs of the Company shall be governed by the Act.
16.9 No Membership Intended for Nontax Purposes. The Members have
formed the Company under the Act, and expressly do not intend hereby to form a
partnership under either the Delaware Uniform Partnership Act or the Delaware
Uniform Limited Partnership Act. The Members do not intend to be partners one to
another, or partners as to any third party. To the extent any Member, by word or
action, represents to another person that any Member is a partner or that the
Company is a partnership, the Member making such wrongful representation will be
liable to any other Members who incur personal liability by reason of such
wrongful representation.
16.10 No Rights of Creditors and Third Parties under Agreement. This
Agreement is entered into among the Members for the exclusive benefit of the
Company,
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its Members, and their successors and assigns. This Agreement is expressly not
intended for the benefit of any creditor of the Company or any other Person
except as set forth below. Except and only to the extent provided by applicable
statute, no such creditor or any third party except as set forth below will have
any rights under this Agreement or any agreement between the Company and any
Member with respect to any Capital Contribution or otherwise. The Licensor shall
be a third party beneficiary of all provisions hereof that relate to any of the
Marks or the Licensed Brands.
16.11 Amendment or Modification of Agreement. This Agreement may be
amended or modified from time to time only by a written instrument executed and
agreed to by all of the Members.
16.12 Specific Performance. The Members agree that irreparable damage
would occur in the event the provisions of this Agreement were not performed in
accordance with the terms hereof and that Polo, the Media Members and the
Management Committee will be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
16.13 General Interpretive Principles. For purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Agreement include the plural as well as
the singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the meanings
given to them in the United States in accordance with GAAP;
(c) references herein to "Sections", "paragraphs", and other
subdivisions without reference to a document are to designated Sections,
paragraphs and other subdivisions of this Agreement;
(d) a reference to a paragraph without further reference to a Section
is a reference to such paragraph as contained in the same Section in which the
reference appears, and this rule will also apply to other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include", "includes" or "including" will be deemed to be
followed by the words "without limitation".
16.14 Consent to Jurisdiction. Each Member irrevocably submits to the
exclusive jurisdiction of (i) the Courts of the State of New York and (ii) the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding (including appeals to their
respective appellate courts) arising out of this Agreement or any transaction
contemplated hereby (and agrees not to commence any action, suit or proceeding
relating hereto except in such courts). Each Member
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irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Courts of the State of New York or (ii) the
United States District Court for the Southern District of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
16.15 Certain Obligations. Whenever this Agreement or any Ancillary
Agreement requires that any Affiliate of Polo or any Media Member take any
action, including in the case of Polo, Licensor under the License Agreement,
this Agreement and such Ancillary Agreement will be deemed to include an
undertaking on the part of Polo or such Media Member to cause such Affiliate to
take such action.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXXX XXXXX XXXXXX CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------------------------
Name: Xxxxx Xxxxx
Title:
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President &
General Counsel
VALUEVISION INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice Chairman
NBC INTERNET, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
XXXX.XXX LLC
By: /s/ Xxxxxx Xxxxxx-Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx-Xxxxxx
Title: President & CEO
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EXHIBIT A
Name and Address of Member Initial Membership
Interest and
Sharing Ratio
---------------------------------------------------------------------------------------
National Broadcasting Company, Inc. 25%
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
---------------------------------------------------------------------------------------
Xxxx Xxxxx Xxxxxx Corporation 50%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
---------------------------------------------------------------------------------------
ValueVision International, Inc. 12 1/2%
0000 Xxxxx Xxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
---------------------------------------------------------------------------------------
NBC Internet, Inc. 10%
0 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
---------------------------------------------------------------------------------------
XXXX.xxx 2 1/2%
0000 Xxxxxxxx Xxxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
---------------------------------------------------------------------------------------
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