CONFIDENTIAL
Number:
OPERATING AGREEMENT
OPENING NIGHT ENTERPRISES LIMITED LIABILITY COMPANY
(A California Limited Liability Company)
Total
Offerin
g
Minimum of
$20,000,000
Maximum of
$50,000,000
[4,000 Units (Minimum) to 10,000 Units
(Maximum) to be sold]
In LLC membership interests of
OPENING NIGHT ENTERPRISES, LIMITED LIABILITY
COMPANY
(The Offering)
Offering Price
$5,000 per Unit of LLC Membership Interests
*
THE SECURITIES OFFERED HEREBY ARE
SPECULATIVE AND IN VOLVE A HIGH DEGREE
OF RISK AND SHOULD NOT BE PURCHASED BY
ANYONE WHO CANNOT AFFORD THE LOSS OF THE
ENTIRE INVESTMENT.
THE DATE OF THIS OPERATING AGREEMENT IS
MAY 1, 2017
THE INFORMATION IN THIS DOCUMENT OR ANY OTHER DOCUMENT
SUBMITTED TO INVESTORS IN CONNECTION WITH THIS OFFERING, AND
WHETHER SUCH DISCLOSURE IS ADEQUATE AND WHETHER THESE
SECURITIES ARE EXEMPT FROM REGISTRATION, HAS NOT BEEN REVIEWED
OR PASSED UPON BY THE SECURITIES AND EXCHANGE COMMISSION OR
ANY OTHER REGULATORY AGENCY, NOR HAS ANY SUCH AGENCY PASSED
UPON THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY OR ANY REPRESENTATION THAT ANY REGULATORY AGENCY HAS
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS OPERATING
AGREEMENT IS A CRIMINAL OFFENSE. THE MEMBERSHIP INTERESTS BEING
OFFERED ARE SPECULATIVE SECURITIES THAT INCLUDE A HIGH DEGREE OF
RISK. ACCORDINGLY, THE OFFERING IS SUITABLE ONLY FOR PERSONS
WHO CAN AFFORD A TOTAL LOSS OF THEIR INVESTMENT.
THE INTERESTS EVIDENCED BY THIS OPERATING AGREEMENT (THE
INTERESTS ) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE 1933 ACT ), OR UNDER ANY STATE
SECURITIES LAWS. THESE INTERESTS MAY ONLY BE ACQUIRED FOR THE
PURCHASER'S OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE.
THIS AGREEMENT, TOGETHER WITH ITS ATTACHED EXHIBIT AND RELATED
PAPERS SHALL NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY, AND, UNTIL FULLY EXECUTED BY ALL PARTIES,
SHALL NOT BE ENFORCEABLE OR OTHERWISE BIND ANY PARTY.
THE INTERESTS ARE CONSIDERED 'SECURITIES' FOR PURPOSES OF
FEDERAL AND CERTAIN STATE SECURITIES LAWS. THE OFFER AND SALE
OF THE INTERESTS WILL BE MADE TO INVESTORS ONLY IN SUCH A
MANNER THAT THEY WILL BE DEEMED TRANSACTIONS EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT PURSUANT TO SECTION
3(b)(2) OF THE 1933 ACT AND REGULATION A PROMULGATED
THEREUNDER.
THE MANAGERS RESERVE THE RIGHT TO REJECT ANY PURCHASE OFFER IN
WHOLE OR IN PART (NO FUNDS WILL BE ACCEPTED FROM ANY REJECTED
PURCHASER). THIS OFFERING MAY BE ALTERED OR AMENDED BY THE
MANAGERS BUT ONLY INSOFAR AS TO NOT DEROGATE FROM THE FINANCIAL
INTERESTS OR RIGHTS OF ANY MEMBER. FURTHER, ANY SUCH AMENDMENT
MUST NOT VIOLATE ANY APPLICABLE LAW, RULE OR COURT ORDER, AND
MUST MAINTAIN THE EXEMPTION SET FORTH ABOVE.
NO OFFERING LITERATURE SHALL BE EMPLOYED IN THE OFFERING OF
THESE INTERESTS EXCEPT FOR THIS OPERATING AGREEMENT AND
ENCLOSED OFFERING CIRCULAR, AND NO PERSON HAS BEEN AUTHORIZED
TO MAKE OR TO GIVE ANY OTHER REPRESENTATIONS. ANY INFORMATION
OR REPRESENTATIONS NOT CONTAINED IN OR OBTAINED PURSUANT TO THE
TERMS OF THIS OPERATING AGREEMENT MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE MANAGERS OR FOR ANY OTHER REASON.
ALL RELEVANT DOCUMENTS IN THE POSSESSION OF OR REASONABLY
AVAILABLE TO THE MANAGERS NECESSARY TO VERIFY THE ACCURACY OF
THE INFORMATION FURNISHED IN THIS OPERATING AGREEMENT HAS OR
WILL BE MADE AVAILABLE TO THE OFFEREEUPON REQUEST.
PROSPECTIVE INVESTORS ARE NOT TO CONSTRUE THE CONTENTS OF
THIS AGREEMENT OR ANY PRIOR OR SUBSEQUENT COMMUNICATION FROM
THE COMPANY, THE MANAGERS, THEIR AFFILIATES OR ANY
PROFESSIONAL ASSOCIATED WITH THIS OFFERING, AS LEGAL, TAX OR
INVESTMENT ADVICE. EACH INVESTOR SHOULD CONSULT WITH AND RELY
UPON HIS/HER OR ITS OWN PERSONAL COUNSEL, ACCOUNTANT AND/OR
OTHER ADVISORS AS TO LEGAL, TAX AND/OR ECONOMIC IMPLICATIONS OF
THE INVESTMENT DESCRIBED IN THE OPERATING AGREEMENT AND ITS
SUITABILITY FOR HIM, HER OR IT. NO REPRESENTATION OR WARRANTY
IS OR CAN BE MADE AS TO THE ECONOMIC RETURN THAT MAY ACCRUE TO
A MEMBER. THERE MAY BE NO TAX BENEFITS FROM AN INVESTMENT IN
THE COMPANY (EVEN IN THE CASE OF A LOSS) AND ANY INVESTMENT
SHOULD BE MADE SOLELY FOR ECONOMIC REASONS. CERTAIN INVESTORS
MAY BE ABLE TO OFFSET LOSSES AGAINST CERTAIN INVESTMENT GAINS
AT CERTAIN TIMES, HOWEVER NO MEMBER SHOULD DEEM NOR RELY ON
ANY STATEMENT HEREIN AS TAX ADVICE. MEMBERS ARE ADVISED TO
CONSULT A TAX ACCOUNTANT REGARDING THE TAX REPERCUSSIONS OF
THIS INVESTMENT.
OPENING NIGHT ENTERPRISES, Limited Liability Company
TABLE OF CONTENTS
Article I
ORGANIZATION
4
Article II
GENERAL DEFINITIONS
5
Article Ill
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
7
Article IV
COMPANY FUNDS
8
Article V
CERTAIN BUSINESS PREDICTIONS AND CUSTOMS ON A MOVING FORWARD
BASIS
9
Article VI
ALLOCATIONS AND DISTRIBUTIONS OF THE COMPANY
9
Article VII
RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGERS
10
Article VIII
TRANSFERS OF MEMBERSHIP INTERESTS
12
Article IX
REPORTS AND TAX MATTERS
13
Article X
DISSOLUTION AND TERMINATION
15
Article XI
POWER OF ATTORNEY
15
Article XII
MISCELLANEOUS PROVISIONS
16
EXHIBITS:
CERTAIN BUDGETS
OPERATING AGREEMENT
OPENING NIGHT ENTERPRISES LIMITED LIABILITY
COMPANY
OPERATING AGREEMENT ( Agreement ), made and entered into
as of MAY 1, 2017 by these persons who have executed this
Agreement or a counterpart hereof. The parties hereto,
intending to be legally bound, agree as follows:
Article I
ORGANIZATION
A. FORMATION OF LIMITED LIABILITY COMPANY
The Managers (as hereinafter defined) have organized
a limited liability company (the Company ) pursuant to
the California Limited Liability Company Act.
B. NAME
The business of the Company shall be conducted under
the name of Opening Night Enterprises Limited
Liability Company.
C. PRINCIPAL OFFICE AND REGISTERED OFFICE
The principal and registered office of the Company
be located at 00 Xxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx Xxxxx. California, 91024. The Managers
may, within their sole and unrestricted discretion,
change the principal or registered office of the
Company.
D. PURPOSE
The purpose of the Company is to produce a television
series (the Series ) entitled OPENING NIGHT wherein
during thirteen weekly episodes, portions of three (3)
new dramatico-musical stage works are presented for a
television audience. The Managers? current plan is
that such audience shall be national throughout the
United States. The Managers hope that the series will
generate interest in the shows presented among stage
audiences. It is expected that the Company shall
thereafter utilize the funding raised hereunder to
produce one or more of the three musicals presented in
professional stage production(s) (the Stage
Productions ).
E. FISCAL YEARS
The fiscal year of the Company shall be the calendar
year.
F. TERM AND CAPITALIZATION
The term of the Company commenced as of the date
of the filing of the Articles of Organization in
the California Department of State. The Company may
cease raising further monies at such time as the
aggregate contributions of Members hereunder (n the
aggregate with any loans contributed towards the
capitalization of the Company) equal at least Twenty
Million Dollars ($20,000,000) (the Minimum
Capitalization ). The Managers shall not be precluded
from continuing to obtain additional funds from
Members until the Company is able to raise a
Maximum Capitalization of no more than Fifty
Million Dollars ($50,000,000) has been paid in. The
actual capitalization raised by the Company
hereunder (the Original Capital or the
Capitalization ) shall be raised, if ever, prior to
31 December, 2021, or, if the Series has begun to air
prior to such time, until the last episode of the
Series has aired, and shall equal an amount no
greater than the Maximum Capitalization and no less
than the Minimum Capitalization.
Notwithstanding anything herein to the contrary, the
Company may accept loans, promissory notes,
sponsorship, amounts earned as a result of the
Series, either from studio(s), network(s),
production company(s) and/or advertisers, or
other financing at any time which may count towards
or constitute part of the Minimum Capitalization or
the Original Capital, and nothing shall prohibit the
acceptance of loans or other non-equity financing
after the Maximum Capitalization has been paid in.
Loans shall be repaid prior to any recoupment of
contributions by Members, pursuant to the terms of
Article Vl (A)(2).
By their signature to the Subscription Agreement
attached to this Agreement, Members have the choice
of authorizing the Managers to expend any or all of
their capital contributions on an immediate use
basis, i.e., prior to the Minimum Capitalization
having been contributed. Accordingly, such
contributions may be spent, prior to the Company
reaching the Capitalization, for any proper purpose
of the Company, pursuant to the terms of the
Immediate Use Authorization signed by the Member.
If the Capitalization is not raised by the deadlines
set forth above, all unspent monies contributed
hereunder shall be returned to the investors pursuant
to Article IV hereof.
The term of the Company shall terminate in accordance
with Article X.
G. DECISIONS
The Managers shall make all decisions with respect to
the Company including, without limitation, the
production of the Musical, creative, operational,
financial, managerial or otherwise, in their sole
discretion.
H. INCORPORATION BY REFERENCE
Upon execution, the terms of the attached
Subscription Agreement shall be incorporated herein
by reference.
Article II
GENERAL DEFINITIONS
As used in this Agreement, the following terms when
capitalized shall have the meaning set forth in this
Article. For purposes of this Agreement, the term
person shall include individuals, corporations,
associations, partnerships, limited liability
companies, trusts, estates and other bodies and
entities.
A. ACT
Act shall mean the California Liability Company Law,
as now in effect or as hereafter amended or revised.
B. COMPANY
Company shall mean OPENING NIGHT ENTERPRISES Limited
Liability Company, the limited liability company
formed by the filing of the Certificate of Formation.
X. XXXXX RECEIPTS
Gross Receipts shall be deemed to mean all sums
derived by and belonging to the Company from any
and all sources (but not including Membership
contributions or Loans, or any other funding,
including payments from studio(s), network(s) and/or
advertiser(s), which are used towards the
Capitalization hereunder) including, without
limitation, (i) television revenues or income,
(ii) from its stage presentations of each Musical,
inclusive of ancillary income such as commercial
use products, and albums, (ii) from the
disposition or exploitation of any of its rights in
each Musical, including subsidiary rights, tours,
films (to the extent that such rights are obtained
from the authors) and other derivatives or (iii)
from the disposition of its physical assets or other
properties, and the return of any bonds or other
recoverable items.
D. MANAGERS
Managers shall mean Xxxxxxx Xxxxx XX Enterprises,
Inc., Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxx, as well
as any other Managers appointed by the afore-named
Managers or subsequent Managers pursuant to the terms
hereof.
E. MEMBERS
Members shall mean investors in the Company to the
extent of their contribution(s) hereunder. All
investors are required to execute this Agreement
prior to being admitted as a Member, as a condition of
investment. The Managers reserve the right to reject
any potential Member and in such case no monies shall
be accepted from the rejected party.
F. MEMBERSHIP INTEREST
Membership Interest shall mean, with respect to a
Member, the value of ownership interest in the
Company of such Member, such value being equal to
the contribution made to the Company herewith.
Membership Interests also will be expressed in units
of $5,000 each ( Units ). Members shall have the
right to purchase multiple Units.
Members shall be responsible for paying all taxes in
respect of their Membership Interest, including, but
not limited to, (1) federal income taxes resulting
from increases to a Member's Capital Account in
respect to a given tax year and (2) federal income
taxes resulting from distributions made by the Company
to that Member in a given year to the extent such
distributions exceed the Member's adjusted basis in
the Company (that is, the taxable value of the
Member's Capital Account) for that year.
G. OFFERING
Offering shall mean the sale of Membership Interests
hereunder.
H. PROPERTY
Property shall mean, at any time, all property,
whether real or personal, assets or rights owned or
held by or on behalf of the Company at a given time.
I. OTHER EXPENSES
Other Expenses shall be deemed to mean all expenses
of whatsoever kind or nature, other than those
referred to as Running Expenses (as defined herein)
or Production Expenses (as defined herein), incurred
in or in connection with or by reason of the
operation of the business of the Company, including,
without limitation, litigation, collection, insurance,
maintenance of copyrights and other intellectual
property, repairs, Company overhead, and payment to
Company personnel (including attorneys and accountants)
which such engagements or expenses are not associated
with a given theatrical or television production (e.g.,
do not appear on the production or running costs
budget). There shall be no Other Expenses incurred
which are not customary, arms-length, reasonable and
directly related to and necessary for the operation
of the Company.
J. PRODUCTION EXPENSES
Production Expenses shall be deemed to mean the
total expenses, charges and disbursements of whatever
kind incurred by the Company directly in connection
with any production of the Series and Stage
Production(s), as such appear on the official budgets
of same, including without limitation, costs of
building and installing any physical properties;
advances and other up-front payments to personnel;
acquisition of rights; prior advertising, publicity
and marketing costs; and any and all other
reasonable, customary and standard expenses
usually included in the term Production Expenses.
There shall be no Production Expenses incurred which
are not reasonable or which do not appear as a
budgetary item of the final budget for the
applicable production of the Television Series and
each Musical presented by the Company. Certain
budgets are attached hereto as exhibits. These are
subject to change but not so as to change the Minimum
Capitalization or the Maximum Capitalization.
K. RUNNING EXPENSES
Running Expenses shall be deemed to mean all
expenses, charges and disbursements of whatsoever
kind actually incurred as running expenses of any
production of the Series and Stage Production(s)
presented by the Company, and directly incurred by
the Company (that is, not paid for by another
party) including, without limitation, royalties,
salaries for services rendered, rentals, advertising,
publicity and promotion expenses incurred on a weekly
or monthly (or other periodic) basis during production
or exhibition (or presentation) (Certain applicable
budgets are attached hereto as exhibits).
Article Ill
CAPITAL CONTRIBUTIONS AND CAPITAL
ACCOUNTS
A. CONTRIBUTIONS OF MEMBERS
Each of the parties signing a Subscription Agreement
as a Member shall contribute to the capital of the
Company the respective sum set forth on the
Subscription Agreement executed by such Member. Cash
contributions shall be held in a special segregated
bank account and may be expended by the Managers on
behalf of the Company only as authorized in this
Agreement.
B. NO OBLIGATION TO ACCEPT MEMBERS
All offers to subscribe to Membership Interests are
subject to acceptance by the Managers.
C. PAYMENT FROM MANAGERS' SHARE OF NET PROFITS
Without limiting the provisions of the above, the
Managers have the right for any reason whatsoever to
pay to certain Members, persons rendering services
to the Company, and/or any other party or parties,
an additional participation but solely from the
Managers' share of Net Profits of the Company.
D. CAPITAL ACCOUNTS
The Company shall maintain separate capital accounts
for each Member. The capital account of each Member
shall be credited with his or her capital
contributions (at net fair market value with respect
to contributed Property) and shall be appropriately
adjusted to reflect each Member's relative allocations
(determined by relative Membership Interest held) of
profits, gains, losses, deductions, the net fair
market value of distributions made from the Company
and such other adjustments as shall be required by
the Internal Revenue Code of 1986 704(b) and the
regulations promulgated thereunder. See Article IX for
further tax information and terms.
E. LIMITED L I A B I XX X X
The Members shall not have any personal liability
for liabilities or obligations of the Company except
to the extent of their capital contribution hereunder,
and the Members shall not be required to make any
further or additional contribution to the Company or
to lend funds to the Company for any purpose.
Notwithstanding anything to the contrary in the
foregoing, a Member shall indemnify and hold harmless
the Company and each Member from any liability or loss
incurred by virtue of the assessment of any tax with
respect to such Member's allocable share of the
profits or gain of the Company.
X. XXXXX
If the Managers believe that additional funds are
necessary for the carrying on of Company affairs,
they shall have the right, in their sole
discretion, to borrow in the Company's name the
amount which they deem necessary, on such terms as
they in their sole discretion shall determine, if the
terms thereof (including interest) are reasonable,
prudent, and customary. The Company, pursuant to Vl
(A) shall repay monies borrowed.
G. NO INTEREST ON OR RIGHT TO WITHDRAW CAPITAL
CONTRIBUTIONS
No interest shall be paid by the Company on capital
contributions or on the balance in any capital
account and no Member shall have the right to withdraw
his or her capital contribution or to demand or
receive a return of his or her capital contribution.
H. PROHIBITION AGAINST SECURITIZATION
A Member shall not have the right to pledge its
Membership Interest or any portion thereof, or any
other right or benefit hereunder, as collateral or to
otherwise secure any note or obligation.
Article
IV
COMPANY
FUNDS
The Managers shall open and maintain in the name of the
Company a special bank account or accounts in designated
as the OPENING NIGHT ENTERPRISES, Limited Liability
Company account in which shall be deposited all of the
capital of the Company and no other funds. All monies
received from the Offering of Membership Interests
hereunder shall be held in this special bank account in
trust until actually employed for the Television Series
and Stage Productions or until returned or distributed to
the Members pursuant to the terms hereof. In any event,
the funds held in such account shall be used solely for the
business of the Company. This account shall not be co-
mingled or cross collateralized with other account(s) and
shall be segregated.
If the Minimum Capitalization is not reached on a timely
basis pursuant to the terms set forth in Article l(F), or
the Offering is otherwise terminated prior to the Minimum
being secured, the Managers will refund unspent
contributions, first to those Members who did not authorize
immediate use and thereafter, if any unspent contributions
remain, to those Members who agreed to immediate us, on a
pro-rata basis. It is understood that the Managers shall
not be obligated to return any contributions from their own
assets, and thus Members authorizing immediate use risk the
loss of all or a part of the amounts they contributed.
Subject to the provisions of this Agreement, all funds
received by the Company shall be utilized for Company
purposes as determined by the Managers in the best
interest of the Company. Subject to the terms hereof, the
Managers or their designee(s) shall have the right to
draw checks payable in such funds and make, deliver, accept
and endorse negotiable instruments in connection with the
Company's business.
Article V
CERTAIN BUSINESS PREDICTIONS AND CUSTOMS ON A MOVING FORWARD
BASIS
A. RUNNING COSTS
It is expected that the Company will not incur the
obligation to pay Running Costs. Usually, a studio,
production company or network would pay the Running
Costs of the Series. Further, it is expected that
Running Costs of a Stage Production will be paid for
by the gross weekly box office receipts, that is,
ticket revenue.
B. LICENSING
It is expected that the Company may earn a large
potential revenue from licensing. Licensing may
include a disposition of rights to an entity of which
one or more of the principals and/or owners is or are
a Manager(s). If the Company licenses its rights to a
musical (and/or its physical properties, designs or
other assets or properties) to a third party, the
Company will receive a customary license fee (which
may be a share of ticket revenue, net profits, an
upfront payment and/or other monetary stream). The
Company will not incur Production or Running Expenses
with respect to any production capitalized and
presented by a third party pursuant to a license.
C. SUBSIDIARY PARTICIPATION
It is expected that the Company, as the presenter of
each Stage Production(s), shall be entitled to a
participation, expressed as a percentage of receipts
(gross net of licensing and/or other agent(s)
commission(s) of the Authors' future income from the
disposition of rights in and to the Musical(s) to
third parties, expected to occur following the
expiration of the Company?s rights. The participation
of this Company shall depend on the number of
performances of the Stage Production(s) presented by
the Company. Any amounts inuring to the Company as a
result of such subsidiary participation shall
constitute Gross Receipts, and shall be distributed
according to the terms herein.
D. MANAGERS' COMPENSATION
The producers (which may include one or more
Managers) may receive a producer royalty (which may
be a share of gross weekly box office receipts) and
other customary payments in connection with Stage
Production(s), in accordance with theater industry
custom and the Stage Production Running Costs
budget(s).
Article VI
ALLOCATIONS AND DISTRIBUTIONS OF
THE COMPANY
X. Xxxxx Receipts realized and actually received by the
Company from all sources, as well as any underage
sums (for example, if, because fewer Stage
Productions were produced than expected, and, as a
result, the entire Original Capital was not needed
for expenditure) shall be applied as follows and in
the following order of priority:
1. First, to the payment of Other Expenses, if any
(it is not expected that the Company shall be
liable or otherwise obligated to pay for
Production or Running Expenses).
2. Second, to the repayment of any loans to the
Company, plus any interest thereon.
3. Third, to the establishment of a cash reserve
(distributable cash held back, or accumulated)
in an amount determined by the Managers in their
sole reasonable discretion from time to time,
for anticipated Other Expenses, debts,
liabilities, expenses and working capital. Such
reserve shall not be held for more than one year
and shall not exceed Five Percent (5%) of Gross
Receipts.
4. Gross Receipts remaining after the deductions set
forth in subsections 1, 2, and 3 above shall be
characterized as Net Cash Flow. Net Cash Flow
shall be distributed to each Member in the same
proportion as his or her contribution bears to
the aggregate amounts raised from all Members
in the aggregate, until such time as each Member
has recouped 100% of his or her contribution to
the Company ( Recoupment ).
5. Next, after Recoupment, Net Cash Flow, if any,
shall be deemed Net Profits . An amount equal
to 50% of Net Profits shall be divided among the
Members of the Company, with each such Member
receiving that portion thereof as its
contribution bears to the amounts raised in the
aggregate from Members.
B. DISTRIBUTIONS
If and so long as any amounts are payable to the
Members pursuant to the foregoing, the Company shall
seek to pay such amounts within sixty (60) days after
the end of each calendar quarter with respect to any
amounts payable for such quarter.
C. AUDIT AND STATEMENT
The Company?s financial reports shall accompany all
distributions to the Members from the Company so as to
explain the accompanying distribution or lack thereof.
For a period of eighteen (18) months after the
delivery of a given financial statement, a Member may,
during reasonable business hours and upon fourteen
(14) days written notice to the Company and at the
Member's expense, audit the books and records of the
Company in order to verify the accuracy thereof. The
applicable Member shall deem any statement in respect
of which such an audit does not occur within such 18-
month period accepted and approved in its entirety.
Notwithstanding the above, the cost of such audit
shall be at the Company's expense if, and only if,
such audit uncovers that the distribution in respect
of the (or any) statement(s) to which such audit
relates was in an amount which was 10% or more lower
than the amount due to the Member. If such audit
reveals that there was a discrepancy in Company's
favor between the amount actually paid to the Member
and the amount owed to the Member, the Member shall
immediately remit payment to the Company in the amount
of such discrepancy.
Article VII
RIGHTS, POWERS AND OBLIGATIONS OF THE
MANAGERS
A. MANAGEMENT AND CONTROL IN GENERAL
The Managers shall have full and exclusive power to
manage and control the business and affairs of the
Company and to designate such powers. The Members
shall have no right to act on behalf of or bind the
Company. The Members shall have no power to appoint
or remove any Manager except as specifically allowed
by law. The Managers shall have all the rights,
powers and obligations of a manager as provided in
the Act and as otherwise provided by law, and any
action taken by a Manager shall constitute the act of
and serve to bind the Company. In dealing with a
Manager (or a principal of a Manager), no persons
shall be required to inquire into, and all persons
are entitled to rely conclusively on, the authority
of such Manager to bind the Company.
B. NUMBER AND APPOINTMENT OF MANAGERS
1. A Manager may resign at any time upon prior
written notice to the Company. In the event
(a) of a vacancy in the position of Manager by
any reason, including resignation, removal,
death or bankruptcy, or (b) that the Managers
wish to appoint additional Managers, a
successor or additional Manager may be
appointed by the remaining Managers, if any,
if the Managers choose to do so, subject to
the unanimous approval of the remaining
Managers. The Managers must first make
arrangements to replace a vacating Manager if
the vacancy results in there being no Managers
remaining.
2. A Manager shall not be required to be a Member of
the Company or a resident of any particular
state.
3. The removal or resignation of any person or
entity who is a Manager by any means shall not
dictate the removal of that person or entity as
a Member if that person or entity is a Member.
4 The initial number of Managers shall be
three (3).
C. ACTION AND DECISIONS BY MANAGERS
Managers may act and/or make decisions according to
any process or voting procedure they agree upon in
writing. Unless and until any such process or
procedure is thereby agreed upon, and subject to the
other provisions this Agreement, no decision or act
by the Managers shall require written resolutions or
other instruments memorializing.
D. COMMITMENT OF MANAGERS
A Manager shall not be required to devote full time
to the affairs of the Company and shall devote such
time to Company affairs, as it deems necessary in
its sole and unrestricted discretion to manage and
supervise the operations and business of the
Company. Nothing contained in this Agreement shall
preclude the employment by a Manager, on behalf of
and at the expense of the Company, of it or any
agent or third party to operate and manage all or any
portion of the business or to provide any service
relating to the business, subject to the control of
the Managers. The Managers may, on behalf of the
Company, engage one or more affiliates to render
services to the Company, provided that any such
engagement shall be upon terms and conditions no less
favorable to the Company than could be obtained from
an independent third party. Neither the Company nor
any of the Members shall have, as a consequence of
the relationship created hereby, any right in or to
any income or profits derived by the Managers or an
affiliate of a Manager from any business
arrangements with the Company that are consistent with
this Section.
E. OTHER ACTIVITIES
Each Manager, any principal or affiliate of any
Manager, and any Member may engage in or possess an
interest in other business ventures or investments of
any kind, independently or with others, including but
not limited to ventures engaged in owning, operating
or managing businesses or properties similar to
those businesses or properties owned or operated by
the Company. Company services need not be full-time.
The fact that a Manager, a principal of a manager, any
affiliate of a Manager, or any Member may avail itself
of such opportunities, either by itself or with other
persons, including persons in which it has an
interest, and not offer such opportunities to the
Company or to any Member or Manager, shall not
subject such party(s) to liability to the Company or
to any other party on account of lost opportunity.
Neither the Company nor any Member shall have any
right by virtue of this Agreement or the relationship
created hereby in or to such opportunities, or to
the income or profits derived therefrom, and the
pursuit of such opportunities, even though
competitive with the business of the Company, shall
not be deemed wrongful or improper or in violation of
this Agreement.
F. TITLE TO PROPERTY
Title to Property shall be taken in the name of the
Company or in the name or names of a nominee or
nominees designated by the Managers.
X. XXXXXXXXX OF A MANAGER
The Managers and any affiliate of any Manager, and
their respective officers, shareholders, controlling
persons, directors, agents and employees, shall not
be liable, responsible or accountable in damage or
otherwise to the Company or to any of the Members,
their successors or permitted assigns, arising out of
activities taken in connection with Company business,
except by reason of acts or omissions constituting
gross negligence or willful misconduct. Any action
taken in good faith in reliance upon and in
accordance with the advice or opinion of
professional counsel shall be conclusively deemed
not to constitute gross negligence or willful
misconduct.
X. INDEMNIFICATION
The Company shall indemnify, defend and hold harmless
any person (the Indemnified Party ) who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action, case, claim,
suit or proceeding, whether civil, criminal,
administrative or investigative, against losses,
damages, fees or other expenses actually and
reasonably incurred by it by reason of any acts,
omissions or alleged acts or omissions arising out of
the Indemnified Party's activities as a Member or
Manager, or as an officer, shareholder, director,
agent or employee of a Member or Manager, on behalf
of the Company or in furtherance of the interests of
the Company, so long as the Indemnified Party did not
act in a manner constituting gross negligence or
material, willful misconduct (no reliance on the
advice of professional advisor(s) shall constitute
such misconduct or negligence). The termination of any
action, suit or proceeding by judgment, order,
settlement, or upon a plea of nolo contendere or its
equivalent, shall not of itself create a presumption
that the Indemnified Party's conduct constituted
gross negligence or willful misconduct.
Article VIII
TRANSFERS OF MEMBERSHIP INTERESTS; ADMISSION OF NEW
MEMBERS
A. TRANSFER OF INTERESTS
1. If a Member shall die, his or her executors
or administrators, or, if he or she shall
become legally incapacitated, his or her
committee or other representative, shall have
the same rights that said Member would have
had, and the share of such Member in the
assets of the Company, until the termination
of the Company, shall be subject to all of
the terms and conditions of this Agreement.
2. The Company shall not be bound by any
assignment of all or any portion of the
interest of a Member unless the Managers
consent thereto in writing. The Managers
shall not be obligated to give any consent
to any such assignment, and if they do give
any such consent in one instance, it shall
not operate to prevent the Managers from
withholding consent to any other assignment.
3. A Member may freely assign its rights to
receive monies hereunder. Such assignment
shall not relieve the Member from any
obligations hereunder or pursuant to
applicable law. Such assignment shall not
entitle the assignee to any voting or other
rights, nor shall such assignee be or be
appointed as a Member.
B. ADMISSION OF MEMBERS
Subject to the consent and approval of the Managers,
and pursuant to the other terms of this Agreement,
Members shall be admitted to the Company through the
purchase of Membership Interests. A Member's
contribution may, upon the approval of the Managers,
consist of (i) non-cash property, including, without
limitation, real property, or services, provided that
such property or services are valued at their fair
market value or (ii) a secured note payable at a date
certain. The decision as to whether to accept any
contribution from any prospective Member belongs to
the Managers in their reasonable discretion.
C. RESTRICTIONS ON HOLDING AND TRANSFER OF MEMBERSHIP
INTEREST Notwithstanding anything else herein, no
Member shall hypothecate, sell, assign, transfer or
otherwise dispose of Membership Interests which would
result, on the part of the assigning Member or the
Company, in a violation of any federal or state law,
rule or regulation or other binding legal regime or
precedent.
D. DECISIONS AND MEETINGS
To the extent that Members are authorized to make
decisions with regard to the Company pursuant to the
limitations set forth in this Agreement and applicable
law, they may do so pursuant to the written approval
of the Members holding a majority of the Membership
Interests of the Company at a meeting in respect of
which all Members and Managers are given no less than
ten (10) days prior written notice and at which no
less than half of the Membership Interests of the
Company are present whether in person, by proxy, or
telephonically. Such notice shall set forth the time
and place of the meeting. If no place for the meeting
is designated, the place of the meeting shall be the
business office of the Company.
Article IX
REPORTS AND TAX MATTERS
A. BOOKS, RECORDS AND REPORTS
1. The Company shall show its assets, liabilities,
operations, transactions and financial
condition, and shall maintain accurate books,
records and reports. The Company books and
records may be kept under such permissible
method of accounting as the Managers may
determine. The Company books shall be
maintained at the principal office of the
Company.
2. The Managers shall cause income tax returns for
the Company to be prepared and filed with the
appropriate authorities. Within ninety (90) days
after the close of each fiscal year of the
Company, the Managers shall send to each person
who was a Member at any time during such fiscal
year such information as will be sufficient to
prepare documents which may be required to be
filed under relevant federal and state income tax
laws.
B. ALLOCATIONS OF GAIN (NET TAX PROFITS) AND
LOSSES ( NET TAX LOSSES ) FOR TAX PURPOSES
1. ALLOCATION OF NET TAX PROFITS
Net Tax Profits for each fiscal year will be
allocated as follows:
a. First, to the Members, until the cumulative
Net Tax Profits allocated pursuant to
this subsection 1(a) are equal to the
cumulative Net Tax Losses allocated to
them pursuant to Section 2(b), below, for
all prior periods.
b. Next, 50% to the Members in proportion to
their Membership Interest in the Company and
50% to the Managers.
c. Notwithstanding the foregoing provisions of
this Section 1, to the extent that Net Tax
Losses were allocated to a Manager or a
Member in any year by reason of the
provisions of Section 2, Net Tax Profits
for the current and subsequent years will
be allocated to such Manager or Member
until equal to the amount of Net Tax
Losses allocated to such Manager or Member
pursuant to Section 2.
2. ALLOCATION OF NET TAX LOSSES
Net Tax Losses for each fiscal year will be
allocated as follows:
a. First, to the Members until the cumulative
Net Tax Losses allocated pursuant to this
subsection 2(a) are equal to the cumulative
Net Tax Profits allocated to them pursuant
to Section 1(a), above, for all prior
periods.
b. Next, to the Managers until the cumulative
Net Tax Losses allocated pursuant to this
subsection 2(b) are equal to the cumulative
Net Tax Profits allocated to them pursuant
to Section 1(b), above, for all prior
periods.
c. Third, 50% to the Members in proportion to
their Membership Interest in the Company and
50% to the Managers.
C. TAX MATTERS PARTNER
Xxxxxxx Xxxxx XX Enterprises Inc. shall be the tax
matters partner for purposes of Subchapter C of
Chapter 63 of Subtitle F of the Internal Revenue Code
(Code '6221-3) and shall have the authority to
exercise all functions provided for in said Act, or
in regulations promulgated thereunder by Treasury,
including, to the extent, permitted by such
regulations, the authority to delegate the function
of tax matters partner to any other person.
Xxxxxxx Xxxxx XX Enterprises, Inc. shall be
reimbursed for all reasonable expenses incurred as a
result of its duties as tax matters partner.
Notwithstanding anything to the contrary in the above,
at any time during the Company's existence the
Managers may appoint a new tax matters partner.
Article X
DISSOLUTION AND TERMINATION
A. DISSOLUTION OF THE COMPANY
The Company shall dissolve and be terminated upon
the earlier of (1) the entry of a decree of judicial
dissolution, (2) the written agreement of all parties
who are Managers at such time, (3) the permanent
cessation of all Company activities or (4) such time
as the Company is required to be terminated or
dissolved under the Act or other applicable state or
federal law.
B. LIQUIDATOR
1. Upon dissolution of the Company, the Managers, or
such person as the Managers may designate,
shall act as liquidator of the Company (in
either case, the Liquidator ). The Liquidator
shall have unlimited discretion to determine the
time, manner and terms of any sale of property
having due regard to the activity and condition
of the relevant market and general financial
and economic conditions. The Liquidator shall
distribute any proceeds received from the
disposition of the property and any other
assets of the Company in accordance with the
provisions of Article VI.
2. The Liquidator shall comply with all
requirements of the Act and other applicable law
pertaining to the winding up of a limited
liability company, following which the Company
shall stand liquidated and terminated.
C. SOURCE OF DISTRIBUTIONS
Each Member shall look solely to the assets of the
Company for all distributions with respect to the
Company, the return of his capital contribution
thereto and his share of profits or losses thereof,
and shall have no recourse therefor (upon
dissolution or otherwise) against any other Member or
Manager.
Article XI
POWER OF ATTORNEY
A. POWER OF ATTORNEY
Each Member, by executing this Agreement or a
counterpart hereof, does hereby irrevocably
constitute and appoint the Managers, and any
successor Manager of the Company, with full power of
substitution, as such Member's true and lawful
attorney in fact in his or her name, place and
xxxxx, to execute, acknowledge, swear to, deliver,
file and record such documents which are now or may
hereafter be required by law to be filed on behalf
of the Company or are reasonably deemed
necessary or desirable by the Managers to carry out
fully the provisions of this Agreement in accordance
with its terms, and which (1) are in no way
inconsistent with the terms hereof and (2) do not
lessen the interests, rights or entitlements of any
Member.
B. NATURE OF POWER OF ATTORNEY
The grant of authority in Article Xl (A) by each
Member (1) is a special power of attorney coupled
with an interest in favor of the Attorney-in-Fact and
as such shall be irrevocable and shall survive the
death or legal incapacity of the Member; (2) may be
exercised for the Member by a facsimile signature of
the Attorney-in-Fact; and (3) shall survive the
assignment by the Member of all or any portion of his
or her Membership Interest and be binding upon the
assignee.
Article
XII
MISCELLANEOUS PROVISIONS
A. NOTICES
All legal notices or other communications required
under this Agreement shall be in writing and shall
be considered as properly given if personally
delivered or if mailed by certified mail, or via
Federal Express, to such Member or Manager at his or
her address on the records of the Company. A Member
may change his or her address for notice by giving
notice in like manner. Any notice or other
communication shall be deemed to have been given to,
or received by, the appropriate party as of the date
on which it is personally delivered or, if mailed, on
the third business day after the date on which it is
deposited in the United States mail, or if by Fed-Ex,
on the day of delivery. If the time of notice is not
during regular business hours, notice shall be deemed
given as of the start of the next business day.
B. GOVERNING LAW/ARBITRATION
Any and all disputes or controversies arising out
of, under, or in connection with this Agreement, its
making, interpretation, validity, or the performance
or breach thereof, shall be submitted to arbitration
before a single arbitrator in Los Angeles, CA under
the rules and regulations of the American Arbitration
Association and judgment upon the award may be
entered in any court, state or federal, having
jurisdiction thereof. The arbitrator shall be
directed to award the prevailing party reasonable
attorney's and arbitrations fees. The parties
consent to the jurisdiction of the state (or federal,
for federal claims) courts of the State of California
for the purpose of enforcing this arbitration
agreement and proceeding, and entry of judgment on
any award. This Agreement shall be deemed made and
to be performed in California and shall be construed
in accordance with the laws of the State of
California, without regard to conflicts of law
principles.
C. SUCCESSORS AND ASSIGNS
This Agreement and all terms and provisions hereof
shall be binding upon and shall inure to the benefit
of the Members and their respective heirs, executors,
administrators, successors and permitted assigns. Any
person acquiring or claiming an interest in the
Company, in any manner whatsoever, shall be subject
to and bound by all the terms, conditions and
obligations of this Agreement to which his or her
predecessor in interest was subject or bound, without
regard to whether such person has executed this
Agreement or a counterpart hereof or any other
document contemplated hereby. No person shall acquire
an interest in the Company or become a Member thereof
except as permitted by the terms of this Agreement.
D. COUNTERPARTS
This Agreement may be executed in any number of
identifiable counterparts, each of which, for all
purposes, shall be deemed an original, and all of
which constitute, collectively, one and the same
Agreement, in addition, this Agreement may contain
more than one counterpart signature page and may be
executed by the affixing of the signature of each of
the Members to one of such counterpart signature
pages, and all such counterpart signature pages shall
be read as one and shall have the same force and
effect as though all the signers had signed the same
signature page.
E. MODIFICATION TO BE IN WRITING
This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter
hereof and supersedes any and all prior negotiations,
understandings and agreements in regard hereto. No
amendment, modification or alteration of the terms
hereof shall be binding unless the same is in writing
and is affected in accordance with this Agreement.
F. PARTITION
Each of the parties hereto irrevocably waives during
the term of the Company any right that he or she may
have to maintain any action for partition with
respect to Company Property.
G. GENDER AND NUMBER
Wherever from the context it appears appropriate, each
term stated in either the singular and plural, and
pronouns stated in either the masculine, the
feminine or the neuter gender, shall include if
appropriate, the singular, plural, masculine, feminine
and neuter.
H. HEADINGS
The captions in this Agreement are inserted for
convenience of reference only and shall not affect
the construction of this Agreement. References in
this Agreement to any Article or part of an Article
are to the same contained in this Agreement.
I. VALIDITY AND SEVERABILITY
If any provision of this Agreement contravenes any
law and such contravention would thereby invalidate
this Agreement, or if the operation of any provision
hereof is determined by law, administrative regulation
or otherwise to result in classification of the
Company as an association taxable as a corporation for
federal income tax purposes, or to make a Member
generally liable for the obligations of the Company,
then such provision is hereby declared to be invalid
and severed from the remaining portion of this
Agreement, and this Agreement shall be read and
construed as though it did not contain such provision
in a manner to give effect to the intention of the
parties to the fullest extent possible.
J. NO THIRD-PARTY RIGHTS
This Agreement and the covenants and agreements
contained herein are solely for the benefit of the
parties hereto and their affiliates. No other person
shall be entitled to enforce or make any claims, or
have any right pursuant to the provisions of the
Agreement.
AGREED TO AND ACCEPTED BY:
XXXXXXX XXXXX XX ENTERPRISES, INC
By: Xxxxxxx Xxxxx XX, Authorized Signatory
EXHIBITS
CERTAIN BUDGETS
OPENING NIGHT ? TV Production Budget Worksheet
Name of Program
OPENING NIGHT ? TELEVISION SERIES
Number of TV Episodes & duration
PILOT AND THEN 12 EPISODES ? 1 HOUR IN LENGTH
Previous Funding
Development
$ 2,500
$ 2,500
Production
$ 2,500
$ 2,500
TV DEVELOPMENT / SCRIPT
Concept & Rights (All rights owned by Production Company)
$ 0.00
Research ? Musical Selection Committee
$ 20,000.00
Story / Script / Writers Fees
$ 5,000.00
Other (specify) REALITY PROGRAM DEVELOPMENT
$0.00
Development Subtotal
$25,000.00
TV PRODUCTION (PER EPISODE)
Producer Fees (total incl. EP)
$
100,000
Director Fees (total)
$
40,000
Presenters / Actors / Talent (UNION)
$
145,000
Production Staff & Crew (UNION)
$
100,000
Studio / Locations
$
100,000
Lighting and Sound design and operation
$
75,000
Wardrobe / Make-Up / Art Department
$
25,000
Travel/Accommodations/Living
$
75,000
Production Office / Admin
$
25,000
Scenery and Costume Design and Creation
$
75,000
Production Subtotal
$ 760,000.00
TV POST PRODUCTION (PER EPISODE)
Music & Copyright
$
50,000
Library Footage & Copyright
$
10,000
Film / Tape Stock
$
10,000
Picture Post Production
$
20,000
Audio Post Production
$
20,000
Titles/Graphics
$
10,000
Post Production Labor
$
50,000
Other (specify)
$
Post Production Subtotal
$ 170,000
?
OPENING NIGHT ? TV Production Budget Worksheet (pg 2 of 2)
TV MARKETING & ADMINISTRATION
Marketing / Delivery
$
20,000
Administration / Overheads
$
50,000
Legal
$
10,000
Insurance
$
10,000
Sundry (e.g. finance, ACC etc.)
$
10,000
Other (specify)
$
Marketing/Admin Subtotal
$ 100,000
Total Above The Line (Per Episode)
$ 320,000
Total Below The Line (Per Episode)
$ 725,000
Contingency
$ 100,000
Production Company Overhead
$ 100,000
TOTAL COST PER EPISODE
$ 1,245,000.00
TOTAL TELEVISION PRODUCTION BUDGET (13 EPISODES)
$17,430,000.00
?
OPENING NIGHT ? MUSICAL Production Budget Worksheet (Off
Broadway)
Name of MUSICAL
ONE OF THREE SHOWS (EACH SHOW ESTIMATED AT SAME COST)
Number of Shows
32 SHOWS ? 4 Week Time Period Budget
Previous Funding
Production Development (Includes rehearsal expenses,
director, choreographer and design costs for costumes,
lighting, sound, scenery & props.)
$375,000.00
MUSICAL OPERATIONAL COST FOR 32 SHOWS (4 week)
Producer Fees (total incl. EP)
$
100,000
Author, Composer, Lyricist Royalty at 2% gross revenue for
each
$
70,000
Actors / Talent (UNION)
$
125,000
Production Staff & Crew (UNION)
$
150,000
Theater Rental
$
150,000
Costume Cleaning, Prop Maintenance
$
20,000
Wardrobe / Make-Up / Art Department (UNION)
$
60,000
Air Travel/Accommodations/Living
$
75,000
Orchestra Conductor and Musicians
$
160,000
Travel/Load-in of Equipment by Stagehands
$
60,000
Production Subtotal
$ 970,000.00
MUSICAL MARKETING & ADMINISTRATION - 32 SHOWS (4 Week Period)
Marketing/Delivery/Publicist
$
25,000
Administration/Overheads
$
50,000
Legal & Insurance
$
35,000
Box Office & Programs
$
2,500
Payroll Taxes
$
50,000
Equity Pension, Health Insurance
$
25,000
Contingency
$
150,000
MARKETING & ADMINISTRATION SUBTOTAL
$ 337,500.00
PRE-OPENING AND RUNNING OPERATION BUDGET TOTAL FOR 32 SHOWS:
(NON-BROADWAY STAGE)
$1,307,500.00
MUSICAL PRODUCTION ASSETS ? 32 SHOWS (4 WEEKS)
TICKET SALES (650 SEAT THEATER) @ 75% CAPACITY
$
$1,560,000.00
CONSUMER PRODUCTS (Musical Recordings and Apparel)
$
$160,000
TOTAL ASSETS FOR ONE MUSICAL (32 SHOWS)
$
$1,880,000
TOTAL ESTIMATED PROFIT FOR 32 SHOWS
$
$572,500.00
?
OPENING NIGHT ENTERPRISES LIMITED LIABILITY COMPANY
Subscription Instructions
Please follow these instructions to subscribe to membership
interests in OPENING NIGHT ENTERPRISES LIMITED LIABILITY
COMPANY (N.B. all subscriptions are subject to acceptance by
the Managers.)
TWO ITEMS:
1. This Subscription Agreement signature package, by which
you also execute and agree to the Operating Agreement.
a. Review carefully, and sign, complete and return the
LIMITED LIABILITY MEMBER SIGNATURE PAGE (page 2). Remember
to complete either the Individuals section or the Entities
section when filling out. If two individuals are signing
together (for instance, as a married couple) on the same line
to indicate a joint investment, please provide only one
social security number, email address, telephone number, etc.
(You may still include two signatures and names.)
b. Execute and return the Subscription Agreement
signature page (page 9). Remember to include either the
Member Name for either the Individuals or Entities line.
2. Bank wire in the amount of your investment ? see
instructions below.
? Account Name: Opening Night Enterprises, Limited
Liability Company
? Account Number:
? ABA/Routing Number:
? Bank?s Name:
? Swift Code: .
Please note: you do not need to sign the operating agreement.
LIMITED LIABILITY COMPANY MEMBER SIGNATURE PAGE
FOR MEMBERS
AUTHORIZING IMMEDIATE USE
AND NOT WAIVING RIGHT OF REFUND
THE FOLLOWING SIGNS THE OPENING NIGHT ENTERPRISES LIMITED
LIABILITY COMPANY OPERATING AGREEMENT AS A MEMBER AND AGREES
THAT THEIR CAPITAL CONTRIBUTION MAY BE USED FORTHWITH BY THE
MANAGERS FOR LEGITIMATE COMPANY PURPOSES (SPECIFICALLY PRE-
PRODUCTION AND PRODUCTION EXPENSES, IF APPLICABLE, WITH
RESPECT TO THE SERIES AND STAGE PRODUCTIONS) PRIOR TO THE
MINIMUM CAPITALIZATION HAVING BEING CONTRIBUTED TO THE
COMPANY. THE UNDERSIGNED DOES NOT WAIVE THEIR RIGHT OF
REFUND OF ANY PORTION OF SUCH CONTRIBUTION EXPENDED FOR SUCH
PURPOSES IN THE EVENT THE OFFERING IS ABANDONED PRIOR TO FULL
CAPITALIZATION OF THE COMPANY. SUCH REFUND IS CONTINGENT UPON
THE FINANCIAL ABILITY OF THE COMPANY TO MEET THIS OBLIGATION
BASED ON (THE MEMBER?S PRO-RATA ENTITLEMENT TO) UNUSED
PORTIONS, IF ANY, LEFT OF CONTRIBUTED FUNDS.
MEMBER: AMOUNT CONTRIBUTED:
__________________________________ US $
____________________________
Please affix your signature here
__________________________________
Telephone Number Email Address
COMPLETE EITHER INDIVIDUALS OR ENTITIES DIRECTLY BELOW
INDIVIDUALS
Member Name Residence Address
Social Security Number Residence Address (cont?d.)
ENTITIES
Member Name Business Address
Name and Title of Signatory
Federal Tax I.D. Number Business Address (cont?d.)
THE MEMBERSHIP INTERESTS WHICH ARE THE SUBJECT OF THIS
AGREEMENT ARE NOT REGISTERED UNDER THE SECURITIES ACT OF 1933
AS AMENDED (THE ACT ), OR ANY STATE SECURITIES LAWS. THEY
MAY BE ACQUIRED ONLY FOR THE PURCHASER'S OWN ACCOUNT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE. THEY MAY NOT BE MADE
SUBJECT TO A SECURITY INTEREST, PLEDGED, OR OTHERWISE
DISPOSED OF OR TRANSFERRED WITHOUT THE WRITTEN APPROVAL OF
THE MANAGERS. RESALE OR TRANSFER OF THESE MEMBERSHIP
INTERESTS IS RESTRICTED AND-THE MANAGERS SHALL HAVE NO
OBLIGATION TO CONSENT TO ANY SALE, TRANSFER OR ASSIGNMENT NOR
TO REGISTER THE MEMBERSHIP INTERESTS UNDER THE ACT OR THE
LAWS OF ANY STATE.
OPENING NIGHT ENTERPRISES LIMITED LIABILITY COMPANY.
SUBSCRIPTION AGREEMENT
1. Subscription.
(a) I hereby subscribe for and agree to purchase the
Membership Interests in Opening Night Enterprises
Limited Liability Company, a California limited
liability Company (the Company ), on such terms and
conditions as set forth in this Subscription
Agreement and in the Operating Agreement of the
Company (the Operating Agreement ). Membership
Interests are being sold in minimum investment
units of $5,000. I agree to execute a wire
transfer in the amount stated on the signature page
below as and for my contribution to the capital of
the Company.
(b) I understand that the proceeds of my investment
will be returned to me if my subscription is not
accepted.
(c) If the offering is withdrawn or terminated prior to
the Company?s ability to earn revenues, because I
have agreed to immediate use, I shall only be
entitled to a portion of the Company?s
capitalization still on account, that is, not
already accepted. Such portion shall be the pro-
rata percentage of remaining funds determined by
that portion of total investment consisting of my
Membership Interest contribution.
2. Representations and Warranties.
I hereby represent and warrant to the Managers and the
Company as follows, with full knowledge that all such parties
intend to rely on said representations and warranties:
(a) I hereby acknowledge and understand that the
transaction is not registered under the Act.
(b) I am a bona fide resident of the state set forth on
the signature page hereof; the address set forth is
my true and correct residence address; and I am
legally empowered to enter into binding contracts
pursuant to the laws of such state.
(c) I am at least 21 years of age and am acquiring
Membership Interests in good faith solely for my
own personal account, for investment purposes only,
and not with a view to or for the resale, or the
distribution, subdivision or fractionalization
thereof.
(d) I have carefully read and understand this
Subscription Agreement and the Operating Agreement,
and I understand that (i) the Membership Interests
are speculative investments which involve a high
degree of risk of loss, and that purchasers of such
interests may well lose all or a substantial part
of their investment; and (ii) there are substantial
restrictions on the transferability of, and there
will be no public market for the interests in the
Company, and accordingly, it may not be possible
for me to liquidate my interests or for the Company
to liquidate its assets in case of emergency or
otherwise.
(e) I agree that I will not sell or offer to sell or
transfer my Member's interest or any part thereof
without the prior written consent of the Managers,
which may be withheld for any reason.
(f) I have knowledge and experience in financial and
business matters involving investments in entities
similar to the Company, and I am capable of
evaluating the merits and risks of investing in the
Company.
(g) I acknowledge that the Managers have offered me
access to all available information concerning the
Company and the offering and that any requests for
such information have been fully complied with by
the Manager. I acknowledge that any budgets,
running costs and/or recoupment schedules provided
are estimates only, and that the Managers reserve
the right to revise the said estimates and make no
representation with respect to the final cost of
any items, services or productions, or long it will
take in order to recoup a Member?s contribution, if
ever. Forward looking statements and predictions
may not be relied upon.
(h) In making my investment decision, I have relied
solely upon independent investigations made by me
or my representative(s), including my own
professional tax, legal, financial and other
advisors, and understand that the tax consequences
to me of my investment will depend in part on my
individual circumstances. I am not relying on the
Company or the Managers with respect to individual
and Company tax and other economic considerations
involved in this investment.
(i) No representations or warranties, other than as set
forth in the Operating Agreement and in this
Subscription Agreement have been made to me by the
Company, the Manager, or any officer, employee,
agent or affiliate of the Manager.
(j) I am aware that the Managers and/or their
principals or affiliated entities are presently,
and may in the future be, engaged in businesses
which are competitive with that of the Company, and
I agree and consent to such activities, even though
there are conflicts of interest inherent therein. I
hereby acknowledge that the Managers and their
principals and affiliates may now or hereafter
engage in businesses which provide goods and/or
services to the Company, for which it will be
entitled to separate compensation, in which neither
the Company nor the Members shall share, and I
expressly consent to such activities.
(k) I presently have sufficient cash readily available
to me to satisfy all of my current cash
requirements and possible contingent liabilities,
and I reasonably anticipate that I will have
sufficient cash readily available to me to satisfy
all of my future cash requirements and possible
contingent liabilities for the foreseeable future.
(l) I have no investments or contingent liabilities,
and am aware of no other circumstances, which I
reasonably anticipate might cause the need for
sudden cash requirements in excess of the cash
readily available to me.
(m) I will suffer no material adverse change in my
financial condition if I lose my entire investment
in the Company. I AM PRESENTLY CAPABLE OF BEARING
THE SUBSTANTIAL ECONOMIC RISKS OF INVESTMENT IN THE
COMPANY, INCLUDING THE POSSIBLE TOTAL LOSS OF MY
CAPITAL CONTRIBUTION, I REASONABLY ANTICIPATE THAT
I WILL CONTINUE TO BE CAPABLE OF BEARING THOSE
RISKS, AND I AM AWARE OF NO ADDITIONAL INFORMATION
THAT WOULD ADVERSELY AFFECT MY SUITABILITY AS A
MEMBER IN THE COMPANY.
(n) If I am a corporation, partnership, trust or other
entity, I am duly formed and validly existing under
applicable state laws and have full power and
authority to invest in the Company, and I have not
been formed solely for the purpose of purchasing
Membership Interests in the Company (unless the
Managers have consented to same, in writing). The
person signing this Subscription Agreement has been
duly authorized to do so on behalf of the entity.
(o) I agree to notify the Managers of any adverse
changes which may occur prior to my admission to
the Company.
3. Subscription Irrevocable by Subscriber but Subject to
Acceptance or Rejection by Manager
(a) This Subscription Agreement is not, and shall not
be, revocable by me. I intend to be legally bound
by this Subscription Agreement.
(b) The Managers, in their sole discretion, have the
right to accept or reject this subscription, in
whole or in part.
(c) On acceptance of this subscription by the Managers
of the Company, I shall become a Member in the
Company and bound by the Operating Agreement, and I
shall not have the right to withdraw my capital
contribution.
4. Offers and Sales in States.
I understand that the offering to which I am subscribing
hereunder has not been reviewed by the regulatory
agencies of any states in which it is being offered and
the Membership Interests being offered hereunder are
being made on reliance of exemptions from registration
requirements of the Securities Act of 1933 or applicable
state securities laws.
5. Power of Attorney
To facilitate my admission as a Member in the Company
and to facilitate the operation of the Company and the
conduct of its affairs:
I hereby irrevocably make, constitute and appoint the
Managers of the Company, and each of their respective
principals and/or officers, with full power of
substitution, as my true and lawful attorneys-in-fact
and in my name, place and xxxxx to make, execute, sign,
acknowledge, publish and file on behalf of me and on
behalf of the Company, the following items (a) through
(e) provided that, in each case, any such documents
and/or instruments shall not lessen or derogate from my
interests under the Operating Agreement and provided
such documents and/or interests are not in conflict
with, or violation of, the Operating Agreement or any
term or provision thereof:
(a) the Operating Agreement and any amendments or
modifications thereto made in accordance with the
terms thereof;
(b) any Articles of Organization and any amendments or
modifications thereto made in accordance with the
terms thereof as required under the laws of the State of
California;
(c) all papers which may be necessary or desirable to
qualify the Company in any other state or county;
(d) all papers which may be required to effectuate the
dissolution of the Company after its termination; and
(e) all such other instruments, documents and
certificates which may from time to time be required
or permitted by the laws of the United States, any
states, or any political subdivision of any of the
foregoing, to effectuate, implement, continue and
defend the valid and subsisting existence, rights
and property of the Company as a limited liability
company and its power to carry out its purposes as set
forth in the Operating Agreement.
This power of attorney shall be deemed to be a power
coupled with an interest in recognition of the fact that
each of the Members will be relying on the power of the
Managers, including each officer thereof, to act on
behalf of the Company as contemplated by the Operating
Agreement. It shall survive and not be affected by my
death, bankruptcy, disability or dissolution; may be
exercised by the Managers or any constituent thereof or
the aforesaid officers by executing, as attorney-in-fact
for me, an instrument listing me as a Member; and shall
survive the delivery of my assignment or transfer of any
portion of my interest in the Company.
I hereby agree to be bound by all of the representations
of the Managers as my attorney-in-fact and waive any and
all defenses which may be available to me to consent,
negate or disaffirm this power of attorney, and hereby
ratify and confirm all acts which said attorney-in-fact
may take as attorney-in-fact hereunder in all respects
as though performed by me.
6. Agreement to Indemnify and Hold Harmless
If I breach any agreement, representation or warranty I have
made in this Subscription Agreement or any other document
furnished by me in connection with my purchase of interests
in the Company, I agree to indemnify and hold harmless the
Company and the Managers and each of the persons constituting
them, together with its officers, directors, agents and
employees, from and against any claim, liability, loss,
damage or expense (including attorneys' fees and other costs
or investigation and litigating claims) directly caused by
and resulting from my breach.
7. Miscellaneous
This Subscription Agreement is not transferable or assignable
by me. If I am more than one person, all my obligations shall
be joint and several and the representations, warranties, and
agreements herein contained shall be deemed to be made by and
be binding upon me and each such other person and that my and
that such other person's respective heirs, executors, and
administrators, successors, and permitted assigns.
Capitalized and other terms used but not otherwise defined
shall have the meanings ascribed to them in the Operating
Agreement. Captions and titles are for convenience only.
Persons shall refer to natural persons or other legal
entities, as the context requires. Pronouns and variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the context may require. This
Subscription Agreement shall be governed by and construed in
accordance with the laws of the State of California
applicable to contracts made and fully performed in said
State, without regard to the principle of conflict of laws.
CERTIFICATION
The undersigned certifies that the information being
furnished is complete and accurate and may be relied upon to
determine whether offers and sales of unregistered privately
placed investments may be directed to the undersigned.
IN WITNESS WHEREOF, the undersigned party hereunto sets its
hand and seal on this _______ day of ____________, 2017.
SUBSCRIBER: AMOUNT CONTRIBUTED:
__________________________________ US $
____________________________
Please affix your signature here
COMPLETE EITHER INDIVIDUALS OR ENTITIES DIRECTLY BELOW
INDIVIDUALS ENTITIES
_________________________
_______________________
__
Member Name: Member Name:
SUBSCRIPTION ACCEPTANCE BY THE MANAGERS:
Date:
_______________________
MANAGER:
XXXXXXX XXXXX XX ENTERPRISES
By: __________________________________
Xxxxxxx Xxxxx XX, Authorized Signatory
