LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of
EOCG MEDIA LLC
A Delaware Limited Liability Company
OPERATING AGREEMENT, dated December 1, 2005, between Videolocity
International, Inc. and E Xxxxxx Capital Group LLC ("Members" or "Parties").
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is
hereby acknowledged, the Parties covenant, contract and agree as follows:
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY
1.1 Formation of LLC. The Parties have formed a Delaware limited
liability company named EOCG Media LLC (the "LLC"). The operation of the LLC
shall be governed by the terms of this Agreement and the applicable laws of the
State of Delaware relating to the formation, operation and taxation of a LLC,
specifically the provisions of the Delaware Limited Liability Company Act,
Delaware Statutes, Title 6, Subtitle II, Chapter 18 (the "Act"). To the extent
permitted by the Act, the terms and provisions of this Agreement shall control
if there is a conflict between such Law and this Agreement. The Parties intend
that the LLC shall be taxed as a partnership. Any provisions of this Agreement,
if any, that may cause the LLC not to be taxed as a partnership shall be
inoperative.
1.2 Certificate of Organization. The members acting through an
Authorized Person are filing a Certificate of Formation for record in the office
of the Delaware Department of State thereby creating the LLC.
1.3 Business. The business of the LLC shall be any and all lawful
business.
1.4 Registered Office and Registered Agent. The registered office of
the LLC and the registered agent at such office shall be Corporation Service
Company, 0000 Xxxxxxxxxxx Xxxx, xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000. The
manager may change the registered office and/or registered agent from time to
time.
1.5 Duration. The LLC will commence business as of the date any of the
Members contribute a capital investment in the LLC and will continue in
perpetuity.
1.6 Fiscal Year. The LLC's fiscal and tax year shall end December 31.
ARTICLE II
MEMBERS
2.1 Initial Members. The initial Members of the LLC are:
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Videolocity International, Inc.
E Xxxxxx Capital Group, LLC
2.2 Additional members. New Members may be admitted only upon
compliance with the provisions of this Agreement. New Members may be admitted
prior to December 31, 2008 only upon the consent of both Members. Thereafter,
New Members may be admitted upon the consent of E Xxxxxx Capital Group LLC.
ARTICLE III
MANAGEMENT
3.1 Management. The Members have elected to manage the LLC by hereby
delegating the management of the LLC to a Manager, subject to the limitations
set out in this Agreement. The Members shall elect and may remove the Manager by
majority vote, and the Manager shall serve until a successor is elected by the
Members. The Manager shall have the authority to take all necessary and proper
actions in order to conduct the business of the LLC. The Manager may take any
appropriate action on behalf of the LLC, including, but not limited to signing
checks, executing leases, signing loan documents and determining the timing and
total amount of distributions to the Members. The compensation to the Manager
shall be in the discretion of the majority of the Members of the LLC.
The initial Manager is Xxxxxxx X. Xxxxxxx.
3.2 Officers. Xxxxxx Xxxx shall be the Chief Executive Officer of the
LLC. The Manager may, if he deems it appropriate, appoint other officers for the
LLC. Any officers of the LLC shall consist of such officers or agents as may be
determined from time to time by the Manager. The officers shall act in the name
of the LLC and shall supervise its operation under the direction and management
of the Manager and shall hold office at the pleasure of the Manager.
ARTICLE IV
CONTRIBUTIONS, PROFITS, LOSSES, AND DISTRIBUTIONS
4.1 Contributions. The Members shall make the following contributions
to the capital of the LLC.
4.1.1 Videolocity International, Inc. Videolocity International, Inc.
shall contribute, transfer and irrevocably assign to the LLC all of its
intellectual property technology ("Intellectual Property Technology") which
shall include (i) its Videoloicity Digital Entertainment System (DES tm) and
related services, trade secrets, patents, copyrights and any other intellectual
property rights, including High Speed Internet Access together with digital
streaming video technology, and (ii) its existing license agreements and
agreements for Video-On-Demand programming for the DES, including digital movie
titles, other content and entertainment including music and gaming content). The
LLC shall continue developing and licensing the Intellectual Property
Technology, including the current license to E Xxxxxx Capital Group LLC.
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4.1.2 E Xxxxxx Capital Group LLC. E Xxxxxx Capital Group LLC shall
contribute from time to time such funds as are necessary to operate and deploy
the intellectual property technology, including necessary salaries and other
operating expenses and capital expenditures of the LLC. Upon the execution of
this Agreement, E Xxxxxx Capital Group LLC will advance Videolocity
International, Inc. the aggregate sum of US$______ as set forth in the 90 day
budget of Videolocity International, Inc. attached hereto as Schedule 1. In
addition, if distributions by the LLC to Videolocity International, Inc. are not
sufficient to fund the costs of maintaining a CFO of Videolocity International,
Inc. through December 31, 2007, E Xxxxxx Capital Group LLC from time to time
will advance Videolocity International, Inc. such amounts as are necessary to
fund the costs of maintaining such CFO. All amounts advanced by E Xxxxxx Capital
Group LLC to Videolocity International, inc. will be recouped from distributions
by the LLC to Videolocity International, Inc. as provided in Section 4.2.1
below. Attached hereto as Schedule 2 is the 180 day budget of the LLC.
4.2 Profits and Losses. The profits and losses and all other tax
attributes of the LLC shall be allocated among the Members as follows:
4.2.1 Videolocity International, Inc. Videolocity International, Inc.
shall receive (i) the technical transfer fees (the xxxx up over cost and
installation of equipment deployed) and the first 5% of the net licensing fees
derived by the LLC in licensing the Intellectual Property Technology from the
current version 1 of the Intellectual Property Technology and (ii) twenty-five
percent (25%) of the technical transfer fees and the first 5% of the net
licensing fees derived by the LLC in licensing version 2 of the intellectual
property technology currently in development. E Xxxxxx Capital Group LLC is
advancing Videolocity International, Inc. the aggregate sum of US$_______ and
may advance additional amounts to Videolocity International, Inc., all of which
will be first recouped from distributions by the LLC to Videolocity
International, Inc. prior to Videolocity International, Inc. receiving payment
and distributions. Attached hereto as Schedule 3 is a descriptions of version 1
and version 2 of the Intellectual Property Technology.
4.2.2 E Xxxxxx Capital Group LLC. E Xxxxxx Capital Group LLC shall
receive any remaining revenues of the LLC from the development and licensing of
the Intellectual Property Technology.
4.3 Distributions. Distributions of cash or other assets of the LLC
(other than in dissolution of the LLC) shall be made no less than quarterly in
the total amounts and at the times as determined by the Manager.
ARTICLE V
VOTING; CONSENT TO ACTION
5.1 Voting by Members. Members shall be entitled to vote on all matters
which provide for a vote by the Members. Videolocity International, Inc. shall
have one vote and E Xxxxxx Capital Group LLC shall have one [sic] votes. In the
event of a tie vote, the Manager shall cast the deciding vote.
5.2 Majority Required. Except as otherwise required, a majority vote of
the Members if required for any action.
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5.3 Meetings - Written Consent. Action of the Members may be
accomplished with or without a meeting. If a meeting is held, evidence of the
action shall be by Minutes or Resolution reflecting the action of the Meeting,
signed by a voting majority of the Members. Action without a meeting may be
evidenced by a written consent signed by a voting majority of the Members.
5.4 Meetings. Meetings of the Members may be called by anyMember and by
any Manager of the LLC.
ARTICLE VI
DUTIES AND LIMITATION OF LIABILITY MEMBERS, OFFICERS
AND PERSONS SERVING ON ADVISORY COMMITTEES; INDEMNIFICATION
6.1 Duties of Members; Limitation of Liability. The Members, Managers
and officers shall perform their duties in good faith, in a manner they
reasonably believe to be in the best interest of the LLC, and with such care as
an ordinarily prudent person in a like position would use under similar
circumstances. No Member or officer shall have any liability to the LLC or any
other Member by reason of being or having been a Member or officer. No Member or
officer shall not be liable to the LLC or to any other Member or officer unless
the loss or damage shall have been the result of fraud, deceit, gross
negligence, willful misconduct, or a wrongful taking by that Member or officer.
6.2 Members Have No Exclusive Duty to LLC. The Members shall not be
required to participate in the LLC as their sole and exclusive business. Members
may have other business interests and may participate in other investments or
activities in addition to those relating to the LLC. Neither the LLC nor any
other Member shall have any right, by virtue of this Agreement, to share or
participate in another Member's business interests, investments or activities or
the income or proceeds derived therefrom. No Member shall incur liability to the
LLC or to any other Member by reason of participating in any such other
business, investment or activity.
6.3 Protection of Members and Officers. As used herein, the term
"Protected Party" refers to the Members and officers of the Company.
(a) To the extent that, at law or in equity, a Protected Party has
duties (including fiduciary duties) and liabilities relating thereto to the LLC
or to any other Protected Party, a Protected Party acting under this Agreement
shall not be liable to the LLC or to any other Protected Party for good faith
reliance on the provisions of this Agreement; the records of the LLC; and/or
such information, opinions, reports or statements presented to the LLC by any
person as to matters the Protected Party reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the LLC, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits or losses of the LLC or any other fact pertinent to the existence and
amount of assets from which distributions to Members might properly be paid.
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(b) The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Protected Party to the LLC or to any other
Protected Party otherwise existing at law or in equity, are agreed by the
Parties hereto to replace such other duties and liabilities of such Protected
Party.
(c) Whenever this Agreement permits or requires a Protected Party to
make a decision in its "discretion" or under a grant of similar authority or
latitude, the Protected Party shall be entitled to consider only such interests
and factors as it desires, including its own interests and shall have no duty or
obligation to give any consideration to any interest of or factors affecting the
LLC or any other Person.
(d) Whenever this Agreement permits or requires a Protected Party to
make a decision using a "good faith" or under another express standard, the
Protected Party shall act under such express standard and shall not be subject
to any other or different standard imposed by this Agreement or other applicable
law.
6.4. Indemnification and Insurance
6.4.1 Right to Indemnification. Any person who is or was a Member or
officer of the LLC and who is or may be a party to any civil action because of
his/her participation in or with the LLC, and who acted in good faith and in a
manner which he/she reasonably believed to be in, or not opposed to, the best
interests of the LLC, shall be indemnified and held harmless by the LLC. Any
person who is or was a Member or officer of the LLC and who is or may be a parto
to any criminal action because of his/her participation in or with the LLC, and
who acted in good faith and had reasonable cause to believe that the act or
omission was lawful, shall be indemnified and held harmless by the LLC.
6.4.2 Advancement of Expenses. Expenses (including attorney's fees)
incurred by an indemnified person in defending any proceeding shall be paid in
dvance of the proceeding's final disposition. Should the indemnified Member or
officer ultimately be determined to not be entitled to indeminification, that
Member or officer agrees to immediately repay to LLC all funds expended by the
LLC on behalf of the Member or officer.
6.4.3 Non-Exclusivity of Rights. The right to indemnification and the
advancement of expenses conferred in this section shall not be exclusive of any
right which any person may have or hereafter acquire under any statute,
provision of this Agreement, contract, agreement, vote of Members or otherwise.
The Members and officers are expressly authorized to adopt and enter into
indemnification agreements for Members, officers and advisory committee Members.
6.4.4 Insurance. The Members may cause the LLC to purchase and maintain
insurance for the LLC, for its Members and officers, and/or on behalf of any
third party or parties whom the Members might determine should be entitled to
such insurance coverage.
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6.4.5 Effect of Amendment. No amendment, repeal or modification of this
Article shall adversely affect any right hereunder with respect to any action or
omission occurring prior to the date when such amendment, repeal or modification
became effective. 6.5 Duties of persons Serving on Advisory Committees;
Limitation of Liability; Indemnification. The Members shall have the right to
form advisory committees. Persons serving on an advisory committee, whether or
not a Member or officer, shall perform their duties in good faith, in a manner
they reasonably believe to be in the best interests of the LLC, and with such
care as an ordinarily prudent person in a like position would use under similar
circumstances. A person serving on an advisory committee shall not have any
liability to the LLC or to any Member or officer for any loss or damage
sustained by the LLC or any Member or officer unless the loss or damage was the
result of fraud, deceit, gross negligence, willful misconduct, or a wrongful
taking by such person.
ARTICLE VII
MEMBERS INTEREST TERMINATED
7.1 Termination of Membership. A Member's interest in the LLC shall
cease upon the occurrence of one or more of the following events:
(a) A member provided notice of withdrawal to the LLC thirty (30) days
in advance of the withdrawal date. Withdrawal by a Member is not a breach of
this Agreement.
(b) A member assigns all of its interest to a qualified third party
(c) A Member, without the consent of a majority of the Members (1)
makes an assignment for the benefit of creditors; (2) files a voluntary petition
in bankruptcy; (3) is adjudicated a bankrupt or insolvent; (4) files a petition
or answer seeking for himself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute, law
or regulation; (5) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against him in any
proceeding of the nature described in this paragraph; (6) seeks consents to, or
acquiesces in the appointment of a trustee, receiver, or liquidator of the
Member or of all or any substantial part of his properties; or (7) if any
creditor permitted by law to do so should commence foreclosure or take any other
action to seize or sell any Member's interest in the LLC.
(d) If within one hundred twenty (120) days after the commencement of
any action against a Member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any statute,
law, or regulation, the action has not been dismissed and/or has not been
sonsented to by a majority of the Members.
(e) If within ninety (90) days after the appointment, without a
Member's consent or acquiescense, of a trustee, receiver, or liquidator of the
Member or of all or any substantial part of the Member's properties, said
appointment is not vacated or within ninety (90) days after the expiration of
any stay, the appointment is not vacated and/or has not been consented to by a
majority of the Members.
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(f) Any of the events provided in applicable code provisions that arfe
not inconsistent with the dissociation events identified above.
7.3 Effect of Dissociation. Any dissociated Member shall not be
entitled to receive the fair value of his LLC interest solely by virtue of his
dissociation. A dissociated Member that still owns an interest in the LLC shall
be entitled to continue to receive such profits and losses, to receive such
distribution or distributions, and to receive such allocations of income, gain,
loss deduction, credit or similar items to which he would have been entitled if
still a Member. For all other purposes, a dissociated Member shall no longer be
considered a Member and shall have no rights of a Member.
7.3 Withdrawal by E Xxxxxx Capital Group LLC. If E Xxxxxx Capital Group
LLC at any time prior to December 31, 2012 withdraws from the LLC, all rights to
the Intellectual Property Technology shall be reassigned to Videolocity
International, Inc., provided that E Xxxxxx Capital Group LLC shall continue to
have a non exclusive license to utilize the Intellectual Property Technology and
any new versions or improvements thereof throughout the World.
ARTICLE VIII
RESTRICTIONS ON TRANSFERABILITY OF LLC INTEREST
8.1 LLC Interest. The LLC interest is personal property. A Member has
no interest in property owned by the LLC.
8.2 Encumbrance. A member can encumber its LLC interest by a security
interest or other form of collateral only with the consent of a majority of the
other Members. Such consent shall only be given if the proceeds of the
encumbrance are contributed to the LLC to respond to a cash call of the LLC.
ARTICLE IX
DISSOLUTION
9.1 Termination of LLC. The LLC will be dissolved and its affairs must
be wound up only upon the written consent of a majority of the Members.
9.2 Final Distributions. Upon the winding up of the LLC, the assets
must be distributed as follows (a) to the LLC creditors; (b) to Members in
satisfaction of liabilities for distributions; and (c) to Members first for the
return of their contributions and secondly respecting their LLC interest, in the
proportions in which the Members share in profits and losses.
ARTICLE X
TAX MATTERS
10.1 Capital Accounts. Capital accounts shall be maintained consistent
with Internal Revenue Code ` 704 and the regulations thereunder.
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10.2 Tax Matters Partner. The Members hereby designate J. Xxxx Xxxxxxx
as the "tax matters partner" for purposes of representing the LLC before the
Internal Revenue Service if necessary.
10.3 Partnership Election. The Members elect that the LLC be taxed as a
partnership and not as an association taxable as a corporation.
ARTICLE XI
RECORDS AND INFORMAION
11.1 Records and Inspection. The LLC shall maintain at its place of
business the Certification of Formation, any amendments thereto, this Agreement,
and all other LLC records required to be kept by the Act, and the same shall be
subject to inspection and copying at the reasonable request and the expense of,
any Member.
11.2 Obtaining Additional Information. Subject to reasonable standards,
each Member may obtain from the LLC from time to time upon reasonable demand for
any purpose reasonably related to the Member's interest as a Member in the LLC
(1) information regarding the state of the business and financial condition of
the LLC; (2) promptly after becoming available, a copy of the LLC's federal,
state, and local income tax returns for each year, and (3) other information
regarding the affairs of the LLC as is just and reasonable.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Amendment. Except as otherwise provided in this Agreement, any
amendment to this Agreement may be proposed by a Member. Unless waived by the
Members, the proposing Member shall submit to the Members any such proposed
amendment together with an opinion of counsel as to the legality of such
amendment and the recommendation of the Member as to its adoption. A proposed
amendment shall become effective at such time as it has been approved in writing
by a majority of the Members. This Agreement may not be amended nor may any
rights hereunder be waived except by an instrument in writing signed by the
party sought to be charged with such amendment or waiver, except as otherwise
provided in this Agreement.
12.2 Applicable Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware.
12.3 Pronouns, etc. Reference to a Member or Manager, including by use
of a pronoun shall be deemed to include masculine, feminine, singular, plural,
individuals, partnerships or corporations where applicable.
12.4 Counterparts. This instrument may be executed in any number of
counterparts, each of which shall be considered an original.
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12.5 Specific Performance. Each Member agrees with the other Members
that the other Members would be irreparably damaged if any of the provisions of
this Agreement are not performed in accordance with their specific terms and
that monetary damages would not provide an adequate remedy in such event.
Accordingly, it is agreed that, in addition to any other remedy to which the
non-breaching Members may be entitled, at law or in equity, the non-breaching
Members shall be entitled to injunctive relief to prevent breaches of this
Agreement, and specifically, to enforce the terms and provisions of this
Agreement in any action instituted in any court of the United States or any
state thereof having subject matter jurisdiction thereof.
12.6 Further Action. Each Member, upon the request of the LLC, agrees
to perform all further acts and to execute, acknowledge and deliver any
documents which may be necessary, appropriate, or desirable to carry out the
provisions of this Agreement.
12.7 Method of Notices. All written notices required or permitted by
this Agreement shall be hand delivered or sent by registered or certified mail,
postage prepaid, addressed to the LLC at its place of business or to a Member as
set forth on the Members' signature page of this Agreement (except that any
Member may from time to time give notice changing his address for that purpose),
and shall be effective when personally delivered, or if mailed, on the date set
forth on the receipt of registered or certified mail.
12.8 Facsimiles. For purposes of this Agreement, any copy, facsimile,
telecommunication or other reliable reproduction of a writing, transmission or
signature may be substituted or used in lieu of the original writing.
Transmission or signature for any and all purposes for which the original
writing, transmission or signature could be used, provided that such copy,
facsimile, telecommunication or reproduction shall have been confirmed received
by the sending party.
12.9 Computation of Time. In computing any period of time under this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, Sunday, or legal holiday,
in which event the period shall run until the end of the next day which is not a
Saturday, Sunday, or legal holiday.
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first
above written.
Videolocity International, Inc.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: President
E Xxxxxx Capital Group LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President/CEO
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