Operating Agreement of NBC/Quokka Ventures LLC - NBC Olympics Inc. and Quokka Sports Inc.
OPERATING AGREEMENT
OF
NBC/QUOKKA VENTURES, LLC
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933. A COMPLETE
COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
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ARTICLE 1 DEFINITIONS................................................................1
1.1 Definitions...................................................................1
ARTICLE 2 FORMATION OF COMPANY.......................................................8
2.1 Formation.....................................................................9
2.2 Name..........................................................................9
2.3 Principal Place of Business...................................................9
2.4 Registered Office and Registered Agent........................................9
2.5 Term..........................................................................9
ARTICLE 3 PURPOSES OF COMPANY........................................................9
3.1 Company Purposes..............................................................9
ARTICLE 4 MANAGEMENT OF COMPANY......................................................9
4.1 Generally.....................................................................9
4.2 Number of Directors; Classification of Directors.............................10
4.3 Tenure, Election and Qualifications..........................................10
4.4 Resignation..................................................................10
4.5 Removal......................................................................10
4.6 Vacancies....................................................................11
4.7 Meetings.....................................................................11
4.8 Quorum and Transaction of Business...........................................12
4.9 Directors Have No Exclusive Duty to Company..................................12
4.10 Salaries.....................................................................12
ARTICLE 5 POWERS OF AND RESTRICTIONS ON THE DIRECTORS...............................12
5.1 Management...................................................................12
5.2 Adherence to Current Content Plan............................................13
5.3 Content Plan, Long-term Strategic Plan and Annual Operating Plan.............13
5.4 Additional Capital...........................................................14
5.5 Actions Requiring Simple Majority Approval...................................15
5.6 Actions Requiring Supermajority Approval.....................................16
5.7 Actions Requiring Approval of Only One Class of Directors....................18
5.8 Certain Powers of Directors..................................................19
5.9 Reports to Members ..........................................................20
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5.10 Independent Public Accountants...............................................20
5.11 Litigation...................................................................20
ARTICLE 6 OFFICERS; COMMITTEES......................................................20
6.1 Appointment of Officers......................................................20
6.2 Tenure and Duties of Officers................................................21
ARTICLE 7 RIGHTS AND OBLIGATIONS OF MEMBERS.........................................22
7.1 Limitation of Liability......................................................22
7.2 Nature of Rights and Obligations.............................................22
7.3 Member Access to Records.....................................................22
7.4 Certain Actions Requiring Special Approval...................................22
7.5 Outside Activities...........................................................23
ARTICLE 8 CERTAIN MATTERS CONCERNING MEMBERS, DIRECTORS AND EXECUTIVE OFFICERS......23
8.1 Liability of Directors and Officers; Indemnification.........................23
8.2 Other Matters Concerning the Directors and Officers of the Company...........24
ARTICLE 9 MEETINGS OF MEMBERS.......................................................25
9.1 Annual and Special Meetings..................................................25
9.2 Place of Meetings............................................................25
9.3 Notice of Meetings...........................................................25
9.4 Meeting of all Members.......................................................25
9.5 Record Date..................................................................25
9.6 Quorum.......................................................................26
9.7 Manner of Acting.............................................................26
9.8 Proxies......................................................................26
9.9 Action by Members Without a Meeting..........................................26
9.10 Waiver of Notice.............................................................27
ARTICLE 10 CONTRIBUTIONS TO THE COMPANY, CAPITAL UNITS AND CAPITAL ACCOUNTS..........27
10.1 Capital Contributions........................................................27
10.2 Units........................................................................27
10.3 Capital Accounts ............................................................27
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10.4 Withdrawal or Reduction of Members, Contributions to Capital.................27
10.5 Unit Certificates............................................................28
ARTICLE 11 ALLOCATIONS, INCOME TAX, ELECTIONS AND REPORTS............................28
11.1 Allocation of Profits and Losses from Operations.............................28
11.2 Special Allocations..........................................................29
11.3 Distributions................................................................30
11.4 Limitation Upon Distributions................................................32
11.5 Accounting Principles........................................................32
11.6 Interest on and Return of Capital Contributions..............................32
11.7 Records and Reports..........................................................32
11.8 Returns and Other Elections..................................................33
11.9 Tax Matters Partner..........................................................33
ARTICLE 12 TRANSFERABILITY...........................................................33
12.1 Restrictions on Transferability..............................................34
12.2 No Effect to Transfers in Violation of Operating Agreement...................34
Article 13 Additional And Substitute Members.........................................34
13.1 Admission of Additional Members and Substitute Members.......................34
13.2 Allocations to Additional Members and Substitute Members.....................35
13.3 Effect of Transfer...........................................................35
ARTICLE 14 DISSOLUTION AND TERMINATION...............................................35
14.1 Dissolution..................................................................35
14.2 Effect of Filing of Certificate of Cancellation..............................35
14.3 Distribution of Assets Upon Dissolution......................................35
14.4 Winding Up...................................................................36
14.5 Filing of Certificate of Cancellation........................................36
ARTICLE 15 MERGER OR CONSOLIDATION...................................................36
15.1 Merger or Consolidation......................................................36
15.2 Vote Relating to Merger or Consolidation.....................................37
15.3 Exchange Relating to Merger or Consolidation.................................37
15.4 Filing and Effect of Certificate of Merger or Consolidation..................37
15.5 Amendment of Old or Adoption of New Operating Agreement .....................37
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15.6 Assumption of Assets and Liabilities.........................................37
ARTICLE 16 MISCELLANEOUS PROVISIONS..................................................37
16.1 Notices......................................................................37
16.2 Application of Delaware Law..................................................38
16.3 Waiver of Action for Partition...............................................38
16.4 Amendments...................................................................38
16.5 Execution of Additional Instruments..........................................38
16.6 Construction.................................................................38
16.7 Headings.....................................................................38
16.8 Waivers......................................................................38
16.9 Rights and Remedies Cumulative...............................................38
16.10 Severability.................................................................38
16.11 Heirs, Successors and Assigns................................................39
16.12 Creditors....................................................................39
16.13 Counterparts.................................................................39
16.14 No Third Party Beneficiaries.................................................39
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CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 406 OF THE SECURITIES ACT OF 1933. A COMPLETE
COPY OF THIS EXHIBIT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
NBC/QUOKKA VENTURES, LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT is made as of the 9th day of February 1999 (the
"Effective Date"), by and between NBC OLYMPICS, INC., a Delaware corporation
("NBC"), and QUOKKA SPORTS, INC., a Delaware corporation ("Quokka"), with
respect to the operation of NBC/QUOKKA VENTURES, LLC, a Delaware limited
liability company (the "Company").
WHEREAS, the Company was formed under the name "NBC/QUOKKA VENTURES,
LLC" pursuant to the provisions of the Delaware Limited Liability Company Act,
upon the filing of a certificate of formation (the "Certificate of Formation")
with the Delaware Secretary of State on February 5, 1999; and
WHEREAS, NBC and Quokka (together, the "Initial Members") desire to set
forth their respective ownership interests in the Company and the principles by
which the Company will be operated and governed;
NOW, THEREFORE, in consideration of mutual covenants and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. The following terms used in this Operating Agreement
shall have the following meanings (unless otherwise expressly provided herein):
(a) "ACCOUNTING PERIOD" shall be (i) the Company's Fiscal Year if
there are no changes in the Members' respective interests in Company income,
gain, loss or deductions during such Fiscal Year except on the first day
thereof, or (ii) any other period beginning on the first day of a Fiscal Year,
or any other day during a Fiscal Year, upon which occurs a change in such
respective interests, and ending on the last day of a Fiscal Year, or on the day
preceding an earlier day upon which any change in such respective interest shall
occur.
(b) "ADDITIONAL MEMBER" shall mean any Person who or which is
admitted to the Company as an Additional Member pursuant to Article 13 hereof.
(c) "ADJUSTED ASSET VALUE" with respect to any asset shall be the
asset's adjusted basis for federal income tax purposes, except as follows:
(1) The initial Adjusted Asset Value of any asset (other
than money) contributed by a Member to the Company shall be the gross fair
market value of such asset at the time of contribution, as determined by the
contributing Member and a Supermajority of the Directors; provided, however,
that the initial Adjusted Asset Value (which is the initial fair value as agreed
by the Members) of the assets contributed by the Members to the Company shall be
as set forth on Schedule A attached hereto.
1.
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(2) The Adjusted Asset Values of all Company assets
shall be adjusted to equal their respective gross fair market values, as
determined by a Supermajority of the Directors, and the resulting unrecognized
profit or loss allocated to the Capital Accounts of the Members pursuant to
Articles 10 and 11, as of the following times: (i) the acquisition of an
additional interest in the Company by any new or existing Member in exchange for
more than a de minimis capital contribution; (ii) the distribution by the
Company to a Member of more than a de minimis amount of Company assets, unless
all Members receive simultaneous distributions of either undivided interests in
the distributed property or identical Company assets in proportion to their
interests in Company distributions as provided in Section 11.3; and (iii) the
liquidation of the Company within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g).
(d) "ADVERTISER CATEGORY" shall have the meaning specified in the
Master Venture Agreement.
(e) "AFFILIATE" with respect to any Person other than an entity
subject to the reporting requirements of the Security Exchange Act of 1934, as
amended, shall mean (i) any Person which beneficially holds, directly or
indirectly, or otherwise controls, ten percent (10%) or more of such Person's
outstanding securities, (ii) any Person, ten percent (10%) or more of which
Person's outstanding securities are beneficially held, directly or indirectly,
or are otherwise controlled, by such a Person and (iii) any Person, ten percent
(10%) or more of which Person's outstanding securities are beneficially held,
directly or indirectly, or are otherwise controlled, by a Person described in
(i) above. "Affiliate" with respect to any entity subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended, shall mean (i)
any Person which beneficially holds, directly or indirectly, or otherwise
controls, fifteen percent (15%) or more of such entity's outstanding securities,
(ii) any Person, fifteen percent (15%) or more of which Person's outstanding
securities are beneficially held, directly or indirectly, or are otherwise
controlled, by such an entity and (iii) any Person, fifteen percent (15%) or
more of which Person's outstanding securities are beneficially held, directly or
indirectly, or are otherwise controlled, by a Person described in (i) above.
(f) "ANNUAL OPERATING PLAN" shall have the meaning specified in
Section 5.3(c).
(g) "BANKRUPTCY" of a Person shall mean (i) the filing by a
Person of a voluntary petition seeking liquidation, reorganization, arrangement
or readjustment, in any form, of its debts under the U.S. Bankruptcy Code (or
corresponding provisions of future laws) or any other federal, state or foreign
insolvency law, or a Person's filing an answer consenting to or acquiescing in
any such petition; (ii) the making by a Person of any assignment for the benefit
of its creditors or the admission by a Person of its inability to pay its debts
as they mature; or (iii) the expiration of 60 days after the filing of an
involuntary petition under the Bankruptcy Code (or corresponding provisions of
future laws) seeking an application for the appointment of a receiver for the
assets of a Person, or an involuntary petition seeking liquidation,
reorganization, arrangement or readjustment of its debts under any other
federal, state or foreign insolvency law, unless the same shall have been
vacated, set aside or stayed within such 60-day period.
(h) "BOARD OF DIRECTORS" shall have the meaning specified in
Section 4.1.
2.
<PAGE> 8
(i) "CAPITAL ACCOUNT" as of any given date shall mean, with
respect to any Member, the account maintained for such Member in accordance with
the provisions of Section 10.3.
(j) "CAPITAL CONTRIBUTION" shall mean the amount of money and the
initial Adjusted Asset Value of any property contributed to the Company by a
Member whenever made. Any reference to a capital contribution of a Member shall
include the Capital Contribution made by a predecessor holder of any Units held
by such Member with respect to such Units.
(k) "CAUSE" shall mean, with respect to any Person, fraud, gross
negligence, willful misconduct, embezzlement or a material breach of such
Person's obligations under this Operating Agreement or any contract between such
Person and the Company.
(l) "CHAIRMAN OF THE BOARD" shall mean that director who is
elected by the other members of the Board of Directors to serve as Chairman of
the Board of Directors of the Company.
(m) "CHANNEL" shall have the meaning specified in the Master
Venture Agreement.
(n) "CLASS A ACQUISITION DATE" shall mean the date on which any
Person, or any group of Persons that are Affiliated with each other, (i)
acquires or otherwise beneficially holds or controls fifty percent (50%) or more
of the outstanding voting securities of any Class A Member; (ii) acquires or
otherwise beneficially holds or controls thirty percent (30%) or more of the
outstanding voting securities of any Class A Member that is subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended, where
such 30% or greater voting block represents the largest voting block held by
stockholders of such Class A Member; (iii) controls the appointment of a
majority of the members of the board of directors of such Class A Member; (iv)
acquires all or substantially all the assets of any Class A Member; or (v)
merges or otherwise consolidates with any Class A Member in a transaction where
the Class A Member is not the surviving entity.
(o) "CLASS A INTEREST" shall mean the proportion that a Class A
Member's Class A Units bear to the aggregate outstanding Class A Units of all
Class A Members.
(p) "CLASS A DIRECTOR" shall mean any Director classified as a
"Class A Director" and elected or designated by the Class A Members in
accordance with Section 4.3(a) of this Operating Agreement.
(q) "CLASS A MEMBER" shall mean any Member holding Class A Units.
(r) "CLASS A TRIGGER DATE" shall mean the date on which any NBC
Competitor (i) merges or otherwise consolidates with any Class A Member in a
transaction where the Class A Member is not the surviving entity, (ii) shall
have become the beneficial owner (as defined in the Securities Exchange Act of
1934) of fifteen percent (15%) or more of the outstanding equity securities of a
Class A Member, (iii) becomes entitled to elect, appoint or replace a member or
members of the board of directors of a Class A Member unless NBC shall also be
granted the same right to elect, appoint or replace a member or members of the
board of directors of such Class A Member or (iv) acquires all or substantially
all the assets of a Class A Member.
3.
<PAGE> 9
(s) "CLASS A UNIT" shall mean any Unit denominated "Class A."
(t) "CLASS B INTEREST" shall mean the proportion that a Class B
Member's Class B Units bear to the aggregate outstanding Class B Units of all
Class B Members.
(u) "CLASS B DIRECTOR" shall mean any Director classified as a
"Class B Director" and elected or designated by the Class B Members in
accordance with Section 4.3(b) of this Operating Agreement.
(v) "CLASS B MEMBER" shall mean any Member holding Class B Units.
(w) "CLASS B TRIGGER DATE" shall mean the date on which any
Quokka Competitor (i) merges with any Class B Member in a transaction where the
Class B Member is not the surviving entity, (ii) shall have become the
beneficial owner (as defined in the Securities Exchange Act of 1934) of fifteen
percent (15%) or more of the outstanding equity securities of a Class B Member,
(iii) becomes entitled to elect a member or members of the board of directors of
a Class B Member unless Quokka shall also be granted the same right to elect,
appoint or replace a member or members of the board of directors of such Class B
Member or (iv) acquires all or substantially all the assets of a Class B Member.
(x) "CLASS B UNIT" shall mean any Unit denominated "Class B."
(y) "CODE" shall mean the Internal Revenue Code of 1986, as
amended, or corresponding provisions of subsequent superseding federal revenue
laws.
(z) "COMPANY PROPERTY" means any tangible and intangible personal
property now owned or hereafter acquired by the Company, including, without
limitation, all cash, cash equivalents, deposits, accounts receivable,
work-in-progress, inventory, equipment, materials, supplies, prototypes,
vehicles, real property, fixtures, permits, approvals, licenses, patents,
consents, contracts, agreements, applications for permits, approvals, licenses,
development rights, development agreements, trade names and warranties, or any
other property.
(aa) "CONTENT PLAN" shall mean with respect to the first Games
the Initial Content Plan and with respect to the later Games the content plan
developed in accordance with Section 5.3(a).
(bb) "CONTENT PLAN DEADLINE" shall mean the date one hundred
twenty (120) days following the conclusion of the Games prior to the Games with
respect to which such Content Plan applies.
(cc) "CURRENT CONTENT PLAN" shall have the meaning specified in
Section 5.2.
(dd) "DELAWARE ACT" shall mean the Delaware Limited Liability
Company Act at 6 Del. C. Sections 18-101, et seq., as amended.
(ee) "DIRECTORS" shall mean the directors designated or elected
by the Members pursuant to the terms of this Operating Agreement. For purposes
of the Delaware Limited Liability Company Act and for all other purposes, the
term "Director" as used in this Operating Agreement shall mean "manager."
Consequently the parties intend that any restriction
4.
<PAGE> 10
on the authority of a Director set forth in this Operating Agreement shall also
be read as a restriction on such person's authority as a manager.
(ff) "DISTRIBUTABLE CASH" shall mean for any period the Operating
Cash Flow (as defined below) for such period plus depreciation and amortization
to the extent reflected in Operating Cash Flow for such period minus (i) the
capital expenditures of the Company for such period determined in accordance
with U.S. generally accepted accounting principles, (ii) any net working capital
requirements to be met from Operating Cash Flow for such period as determined by
the Board of Directors and (iii) all amounts distributed by the Company pursuant
to Section 11.3(a) of this Operating Agreement; and where "Operating Cash Flow"
shall mean for any period the gross revenues of the Company for such period less
all operating and nonoperating expenses of the Company for such period,
including all charges of a proper character (including provision for taxes, if
any, which charges shall be limited to current taxes, and provision for current
additions to reserves), all determined in accordance with GAAP applied on a
basis consistent with the Company's prior corresponding periods, if any.
(gg) "DROP-DEAD DATE" shall mean March 15, 1999.
(hh) "EQUITABLE CLAIM REGARDING CONTENT" shall have the meaning
specified in Section 5.7(c).
(ii) "EVENTS" shall have the meaning specified in the Master
Venture Agreement.
(jj) "EXCESS CAPITAL CONTRIBUTION" shall mean the amount, if any,
by which the sum of Quokka's Initial Capital Contribution and all Quokka
Quarterly Capital Contributions exceeds [*] dollars $[*].
(kk) "FISCAL YEAR" shall mean the Company's fiscal year. The
Company's fiscal year shall be January 1 through December 31 unless a different
taxable year is required by Section 706 of the Code, in which event the
Company's fiscal year shall be the taxable year required by Section 706 of the
Code.
(ll) "FUNDS FROM A SALE OF THE COMPANY" means all Distributable
Cash held by the Company which results from a Sale of the Company.
(mm) "FUNDS FROM OPERATIONS" means all Distributable Cash held by
the Company which results from the operation of the business of the Company from
whatever source, except for Funds From a Sale of the Company and Capital
Contributions.
(nn) "GAMES" shall have the meaning specified in the Master
Venture Agreement.
(oo) "INITIAL CAPITAL CONTRIBUTION" shall mean a Member's initial
contribution to the Capital of the Company pursuant to this Operating Agreement
in connection with the initial issuance of Units by the Company, as set forth on
Schedule A hereto.
(pp) "INITIAL CONTENT PLAN" shall have the meaning specified in
Section 5.3(a).
(qq) "INITIAL MEMBERS" shall mean NBC and Quokka.
[*] Confidential Treatment Requested
5.
<PAGE> 11
(rr) "INTEREST" shall mean the proportion that a Member's Units
bears to the aggregate outstanding Units of all Members.
(ss) "INTEREST INCOME" shall mean all interest income, including
without limitation, income received from commercial paper, certificates of
deposit, United States treasury bills and other money market investments.
(tt) "LONG-TERM STRATEGIC PLAN" shall have the meaning specified
in Section 5.3(b).
(uu) "MASTER VENTURE AGREEMENT" shall mean that certain Master
Venture Agreement of even date herewith among NBC, Quokka and the Company.
(vv) "MEMBER" shall mean each of Quokka, NBC, any Additional
Member and any Substituted Member which is, as of a given time, a member of the
Company.
(ww) "MUTUAL TERMINATION EVENT" shall have the meaning specified
in the Master Venture Agreement.
(xx) "NBC COMPETITOR" shall mean any media company that is
significantly engaged in any of the primary businesses of NBC, National
Broadcasting Company, Inc. or its Subsidiaries or any telecommunications,
Internet or similar company that is significantly engaged in any of the primary
businesses of National Broadcasting Company, Inc., its Subsidiaries or Snap! LLC
[*]; provided, however, that NBC Competitor shall not include any Person
identified by Quokka in writing to NBC (a "Request Notice") that NBC does not
identify as such in writing to Quokka within thirty (30) days of such Request
Notice.
(yy) "NBC SERVICES AGREEMENT" shall mean that certain NBC Rights
and Services Terms attached as Exhibit A to the Master Venture Agreement.
(zz) "NET PROFIT OR NET LOSS" shall be an amount computed for
each Accounting Period as of the last day thereof that is equal to the Company's
taxable income or loss for such Accounting Period, 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 Code Section 703(a)(1)
shall be included in taxable income or loss), with the following adjustments:
(1) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in computing Net Profit
or Net Loss pursuant to this Section 1.1(zz) shall be added to such taxable
income or loss;
(2) Any expenditures of the Company described in Code
Section 705(a)(2)(b) or treated as Code Section 705(a)(2)(b) expenditures
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise
taken into account in computing Net Profit or Net Loss pursuant to this Section
1.1(zz) shall be subtracted from such taxable income or loss; and
[*] Confidential Treatment Requested
6.
<PAGE> 12
(3) Items that are specially allocated pursuant to
Section 11.2 hereof shall not be taken into account in computing Net Profit or
Net Loss.
Notwithstanding anything to the contrary contained in this definition of Net
Profit or Net Loss, income, gain or loss resulting from the disposition of,
distribution to a Member of, or depreciation, amortization or other cost
recovery deductions with respect to, any Company asset shall be computed by
reference to the book value of the asset disposed of, distributed or
depreciated, amortized or otherwise recovered, notwithstanding that the adjusted
tax basis of such asset differs from its book value.
(aaa) "OPERATING AGREEMENT" shall mean this Operating Agreement
as originally executed and as amended from time to time in accordance with the
terms of this Operating Agreement.
(bbb) "PERMITTED PLEDGE" shall mean a pledge by a Member of its
interest in the Company in connection with a debt financing transaction creating
an encumbrance on all or substantially all the assets of such Member, which
assets include such Member's interest in the Company.
(ccc) "PERSON" shall mean any individual or corporation,
partnership, limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization or other entity, including any
government or political subdivision or any agency or instrumentality thereof and
the heirs, executors, administrators, legal representatives, successors, and
permitted assigns of such "Person" where the context so admits.
(ddd) "QUARTERLY CAPITAL NEEDS" shall have the meaning specified
in Section 5.3(c).
(eee) "QUOKKA COMPETITOR" shall mean any Person significantly
engaged in the business of providing coverage, promotion or advertising of
sports or sporting events over the Internet Medium (as such term is defined in
the NBC Services Agreement).
(fff) "QUOKKA QUARTERLY CAPITAL CONTRIBUTION" shall have the
meaning specified in Section 5.4(a).
(ggg) "QUOKKA SERVICES AGREEMENT" shall mean that certain Quokka
Rights and Services Terms attached as Exhibit B to the Master Venture Agreement.
(hhh) "QUOKKA WARRANTS" shall have the meaning specified in the
Master Venture Agreement.
(iii) "REDUCED ACTIVITY PERIOD" shall mean any six month period
following the expiration or termination of the Master Venture Agreement (as such
terms are defined in the Master Venture Agreement) during which the Company has
not either accrued expenditures of at least $[*] or recognized revenues of at
least $[*].
(jjj) "REDUCED SPENDING PLAN" shall have the meaning specified in
Section 5.3(b).
[*] Confidential Treatment Requested
7.
<PAGE> 13
(kkk) "RESTRICTED ADVERTISER CATEGORY" shall have the meaning
specified in the Master Venture Agreement.
(lll) "SALE OF COMPANY PROPERTY" shall mean the sale,
disposition, assignment, transfer, lease, pledge, hypothecation or encumbrance
of, or the granting of any security interest in, any Company Property that, when
considered with any other Company Property so transferred or otherwise treated
outside the ordinary course of business, has an aggregate fair market value
greater than 20% of the fair market value of all Company Property (including
without limitation any Sale of the Company).
(mmm) "SALE OF THE COMPANY" shall mean the sale or disposition of
all or substantially all the Company Property.
(nnn) "SERVICES AGREEMENTS" shall mean the NBC Services Agreement
and the Quokka Services Agreement.
(ooo) "SUBSIDIARY" of any Person shall mean any entity of which
such Person beneficially holds, directly or indirectly, fifty percent (50%) or
more of such entities outstanding securities.
(ppp) "SUBSTITUTE MEMBER" shall mean any Person who or which is
admitted to the Company as a Substitute Member pursuant to Articles 12 and 13 of
this Operating Agreement.
(qqq) "SUPERMAJORITY OF THE DIRECTORS" shall mean the vote of
three (3) or more Directors, including at least one (1) Class A Director and at
least one (1) Class B Director. Every act or decision done or made by three (3)
or more Directors, including at least one (1) Class A Director and at least one
(1) Class B Director, at a meeting duly held and at which a quorum is present
shall be the act of a Supermajority of the Directors. Additionally, any act or
decision done or made pursuant to a written consent executed by all five (5)
Directors (or, in the event of a reduction in the number of Directors pursuant
to Section 4.2, all four (4) Directors) in accordance with the terms of Section
4.7(g) shall be the act of a Supermajority of the Directors. Votes by a Director
shall be as a representative of the Members electing such Director and not as a
fiduciary of the Company or all of its Members.
(rrr) "TREASURY REGULATIONS" shall mean the Income Tax
Regulations, including temporary regulations, promulgated under the Code, as
amended from time to time.
(sss) "UNITS" shall mean the capital units issued by the Company
to its Members, in exchange for contributions, which represent the Member's
interest in the Company.
(ttt) "WARRANT ISSUANCE AGREEMENT" shall mean that certain
Warrant Issuance Agreement dated of even date herewith among Quokka, NBC and the
Company.
ARTICLE 2
FORMATION OF COMPANY
2.1 FORMATION. On February 5, 1999, the Company was organized as a
Delaware limited liability company under and pursuant to the Delaware Act.
8.
<PAGE> 14
2.2 NAME. The name of the Company is NBC/Quokka Ventures, LLC.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be in the State of New York.
2.4 REGISTERED OFFICE AND REGISTERED AGENT. The Company's registered
office in the state of Delaware shall be at the office of its registered agent,
and the name and address of its initial registered agent shall be The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801. The Corporation Trust Company is located in the
County of Newcastle.
2.5 TERM. The Company's existence commenced February 5, 1999 upon the
filing with the Secretary of the State of Delaware of the Company's Certificate
of Formation and shall continue indefinitely, unless the Company is earlier
dissolved in accordance with either the provisions of this Operating Agreement
or the Delaware Act.
ARTICLE 3
PURPOSES OF COMPANY
3.1 COMPANY PURPOSES. The purpose of the Company is to (a) design,
develop, produce and market the Channel in accordance with the Master Venture
Agreement, the Services Agreements and the Content Plans, (b) sell advertising
on, or sponsorships of, the Channel in accordance with the Master Venture
Agreement and the Services Agreements, (c) design, develop, manufacture, market
and sell derivative products relating to the Channel in accordance with the
Master Venture Agreement and the Services Agreements, (d) engage in such other
activities as contemplated by the Master Venture Agreement, the Services
Agreements and the Content Plans and (e) engage in any lawful act or activity
for which a limited liability company may be organized under the laws of the
State of Delaware, incident, necessary, advisable or desirable to carry out the
foregoing. The Company shall have all powers available to limited liability
companies under the Delaware Act to make and perform all contracts and to engage
in all actions and transactions necessary or advisable to carry out the purposes
of the Company.
ARTICLE 4
MANAGEMENT OF COMPANY
4.1 GENERALLY. Except as specifically set forth in this Operating
Agreement, the Members hereby delegate all power and authority to manage the
business and affairs of the Company to the Directors, who shall act as the
managers of the Company subject to and in accordance with the terms of this
Operating Agreement (including, without limitation, Section 5.1). Such five (5)
(or, as provided in Section 4.2 below, four (4)) Directors shall constitute the
"Board of Directors" and such term may be used in this Operating Agreement to
refer to such five (5) (or, as provided in Section 4.2 below, four (4))
Directors. Such term is used for convenience only and is not intended by the
parties to confer to the Board of Directors any additional power or authority
other than that expressly and specifically conferred pursuant to and in
accordance with the terms of this Operating Agreement.
4.2 NUMBER OF DIRECTORS; CLASSIFICATION OF DIRECTORS. The number of
Directors of the Company shall be fixed at five (5) Directors. Three (3)
Directors shall be classified as Class
9.
<PAGE> 15
A Directors and two (2) Directors shall be classified as Class B
Directors. Notwithstanding the foregoing however, if within thirty (30) days
following the date the Class B Directors receive written notice from the Class A
Directors that a Class A Acquisition Date has occurred (a "Class A Acquisition
Date Notice"), the holders of a majority of the Class B Interests elect to
reduce the number of Class A Directors, the number of Directors of the Company
shall be fixed at four (4) Directors. In such event two (2) Directors shall be
classified as Class A Directors and two (2) Directors shall be classified as
Class B Directors. The Class A Directors shall provide a Class A Acquisition
Date Notice promptly following a Class A Acquisition Date.
4.3 TENURE, ELECTION AND QUALIFICATIONS.
(a) The initial Class A Directors shall be Richard H. Williams,
Alan Ramadan and Les Schmidt. Each Class A Director shall serve until the
earlier of (i) the election of such Class A Director's successor by Class A
Members holding a majority of the Class A Interests, (ii) the removal of such
Class A Director in accordance with the terms of this Operating Agreement, (iii)
such Class A Director's resignation and (iv) such Class A Director's death.
(b) The initial Class B Directors shall be Bob Myers and Gary
Zenkel. Each Class B Director shall serve until the earlier of (i) the election
of such Class B Director's successor by Class B Members holding a majority of
the Class B Interests, (ii) the removal of such Class B Director in accordance
with the terms of this Operating Agreement, (iii) such Class B Director's
resignation and (iv) such Class B Director's death.
(c) At the time of his appointment and at all times during his
service as a Director, a Director must be an officer, director or employee of a
Member. In the event a Director shall cease to be an officer, director or
employee of a Member, such Director shall be deemed to have resigned as a
Director effective upon such cessation date. In addition, at least one (1) Class
B Director shall be an officer, director or employee of NBC.
4.4 RESIGNATION. A Director may resign at any time by giving written
notice to the Members. The resignation of a Director shall take effect upon
receipt of notice thereof or at such later time as shall be specified in such
notice; unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
4.5 REMOVAL.
(a) A Class A Director may be removed at any time, with or
without Cause, by the affirmative vote of Class A Members holding a majority of
the Class A Interests. Without limiting the generality of the foregoing, in the
event of a reduction in the number of Directors classified as Class A Directors
pursuant to Section 4.2, the Class A Members holding a majority of the Class A
Interests shall determine which Class A Director shall be removed as a result of
such reduction.
(b) A Class B Director may be removed at any time, with or
without Cause, by the affirmative vote of Class B Members holding a majority of
the Class B Interests.
(c) Notwithstanding the foregoing, upon the affirmative vote of
any two Directors, any other Director may be removed for Cause.
4.6 VACANCIES.
10.
<PAGE> 16
(a) Any vacancy occurring in the office of a Class A Director
shall be filled by the affirmative vote of Class A Members holding a majority of
the Class A Interests.
(b) Any vacancy occurring in the office of a Class B Director
shall be filled by the affirmative vote of Class B Members holding a majority of
the Class B Interests.
4.7 MEETINGS.
(a) Subject to the notice provisions set forth in this Section
4.7, regular meetings of the Board of Directors shall be held at such times and
dates as determined by the Board of Directors. The Board of Directors shall hold
at least four (4) regular meetings annually, which meetings shall be held in
such locations as determined pursuant to this Section 4.7. The officers and
other executives of the Company, if any, may attend meetings of the Board of
Directors with the prior approval of the Board of Directors. The Board of
Directors shall meet with the officers and other senior executives of the
Company, if any, at least two (2) times annually.
(b) Directors may participate in a meeting through use of
conference telephone or similar communication equipment, so long as all
Directors participating in such meeting can hear one another. Such participation
constitutes presence in person at such meeting.
(c) Special meetings of the Board of Directors for any purpose
may be called by the Chairman of the Board or by any two Directors.
(d) Each Director shall receive notice of the date, time and
place of all meetings of the Board of Directors at least thirty (30) days before
the meeting. Such notice shall be delivered in writing (which may be by
facsimile or by telegraph) to each Director. Such notice may be given by the
Chairman of the Board, the Secretary of the Company or by the person or persons
who called the meeting. Such notice shall specify the purpose of the meeting.
Notice of any meeting of the Board of Directors shall not be required to be
given to any Director who signs a waiver of notice of such meeting or a consent
to holding the meeting, either before or after the meeting, or who attends the
meeting without protesting prior to such meeting or at the commencement thereof.
No meeting of the Board of Directors shall be considered a valid meeting of the
Board of Directors unless notice as required pursuant to this Section 4.7 has
been given. All such waivers, consents and approvals shall be filed with the
corporate records of the Company.
(e) Regular meetings of the Board of Directors shall be held
alternatively in San Francisco, California and New York, New York, or in such
other places as the Directors who desire to attend such meeting may collectively
determine. Special meetings of the Board of Directors shall be held in New York,
New York, or in such other places as the Directors who desire to attend such
meeting may collectively determine, with respect to special meetings called by
the Class A Directors and shall be held in San Francisco, California, or in such
other places the Directors who desire to attend such meeting may collectively
determine, with respect to special meetings called by the Class B Directors. The
location of any meeting of the Board of Directors shall be designated in the
notice of the meeting.
(f) Any meeting of the Board of Directors, whether or not a
quorum is present, may be adjourned to another time and place by the affirmative
vote of a majority of the Directors present. If the meeting is adjourned for
more than twenty-four (24) hours, notice of
11.
<PAGE> 17
such adjournment to another time or place shall be given prior to the time of
the adjourned meeting to the Directors who were not present at the time of the
adjournment.
(g) Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting of the Board of Directors, if all the
Directors individually or collectively consent in writing to such action. Such
written consent or consents shall be filed with the corporate records of the
Company. Such action by written consent shall have the same force and effect as
a unanimous vote of the Directors.
4.8 QUORUM AND TRANSACTION OF BUSINESS. The number of Directors that
constitutes a quorum for the transaction of business at a properly noticed
meeting of the Board of Directors shall be three (3); provided, however, that if
a vote requiring a Supermajority of the Directors shall be taken at such
meeting, a Supermajority of the Directors shall constitute a quorum. Except as
required by the Delaware Act or as otherwise set forth in this Operating
Agreement, every act or decision done or made by three (3) or more Directors at
a meeting duly held and at which a quorum is present shall be the act of the
Board of Directors.
4.9 DIRECTORS HAVE NO EXCLUSIVE DUTY TO COMPANY. The Directors shall not
be required to manage the Company as their sole and exclusive function, and the
Directors may have other business interests and may engage in other activities
in addition to those relating to the Company. Neither the Company nor any Member
shall have any right, by virtue of this Operating Agreement or otherwise, to
share or participate in such other investments or activities of the Directors or
to the income or proceeds derived therefrom.
4.10 SALARIES. The Directors shall receive no salary or other
compensation from the Company; provided, however, the foregoing shall not
prevent any employee of or consultant to the Company from receiving salary or
other compensation from the Company with respect to his services as an employee
or consultant.
ARTICLE 5
POWERS OF AND RESTRICTIONS ON THE DIRECTORS
5.1 MANAGEMENT. The Directors shall in all cases act as a group and
shall have no authority to act individually. The Board of Directors may appoint
one (1) or more officers to manage the day-to-day operations of the Company. The
initial officers shall be as designated in Section 6.1 below and shall have the
respective duties set forth in Section 6.2 below. The Board of Directors may
adopt such rules and regulations for the management of the Company not
inconsistent with this Operating Agreement or the Delaware Act. Except as
otherwise provided in the Delaware Act or authorized pursuant to the terms of
this Operating Agreement, no debt shall be contracted or liability incurred by
or on behalf of the Company except by the Company's Board of Directors.
5.2 ADHERENCE TO CURRENT CONTENT PLAN. Except as approved by a Supermajority of
the Directors, the Board of Directors shall operate the Company, and the Company
shall operate the Channel, in a manner in all ways consistent with and in
accordance with the Content Plan as in effect with respect to a Games at any
given time (the "Current Content Plan"). Amendments to the Current Content Plan
shall require approval by a Supermajority of the Directors.
12.
<PAGE> 18
Notwithstanding any provision herein to the contrary, approval of any
Content Plan shall not constitute approval of the raising of additional capital
for the Company.
5.3 CONTENT PLAN, LONG-TERM STRATEGIC PLAN AND ANNUAL OPERATING PLAN.
(a) Until the Drop-Dead Date, the Members shall negotiate in good
faith to develop, for approval by a Supermajority of the Directors, an initial
content plan (the "Initial Content Plan") with respect the first Games,
provided, however, in conducting such negotiations, it will not be NBC's
intention to acquire "participating rights" as defined in EITF 96-16. Nothing
contained in the foregoing proviso, however, will affect the enforceability of
the Initial Content Plan once it has been approved by a Supermajority of the
Directors. Thereafter, no later than thirty (30) days prior to each Content Plan
Deadline, the officers of the Company shall prepare and submit to the Board of
Directors for approval by a Supermajority of the Directors, a content plan (the
"Content Plan") covering with respect to the next upcoming Games the types of
items covered in the Initial Content Plan with respect to the first Games. The
Members shall cause the Directors of the Company to work together in good faith
to develop and approve by such Supermajority of the Directors a Content Plan
with respect to each Games by the Content Plan Deadline; provided, however, in
the event a Supermajority of the Directors do not approve a Content Plan with
respect to the next upcoming Games on or before the Content Plan Deadline, the
Content Plan with respect to the next upcoming Games shall be the Content Plan
for the prior Games as updated by the General Manager and Production
Coordinating Producer of the Company to adjust for (i) the different sports
occurring during such Games (e.g. figure skating shall be substituted for
gymnastics), (ii) changes in technology and (iii) the current competitive
landscape. In the event that the General Manager and the Production Coordinating
Producer cannot agree on the updates necessary to create the Content Plan, the
General Manager shall have final authority to approve such Content Plan.
(b) From time to time as requested by the Board of Directors, but
at least one hundred twenty (120) days prior to the beginning of every other
Fiscal Year (beginning with the Fiscal Year commencing January 1, 2001), the
officers of the Company shall prepare and submit to the Board of Directors for
approval a long-term strategic plan for the Company (the "Long-term Strategic
Plan") for the period commencing with such Fiscal Year (or, the current Fiscal
Year in the event the Long-term Strategic Plan is not being considered by the
Board of Directors within sixty (60) days prior to the beginning of a Fiscal
Year) and ending with the Fiscal Year following the completion of the last Games
with respect to which the Company has rights under the NBC Services Agreement.
Notwithstanding the foregoing however, the first Long-term Strategic Plan shall
be prepared and submitted to the Board of Directors for approval no later than
ninety (90) days from the date hereof. Each Long-term Strategic Plan shall
include for each Fiscal Year covered by such Long-term Strategic Plan the
financial goals of the Company for each such Fiscal Year including a summary of
target operating revenues and expenses, capital expenditures and sources and
uses of funds and shall set forth an estimate of the additional capital needs,
if any, of the Company during each quarter of each such Fiscal Year, provided,
however, that such information need not be as detailed as the information
provided in the Annual Operating Plan. The Long-term Strategic Plan shall be
prepared on a basis in all respects consistent with the Current Content Plan. In
the event that there are three (3) Class A Directors and the Board of Directors
approves a Long-term Strategic Plan that provides for disbursement of (x) with
respect to the first Games, less than [*] dollars ([*]), (y) with respect to the
second Games, less than the amount equal to [*] dollars ([*]) multiplied by the
NBC Budget Discount, if any, or (z) with
[*] Confidential Treatment Requested
13.
<PAGE> 19
respect to the third Games, less than the amount equal to [*] dollars ([*])
multiplied by the NBC Budget Discount, if any, such Long-term Strategic Plan
shall be deemed a "Reduced Spending Plan." If at any time NBC substantially
reduces its overall television network budget with respect to any Games (other
than the 2000 Games) for reasons relating solely to an adverse change in general
economic conditions in the United States, then the "NBC Budget Discount" shall
mean the percentage by which NBC has reduced such budget. The foregoing
notwithstanding, nothing contained in this Section 5.3(b) shall obligate NBC to
provide Quokka or the Company with any written materials relating to NBC's
television network budget for any Games.
(c) From time to time as requested by the Board of Directors, but
at least one hundred twenty (120) days prior to the beginning of each Fiscal
Year, the officers of the Company shall prepare and submit to the Board of
Directors for approval an annual operating plan for the Company (the "Annual
Operating Plan") for such Fiscal Year. Notwithstanding the foregoing however,
the first Annual Operating Plan shall be prepared and submitted to the Board of
Directors for approval no later than ninety (90) days from the date hereof. The
Annual Operating Plan shall include the budget of the Company for such fiscal
year including estimates of operating revenues and expenses, capital
expenditures and sources and uses of funds and shall set forth an estimate of
the additional capital needs, if any, of the Company during each quarter of each
such Fiscal Year (the "Quarterly Capital Needs"). The Annual Operating Plan
shall be prepared on a basis in all respects consistent with the Current Content
Plan and the Long-term Strategic Plan. In the event that there are only two (2)
Class A Directors as a result of an election by the Class B Directors pursuant
to Section 4.2 and the Board of Directors is unable to approve an Annual
Operating Plan by the date one hundred (100) days prior to the beginning of a
Fiscal Year, the Annual Operating Plan for the upcoming Fiscal Year shall be the
Annual Operating Plan for the prior Fiscal Year increased by five percent (5%)
in each category.
5.4 ADDITIONAL CAPITAL.
(a) From time to time, Quokka shall make additional contributions
(the "Quokka Quarterly Capital Contribution") to the capital of the Company in
such amounts necessary to fund the Company's operations on an on-going basis in
accordance with the current Long-term Strategic Plan and the Annual Operating
Plan. Each Quokka Quarterly Capital Contribution, if any, shall be made at the
beginning of each quarter and shall equal the Quarterly Capital Needs for the
subsequent commencing quarter; provided, however, that in the event that a Games
commences during any particular quarter, then (x) the Quokka Quarterly Capital
Contribution that would have otherwise been due at the beginning of the quarter
in which the Games commence shall instead be due at the beginning of the
previous quarter, (y) the Quokka Quarterly Capital Contribution that would have
otherwise been due at the beginning of the quarter subsequent to the quarter in
which the Games commence shall instead be due at the beginning of the quarter in
which the Games commence and (z) no capital contribution shall be required at
the beginning of the quarter subsequent to the quarter in which the Games
commence because the amount that otherwise would have been contributed at such
time was contributed a quarter earlier (e.g., by way of example only, Quokka
shall make a Quokka Quarterly Capital Contribution at the beginning of the first
quarter of the year in an amount equal to the Quarterly Capital Needs during the
second quarter; provided, however, in the event that a Games commences during
the second quarter, the Quokka Quarterly Capital Contribution that would have
otherwise been payable at the beginning of the second quarter (i.e. the
Quarterly Capital Needs during the third quarter) shall also be paid at the
beginning of the first quarter). Quokka
[*] Confidential Treatment Requested
14.
<PAGE> 20
shall not receive additional Units in exchange for such Quokka Quarterly Capital
Contributions. Additionally, for so long as Quokka shall not have completed an
initial public offering of its equity or other securities, Quokka shall provide
the Board of Directors with (1) Quokka's unaudited quarterly report including a
consolidated balance sheet as at the end of the most recently completed quarter,
and an unaudited consolidated statement of income and an unaudited statement of
cash flows for such quarter, all prepared in accordance with U.S. generally
accepted accounting principles consistently applied (other than for accompanying
notes and changes resulting from year-end audit adjustments) within forty-five
(45) days of the end of each quarter of Quokka's fiscal year and (2) a
consolidated balance sheet of Quokka as at the end of the most recently
completed fiscal year, and a consolidated statement of income and a consolidated
statement of cash flows of Quokka for such year, all prepared in accordance with
U.S. generally accepted accounting principles consistently applied, together
with a report and opinion thereon by independent public accountants of national
standing selected by Quokka's board of directors, within ninety (90) days after
the end of each fiscal year of Quokka.
(b) From time to time, pursuant to the provisions of Section
5.7(b), the Class B Directors, in their sole discretion, may direct the Company
to exercise all or a portion of the Quokka Warrants. Concurrently therewith, NBC
shall contribute to the capital of the Company an amount equal to the exercise
price of the Quokka Warrants being exercised at such time (except in the event
of a "net issuance exercise" in accordance with the terms of the Quokka Warrants
pursuant to which a portion of the Quokka Warrants shall be canceled in
satisfaction of the applicable exercise price). Until such amount has been
contributed to the capital of the Company, the Company shall take no action with
respect to such requested exercise of the Quokka Warrants (except in the event
of a "net issuance exercise" in accordance with the terms of the Quokka Warrants
pursuant to which a portion of the Quokka Warrants shall be canceled in
satisfaction of the applicable exercise price). NBC shall not receive additional
Units in exchange for such additional capital contributions.
(c) Except as set forth in Section 5.4(a) and 5.4(b) above, the
Company shall not raise additional capital (or, in connection therewith, issue
additional units of the Company or admit Additional Members) without the
approval of a Supermajority of the Directors.
(d) Except in the event the Class B Directors elect pursuant to
Section 5.4(b) to exercise the Quokka Warrants for cash or in the event the
Class B Directors elect to control Equitable Claim Regarding Content pursuant to
Section 5.7(c), the Class B Members shall have no obligation to contribute cash
to the Company.
5.5 ACTIONS REQUIRING SIMPLE MAJORITY APPROVAL. As set forth in Section
4.8, except as required by the Delaware Act or as otherwise set forth in this
Operating Agreement (including, without limitation, Section 5.6), every act or
decision done or made by three (3) or more Directors at a meeting duly held and
at which a quorum is present shall be the act of the Board of Directors. Without
limiting the generality of Section 4.8 or Section 5.1 or the obligation of the
Board of Directors to operate the Company in accordance with the Current Content
Plan as set forth in Section 5.2, the Members desire to affirmatively set forth
certain actions which may be taken by a simple majority of the Board of
Directors in accordance with Section 4.7. Such actions are as follows:
(a) Election of the Chairman of the Board, who shall preside at
all meetings of the Board of Directors;
15.
<PAGE> 21
(b) Approval and amendment of the Annual Operating Plan and
Long-term Strategic Plan (as set forth in Section 5.3);
(c) The appointment or removal of the General Manager and other
officers of the Company; provided, however, that the appointment of the
Production Coordinating Producer shall require the approval of a Supermajority
of the Directors;
(d) The hiring, firing and compensation of the Company's
personnel; provided, however, that the hiring of the Production Coordinating
Producer shall require the approval of a Supermajority of the Directors;
(e) Selection of the equipment and production processes of the
Company in the ordinary course of business;
(f) Directing and controlling claims and litigation against or
involving third parties, other than claims or litigation (i) subject to approval
by a Supermajority of the Directors pursuant to Section 5.6, (ii) Equitable
Claims Regarding Content subject to the direction and control of the Class B
Directors pursuant to Section 5.7(c) or (iii) which any Person (other than the
Company) has a contractual right to control and direct; and
(g) Negotiation and approval of agreements with third parties,
other than agreements subject to approval by a Supermajority of the Directors
pursuant to Section 5.6.
5.6 ACTIONS REQUIRING SUPERMAJORITY APPROVAL. Notwithstanding any other
provision in this Operating Agreement to the contrary, every act or decision
outside the ordinary course of business shall require the approval of a
Supermajority of the Directors. For purposes of this Operating Agreement,
"outside the ordinary course of business" shall mean acts or decisions regarding
matters of a type (as opposed to matters involving an amount) that is not
consistent with those normally expected to be addressed in directing and
carrying out the purposes of the Company as set forth in Section 3.1, regardless
of whether the events or transactions that would necessitate such decisions are
expected to occur in the near term or in the long term. Operation of the Company
in any way inconsistent with the Current Content Plan is considered "outside the
ordinary course of business" for purposes hereof. In addition, the following
shall require the approval of a Supermajority of the Directors:
(a) Any agreement, arrangement or understanding with any Member,
Director or any holder of Units or any Affiliate, employee or relative of any
such Member, Director or holder, or any amendment, renewal or extension of any
such agreement, arrangement or understanding (other than employment contracts
between any such natural person and the Company); provided, however, that the
Master Venture Agreement and the Warrant Issuance Agreement as executed and
delivered as of the date hereof shall be deemed to be approved by a
Supermajority of the Directors as of the date hereof for purposes of this
Section 5.6(a);
(b) Amendments of the Current Content Plan of the Company (as set
forth in Section 5.2) and approval of new Content Plans (as set forth in Section
5.3(a));
(c) Any redemption of any Unit or other interest in the Company;
(d) Distributions pursuant to Section 11.3(b), Section 11.3(d)
and Section 11.3(f);
16.
<PAGE> 22
(e) Acquisitions of assets representing at least twenty percent
(20%) of the net book value of the assets of the Company in any single
transaction or series of related transactions or any Sale of Company Property;
provided, however, that the approval of a Supermajority of Directors shall not
be required if such transaction or transactions represents less than [*] in
any single year and less than [*] in the aggregate;
(f) Hiring and appointing the Production Coordinating Producer;
providing, however, that the initial appointment of the Production Coordinating
Producer set forth in Section 6.1 shall be deemed approved by a Supermajority of
the Directors as of the date hereof for purposes of this Section 5.6(i);
(g) Decisions to put the Company into Bankruptcy;
(h) To prepare and file all tax returns on behalf of the Company,
and to make such tax elections and determinations as a Supermajority of the
Directors deems appropriate;
(i) Approving certain indemnifications of Persons by the Company
(as set forth in Section 8.1);
(j) Directing and controlling claims and litigation against or
involving third parties with respect to which NBC is not entitled to complete
indemnification and has been named as a co-defendant or in connection with which
the Company could face criminal penalties or negotiating or approving any
settlement with respect to any such claims or litigation;
(k) Transfers of Units by the Members (in accordance with Article
12), the admission of any Additional Member or any Substitute Member (in
accordance with Section 13.1) or the issuance of any equity in the Company or
any security convertible into equity in the Company; and
(l) Borrowing money for the Company from banks or other Persons,
or hypothecating, encumbering or granting any security interests in the assets
of the Company to repay borrowed funds until such time that the sum of Quokka's
Initial Capital Contribution and Quarterly Capital Contributions has exceeded
[*]; provided, however, that notwithstanding that the sum of Quokka's Initial
Capital Contribution and Quarterly Capital Contributions has exceeded [*], the
Company may not pledge its rights under the NBC Services Agreement or any
content owned by the Company without the consent of a Supermajority of the
Directors.
Notwithstanding any provision to the contrary contained in this
Operating Agreement, the approval rights set forth in this Section 5.6 shall
continue to be applicable following a Dissolution Event pursuant to Article 14
until the filing of a Certificate of Cancellation.
In voting on any matter requiring approval of a Supermajority of the
Directors, a Director shall vote as a representative of the Members electing
such Director and not as a fiduciary of the Company or all of its Members.
5.7 ACTIONS REQUIRING APPROVAL OF ONLY ONE CLASS OF DIRECTORS.
(a) Notwithstanding any other provision in this Operating
Agreement to the contrary but subject to any fiduciary duties a Director owes to
the Company and its Members
[*] Confidential Treatment Requested.
17.
<PAGE> 23
under Delaware law, (i) the Class A Directors shall have the exclusive right to
direct and control, on behalf of the Company, any claim by the Company against
NBC or any Affiliate of NBC, including, without limitation, exercising all
rights and remedies of the Company in the event any such party breaches the
Master Venture Agreement, the NBC Services Agreement or the Warrant Issuance
Agreement and (ii) the Class B Directors shall have the exclusive right to
direct and control, on behalf of the Company, any claim by the Company against
Quokka or any Affiliate of Quokka, including, without limitation, exercising all
rights and remedies of the Company in the event any such party breaches the
Master Venture Agreement, the Quokka Services Agreement, the Quokka Warrants or
the Warrant Issuance Agreement.
(b) Notwithstanding any other provision in this Operating
Agreement to the contrary but subject to the provisions of Section 5.4(b), the
Class B Directors shall have sole authority to direct the Company to distribute
the Quokka Warrants and any shares issued to the Company upon exercise of the
Quokka Warrants (the "Warrant Shares") to NBC in accordance with the terms of
this Operating Agreement and subject to the terms of the Quokka Warrants,
exercise the Quokka Warrants, vote the Warrant Shares, sell the Warrant Shares,
distribute any proceeds from the sale of any Warrant Shares, any dividends
(whether in cash or otherwise) or other distributions received by the Company in
respect of the Warrant Shares in accordance with the terms of this Operating
Agreement or exercise any other rights available to the Company in respect of
the Warrant Shares. The Class B Directors acknowledge and agree that the Quokka
Warrants and Warrant Shares may not be distributed in kind prior to the earlier
of (i) the initial public offering of equity securities of Quokka; (ii) three
(3) years from the initial issuance of the Quokka Warrants; and (iii) the
dissolution of the Company. Any transfer taxes or other fees and expenses (other
than applicable income taxes) arising from any distribution of the Quokka
Warrants or Warrant Shares shall be borne as set forth in the Quokka Warrants.
Additionally, notwithstanding the foregoing, in the event that the Class B
Members transfer any Class B Units pursuant to Section 12.1(a)(ii), the Class B
Directors shall not be entitled to distribute any of the Quokka Warrants or any
of the Warrant Shares (or any securities issued upon conversion thereof) to such
transferee without the consent of the Class A Members, which consent shall not
be unreasonably withheld, and in such event shall only be entitled to distribute
cash dividends or other distributions in respect of the Warrant Shares or any
proceeds from the sale of the Warrant Shares (or any securities issued upon
conversion thereof) to such transferee in accordance with the terms of this
Operating Agreement; provided, however, that this restriction shall not apply in
the event of a dissolution of the Company.
(c) Notwithstanding any other provision in this Operating
Agreement to the contrary, in the event the Company faces any claim involving
equitable remedies which may limit the Company's ability to exploit content
provided to it by NBC pursuant to the NBC Rights and Services Agreement and NBC
wishes to contest such potential limitation ("Equitable Claim Regarding
Content"), the Class B Directors may elect to direct and control such Equitable
Claim Regarding Content, provided, however, that the Company shall not enter
into any settlement or other agreement restricting the activities of the Company
without the approval of the Class A Directors if such settlement or other
agreement would have a greater negative impact on the Company than would have
been the case had NBC exercised its rights to withhold the content in question
pursuant to any of clauses (i) through (v) of Sections 3(b), 3(c) or 3(e) of the
NBC Services Agreement, as the case may be. In the event that the Class B
Directors elect to direct and control such Equitable Claim Regarding Content,
the Class B Members shall be required pro rata based on Class B Interests to
contribute additional capital to the Company to cover the
18.
<PAGE> 24
expenses and costs relating to such litigation, including without limitation
attorney's fees. No additional Units shall be issued in connection with such
additional capital contributions.
5.8 CERTAIN POWERS OF DIRECTORS. Without limiting the generality of
Section 5.1 or the obligation of the Board of Directors to operate the Company
in accordance with the Current Content Plan as set forth in Section 5.2, and
subject to any limitation set forth in this Operating Agreement (including,
without limitation, Sections 5.6 and 5.7), the Board of Directors shall have
power and authority on behalf of the Company:
(a) To acquire property from any Person as the Board of Directors
may determine in accordance with the terms of this Operating Agreement;
(b) To purchase liability and other insurance to protect the
Company's property and business of a type maintained by companies in a similar
business to that of the Company, it being understood that it shall be reasonable
to maintain insurance providing at least $[*] in coverage and that companies in
a similar business to that of the Company may maintain, without limitation,
director and officer, commercial general liability, umbrella, workers'
compensation, foreign workers compensation and liability, satellite
transmission, errors and omissions and DICE (documentary, industrial, commercial
and educational films);
(c) To hold and own any Company real and/or personal properties
in the name of the Company;
(d) To invest any Company funds temporarily in time deposits,
short-term governmental obligations, commercial paper or other similar low-risk
investments;
(e) Subject to the approval of Members holding a majority of the
Class A Interests and a majority of the Class B Interests, to effect a Sale of
the Company;
(f) To execute on behalf of the Company all instruments and
documents necessary, in the opinion of the Board of Directors, to the business
of the Company in accordance with the terms of this Operating Agreement;
(g) To open bank accounts from time to time in the name of the
Company;
(h) To employ accountants from nationally-recognized accounting
firms, legal counsel, or other experts to perform services for the Company and
to compensate them from Company funds;
(i) To enter into any and all other agreements on behalf of the
Company, with any other Person for any purpose, in such forms as the Board of
Directors may approve in accordance with the terms of this Operating Agreement;
(j) To establish and enforce limits of authority and internal
controls with respect to all personnel and functions;
(k) To develop or cause to be developed accounting procedures for
the maintenance of the Company's books of account; and
19.
[*] Confidential Treatment Requested
<PAGE> 25
(l) To do and perform all other acts as may be necessary or
appropriate to the conduct of the Company's business.
5.9 REPORTS TO MEMBERS. As soon as practicable after the end of any
quarter but in any event within thirty (30) days thereafter, the Board of
Directors shall provide to each of the Class A Members and Class B Members a
balance sheet, statement of income, statement of operations and statement of
cash flows (including the amount, if any, of the Quokka Quarterly Capital
Contribution made during such quarter) for such period and for the Fiscal Year
to date, prepared in accordance with U.S. generally accepted accounting
principles, consistently applied, with the exception that no notes need be
attached to such statements and year-end audit adjustments may not have been
made. As soon as practicable after the end of any Fiscal Year but in any event
within ninety (90) days thereafter, the Board of Directors shall provide to each
of the Class A Members and Class B Members (i) a balance sheet, statement of
income, statement of operations and statement of cash flows for such Fiscal
Year, prepared in accordance with U.S. generally accepted accounting principles,
consistently applied, and accompanied by a report and opinion thereon by the
Company's independent public accountants and (ii) a statement of the Capital
Account of each of the Class A Members and Class B Members prepared in
accordance with the terms of this Operating Agreement. Additionally, the Board
of Directors shall provide each Member with such other information as shall be
required to support such Member's public reporting obligations as well as such
other information as such Member shall reasonably request from the Board of
Directors.
5.10 INDEPENDENT PUBLIC ACCOUNTANTS. Pricewaterhouse Coopers or such
other nationally-recognized accounting firm selected by the board of directors
of Quokka to serve as Quokka's independent public accountants shall be the
Company's independent public accountants. The Company's independent public
accountant shall complete its audit of the Company in a timely fashion each
Fiscal Year so as to provide each Member with reasonable opportunity to include
the results therefrom, as required, in documents required to be filed by such
Member under the Securities Exchange Act of 1934 as amended.
5.11 LITIGATION. In the event that the Company and any Member are named
in third-party litigation and such Member is not entitled to complete
indemnification in connection therewith, the Board of Directors shall cooperate
with such Member in directing and controlling such litigation on behalf of the
Company in order to coordinate a common defense as appropriate.
ARTICLE 6
OFFICERS; COMMITTEES
6.1 APPOINTMENT OF OFFICERS. The Board of Directors may appoint officers
of the Company which may include, but shall not be limited to: (a) General
Manager; (b) one or more positions similar to the position of vice president of
a Delaware corporation as set forth below; (c) secretary; and (d) treasurer or
chief financial officer; provided, however, that the appointment of the
Production Coordinating Producer shall be subject to the approval of a
Supermajority of the Directors. The Board of Directors may delegate their
day-to-day management responsibilities to any such officers, and such officers
shall have the authority to contract for, negotiate on behalf of and otherwise
represent the interests of the Company as authorized by the Board of Directors
pursuant to this Operating Agreement in any job description created by
20.
<PAGE> 26
the Board of Directors. As of the effective date of this Operating Agreement,
Paul Gudelis shall be designated Technical Coordinating Producer and Tom Feuer
shall be designated Production Coordinating Producer, Mike Novelly shall be
designated Chief Financial Officer and Mike Novelly shall be designated
Secretary. At the time of his appointment and at all times during his service as
an officer of the Company, each officer must be an officer, director or employee
of a Member or the Company. In the event an officer shall cease to be an
officer, director or employee of a Member or the Company, such officer shall be
deemed to have resigned as an officer effective upon such cessation date.
6.2 TENURE AND DUTIES OF OFFICERS. All officers shall hold office at the
pleasure of the Board of Directors and until their successors shall have been
duly elected and qualified, unless sooner removed. Any officer may be removed at
any time by the Board of Directors, with or without Cause. Additionally, any
officer may be removed at any time by any two Directors for Cause. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors; provided, however, that the appointment of the Production
Coordinating Producer shall be subject to the approval of a Supermajority of the
Directors.
(a) DUTIES OF THE GENERAL MANAGER. The General Manager (the
"General Manager") shall preside at all meetings of the Members, unless the
Board of Directors shall have appointed another person to so preside and such
person is present. The General Manager shall be the Chief Executive Officer of
the Company and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and officers of the
Company. The General Manager shall perform other duties commonly incident to a
president of a Delaware corporation and shall also perform such other duties and
have such other powers as the Board of Directors shall designate from time to
time.
(b) DUTIES OF VICE PRESIDENTIAL LEVEL OFFICERS. The Technical
Coordinating Producer, Production Coordinating Producer and other officers
holding positions designated by the Board of Directors as being similar to the
position of vice president of a Delaware corporation (together, the "Senior
Officers"), in the order of their seniority, may assume and perform the duties
of the General Manager in the absence or disability of the General Manager or
whenever the office of General Manager is vacant. The Senior Officers shall
perform other duties commonly incident to a vice president of a Delaware
corporation and shall also perform such other duties and have such other powers
as the Board of Directors shall designate from time to time.
(c) DUTIES OF SECRETARY. The secretary (the "Secretary") shall
attend all meetings of the Members, and shall record all acts and proceedings
thereof in the minute book of the Company. The Secretary shall give notice in
conformity with this Operating Agreement of all meetings of the Members
requiring notice. The Secretary shall perform all other duties given him or her
in this Operating Agreement and other duties commonly incident to a secretary of
a Delaware corporation and shall also perform such other duties and have such
other powers as the Board of Directors shall designate from time to time. The
General Manager may direct any Assistant Secretary to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and each
Assistant Secretary shall perform other duties commonly incident to the office
of assistant secretary in a Delaware corporation and shall also perform such
other duties and have such other powers as the Board of Directors or the General
Manager shall designate from time to time.
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(d) DUTIES OF CHIEF FINANCIAL OFFICER OR TREASURER. The chief
financial officer (the "Chief Financial Officer") or treasurer (the "Treasurer")
shall keep or cause to be kept the books of account of the Company in a thorough
and proper manner, and shall render statements of the financial affairs of the
Company in such form and as often as required by this Operating Agreement, the
Board of Directors or the General Manager. The Chief Financial Officer or
Treasurer, subject to the order of the Board of Directors, shall have the
custody of all funds and securities of the corporation. The Chief Financial
Officer or Treasurer shall perform other duties commonly incident to the office
of Chief Financial Officer or Treasurer in a Delaware corporation and shall also
perform such other duties and have such other powers as the Board of Directors
or the General Manager shall designate from time to time. The General Manager
may direct any Assistant Treasurer to assume and perform the duties of the Chief
Financial Officer or Treasurer in the absence or disability of the Chief
Financial Officer or Treasurer, and each Assistant Treasurer shall perform other
duties commonly incident to the office the Chief Financial Officer or Treasurer
of a Delaware corporation and shall also perform such other duties and have such
other powers as the Board of Directors or the General Manager shall designate
from time to time.
ARTICLE 7
RIGHTS AND OBLIGATIONS OF MEMBERS
7.1 LIMITATION OF LIABILITY. Each Member's liability shall be limited as
set forth in the Delaware Act and other applicable law. Except as otherwise
provided by the Delaware Act, the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be the debts,
obligations and liabilities solely of the Company, and the Members of the
Company shall not be obligated personally for any of such debts, obligations or
liabilities solely by reason of being a Member of the Company.
7.2 NATURE OF RIGHTS AND OBLIGATIONS. Except as otherwise expressly
provided herein, nothing contained in this Operating Agreement shall be deemed
to constitute a Member an agent or legal representative of the other Members. A
Member shall not have any authority to act for, or to assume any obligation or
responsibility on behalf of, any other Member or the Company.
7.3 MEMBER ACCESS TO RECORDS. Upon advance notice, each Member shall
have the right, during regular business hours, to inspect and copy the Company
documents set forth in Section 11.7 at the Member's expense.
7.4 CERTAIN ACTIONS REQUIRING SPECIAL APPROVAL. Notwithstanding any
other provision in this Operating Agreement to the contrary, the following shall
require the approval of Members holding a majority of the Class A Interests and
a majority of the Class B Interests:
(a) the merger (or any conversion of the Company from a limited
liability company to another type of entity), consolidation, liquidation or
dissolution of the Company;
(b) any Sale of the Company; and
(c) any amendment of this Operating Agreement or the Certificate
of Formation.
22.
<PAGE> 28
7.5 OUTSIDE ACTIVITIES. Subject to the terms of the Master Venture
Agreement and Services Agreements, each Member and each Affiliate of each Member
shall be entitled to and may have business interests and engage in business
activities in addition to those relating to the Company, and may engage in the
ownership, operation and management of businesses and activities, for its own
account and for the account of others, and may own interests in the same
properties, as those in which the Company or the other Members own an interest,
without having or incurring obligation to offer any interest in such properties,
businesses or activities to the Company or any other Member, and no other
provision of this Operating Agreement shall be deemed to prohibit any such
Person from conducting such other businesses or activities. Subject to the terms
of the Master Venture Agreement and the Services Agreements, no provision of
this Operating Agreement shall be construed to preclude any Member or any of
their respective Affiliates from engaging in or possessing an interest in any
other business ventures of any nature or description, independently or with
others, whether presently existing or hereafter created, and neither the Company
nor any Member shall have any rights in or to such independent ventures or the
income or profits derived therefrom.
ARTICLE 8
CERTAIN MATTERS CONCERNING
MEMBERS, DIRECTORS AND EXECUTIVE OFFICERS
8.1 LIABILITY OF DIRECTORS AND OFFICERS; INDEMNIFICATION.
(a) No Director or Officer of the Company shall be liable, in
damages or otherwise, to the Company or any Member for any act or omission
performed or omitted to be performed by it in good faith pursuant to the
authority granted to such Director or officer of the Company by this Operating
Agreement or by the Delaware Act.
(b) To the fullest extent permitted by the laws of Delaware, the
Company shall indemnify and hold harmless each Member, Director and its
respective Affiliates, officers, directors, shareholders, members or partners
and each Officer of the Company (each, an "Indemnitee"), from and against any
and all losses, claims, demands, costs, damages, liabilities (joint or several),
expenses of any nature (including reasonable attorneys' fees and disbursements),
judgments, fines, settlements and other amounts ("Damages") arising from any and
all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which an Indemnitee may be involved, or
threatened to be involved, as a party or otherwise, arising out of or incidental
to the business of the Company, regardless of whether an Indemnitee continues to
be a Member, Director or an Affiliate, officer, director, shareholder, member or
partner of such Member or Director or an officer of the Company at the time any
such liability or expense is paid or incurred, except (i) for any Damages based
upon, arising from or in connection with any act or omission of an Indemnitee
committed without authority granted pursuant to this Operating Agreement or in
bad faith or otherwise constituting willful misconduct, (ii) Damages arising
from any obligation of such Indemnitee to indemnify any Person pursuant to the
Master Venture Agreement or Services Agreement or (iii) to the extent that all
Damages with respect to which the Company has provided indemnification hereunder
exceed [*], unless specifically approved by a Supermajority of the Directors.
(c) Expenses (including reasonable attorneys' fees and
disbursements) incurred in defending any claim, demand, action, suit or
proceeding, whether civil, criminal,
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[*] Confidential Treatment Requested.
<PAGE> 29
administrative or investigative, subject to Section 8.1(b) hereof, may be paid
(or caused to be paid) by the Company in advance of the final disposition of
such claim, demand, action, suit or proceeding upon receipt of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall ultimately be
determined, by a court of competent jurisdiction from which no further appeal
may be taken or the time for any appeal has lapsed (or otherwise, as the case
may be), that the Indemnitee is not entitled to be indemnified by the Company as
authorized hereunder or is not entitled to such expense reimbursement.
(d) The indemnification provided by Section 8.1(b) hereof shall
be in addition to any other rights to which an Indemnitee may be entitled under
any agreement properly approved by or vote properly taken by the Members or
Board of Directors (after taking into effect any related party nature of such
agreement or vote), as a matter of law or otherwise, both (i) as to action in
the Indemnitee's capacity as a Member, Director or as an Affiliate, officer,
director, shareholder, member or partner of a Member or Director or as an
Officer of the Company, and (ii) as to action in another capacity, and shall
continue as to an Indemnitee who has ceased to serve in such capacity and shall
inure to the benefit of the heirs, successors, assigns, administrators and
personal representatives of the Indemnitee.
(e) Any indemnification hereunder shall be satisfied only out of
the assets of the Company, and the Members shall not be subject to personal
liability by reason of these indemnification provisions.
(f) In order to facilitate meeting its obligations under this
Section 8.1, the Company may purchase and maintain a customary director and
officer insurance policy. The Company may purchase and maintain such other
insurance policies of a type maintained by companies in a similar business to
that of the Company, it being understood that it shall be reasonable to maintain
insurance providing at least $[*] in coverage and that companies in a similar
business to that of the Company may maintain, without limitation, director and
officer, commercial general liability, umbrella, workers' compensation, foreign
workers compensation and liability, satellite transmission, errors and omissions
and DICE (documentary, industrial, commercial and educational films).
(g) An Indemnitee shall not be denied indemnification in whole or
in part under this Section 8.1 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Operating Agreement.
(h) The provisions of this Section 8.1 are for the benefit of
each Indemnitee and its heirs, successors, assigns, administrators and personal
representatives, and shall not be deemed to create any rights for the benefit of
any other Persons.
8.2 OTHER MATTERS CONCERNING THE DIRECTORS AND OFFICERS OF THE COMPANY.
(a) Each Director and officer of the Company may rely on, and
shall be protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties.
[*] Confidential Treatment Requested
24.
<PAGE> 30
(b) For purposes of this Operating Agreement, each Director and
officer of the Company may consult with legal counsel, accountants, appraisers,
management consultants, investment bankers, other consultants and advisers
selected by it and any written advice or written opinion of any such Person as
to matters which such Director and Officer of the Company reasonably believes to
be within such Person's professional or expert competence, and any act or
omission, if done or omitted to be done in good faith reliance upon any such
advice or opinion, will be conclusively presumed not to constitute fraud, gross
negligence or willful or wanton misconduct.
ARTICLE 9
MEETINGS OF MEMBERS
9.1 ANNUAL AND SPECIAL MEETINGS. Meetings of the Members shall be held
at such date and time as the Board of Directors may fix from time to time.
Additionally, unless otherwise prescribed by statute, a special meeting may be
called by any Member or Members holding at least a majority of the Class A
Interests or a majority of the Class B Interests. No annual or regular meetings
of Members are required.
9.2 PLACE OF MEETINGS. The Board of Directors may designate any place,
either within or outside the State of Delaware, as the place of meeting for any
meeting of the Members; provided however that if a special meeting is called by
the holders of a majority of the Class A Interests, the meeting shall be held in
New York, New York and if a special meeting is called by the holders of the
Class B Interests, the meeting shall be held in San Francisco, California. If no
designation is made by the Board of Directors or pre-determined pursuant to this
Section 9.2, the place of meeting shall be the principal executive office of the
Company.
9.3 NOTICE OF MEETINGS. Except as provided in Section 9.6, written
notice stating the place, day and hour of the meeting and the purpose or
purposes for which the meeting is called shall be delivered not less than thirty
(30) nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the Board of Directors or
person calling the meeting, to each Member entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered as provided in Section 16.1.
9.4 MEETING OF ALL MEMBERS. If all of the Members shall meet at any time
and place, either within or outside of the State of Delaware, and consent to the
holding of a meeting at such time and place, such meeting shall be valid without
call or notice, and at such meeting lawful action may be taken.
9.5 RECORD DATE. For the purpose of determining 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 purpose, the date on which notice of the
meeting is mailed or the date on which the resolution declaring such
distribution is adopted, as the case may be, shall 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 9.5, such
determination shall apply to any adjournment thereof.
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9.6 QUORUM. Members holding a majority of the Class A Interests and a
majority of the Class B Interests, present in person or represented by proxy,
shall constitute a quorum at any meeting of Members. Notwithstanding the
foregoing, if the action to be taken by the Members is to be taken only by one
class of Members (such as the election of a Class A Director), Members holding a
majority of the Interests represented by such class shall constitute a quorum.
In the absence of a quorum at any such meeting, Members holding a majority of
the Interests so represented may adjourn the meeting from time to time for a
period not to exceed sixty (60) days without further notice. However, if the
adjournment is for more than sixty (60) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each Member of record entitled to vote at the meeting.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted that might have been transacted at the meeting as
originally noticed. The Members present at a duly organized meeting may continue
to transact business until adjournment, notwithstanding the withdrawal during
such meeting of Members holding Interests whose absence would cause less than a
quorum.
9.7 MANNER OF ACTING. If a quorum is present, the affirmative vote of
Members entitled to vote holding a majority of the Class A Interests and a
majority of the Class B Interests shall be the act of the Members, unless the
vote of a greater or lesser proportion or number is otherwise required by the
Delaware Act, by the Certificate of Formation or by this Operating Agreement.
9.8 PROXIES. At all meetings of Members, a Member may vote in person or
by proxy executed in writing by the Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the Board of Directors of the
Company before or at the time of the meeting. No proxy shall be valid after
eleven (11) months from the date of its execution, unless otherwise provided in
the proxy.
9.9 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted to
be taken at a meeting of Members may be taken without a meeting if the action is
evidenced by one (1) or more written consents describing the action taken,
signed and delivered to the Board of Directors within sixty (60) days of the
record date for that action, by Members having not less than the minimum number
of votes that would be necessary to authorize or take that action at a meeting
at which all Members entitled to vote on that action were present and voted. All
such consents shall be delivered to the Board of Directors of the Company for
inclusion in the minutes or for filing with the Company records. Action taken
under this Section 9.9 is effective when the number of consents required to
authorize the proposed action shall have been received by the Board of
Directors, unless the consent specifies a different effective date. Any Member
giving a written consent may revoke the consent by a writing received by the
Board of Directors before written consents representing the number of votes
required to authorize the proposed action have been received by the Board of
Directors. The record date for determining Members entitled to take action
without a meeting shall be the date the first Member signs a written consent.
9.10 WAIVER OF NOTICE. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at or after the time stated therein, shall be equivalent
to the giving of such notice.
ARTICLE 10
26.
<PAGE> 32
CONTRIBUTIONS TO THE COMPANY,
CAPITAL UNITS AND CAPITAL ACCOUNTS
10.1 CAPITAL CONTRIBUTIONS. Concurrently with the execution and delivery
of this Operating Agreement, Quokka made an Initial Capital Contribution to the
Company in the amount as shown on Schedule A hereto, in exchange for the number
of Class A Units held by Quokka as shown on Schedule A. As reflected on Schedule
A, NBC made no Initial Capital Contribution in exchange for the number of Class
B Units held by NBC as shown on Schedule A.
10.2 UNITS. Each Member's interest in the Company shall be represented
by Units of membership interest, denoted "Class A" or "Class B" as set forth on
Schedule A. Concurrently with the execution and delivery of this Operating
Agreement, the Initial Members received the number and type of Units set forth
on Schedule A.
10.3 CAPITAL ACCOUNTS.
(a) A separate Capital Account will be maintained for each
Member.
(1) To each Member's Capital Account there shall be
credited (a) such Member's Capital Contributions, (b) such Member's distributive
share of Net Profits and any items in the nature of income or gain which are
specially allocated pursuant to Section 11.2 hereof, and (c) the amount of any
Company liabilities assumed by such Member or which are secured by any Property
distributed to such Member.
(2) To each Member's Capital Account there shall be
debited (a) the amount of money and the Adjusted Asset Value of any Company
asset distributed to such Member pursuant to any provision of this Operating
Agreement, (b) such Member's distributive share of Net Losses and any items in
the nature of expenses or losses which are specially allocated pursuant to
Section 11.2 hereof, and (c) the amount of any liabilities of such Member
assumed by the Company or which are secured by any property contributed by such
Member to the Company.
(b) In the event of a permitted assignment, sale or exchange of
all or part of a Member's interest in the Company, the Capital Account of the
transferor shall become the Capital Account of the transferee to the extent it
relates to the transferred interest.
(c) The manner in which Capital Accounts are to be maintained
pursuant to this Section 10.3 is intended, and shall be construed and applied so
as, to comply with the requirements of Code Section 704(b) and the Treasury
Regulations promulgated thereunder.
10.4 WITHDRAWAL OR REDUCTION OF MEMBERS, CONTRIBUTIONS TO CAPITAL.
(a) A Member shall not receive out of the Company's property any
part of its contributions to capital until all liabilities of the Company,
except liabilities to Members on account of their contributions to capital, have
been paid or there remains property of the Company sufficient to pay them.
27.
<PAGE> 33
(b) A Member shall not be entitled to demand or receive from the
Company the liquidation of his interest in the Company until the Company is
dissolved in accordance with the provisions hereof and other applicable
provisions of the Delaware Act.
10.5 UNIT CERTIFICATES. The Company shall issue certificates evidencing
the Units issued by the Company. Such certificates shall indicate whether the
Units represented thereby are Class A Units or Class B Units and shall (in
addition to any legend required under applicable state securities laws) bear the
following legends:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED.
THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
HOLDER HEREOF OR ITS PREDECESSOR IN INTEREST. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE COMPANY.
ARTICLE 11
ALLOCATIONS, INCOME TAX, ELECTIONS AND REPORTS
11.1 ALLOCATION OF PROFITS AND LOSSES FROM OPERATIONS.
(a) ALLOCATION OF NET PROFITS. The Net Profits of the Company for
each Accounting Period shall be allocated among the Members as follows:
(i) First, to all Class A Members in proportion to their
respective Class A Interests until the Capital Accounts of the Class A Members
are equal to the Excess Capital Contributions of the Class A Members less all
distributions to the Class A Members;
(ii) Second, to all Members in proportion to their
respective Interests.
(b) ALLOCATION OF NET LOSSES. The Net Losses of the Company for
each Accounting Period shall be allocated among the Members as follows:
(i) First, to all Members to the extent of and in
proportion to the Net Profits previously allocated to them pursuant to Section
11.1(a)(ii);
(ii) Second, to all Class A Members in proportion to
their respective Class A Interests until there have been allocated Net Losses
under this Section 11.1(b)(ii) in an amount equal to the Excess Capital
Contribution of the Class A Members;
(iii) Third, to all Class A Members in proportion to
their respective Class A Interests until there have been allocated Net Losses
under this Section 11.1(b)(iii) in an
28.
<PAGE> 34
amount equal to the Capital Contribution of the Class A Members less the Excess
Capital Contribution of the Class A Members;
(iv) Fourth, to all Members in proportion to their
respective Interests.
11.2 SPECIAL ALLOCATIONS. Notwithstanding Section 11.1,
(a) INTEREST INCOME. All Interest Income earned on Capital
Contributions made by the Class A Members (until such Capital Contributions have
either been distributed or utilized to fund the Company's operations) shall be
allocated solely to the Class A Members pro rata in proportion to their
respective Class A Interests.
(b) QUOKKA WARRANTS. The parties agree that, for federal and
state tax purposes, NBC shall be treated as having received ownership of the
Quokka Warrants on the date of grant of the Quokka Warrants to the Company.
Therefore, any profits or losses (including the initial value of the Quokka
Warrants upon receipt by the Company) realized on the receipt by the Company of
or a taxable disposition (including exercise) of, an adjustment of the Adjusted
Asset Values of, or a distribution in kind of the Quokka Warrants or any
securities issued upon exercise thereof (including, without limitation, the
Warrant Shares) shall be allocated solely to NBC. Any transfer taxes or other
costs or expenses (other than applicable income taxes) arising from any
distribution to NBC of the Quokka Warrants shall be borne as set forth in the
Quokka Warrants.
(c) EQUITABLE CLAIM REGARDING CONTENT. Any costs or expenses
connected to any Equitable Claim Regarding Content subject to the direction and
control of the Class B Directors in accordance with Section 5.7(c) shall be
allocated solely to the Class Members in proportion to their respective Class B
Interests. Any profits received by the Company from a final judgment in
connection with, or final settlement of, an Equitable Claim Regarding Content
shall first be allocated to the Class B Members in proportion to their
respective Class B Interests until there have been allocated profits under this
Section 11.2(c) in the current Accounting Period and all prior Accounting
Periods in an amount equal to the costs or expenses previously allocated to the
Class B Members under this Section 11.2.
(d) SUBSTANTIAL ECONOMIC EFFECT. The Members agree that they
shall take such other actions and make such other allocations as are necessary
to ensure that the allocations described in this Article 11 have substantial
economic effect within the meaning of Regulations Section 1.704-1(b)(2).
(e) 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), (5) or (6) of the Treasury Regulations, items of
Company income and gain shall be specially allocated to each such Member in an
amount and manner sufficient to eliminate, to the extent required by the
Treasury Regulations, the deficit balance of the Capital Account of such Member
as quickly as possible, provided that an allocation pursuant to this Section
11.2(c) shall only be made if and to the extent such Member would have a deficit
balance in its Capital Account after all other allocations provided for in
Section 11.1 and Section 11.2 have been made as if this Section 11.2(c) were not
in this Operating Agreement.
(f) SECTION 754 ELECTION. At the request of any Member (or
Members) holding not less than twenty-five percent (25%) of the Interests, the
Company shall elect,
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pursuant to Section 754 of the Code, to adjust the basis of the Company assets
as permitted and provided in Sections 734 and 743 of the Code, in which case
Capital Accounts shall be maintained and allocations shall be made in accordance
with Regulations Section 1.704-1(b)(2)(iv)(m).
(g) TAX ALLOCATIONS. Except as otherwise permitted in this
Agreement, the Company's ordinary income and losses, and capital gains income
and losses, as determined for federal income tax purposes (and each item of
income, gain, loss or deduction entering into the computation thereof) shall be
allocated to the Members in the same proportion as the corresponding items are
allocated for Capital Account maintenance purposes. Notwithstanding the
foregoing, federal income tax items relating to assets that have an Adjusted
Asset Value that is not equal to their tax basis shall be allocated in
accordance with Section 704(c) of the Code, and the Company shall adopt the
traditional method under Section 704(c) for purposes of such allocation.
11.3 DISTRIBUTIONS.
(a) MANDATORY DISTRIBUTIONS.
(i) Subject to applicable law and any limitations
contained elsewhere in this Operating Agreement and provided that the Company is
being taxed as a partnership, the Board of Directors shall distribute cash to
the Members in an amount equal to the product of (i) the Tax Percentage and (ii)
the Company's taxable income for such Fiscal Year determined in accordance with
Section 703(a) of the Code as reflected on the Schedule K-1's in respect of each
Unit. For purposes hereof, "Tax Percentage" shall mean initially forty percent
(40%) and shall be adjusted from time to time by the Board of Directors in
response to changes in the tax rates applicable to corporations under the Code
and under the state income tax laws of the State of California and the State of
New York and in response to any other factors which cause the distributions
under this Section 11.3(a) to be less than a Member's tax liability in respect
of each Unit.
(ii) In the event of a Reduced Activity Period, the
Board of Directors shall establish reasonable reserves for purposes of
satisfaction of all liabilities and obligations of the Company (other than those
to Members on account of their Capital Contributions) and shall distribute the
remaining cash of the Company (x) first, to the Class A Members pro rata in
proportion to their Class A Interests on the record date of such distribution
until the Class A Members shall have received total distributions pursuant to
this Article 11 in an amount equal to the Excess Capital Contribution of the
Class A Members and (y) second, to the Members pro rata in proportion to their
respective Interests on the record date of such distribution.
(b) DISTRIBUTIONS OF FUNDS FROM OPERATIONS. Subject to applicable
law and any limitations contained elsewhere in this Operating Agreement
(including, without limitation, Section 5.6), the Board of Directors may elect
from time to time to distribute Funds From Operations (x) first, to the Class A
Members pro rata in proportion to their Class A Interests on the record date of
such distribution until the Class A Members shall have received total
distributions pursuant to this Article 11 in an amount equal to the Excess
Capital Contribution of the Class A Members and (y) second, to the Members pro
rata in proportion to their respective Interests on the record date of such
distribution.
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<PAGE> 36
(c) DISTRIBUTIONS RELATING TO THE QUOKKA WARRANTS. The Class B
Directors may elect from time to time to distribute the Quokka Warrants, the
Warrant Shares, any other securities or other rights with respect to the
Warrants or the Warrant Shares or any cash obtained by any sale of the Warrant
Shares to NBC, subject to the terms of the Quokka Warrants. The Class B
Directors acknowledge and agree that the Quokka Warrants and Warrant Shares may
not be distributed in kind prior to the earlier of (i) the initial public
offering of equity securities of Quokka; (ii) three (3) years from the initial
issuance of the Quokka Warrants; and (iii) the dissolution of the Company. The
Class B Directors further acknowledge the additional restrictions set forth in
Section 5.4(b) in the event of any transfer of the Class B Units.
(d) DISTRIBUTIONS OF FUNDS FROM A SALE OF THE COMPANY. Subject to
applicable law and any limitations contained elsewhere in this Operating
Agreement, the Board of Directors may elect from time to time to distribute
Funds From a Sale of the Company to the Members. Any distribution of Funds From
a Sale of the Company made under this Section 11.3(d) shall be made (x) first,
to the Class A Members pro rata in proportion to their Class A Interests on the
record date of such distribution until the Class A Members shall have received
total distributions pursuant to this Article 11 in an amount equal to the Excess
Capital Contribution of the Class A Members and (y) second, to the Members pro
rata in proportion to their respective Interests on the record date of such
distribution.
(e) DISTRIBUTIONS UPON DISSOLUTION OF THE COMPANY. Upon
dissolution of the Company, after satisfaction of the liabilities of the Company
in accordance with Section 14.3(a), the remaining assets of the Company shall be
distributed to the Members pro rata in proportion to their respective Capital
Account balances; provided, however, that any securities or other property
issued upon exercise of the Quokka Warrants shall be distributed to NBC and that
such distribution shall be reflected in the Capital Account balances of NBC
prior to making or determining the amount of any other distribution pursuant to
this Section 11.3(e).
(f) OTHER DISTRIBUTIONS. All other distributions of cash or other
property shall be made (x) first, to the Class A Members in proportion to their
Class A Interests on the record date of such distribution until the Class A
Members shall have received total distributions pursuant to this Article 11 in
an amount equal to the Excess Capital Contribution of the Class A Members and
(y) second, to the Members in proportion to their respective Interests on the
record date of such distribution.
(g) TAX WITHHOLDING. The Company shall comply with withholding
requirements under federal, state and local law and shall remit amounts withheld
to, and file required forms with, the applicable jurisdictions. To the extent
the Company is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Member, the amount withheld
shall be treated as a distribution in the amount of the withholding to that
Member. If the amount of withholding tax paid by the Company was not withheld
from actual distributions, the Company may, at its option, (i) require the
Member to promptly reimburse the Company for such withholding or (ii) reduce any
subsequent distributions by the amount of such withholding. Each Member agrees
to furnish the Company with any representations and forms as shall reasonably be
requested by the Company to assist it in minimizing or eliminating and in
determining the extent of, and in fulfilling, its withholding obligations.
11.4 LIMITATION UPON DISTRIBUTIONS.
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(a) No distribution shall be declared and paid to a Member in
violation of the Delaware Act.
(b) A Member who receives a distribution in violation of the
Delaware Act, and who knew at the time of the distribution that the distribution
violated the Delaware Act, shall be liable to the Company for the amount of the
distribution. A Member who receives a distribution in violation of the Delaware
Act, and who did not know at the time of the distribution that such distribution
violated the Delaware Act and shall have made a good faith effort to return as
much as possible of the improper distribution shall not be liable for the amount
of the distribution.
(c) A Member who receives a distribution from the Company shall
have no liability under the Delaware Act or other applicable law for the amount
of the distribution after the expiration of three (3) years from the date of the
distribution unless an action to recover the distribution from such Member is
commenced prior to the expiration of the said three (3) year period and an
adjudication of liability against such Member is made in the said action.
11.5 ACCOUNTING PRINCIPLES. The profits and losses of the Company shall
be determined in accordance with United States generally accepted accounting
principles applied on a consistent basis under the accrual method of accounting.
11.6 INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS. No Member shall be
entitled to interest on its Capital Contribution or to return of its Capital
Contribution. In addition, no Member shall have the right to withdraw any
portion of such member's Capital Account. No Member shall be personally liable
to any other Member for the return of any Capital Contributions (or any
additions thereto), it being agreed that any distribution as may be made from
time to time shall be made solely from the assets of the Company and only in
accordance with the terms of this Operating Agreement.
11.7 RECORDS AND REPORTS. At the expense of the Company, the Directors
shall maintain records and accounts of all operations and expenditures of the
Company for a period of five (5) years from the end of the Fiscal Year during
which the last entry was made on such record, the first two (2) years in the
principal office of the Company. At a minimum the Company shall keep the
following records:
(a) A current list of the full name and last known business
address of each Director and each Member;
(b) A copy of the Certificate of Formation and all amendments
thereto, together with executed copies of any written powers of attorney
pursuant to which the Operating Agreement and any certificate and all amendments
thereto have been executed;
(c) Copies of the Company's federal, foreign, state and local
income tax returns and reports, if any, for all years of the Company's
existence, except for those years for which all applicable statures of
limitation, as they may apply to any Member, may have run;
(d) Copies of the Operating Agreement and all amendments thereto;
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(e) True and full information regarding the status of the
business and financial condition of the Company, including financial statements
of the Company for the five (5) most recent years;
(f) Information regarding expenses incurred by a Member and
reimbursed by the Company; and
(g) True and full information regarding the amount of cash and a
description and statement of the agreed value of any other property or services
contributed by each Member and which each Member has agreed to contribute in the
future, and the date on which each became a Member.
11.8 RETURNS AND OTHER ELECTIONS. The Company shall be treated as a
partnership for federal income tax purposes and, to the extent possible, state
and local income tax purposes. The Board of Directors shall cause the
preparation and timely filing of all tax returns required to be filed by the
Company pursuant to the Code and all other tax returns deemed necessary and
required in each jurisdiction in which the Company does business. Copies of such
returns, or pertinent information therefrom, shall be furnished to the Members
within a reasonable time after the end of the Company's Fiscal Year. All
elections permitted to be made by the Company under federal or state laws shall
be made by the Board of Directors in its discretion.
11.9 TAX MATTERS PARTNER. Quokka is hereby designated the "tax matters
partner" of Company for purposes of Chapter 63 of the Code and the Treasury
Regulations thereunder. During any Company income tax audit or other income tax
controversy with any governmental agency, the tax matters partner shall keep the
Members informed of all material facts and developments on a timely basis, shall
provide each Member with a copy of each of the Company's tax filings at least
thirty (30) days prior to the filing thereof and shall consult with the Members
upon the request of any Member. The tax matters partner shall not be authorized
to enter into any settlement, agreement or arrangement which binds the Members
or the Company or take any other action with respect to taxes which could
adversely impact any of the Members without the advance consent of such Members
which consent may not be unreasonably withheld. The tax matters partner may be
changed by the Board of Directors.
ARTICLE 12
TRANSFERABILITY
12.1 RESTRICTIONS ON TRANSFERABILITY.
(a) No Member shall sell, assign, pledge, mortgage, or otherwise
encumber, dispose of or transfer its interest in the Company without the prior
approval of a Supermajority of the Directors.
(i) Notwithstanding the foregoing, a Member shall be
entitled to effect a Permitted Pledge, provided that any pledgee of an Interest
shall, in the event of foreclosure, hold such Interest subject to the
restrictions of this Operating Agreement, including the provisions of this
Article 12.
(ii) Furthermore, notwithstanding the foregoing, NBC
shall be entitled to transfer its Interests in the Company to any Affiliate
which assumes NBC's obligations under
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the Master Venture Agreement and NBC Rights and Services Agreement and which
assumes NBC's obligations, and is the permitted transferee of NBC's rights with
respect to the IOC (as such term is defined in the Master Venture Agreement).
Furthermore, notwithstanding the foregoing, NBC shall be entitled to transfer up
to [*] of the Class B Interests originally issued to NBC to [*], or any
combination thereof. Furthermore, notwithstanding the foregoing, NBC shall be
entitled to transfer to [*] up to [*] of NBC's economic interest in the Class B
Interests excluding the Quokka Warrants (the effect of any transfer of an
economic interest being that the transferee shall be only an assignee of NBC's
rights to allocations and distributions with respect to the Class B Interests
subject to such transfer of economic interest but shall not become a Member and
shall have no voting rights or other rights of a Member, which non-economic
rights shall be retained by NBC). Notwithstanding any provision in this
Operating Agreement to the contrary, in the event of any transfer of Class B
Interests or any transfer of economic interest with respect to Class B
Interests, any allocations or distributions made pursuant to this Operating
Agreement with respect to the Quokka Warrants shall remain with NBC and shall
not be transferred to such transferee (and shall not be reflected in the Capital
Account of any such transferee).
(b) In addition to other restrictions on transfer contained
herein, each Member agrees that it will not make any disposition of all or any
part of its interest in the Company which will result in the violation by it or
by the Company of the Securities Act of 1933 or any other applicable securities
laws.
12.2 NO EFFECT TO TRANSFERS IN VIOLATION OF OPERATING AGREEMENT. Any
purported transfer in violation of this Article 12 shall be null and void and
the purported transferee shall become neither a Member nor a holder of any
interest in the Company whatsoever.
ARTICLE 13
ADDITIONAL AND SUBSTITUTE MEMBERS
13.1 ADMISSION OF ADDITIONAL MEMBERS AND SUBSTITUTE MEMBERS.
(a) From the date of the formation of the Company, any Person
acceptable to the Board of Directors may, subject to the terms and conditions of
this Operating Agreement and with the approval of a Supermajority of the
Directors, become an Additional Member of the Company by the purchase of new
Units for such consideration as a Supermajority of the Directors shall determine
in accordance with the terms of this Operating Agreement. Except as set forth in
this Section 13.1(a), the Company shall not admit or agree to admit any
Additional Member in connection with the issuance of any additional Units or
other equity interests in the Company, including without limitation, any options
or warrants.
(b) Prior to recognizing any assignment of a Member's Interest
that has been transferred in accordance with this Operating Agreement, the Board
of Directors will require the transferring Member to execute and acknowledge a
written instrument of assignment in form and substance satisfactory to the Board
of Directors, and will require the assignee to execute an agreement to be bound
by all of the terms and provisions of this Operating Agreement. The
[*] Confidential Treatment Requested.
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assignee (except any assignee of economic interests only) will become a
Substitute Member upon satisfaction of the requirements of Article 12 and this
Section 13.1. Unless otherwise approved by a Supermajority of the Directors, a
transfer shall be deemed effective as of the last day of the calendar month in
which such transfer is effected.
13.2 ALLOCATIONS TO ADDITIONAL MEMBERS AND SUBSTITUTE MEMBERS. No
Additional or Substitute Member shall be entitled to any retroactive allocation
of losses, income or expense deductions incurred by the Company. The Net Profits
and Net Losses of the Company for each Accounting Period shall be allocated
among the Members in proportion to their respective Interests, with the
Accounting Period being subject to adjustment pursuant to Section 1.1(a) upon
the addition of an Additional or Substitute Member.
13.3 EFFECT OF TRANSFER. The transfer of a Member's Interest or any part
thereof and the admission of a Substituted Member in accordance with the
provisions of this Operating Agreement will not be cause for dissolution of the
Company.
ARTICLE 14
DISSOLUTION AND TERMINATION
14.1 DISSOLUTION. The Company shall be dissolved upon the occurrence of
any of the following events (a "Dissolution Event"):
(a) the unanimous written agreement of all Members;
(b) upon or following the Class B Trigger Date, upon the written
request of Class A Members holding a majority of the Class A Interests;
(c) upon or following the Class A Trigger Date, upon the written
request of Class B Members holding a majority of the Class B Interests;
(d) upon a Mutual Termination Event;
(e) the entry of a decree of judicial dissolution under Section
18-802 of the Delaware Act; and
(f) the Bankruptcy of the Company, Quokka or NBC.
14.2 EFFECT OF FILING OF CERTIFICATE OF CANCELLATION. The Company shall
cease to carry on its business, except insofar as may be necessary for the
winding up of its business, upon the occurrence of a final dissolution event,
but its separate existence shall continue until a Certificate of Cancellation
has been filed with the Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
14.3 DISTRIBUTION OF ASSETS UPON DISSOLUTION. In settling accounts after
dissolution, the liabilities of the Company shall be entitled to payment in the
following order:
(a) those to creditors, in the order of priority as provided by
law in satisfaction of all liabilities and obligations of the Company whether by
payment or the establishment of
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reasonable reserves therefor, except those to Members of the Company on account
of their Capital Contributions;
(b) those to Members of the Company in accordance with Section
11.3(e).
14.4 WINDING UP. Except as provided by law, upon dissolution, each
Member shall look solely to the assets of the Company for the return of its
Capital Contribution. If the Company Property remaining after the payment or
discharge of the debts and liabilities of the Company is insufficient to return
the Capital Contribution of each Member, such Member shall have no recourse
against any other Member. The winding up of the affairs of the Company and the
distribution of its assets shall be conducted exclusively by the Board of
Directors, who subject to the terms of this Operating Agreement (including,
without limitation, applicable requirements that the Board of Directors act by a
Supermajority of the Directors), are hereby authorized to take all actions
necessary to accomplish such distribution, including without limitation, selling
any Company assets the Board of Directors deems necessary or appropriate to
sell.
14.5 FILING OF CERTIFICATE OF CANCELLATION.
(a) When all debts, liabilities and obligations have been paid
and discharged or adequate provisions have been made therefor and all of the
remaining property and assets have been distributed to the Members, a
Certificate of Cancellation shall be executed in duplicate and verified by the
person signing the certificate, which certificate shall set forth the
information required by the Delaware Act. Duplicate originals of such
Certificate of Cancellation shall be delivered to the Delaware Secretary of
State.
(b) Upon the acceptance of the Certificate of Cancellation, the
existence of the Company shall cease, except for the purpose of suits, other
proceedings and appropriate action as provided in the Delaware Act. The Board of
Directors shall thereafter be trustees for the Members and creditors of the
Company and, subject to the terms of this Operating Agreement (including,
without limitation, applicable requirements that the Board of Directors act by a
Supermajority of the Directors), as such shall have authority to distribute any
Company property discovered after dissolution, convey real estate and take such
other action as may be necessary on behalf of and in the name of the Company.
ARTICLE 15
MERGER OR CONSOLIDATION
15.1 MERGER OR CONSOLIDATION. The Company may, upon the approval of the
Board of Directors and a vote of the Members of the Company holding a majority
of the Class A Interests and a majority of the Class B Interests, merge or
consolidate pursuant to an agreement of merger or consolidation with or into one
or more entities formed or organized under the laws of the State of Delaware or
any other state of the United States or any foreign country or other foreign
jurisdiction, with such entity as the agreement shall provide being the
surviving or resulting entity.
15.2 VOTE RELATING TO MERGER OR CONSOLIDATION. A merger or consolidation
by the Company and any other entity shall be approved by the Board of Directors
in accordance with
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the provisions of Section 5.6 and by the Members holding a majority of the Class
A Interests and a majority of the Class B Interests.
15.3 EXCHANGE RELATING TO MERGER OR CONSOLIDATION. Rights or securities
of, or interests in, the Company or other entity that is a constituent party to
the merger or consolidation may be exchanged for or converted into cash,
property, rights or securities of, or interests in, the surviving or resulting
entity or, in addition to or in lieu thereof, may be exchanged for or converted
into cash, property, rights or securities of, or interests in, an entity which
is not the surviving or resulting entity in the merger or consolidation.
15.4 FILING AND EFFECT OF CERTIFICATE OF MERGER OR CONSOLIDATION. If the
Company enters into an agreement of merger or consolidation, the surviving
entity shall file a Certificate of Merger or Consolidation in the Office of the
Secretary of State of the State of Delaware containing the information required
by Section 18-209(c) of the Delaware Act. Unless a future date is provided for
in such Certificate of Merger or Consolidation, the effective date shall be the
date of filing with the Secretary of State of the State of Delaware. Such
Certificate of Merger or Consolidation shall act as a Certificate of
Cancellation for the Company if it is not the surviving or resulting entity in
the merger or consolidation.
15.5 AMENDMENT OF OLD OR ADOPTION OF NEW OPERATING AGREEMENT. An
agreement of merger or consolidation approved in accordance with Section 15.2
may effect any amendment to the Company's Operating Agreement or effect the
adoption of a new Operating Agreement for the Company or the surviving entity,
as the case may be. Any amendment of the Operating Agreement or adoption of a
new Operating Agreement shall be effective at the effective time or date of the
merger or consolidation.
15.6 ASSUMPTION OF ASSETS AND LIABILITIES. When any merger or
consolidation shall have become effective under this Article 15, for all
purposes of the laws of the State of Delaware, all of the rights, privileges and
powers of the Company and each of the other entities that have merged or
consolidated, and all property, real, personal and mixed, and all debts due or
incurred to or by any of the constituent parties, as well as all other things
and causes of action belonging to each of such parties to the merger or
consolidation, shall be vested in the surviving or resulting entity, and shall
thereafter be the property or obligation of the surviving or resulting entity,
and the title to any real property vested by deed or otherwise shall not revert
or be in any way impaired.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 NOTICES. Any notice, demand or communication required or permitted
to be given by any provision of this Operating Agreement shall be in writing and
shall be deemed effectively given: (i) upon personal delivery to the party to be
notified, (ii) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient; if not, then on the next business day, (iii)
five (5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, (iv) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt, or (v) if earlier, upon receipt. All
communications shall be delivered to a Director, a Member or the Company, as
appropriate, to such Director's, such Member's or the Company's address or
facsimile number as
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such appears in the Company's records as of the date hereof or to such other
address or facsimile number as such Member, such Director or the Company may
designate by ten (10) days advance written notice to the other parties hereto.
16.2 APPLICATION OF DELAWARE LAW. This Operating Agreement, and the
application and interpretation hereof, shall be governed exclusively by its
terms and by the laws of the State of Delaware (without giving effect to
principles of conflicts of laws).
16.3 WAIVER OF ACTION FOR PARTITION. Each Member irrevocably waives
during the term of the Company any right that it may have to maintain any action
for partition with respect to the property of the Company.
16.4 AMENDMENTS. Any amendment to this Operating Agreement may be
proposed to the Members by Members holding at least a majority of the Class A
Interests or a majority of the Class B Interests. A vote on an amendment to this
Operating Agreement shall be taken within sixty (60) days after notice thereof
has been given to the Members unless such period is otherwise extended by
applicable laws, regulations, or agreement of the Members. A proposed amendment
shall become effective at such time as it has been approved by Members holding a
majority of the Class B Interests and a majority of the Class A Interests.
16.5 EXECUTION OF ADDITIONAL INSTRUMENTS. Each Member hereby agrees to
execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply with
any laws, rules or regulations.
16.6 CONSTRUCTION. Whenever the singular number is used in this
Operating Agreement and when required by the context, the same shall include the
plural, and the masculine gender shall include the feminine and neuter genders
and vice versa. This Operating Agreement is prepared and executed in the English
language only and any translation of this Operating Agreement into any other
language shall have no effect.
16.7 HEADINGS. The headings in this Operating Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Operating Agreement or any provision
hereof.
16.8 WAIVERS. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Operating Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
16.9 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Operating Agreement are cumulative, and the use of any one right or remedy
by any party shall not preclude or waive the right to use any or all other
remedies. Such rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
16.10 SEVERABILITY. If any provision of this Operating Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Operating Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
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16.11 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Operating Agreement, their respective heirs, legal representatives, successors
and assigns.
16.12 CREDITORS. None of the provisions of this Operating Agreement
shall be for the benefit of or enforceable by any creditor of the Company.
16.13 COUNTERPARTS. This Operating Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
16.14 NO THIRD PARTY BENEFICIARIES. It is understood and agreed among
the parties that this Operating Agreement and the covenants made herein are made
expressly and solely for the benefit of the parties hereto, and that no other
Person, other than an Indemnitee under Article 8 hereof (but only in respect of
the rights under such Article 8), shall be entitled or be deemed to be entitled
to any benefits or rights hereunder, nor be authorized or entitled to enforce
any rights, claims or remedies hereunder or by reason hereof.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Operating
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
QUOKKA SPORTS, INC.
By: /s/ Les Schmidt
-----------------------------
Name: Les Schmidt
Title: Senior Vice President
and Chief Financial Officer
NBC OLYMPICS, INC.
By: /s/ Randel Falco
-----------------------------
Name: Randel Falco
Title: President
40.
<PAGE> 46
SCHEDULE A
INITIAL CAPITAL CONTRIBUTION
<TABLE>
<CAPTION>
INITIAL CAPITAL NUMBER AND TYPE OF UNITS
NAME AND ADDRESS OF MEMBER CONTRIBUTION OF MEMBERSHIP
<S> <C> <C>
Quokka Sports, Inc. [*] 5,100 Class A Units
Ground Floor
525 Brannan Street
San Francisco, CA 94107
Attention: Chief Financial Officer
With a copy to:
Cooley Godward LLP
20th Floor
One Maritime Plaza
San Francisco, CA 94111
Attn: Isobel A. Jones
NBC Olympics, Inc. $0 4,900 Class B Units
30 Rockefeller Plaza
New York, NY 10112
Attn: Gary Zenkel, Sr. VP, Olympic
Marketing
With a copy to:
NBC Law Dept.
30 Rockefeller Plaza
New York, NY 10112
Attn: Corporate & Transactions Group Head
</TABLE>
[*] Confidential Treatment Requested.
<PAGE> 47
AMENDMENT NO. 1
TO THE
OPERATING AGREEMENT OF
NBC/QUOKKA VENTURES, LLC
THIS AMENDMENT NO. 1 to the Operating Agreement of NBC/Quokka Ventures,
LLC is hereby entered into as of the 15th day of March, 1999 by and between NBC
Olympics, Inc. ("NBC") and Quokka Sports, Inc. ("Quokka"). Capitalized terms
used but not defined herein shall have the meanings specified in the Operating
Agreement.
RECITALS
WHEREAS, pursuant to the terms of Section 5.3(a) of the Operating
Agreement of NBC/Quokka Ventures, LLC dated February 9, 1999 between NBC and
Quokka (the "Operating Agreement"), the Members are required to negotiate in
good faith to develop, for approval by a Supermajority of the Directors no
later than the Drop Dead Date, an Initial Content Plan;
WHEREAS, pursuant to Section 1.1(gg) of the Operating Agreement, the
Drop Dead Date is defined as March 19, 1999; and
WHEREAS, NBC and Quokka desire to amend and restate Section 1.1(gg) to
extend the Drop Dead Date;
AGREEMENT
NOW, THEREFORE, the undersigned, intentionally to be legally bound and
in consideration of the mutual promises contained herein, agree as follows:
Section 1.1(gg) of the Operating Agreement shall be amended and restated to
read in full as follows:
"(gg) DROP-DEAD DATE" shall mean March 22, 1999."
1.
<PAGE> 48
In Witness Whereof, the parties hereto have executed this Amendment No. 1
to the Operating Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
QUOKKA SPORTS, INC.
By: [SIGNATURE ILLEGIBLE]
----------------------------
Name:
Title:
NBC OLYMPICS, INC.
By: /s/ GARY ZENKEL
----------------------------
Name: Gary Zenkel
Title: Sr. VP.
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO
THE OPERATING AGREEMENT OF
NBC/QUOKKA VENTURES, LLC]
2.
<PAGE> 49
AMENDMENT NO. 2
TO THE
OPERATING AGREEMENT OF
NBC/QUOKKA VENTURES, LLC.
THIS AMENDMENT NO. 2 TO THE Operating Agreement of NBC/Quokka Ventures,
LLC is hereby entered into as of the 15th day of March, 1999 by and between NBC
Olympics, inc. ("NBC") and Quokka Sports, Inc. ("Quokka"). Capitalized terms
used but not defined herein shall have the meanings specified in the Operating
Agreement.
RECITALS
WHEREAS, pursuant to the terms of Section 5.3(a) of the Operating Agreement
of NBC/Quokka Ventures, LLC dated February 9, 1999 between NBC and Quokka (the
"Operating Agreement"), the Members are required to negotiate in good faith to
develop, for approval by a Supermajority of the Directors no later than the Drop
Dead Date, an Initial Content Plan;
WHEREAS, pursuant to Section 1.1(gg) of the Operating Agreement, the Drop
Dead Date is defined as March 15, 1999; and
WHEREAS, pursuant to Amendment No. 1 entered into by and between the
parties as of March 15, 1999, the parties agreed to amend Section 1.1(gg) of
the Operating Agreement to change the Drop Dead Date to March 22, 1999; and
WHEREAS, NBC and Quokka desire to again amend and restate Section 1.1(gg)
to extend the Drop Dead Date;
AGREEMENT
NOW, THEREFORE, the undersigned, intentionally to be legally bound and in
consideration of the mutual promises contained herein, agree as follows:
Section 1.1(gg) of the Operating Agreement shall be amended and restated to
read in full a follows:
"(gg) DROP-DEAD DATE" shall mean March 23, 1999."
<PAGE> 50
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
to the Operating Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
QUOKKA SPORTS, INC.
By: /s/ LES SCHMIDT
-----------------------------
Name: Les Schmidt
-----------------------
Title: Sr. VP & CFO
----------------------
NBC OLYMPICS, INC.
By: /s/ GARY ZENKEL
-----------------------------
Name: Gary Zenkel
-----------------------
Title: Sr. VP
----------------------
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE OPERATING AGREEMENT OF NBC/QUOKKA
VENTURES, LLC.]
<PAGE> 51
AMENDMENT NO. 3
TO THE
OPERATING AGREEMENT OF
NBC/QUOKKA VENTURES, LLC.
THIS AMENDMENT NO. 3 TO THE Operating Agreement of NBC/Quokka Ventures, LLC
dated February 9, 1999 (the "Operating Agreement") is hereby entered into as of
the 7th day of May, 1999 by and between NBC Olympics, Inc. ("NBC") and Quokka
Sports, Inc. ("Quokka"). Capitalized terms used but not defined herein shall
have the meanings specified in the Operating Agreement.
RECITALS
WHEREAS, pursuant to the terms of Section 5.3(b) of the Operating
Agreement the Board of Directors is required to approve a Long-term Strategic
Plan no later than May 8, 1999 (the "Approval Date");
WHEREAS, NBC and Quokka desire to amend and restate Section 5.3(b) to
extend the Approval Date;
AGREEMENT
NOW, THEREFORE, the undersigned, intending to be legally bound and in
consideration of the mutual promises contained herein, agree as follows;
In the second sentence of Section 5.3(b) of the Operating Agreement the words
"ninety (90)" shall be changed to "one hundred-twenty (120)".
<PAGE> 52
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3
to the Operating Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
QUOKKA SPORTS, INC.
By: /s/ THOMAS P. NEWELL
---------------------
Name: Thomas P. Newell
---------------------
Title: Sr. VP, Business & Legal Affairs
--------------------------------
NBC OLYMPICS, INC.
By: /s/ GARY ZENKEL
---------------------------
Name: Gary Zenkel
---------------------
Title: Sr. V.P.
---------------------