Limited Liability Company Agreement - XFL LLC
XFL, LLC
LIMITED LIABILITY COMPANY AGREEMENT
June 12, 2000
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XFL, LLC
LIMITED LIABILITY COMPANY AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS.......................................... 1
ARTICLE II FORMATION, NAME, OFFICES AND PURPOSES; MEMBERS............... 11
ARTICLE III CAPITAL CONTRIBUTIONS........................................ 13
ARTICLE IV PARTICIPATION IN COMPANY PROPERTY............................ 14
ARTICLE V MANAGEMENT................................................... 15
ARTICLE VI DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES FOR
FEDERAL INCOME TAX PURPOSES.................................. 25
ARTICLE VII ACCOUNTING................................................... 30
ARTICLE VIII SALE, TRANSFER, AND ADMISSION................................ 31
ARTICLE IX TERM AND DISSOLUTION......................................... 35
ARTICLE X CONVERSION OF CLASS B MEMBERSHIP UNITS....................... 36
ARTICLE XI REDEMPTION OF THE CLASS C MEMBERSHIP UNIT.................... 38
ARTICLE XII DISPUTE RESOLUTION........................................... 38
ARTICLE XIII CERTAIN PRE-CLOSING MATTERS.................................. 39
ARTICLE XIV INITIAL PUBLIC OFFERING...................................... 40
ARTICLE XV GENERAL PROVISIONS........................................... 41
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Exhibit A - Initial Business Plan
Exhibit B - Purchased Assets
Exhibit C - Registration Rights Agreement
ii
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XFL, LLC
LIMITED LIABILITY COMPANY AGREEMENT
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THIS LIMITED LIABILITY COMPANY AGREEMENT is made and entered into as
of this 12th day of June, 2000, by and between WWFE SPORTS, INC., a Delaware
corporation ("WWFE"), and NBC-XFL HOLDING, INC., a Delaware corporation ("NBC").
WITNESSETH:
WHEREAS, WWFE and NBC have formed XFL, LLC, a Delaware limited
liability company (the "Company"), as a vehicle through which to establish,
develop and operate a professional football league to be known as the "XFL", by
filing a Certificate of Formation (the "Certificate") with the office of the
Secretary of State of the State of Delaware on March 20, 2000.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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As used in this Agreement, the following terms have the following
definitions:
AAA Global Headquarters. "AAA Global Headquarters" has the meaning
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ascribed thereto in Section 12.1 of this Agreement.
Act. "Act" means the Delaware Limited Liability Company Law, Delaware
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Code Annotated, Title 6, Chap. 18, as amended from time to time, in effect.
Additional Capital Contribution. "Additional Capital Contribution"
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has the meaning ascribed thereto in Section 3.2(a) of this Agreement.
Adjusted Capital Account Deficit. "Adjusted Capital Account Deficit"
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means, with respect to any Member, the deficit balance, if any, in such Member's
Capital Account as of the end of the relevant Fiscal Year, after giving effect
to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is
deemed to be obligated to restore pursuant to the penultimate sentences in
Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
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(ii) Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of
the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.
Affiliate. "Affiliate" means, with respect to a Person, a Person
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that, directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person, or
any member of the Immediate Family of the second mentioned Person.
Agreement. "Agreement" means this Limited Liability Company
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Agreement, as it may be amended or supplemented from time to time, and is the
"Limited Liability Company Agreement" of the Company as defined in Section 18-
101(6) of the Act.
Board of Managers. "Board of Managers" means the group of Managers
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that exercises the powers, and manages the business and affairs, of the Company
pursuant to Article 5 of this Agreement.
Book Item. "Book Item" has the meaning ascribed thereto in Section
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6.2(d)(i)(A) of this Agreement.
Broadcast Agreement. "Broadcast Agreement" has the meaning ascribed
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thereto in Section 2.8 of this Agreement.
Business. "Business" has the meaning ascribed thereto in Section 2.4
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of this Agreement.
Business Day. "Business Day" means any day other than a Saturday, a
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Sunday, or any day on which national banking associations in the State of New
York are closed.
Call Exercise Notice. "Call Exercise Notice" has the meaning ascribed
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thereto in Section 8.4(a) of this Agreement.
Call Closing. "Call Closing" has the meaning ascribed thereto in
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Section 8.4(a) of this Agreement.
Capital Account. "Capital Account" means, with respect to any Member,
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the Capital Account maintained for such Member in accordance with the following
provisions:
(i) To each Member's Capital Account there shall be credited (A) such
Member's Capital Contributions, (B) such Member's distributive share of Profits
and any items in the nature of income or gain which are specially allocated
pursuant to Section 6.2 hereof, and (C) the amount of any Company liabilities
assumed by such Member or which are secured by any property distributed to such
Member. The principal amount of a promissory note which is not readily traded
on an established securities market and which is contributed to the Company by
the maker of the note (or a Member related to the maker of the note within the
meaning of
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Regulations Section 1.704-1(b)(2)(ii)(c)) shall not be included in the Capital
Account of any Member until the Company makes a taxable disposition of the note
or until (and to the extent) principal payments are made on the note, all in
accordance with Regulations Section 1.704-1(b)(2)(iv)(d)(2);
(ii) To each Member's Capital Account there shall be debited (A) the
amount of money and the Gross Asset Value of any property distributed to such
Member pursuant to any provision of this Agreement, (B) such Member's
distributive share of Losses and any items in the nature of expenses or losses
which are specially allocated pursuant to Section 6.2 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;
(iii) In the event Shares are Transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the Transferred Shares; and
(iv) In determining the amount of any liability for purposes of
subparagraphs (i) and (ii) above there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the Board of Managers shall
determine that it is prudent to modify the manner in which the Capital Accounts,
or any debits or credits thereto (including, without limitation, debits or
credits relating to liabilities which are secured by contributed or distributed
property or which are assumed by the Company or any Member), are computed in
order to comply with such Regulations, the Board of Managers may make such
modification. The Board of Managers also shall (i) make any adjustments that
are necessary or appropriate to maintain equality between the Capital Accounts
of the Members and the amount of capital reflected on the Company's balance
sheet, as computed for book purposes, in accordance with Regulations Section
1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b).
Capital Contributions. "Capital Contributions" means, with respect to
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any Member, the amount of money and the initial Gross Asset Value of any
property (other than money) contributed to the Company with respect to the
Shares in the Company held or purchased by such Member, including additional
Capital Contributions.
Certificate. "Certificate" means the Company's Certificate of
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Formation filed with the Secretary of State of the State of Delaware on March
20, 2000, as amended from time to time.
Class A Membership Units. "Class A Membership Units" means the
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limited liability company Interests of the Company represented by the 800,000
units designated as Class A Membership Units in Section 2.7 of this Agreement.
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Class B Membership Units. "Class B Membership Units" means the
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convertible, non-voting limited liability company Interests of the Company
represented by the 400,000 units designated as Class B Membership Units in
Section 2.7 of this Agreement.
Class C Membership Unit. "Class C Membership Unit" means the
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redeemable, non-voting, cumulative, preferred, non-participating limited
liability company Interest of the Company represented by the 1 unit designated
as a Class C Membership Unit in Section 2.7 of this Agreement. Notwithstanding
any other provision of this Agreement, the Class C Membership Unit holder shall
be entitled solely to a Priority Return to the extent provided herein and shall
receive no other allocation of Profit or Loss or distribution hereunder.
Code. "Code" means the Internal Revenue Code of 1986, as amended, 26
----
U.S.C.A., et seq., or any succeeding federal internal revenue law as from time
to time in effect. Any reference to any section of the Code shall include the
provisions of any successor revenue law as from time to time in effect.
Company. "Company" means XFL, LLC, a Delaware limited liability
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company, being the limited liability company formed pursuant to the Certificate
and governed by this Agreement.
Company Minimum Gain. "Company Minimum Gain" has the meaning given
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the term "partnership minimum gain" in Sections 1.704-2(b)(2) and 1.704-2(d) of
the Regulations.
Control. "Control" (including the terms "controlled by" and "under
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common control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities or other ownership interests,
by contract or otherwise.
Controlled Affiliate. "Controlled Affiliate" means, with respect to a
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Person, a Person that, directly or indirectly, through one or more
intermediaries, is controlled by the first mentioned Person, and, in the case of
NBC, also means any Person that, directly or indirectly, through one or more
intermediaries, is controlled by NBC Parent.
Conversion Date. "Conversion Date" has the meaning ascribed thereto
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in Section 10.1(c).
Conversion Notice. "Conversion Notice" has the meaning ascribed
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thereto in Section 10.1(a) of this Agreement.
Defaulting Member. "Defaulting Member" has the meaning ascribed
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thereto in Section 3.2(c) of this Agreement.
Deficiency. "Deficiency" has the meaning ascribed thereto in Section
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3.2(c) of this Agreement.
Deficiency Contribution. "Deficiency Contribution" has the meaning
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ascribed thereto in Section 3.2(c) of this Agreement.
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Depreciation. "Depreciation" means, for each Fiscal Year, an amount
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equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such Fiscal Year, except that if the
Gross Asset Value of an asset differs from its adjusted basis for federal income
tax purposes at the beginning of such Fiscal Year, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such Fiscal Year bears to such beginning adjusted tax basis; provided,
however, that if the adjusted basis for federal income tax purposes of an asset
at the beginning of such Fiscal Year is zero, Depreciation shall be determined
with reference to such beginning Gross Asset Value using any reasonable method
selected by the Board of Managers.
Depreciation Recapture. "Depreciation Recapture" has the meaning
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ascribed thereto in Section 6.2(d)(i)(B)(iii) of this Agreement.
Dispute. "Dispute" has the meaning ascribed thereto in Section 12.1
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of this Agreement.
Estimated Tax Amount. "Estimated Tax Amount" shall mean, for each
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Fiscal Year, an amount of cash which, in the good faith judgment of the Board of
Managers, equals (i) the amount of taxable income allocable from the Company in
respect of such Fiscal Year to the Member receiving the greatest allocation of
such income, multiplied by (ii) forty percent (40%).
Fair Market Value. "Fair Market Value" has the meaning ascribed
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thereto in Section 8.5 of this Agreement.
Financial Statements. "Financial Statements" has the meaning ascribed
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thereto in Section 7.3(a) of this Agreement.
Fiscal Year. "Fiscal Year" has the meaning ascribed thereto in
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Section 7.2 of this Agreement.
Gross Asset Value. "Gross Asset Value" means with respect to any
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asset, the asset's adjusted basis for federal income tax purposes, except as
follows:
(i) The initial Gross Asset Value of any asset contributed by a Member
to the Company shall be the gross fair market value of such asset, as determined
by the Board of Managers;
(ii) The Gross Asset Values of all Company assets shall be adjusted to
equal their respective gross fair market values (taking Code Section 7701(g)
into account) as determined by the Board of Managers as of the following times:
(A) 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; (B)
the distribution by the Company to a Member of more than a de minimis amount of
Company property as consideration for an Interest in the Company; and (C) the
liquidation of the Company within the meaning of Regulations Section 1.704-
1(b)(2)(ii)(g), provided that an adjustment described in clauses (A) and (B) of
this paragraph shall be made only if the Board of Managers reasonably determines
that such adjustment is necessary to reflect the relative economic interests of
the Members in the Company;
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(iii) The Gross Asset Value of any item of Company assets distributed
to any Member shall be adjusted to equal the gross fair market value (taking
Code Section 7701(g) into account) of such asset on the date of distribution as
determined by the Board of Managers; and
(iv) The Gross Asset Values of the Company assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vi) of
the definition of "Profits" and "Losses" or Section 6.2(b)(vii) hereof;
provided, however, that Gross Asset Values shall not be adjusted pursuant to
this subparagraph (iv) to the extent that an adjustment pursuant to subparagraph
(ii) is required in connection with a transaction that would otherwise result in
an adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to subparagraph (ii) or (iv), such Gross Asset Value shall thereafter
be adjusted by the depreciation taken into account with respect to such asset,
for purposes of computing Profits and Losses.
GAAP. "GAAP" shall mean U.S. generally accepted accounting
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principles, consistently applied.
Immediate Family. "Immediate Family" means, and is limited to, an
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individual's current spouse, parents, grandparents, children, siblings,
grandchildren and other lineal descendants, or a trust or estate of which the
primary beneficiaries are such individual or such related persons.
Initial Business Plan. "Initial Business Plan" means the budget and
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strategic operating plan for the Company for the period commencing on May 1,
2000 and ending on April 30, 2002 in the form attached to this Agreement as
Exhibit A.
Interest. "Interest" means the entire ownership interest of a Member
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in the Company at any time, including such Member's Percentage Interest and the
right of such Member to any and all benefits to which a Member may be entitled
as provided in this Agreement, together with the obligations of such Member to
comply with all of the terms and provisions of this Agreement.
IPO. "IPO" has the meaning ascribed thereto in Section 14.1 of this
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Agreement.
Liquidator. "Liquidator" means that Person, or any successor thereto,
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who shall be designated to liquidate the Company pursuant to Section 9.3 hereof.
Manager. "Manager" means any Person hereafter elected as a member of
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the Board of Managers of the Company as provided in this Agreement, but does not
include any Person who has ceased to be a member of the Board of Managers of the
Company. Each member of the Board of Managers is a "Manager" within the meaning
of Section 18-101(10) of the Act.
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Member. "Member" means any Person executing this Agreement as a
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member or hereafter admitted to the Company as a member as provided in this
Agreement, but does not include any Person who has ceased to be a member in the
Company, and each Member is a "Member" within the meaning of Section 18-101(11)
of the Act.
Member Nonrecourse Debt. "Member Nonrecourse Debt" has the same
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meaning as the term "partner nonrecourse debt" in Section 1.704-2(b)(4) of the
Regulations.
Member Nonrecourse Debt Minimum Gain. "Member Nonrecourse Debt
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Minimum Gain" means an amount, with respect to each Member Nonrecourse Debt,
equal to the Company Minimum Gain that would result if such Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with
Section 1.704-2(i)(3) of the Regulations.
Member Nonrecourse Deductions. "Member Nonrecourse Deductions" has
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the same meaning as the term "partner nonrecourse deductions" in Sections 1.704-
2(i)(1) and 1.704-2(i)(2) of the Regulations.
Merchandising Agreement. "Merchandising Agreement" has the meaning
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ascribed thereto in Section 2.8 of this Agreement.
Monthly Management Reports. "Monthly Management Reports" has the
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meaning ascribed thereto in Section 7.3(a) of this Agreement.
NBC. "NBC" means NBC-XFL Holding, Inc., a Delaware corporation, its
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successors or permitted transferees of its entire Interest, as the case may be.
NBC Parent. "NBC Parent" means National Broadcasting Company, Inc., a
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Delaware corporation.
NBC IPO Notice. "NBC IPO Notice" has the meaning ascribed thereto in
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Section 14.2 of this Agreement.
NBC IPO Put Notice. "NBC IPO Put Notice" has the meaning ascribed
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thereto in Section 14.2 of this Agreement.
NBC IPO Put Right. "NBC IPO Put Right" has the meaning ascribed
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thereto in Section 14.2 of this Agreement.
NBC Put Notice. "NBC Put Notice" has the meaning ascribed thereto in
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Section 8.4(b) of this Agreement.
NBC Put Right. "NBC Put Right" has the meaning ascribed thereto in
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Section 8.4(b) of this Agreement.
NFL. "NFL" has the meaning ascribed thereto in Section 5.13 of this
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Agreement.
Non-Defaulting Member. "Non-Defaulting Member" has the meaning
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ascribed thereto in Section 3.2(c) of this Agreement.
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Nonrecourse Deductions. "Nonrecourse Deductions" has the meaning set
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forth in Section 1.704-2(b)(1) of the Regulations.
Nonrecourse Liability. "Nonrecourse Liability" has the meaning set
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forth in Section 1.704-2(b)(3) of the Regulations.
Notice Letter. "Notice Letter" has the meaning ascribed thereto in
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Section 12.2 of this Agreement.
Observer. "Observer" has the meaning ascribed thereto in Section 5.3
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of this Agreement.
Offer Period. "Offer Period" has the meaning ascribed thereto in
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Section 8.3 of this Agreement.
Offered Interest. "Offered Interest" has the meaning ascribed thereto
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in Section 8.3 of this Agreement.
Offered Members. "Offered Members" has the meaning ascribed thereto
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in Section 8.3 of this Agreement.
Offering Member. "Offering Member" has the meaning ascribed thereto
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in Section 8.3 of this Agreement.
Percentage Interest. "Percentage Interest" of any Member means the
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percentage of all outstanding Class A Membership Units and Class B Membership
Units, taken together, held by such Member.
Performance Based Conversion Notice. "Performance Based Conversion
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Notice" has the meaning ascribed thereto in Section 10.1(a) of this Agreement.
Person. "Person" means any person, corporation, partnership, limited
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partnership, limited liability company, joint venture, association, joint stock
company, trust, business trust, unincorporated association or other entity.
Priority Return. "Priority Return" means a sum equal to ten percent
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(10%) per annum, determined on the basis of a year of 365 or 366 days, as the
case may be, for the actual number of days in the period for which the Priority
Return is being determined, cumulative (but not compounded) to the extent not
distributed in any given Fiscal Year pursuant to Section 6.1(d) hereof, of the
Capital Contribution attributable to the Class C Membership Unit ($12.50),
commencing on the first day the Class C Membership Unit is issued to the WWFE.
Profits and Losses. "Profits" and "Losses" mean, for each Fiscal
------------------
Year, an amount equal to the Company's taxable income or loss for such Fiscal
Year, determined in accordance with Code Section 703(a) (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 (without duplication):
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(i) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Profits or Losses pursuant
to this definition of "Profits" and "Losses" shall be added to such taxable
income or loss:
(ii) 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
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Profits or Losses pursuant to this definition of "Profits" and
"Losses", shall be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any Company asset is
adjusted pursuant to subparagraphs (ii) or (iii) of the definition of Gross
Asset Value, the amount of such adjustment shall be treated as an item of gain
(if the adjustment increases the Gross Asset Value of the asset) or an item of
loss (if the adjustment decreases the Gross Asset Value of the asset) from the
disposition of such asset and shall be taken into account for purposes of
computing Profits or Losses;
(iv) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year computed in
accordance with the definition of Depreciation;
(vi) To the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Section 734(b) is required, pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in
determining Capital Accounts as a result of a distribution other than in
liquidation of a Member's Interest in the Company, the amount of such adjustment
shall be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases such basis) from the disposition
of such asset and shall be taken into account for purposes of computing Profits
or Losses; and
(vii) Notwithstanding any other provision of this definition, any
items which are specially allocated pursuant to Section 6.2 hereof shall not be
taken into account in computing Profits or Losses.
The amounts of the items of Company income, gain, loss or deduction
available to be specially allocated pursuant to Sections 6.2 hereof shall be
determined by applying rules analogous to those set forth in subparagraphs (i)
through (vi) above.
Purchased Assets. "Purchased Assets" has the meaning ascribed thereto
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in Section 13.2 of this Agreement.
Put Closing. "Put Closing" has the meaning ascribed thereto in
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Section 8.4(b) of this Agreement.
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Put Rejection. "Put Rejection" has the meaning ascribed thereto in
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Section 8.4(c) of this Agreement.
Redemption Notice. "Redemption Notice" has the meaning ascribed
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thereto in Article 11 of this Agreement.
Regulatory Allocations. "Regulatory Allocations" has the meaning
----------------------
ascribed thereto in Section 6.3 of this Agreement.
Regulations. "Regulations" means the Income Tax Regulations,
-----------
including Temporary Regulations, promulgated under the Code, as such regulations
are amended from time to time.
Rules. "Rules" has the meaning ascribed thereto in Section 12.1 of
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this Agreement.
Scheduled Contributions. "Scheduled Contributions" has the meaning
-----------------------
ascribed thereto in Section 5.19 of this Agreement.
Securities Act. "Securities Act" means the Securities Act of 1933, as
--------------
amended.
Service. "Service" means the Internal Revenue Service.
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Shares. "Shares" means any Class A Membership Units, Class B
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Membership Units or Class C Membership Unit from time to time issued and
outstanding.
Subsequent Business Plan. "Subsequent Business Plan" has the meaning
------------------------
ascribed thereto in Section 5.19 hereof.
Tax Matters Member. "Tax Matters Member" means that Person designated
------------------
as the Tax Matters Member pursuant to Section 5.14 hereof.
Tax Statements. "Tax Statements" has the meaning ascribed thereto in
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Section 7.3(a) of this Agreement.
Threshold Interest. "Threshold Interest" has the meaning ascribed
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thereto in Section 5.3 of this Agreement.
Transfer. "Transfer" means the sale, assignment, transfer,
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disposition, mortgage, pledge, charge or encumbrance, or contract to do or
permit any of the foregoing, whether voluntarily or by operation of law.
Transferee. "Transferee" has the meaning ascribed thereto in Section
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8.3 of this Agreement.
Transfer Notice. "Transfer Notice" has the meaning ascribed thereto
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in Section 8.3 of this Agreement.
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Valuation Date. "Valuation Date" has the meaning ascribed thereto in
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Section 8.5 of this Agreement.
WWFE. "WWFE" means WWFE Sports, Inc., a Delaware corporation, its
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successors or permitted transferees of its entire Interest, as the case may be.
WWFE Call Option. "WWFE Call Option" has the meaning ascribed thereto
----------------
in Section 8.4(a) of this Agreement.
WWFE IPO Call Notice. "WWFE IPO Call Notice" has the meaning ascribed
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thereto in Section 14.3 of this Agreement.
WWFE IPO Call Option. "WWFE IPO Call Option" has the meaning ascribed
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thereto in Section 14.3 of this Agreement.
WWFE IPO Notice. "WWFE IPO Notice" has the meaning ascribed thereto
---------------
in Section 14.3 of this Agreement.
WWFE Parent. "WWFE Parent" means World Wrestling Federation
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Entertainment, Inc., a Delaware corporation.
XFL Property Rights. "XFL Property Rights" has the meaning ascribed
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thereto in Section 6.1 of this Agreement.
ARTICLE II
FORMATION, NAME, OFFICES AND PURPOSES; MEMBERS
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Section 2.1. Formation. The Company was formed on March 20, 2000 by
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the filing of the Certificate with the Secretary of State of the State of
Delaware. Except as otherwise provided in this Agreement, the rights, duties,
liabilities and obligations of the Members, and all other Persons who become
members of the Company in the manner set forth herein, and the administration,
dissolution, winding up and termination of the Company shall be governed by the
Act.
Section 2.2. Name. The name of the Company is "XFL, LLC". The
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Company shall execute a certificate or certificates required by law to be filed
in connection with changes in the name of the Company or the conduct of the
business of the Company and shall cause such certificate or certificates to be
filed in the appropriate offices.
Section 2.3. Offices. The principal office of the Company shall be
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located at 1241 East Main Street, Stamford, CT 06902. The Company's registered
office and the name of its initial registered agent at such address shall be as
set forth in the Certificate. The Company may have such substituted and
additional offices at such other locations as the Members shall designate. The
Company's registered office and registered agent may be changed from time to
time by filing the address of the new registered office and/or the name and the
acceptance of the new registered agent with the Delaware Secretary of State
pursuant to the Act.
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Section 2.4. Purposes; Power. The purpose of the Company shall be,
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and the Company shall have the power and authority, to establish, develop and
operate a professional football league to be known as the "XFL" (the "Business")
and to acquire, own, manage and sell such assets and properties as may be
necessary or convenient in connection with the operation of the Business. In
carrying out these purposes and exercising these powers, the Company may enter
into, make and perform all contracts and other undertakings and engage in all
activities and transactions as may be necessary and proper to operate the
Business. The Company shall commence operations no later than the date hereof.
Any change in, or expansion of, the purpose or scope of the Business shall
require the prior written approval of NBC and WWFE.
Section 2.5. Scope of Members' Authority. Except as otherwise
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expressly and specifically provided in this Agreement, no Member shall have
authority to bind or act for, or assume any obligations or responsibilities on
behalf of, any other Member or the Company. Neither the Company nor any Member
shall be responsible or liable for any indebtedness or obligation of any other
Member incurred or arising either before or after the execution of this
Agreement, except as to such joint responsibilities, liabilities, indebtedness
or obligations incurred after the date hereof pursuant to a written instrument.
This Agreement shall not be deemed to create a partnership or other affiliation
between the Members with respect to any activities whatsoever, other than
activities within the purpose of the Company as specified in Section 2.4 above.
Section 2.6. Confidential Information. The Company and each Member
------------------------
shall not use or disclose to others any confidential information received from
the Company or any other Member which is not otherwise available to the public
(or any confidential information made available to the public as a result of a
breach of this Agreement by the breaching party) for any purpose other than for
the benefit of the Company, as determined by the Board of Managers, or as
required by law.
Section 2.7. Classes of Membership Interests; Number Authorized.
--------------------------------------------------
(a) The limited liability company Interests of the Company
(as defined in Section 18-101(8) of the Act) shall be represented by the Class A
Membership Units, the Class B Membership Units and the Class C Membership Unit.
No additional class or classes of limited liability company Interests of the
Company shall be created or issued without the prior approval of the Members.
(b) The total number of Class A Membership Units that the
Company shall have the authority to issue is 800,000. On the date of this
Agreement, 200,000 Class A Membership Units are issued and outstanding and held
of record by WWFE. The total number of Class B Membership Units that the Company
shall have the authority to issue is 400,000. On the date of this Agreement,
200,000 Class B Membership Units are issued and outstanding and held of record
by NBC. The total number of Class C Membership Units that the Company shall have
the authority to issue is 1. On the date of this Agreement, 1 Class C Membership
Unit is issued and outstanding and held of record by WWFE. Except as
specifically provided in this Agreement, no additional Class A Membership Units,
Class B Membership Units or Class C Membership Units shall be issued by the
Company.
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Section 2.8. Ancillary Agreements. On the date of this Agreement,
--------------------
the Company is entering into (i) a Merchandising and Support Services Agreement
with WWFE Parent (the "Merchandising Agreement") and (ii) a Broadcast Agreement
with NBC Parent (the "Broadcast Agreement").
ARTICLE III
CAPITAL CONTRIBUTIONS
---------------------
Section 3.1. Initial Capital Contribution.
----------------------------
(a) On the date hereof, WWFE has made an initial cash
Capital Contribution in the amount of $2,500,012.50. The Capital Account of WWFE
shall be increased from zero to $2,500,012.50.
(b) On the date hereof, NBC has made an initial cash Capital
Contribution in the amount of $2,500,000.00. The Capital Account of NBC shall be
increased from zero to $2,500,000.00.
Section 3.2. Additional Capital Contributions.
--------------------------------
(a) Each Member shall contribute to the capital of the
Company (an "Additional Capital Contribution") its proportionate share, based on
its Percentage Interest, of the aggregate amount of any additional cash
contributions called for by the Board of Managers in accordance with this
Agreement, the Initial Business Plan and any Subsequent Business Plan. Except as
specifically provided herein, no additional Shares shall be issued upon receipt
of any Additional Capital Contribution.
(b) On approximately a monthly basis, the Board of Managers
shall send a written notice to each Member calling for such Member to make its
proportionate share of the Additional Capital Contributions then due, as
contemplated by the Initial Business Plan or any Subsequent Business Plan, as
the case may be. Such notice shall set forth (i) the aggregate amount of such
Additional Capital Contributions and (ii) each Member's proportionate share of
such Additional Capital Contributions. Additional Capital Contributions in the
amounts called for in such notice shall be made by the Members within five (5)
Business Days following receipt of such notice from the Board of Managers. A
failure by the Board of Managers to make a call for an Additional Capital
Contribution at such time as the same is contemplated by the Initial Business
Plan, any Subsequent Business Plan or this Agreement shall not relieve the
Members from their obligations under this Agreement to make such Additional
Capital Contributions when and as the same may be called for by the Board of
Managers. No call for an Additional Capital Contribution in excess of the
amounts called for in the Initial Business Plan or any Subsequent Business Plan,
as the case may be, shall be made by the Board of Managers without the prior
written approval of NBC and WWFE.
(c) Upon the failure of a Member (a "Defaulting Member") to
make any Additional Capital Contribution required by this Section (the portion
thereof not contributed by such Defaulting Member being referred to herein as
the "Deficiency"), the Board of Managers shall give written notice of such
failure, including the name of the Defaulting Member
13
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and the amount of such Deficiency, to the other Members (each, a "Non-Defaulting
Member"). Each Non-Defaulting Member may (in addition to, and not in lieu of,
any other rights or remedies such Non-Defaulting Member may have under this
Agreement, at law or in equity), in its sole and absolute discretion, within
five (5) Business Days after receipt of such written notice, contribute all or
any portion of such Deficiency to the capital of the Company (a "Deficiency
Contribution"); provided, however, that if the proposed aggregate Deficiency
Contributions of two or more Non-Defaulting Members are greater than the amount
of the Deficiency, then, unless such Non-Defaulting Members agree on the amount
of the Deficiency Contribution to be made by each of them, such Deficiency
Contributions shall be made in proportion to such Non-Defaulting Members'
Percentage Interests. In the event of any such Deficiency Contribution(s), a
number of additional Class A Membership Units or Class B Membership Units, as
the case may be, shall be issued to the Non-Defaulting Member or Members making
such Deficiency Contribution(s) (in proportion to the Deficiency Contribution
made by each Non-Defaulting Member) so that the Defaulting Member's Percentage
Interest is reduced by an amount (expressed in terms of a percentage) equal to
the quotient determined by dividing (1) the amount of such Deficiency
Contribution(s) by (2) the aggregate sum of all Capital Contributions (including
Deficiency Contributions) made by all Members to the Company through the date
such additional Class A Membership Units or Class B Membership Units are issued,
and the aggregate Percentage Interests of the Non-Defaulting Member or Members
making such Deficiency Contribution(s) shall be increased by a like amount (and
in proportion to the Deficiency Contribution made by each Non-Defaulting
Member).
Section 3.3. Non Cash Capital Contributions. If the Members make any
------------------------------
Capital Contributions in a form other than cash, the Members shall execute and
deliver to the Company any assignments and other instruments of transfer as may
be deemed necessary to confirm and carry out the contributions to capital of the
Company.
Section 3.4. Use of Capital Contributions. All contributions to
----------------------------
capital of the Company shall be available to the Company to carry out the
purposes of the Company.
Section 3.5. Other Source of Funds. Subject to Section 5.18, the
---------------------
Company may, at the Board of Managers' discretion, from time to time borrow and
re-borrow funds (for working capital purposes including ordinary course
intercompany reimbursements) under terms and conditions determined by the Board
of Managers, including without limitation, borrowing funds from Members and
Affiliates thereof as well as institutional lenders. No Member shall be
required to loan money to the Company.
ARTICLE IV
PARTICIPATION IN COMPANY PROPERTY
---------------------------------
Section 4.1. Ownership by Member of Company. No Member shall have
------------------------------
any right of partition with respect to any property or assets of the Company.
Section 4.2. Return of Capital. Except as expressly provided herein,
-----------------
no Member shall have the right to demand or receive a distribution of any
capital prior to the
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dissolution of the Company, and no Member shall have the right to demand and
receive property other than cash in return for any contribution to the capital
of the Company.
Section 4.3. No Interest. No Member shall be entitled to receive any
-----------
interest with respect to its Capital Contributions or Capital Account.
ARTICLE V
MANAGEMENT
----------
Section 5.1. Management by the Board of Managers. Except for
-----------------------------------
situations in which the approval of the Members, or NBC and/or WWFE
specifically, is required by this Agreement or by non-waivable provisions of the
Act or the approval of the Broadcast Committee is required under the Broadcast
Agreement, (i) the powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, the Board of Managers; and (ii) the Board of Managers may make
all decisions and take all actions for the Company not otherwise provided for in
this Agreement or in the Broadcast Agreement. If any action taken by the Board
of Managers conflicts or is inconsistent in any way with any action taken by the
Broadcast Committee (as defined in the Broadcast Agreement) pursuant to its
powers under the Broadcast Agreement, the action taken by the Broadcast
Committee shall be controlling.
Section 5.2. Actions by Board of Managers. In managing the business
----------------------------
and affairs of the Company and exercising its powers granted hereunder, the
Board of Managers may act through meetings or written consents pursuant to
Sections 5.5 and 5.7. Any Person dealing with the Company, other than a Member,
may rely on the authority of a Manager or any duly appointed officer of the
Company in taking any action in the name of the Company without inquiry into the
provisions of this Agreement or compliance herewith, regardless of whether that
action actually is taken in accordance with the provisions of this Agreement.
Each Member, by execution of this Agreement, agrees to, consents to, and
acknowledges the delegation of powers and authority to the Board of Managers
granted hereunder, and to the actions and decisions of the Board of Managers
within the scope of their authority as provided herein.
Section 5.3. Number and Term of Office. The Board of Managers shall
-------------------------
consist of three Managers prior to the Conversion Date and on and after the
Conversion Date shall consist of six Managers. Prior to the Conversion Date,
the holders of the Class A Membership Units shall be entitled to designate all
three Managers to the Board of Managers. Prior to the Conversion Date, the
holders of the Class B Membership Units shall be entitled to designate one
individual (the "Observer") who shall not be a Manager but who may attend all
meetings of the Board of Managers. The Observer shall receive all materials and
communications as and when received by the Managers but shall have no authority
to vote on any matter presented to the Board of Managers, but shall have the
ability to submit non-binding recommendations to the Board of Managers. On and
after the Conversion Date and so long as each of WWFE and NBC owns at least
eighty-five percent (85%) of the total number of Shares owned by it as of the
date hereof (subject to appropriate adjustment in the event of any equity
distribution, split, combination or other similar recapitalization) (the
"Threshold Interest"), WWFE shall be entitled to designate three Managers to the
Board of Managers and NBC shall be entitled to designate
15
<PAGE>
three Managers to the Board of Managers; provided, however, that during any time
after the Conversion Date that either or both of WWFE and NBC own less than the
Threshold Interest, NBC shall be entitled to designate a number (rounded to the
nearest whole number) of Managers to the Board of Managers that is directly
proportionate to the ratio of NBC's Percentage Interest to WWFE's Percentage
Interest and WWFE shall be entitled to designate a number (rounded to the
nearest whole number) of Managers to the Board of Managers that is directly
proportionate to the ratio of WWFE's Percentage Interest to NBC's Percentage
Interest. In the event that any adjustment to WWFE's and NBC's representation on
the Board of Managers is required by the immediately preceding sentence, WWFE or
NBC, as the case may be, shall cause an appropriate number of Managers
designated by it to resign from the Board of Managers and any vacancy resulting
from such resignation(s) shall be filled by the other such Member. For purposes
of this Section 5.3, the number of Shares owned by, and the respective
Percentage Interests of, NBC and WWFE shall be deemed to include the Shares
owned by, and the Percentage Interests of, their respective Affiliates. On and
after the Conversion Date, there shall be no Observer. On and after the
Conversion Date, the Chairman of the Board of Managers shall be a Manager
designated by WWFE and the Vice Chairman of the Board of Managers shall be a
Manager designated by NBC. On the Conversion Date, the Observer on the
Conversion Date, together with two additional individuals designated by NBC,
shall become the initial Managers designated by NBC. On and after the Conversion
Date, all references herein to the Board of Managers shall be deemed to refer to
the full six-member Board of Managers.
The following persons are the Managers of the Company as of the date
hereof and until their successors are duly elected:
Vincent K. McMahon
Linda E. McMahon
August J. Liguori
The following person is the Observer as of the date hereof:
Dick Ebersol
Section 5.4. Vacancies; Removal; Resignation. Any Manager may be
-------------------------------
removed at any time, with or without cause, but only by the holders of the
Shares (or the Member, if applicable) who designated such Manager. In the event
that any Manager ceases to serve as a Manager during his term of office, the
resulting vacancy shall be filled by the holders of the Shares (or the Member,
if applicable) entitled to appoint the Manager whose absence has created such
vacancy. Any Manager may resign his office at any time.
Section 5.5. Meetings.
--------
(a) A majority of the total number of Managers shall
constitute a quorum for the transaction of business of the Board of Managers,
and the act of a majority of the Managers present at a meeting at which a quorum
is present shall be necessary and sufficient to be the act of the Board of
Managers. A Manager who is present at a meeting of the Board of Managers at
which action on any Company matter is taken shall be presumed to have assented
to
16
<PAGE>
the action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the Person acting
as secretary of the meeting before the adjournment thereof or shall deliver such
dissent to the Company immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a Manager who voted in favor of such action.
Any Manager who is present at a meeting of the Board of Managers shall be
entitled to cast the vote of any Manager who is not present and who was
appointed by the same Member as the Manager casting the vote.
(b) Meetings of the Board of Managers may be held at such
place or places as shall be determined from time to time by resolution of the
Board of Managers. At all meetings of the Board of Managers, business shall be
transacted in such order as shall from time to time be determined by resolution
of the Board of Managers.
(c) Regular meetings of the Board of Managers shall be held
at such times and places as shall be designated from time to time by resolution
of the Board of Managers, but shall not be held less frequently than quarterly.
Notice of such meetings shall not be required.
(d) Special meetings of the Board of Managers may be called
by the Chairman of the Board of Managers or any two Managers on at least 24
hours' notice to each other Manager. Such notice need not state the purpose or
purposes of, nor the business to be transacted at, such meeting, except as may
otherwise be required by law or provided for in this Agreement.
(e) Any matter upon which the Board of Managers is
deadlocked shall be resolved pursuant to the provisions of Article 12.
Section 5.6. Approval or Ratification of Acts or Contracts by
------------------------------------------------
Members. The Board of Managers in their discretion may submit any act or
contract for approval or ratification at any annual or special meeting of the
Members.
Section 5.7. Action by Managers by Written Consent or Telephone
--------------------------------------------------
Conference. Any action permitted or required by the Act, the Certificate or
----------
this Agreement to be taken at a meeting of the Board of Managers may be taken
without a meeting if a consent in writing, setting forth the action to be taken,
is signed by that number of the Managers having not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting
at which all Managers were present and voting. Such consent shall have the same
force and effect as a vote at a meeting and may be stated as such in any
document or instrument filed with the Secretary of State of Delaware, and the
execution of such consent shall constitute attendance or presence in person at a
meeting of the Board of Managers. Subject to the requirements of the Act, the
Certificate or this Agreement for notice of meetings, unless otherwise
restricted by the Certificate, the Managers may participate in and hold a
meeting of the Board of Managers by means of a conference telephone or similar
communications equipment by means of which all Persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a Person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
17
<PAGE>
Section 5.8. Conflicts of Interest. Subject to the other express
---------------------
provisions of this Agreement, each Manager, Member and officer of the Company at
any time and from time to time may engage in and possess interests in other
business ventures of any and every type and description, independently or with
others, with no obligation to offer to the Company or any other Member, Manager
or officer the right to participate therein. The Company may transact business
with any Manager, Member, officer or Affiliate thereof, provided the terms of
those transactions are no less favorable than those the Company could obtain
from unrelated third parties.
Section 5.9. Actions by Members. Regular meetings of the Members may
------------------
be held at such places, and at such times, as the Members may from time to time
determine. No notice of any such meeting shall be required. Special meetings
of the Members may be held at any time or place called by any Member. Notice by
letter, telegram, telecopy or telephone of a special meeting of the Members
shall be given by the Member calling the meeting not less than two (2) Business
Days before the special meeting. The Members may participate in a meeting of the
Members by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
The Secretary of the Company shall keep written minutes of all meetings of the
Members. At all meetings of the Members, Members holding a majority of the
outstanding Class A Membership Units entitled to vote shall constitute a quorum
for the transaction of business and shall be necessary and sufficient for taking
any action, except that where any action requires the prior approval of NBC
and/or WWFE, the presence of NBC and/or WWFE, as the case may be, shall be
required to constitute a quorum for the taking of such action. Any action to be
taken by the Members shall require the affirmative vote of the holders of a
majority of all the outstanding Class A Membership Units present in person or by
proxy and entitled to vote, except as otherwise specially provided in this
Agreement (e.g., where the prior approval of NBC and/or WWFE is required). Each
holder of outstanding Class A Membership Units shall be entitled to one vote for
each Class A Membership Units held by that Member at each meeting of Members
(and written actions in lieu of meetings) with respect to any and all matters
presented to the Members for their action or consideration and on which they are
entitled to vote. Holders of Class B Membership Units and the Class C
Membership Unit shall not be entitled to vote on any action presented to the
Members, except as required by law or by the provisions of this Agreement. Any
action required or permitted to be taken at any meeting of the Members may be
taken without a meeting if a consent in writing, setting forth the action to be
taken, is signed by that number of Members entitled to vote thereon having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all such Members were present and voting
(including, in cases where the prior approval of a Member is required, the
approval of the requisite Member(s)). No Member shall be prohibited from voting
on a matter solely because the matter relates to such Member or an Affiliate of
such Member. No contract, action or transaction will be void or voidable with
respect to the Company because it is between or affects the Company and one or
more of its Members or their Affiliates regardless of whether any of the
conditions set forth in Section 18-107 of the Act have been met. Any matter
upon which the Members are deadlocked shall be resolved pursuant to the
provisions of Article 12.
Section 5.10. Officers. Subject to the rights and authority of the
--------
Board of Managers, the day-to-day operations of the Company shall be run by the
officers of the Company who will be elected by the Board of Managers. The
officers shall consist of a President, one or
18
<PAGE>
more Vice Presidents, a Secretary and a Treasurer, and may consist of such other
officers (including a Chief Financial Officer) and assistant officers as the
Board of Managers may determine. Each officer or assistant officer shall serve
at the pleasure of the Board of Managers. The compensation of all officers and
assistant officers shall be fixed by, or pursuant to authority delegated by, the
Board of Managers from time to time. Any two or more offices may be held by the
same person.
(A) President. The President shall be the chief executive
----------
officer of the Company and shall have general and active charge and
control over the business and affairs of the Company, subject to the
oversight of the Board of Managers.
(B) Vice President. The Vice President or, if there shall
--------------
be more than one, the Vice Presidents, in the order of their seniority
unless otherwise specified by the Board of Managers, shall have all of
the powers and perform all of the duties of the President during his
absence or inability to act. Each Vice President shall also have such
other powers and perform such other duties as shall be prescribed from
time to time by the Board of Managers or the President.
(C) Secretary. The Secretary shall keep a record of the
---------
minutes of the proceedings of meetings of the Members and the Board of
Managers, and shall give notice of all such meetings as required by
the Act or this Agreement. The Secretary shall have custody of the
seal of the Company and of all books, records, and papers of the
Company, except such as shall be in the charge of the Treasurer or of
some other Person authorized to have custody and possession thereof by
resolution of the Board of Managers. The Secretary shall also have
such other powers and perform such other duties as are incident to the
office of the secretary of a limited liability company or as shall be
prescribed from time to time by, or pursuant to authority delegated
by, the Board of Managers or the President.
(D) Treasurer. The Treasurer shall keep full and accurate
---------
accounts of the receipts and disbursements of the Company in books
belonging to the Company, shall deposit all moneys and other valuable
effects of the Company in the name and to the credit of the Company in
such depositories as may be designated by the Board of Managers, and
shall also have such other powers and perform such other duties as are
incident to the office of the treasurer of a limited liability company
or as shall be prescribed from time to time by, or pursuant to
authority delegated by, the Board of Managers or the President.
The following officers of the Company shall serve at the pleasure of the Board
of Managers until their successors are elected: President -- Basil DeVito; Vice
President, Football Operations -- Michael Keller; Vice President, Administration
-William Hicks; Vice President, Finance, Chief Financial Officer and Treasurer -
August Liguori; Secretary -Linda McMahon.
19
<PAGE>
Section 5.11. Bank Accounts. Only the Treasurer or his designees in
-------------
accordance with authorization cards on file with the Company's banks may sign
checks on behalf of the Company.
Section 5.12. Compensation. Except as otherwise expressly provided
------------
in this Agreement, no Managers or Affiliate of any Managers shall be entitled to
any compensation from the Company or to reimbursement for expenses incurred in
connection with the business or affairs of the Company, except with the prior
approval of the Managers. The Company shall pay the reasonable out-of-pocket
expenses incurred by each Manager and Observer in connection with attending the
meetings of the Board of Managers.
Section 5.13. Activity of Members; Football Restrictions. Except as
------------------------------------------
specifically set forth in this Section 5.13 or pursuant to Section 8.4, no
Member or any Affiliate thereof shall be prohibited from engaging in any other
business or activity by virtue of its status as a Member in the Company.
Notwithstanding the foregoing, neither NBC nor WWFE (nor any Affiliate of either
of the foregoing) shall, directly or indirectly, own, operate or broadcast via
television (other than highlights of any length for use in any format or media)
any teams, games or other events of a professional football league or own or
operate a professional football league (it being expressly agreed that the
National Football League, Inc. ("NFL") is excluded as it relates to this Section
5.13 and that, accordingly, nothing in this Agreement will prohibit any Member
(or any of its Affiliates) from owning, operating or broadcasting any NFL team,
game or other event).
Section 5.14. Tax Matters Member. The Tax Matters Member shall be
------------------
WWFE. The Tax Matters Member shall have the responsibility of a tax matters
partner specified under the Code. The Tax Matters Member shall immediately
notify all Members of any action taken by the Service relating to an audit or
review of the Company's federal income tax filings and shall keep all Members
informed of the status of any such proceedings. Each Member shall have the
right to participate in such proceedings at such Member's own expense. The Tax
Matters Member shall not enter into any agreement with the Service which
purports to bind any Member without first obtaining the consent of such Member.
The Company shall reimburse the Tax Matters Member for all expenses reasonably
incurred in connection with its duties hereunder.
Section 5.15. Reliance on Acts of the Managers. No financial
--------------------------------
institution or other Person dealing with an officer or another agent or
attorney-in-fact for the Board of Managers will be required to ascertain whether
the officer or such representative of the Board of Managers is an authorized
agent acting in accordance with this Agreement, but such financial institution
or such other Person will be protected in relying solely upon the deed, transfer
or assurances or on the execution of such instrument or instruments by the
officer, a Manager or any authorized agent thereof.
Section 5.16. Rights and Obligations of Members. Except as expressly
---------------------------------
set forth in this Agreement or mandated by the Act, no Member shall have any
liability to the Company in excess of such Member's Capital Contributions, and
no Member shall have any liability to any other Member for the return or
repayment of the Capital Contributions of such other Member or for the repayment
of any loan by such other Member to the Company. No Member shall be required to
pay to the Company or any other Member any deficit in such other Member's
Capital Account (upon dissolution or otherwise). A Member will not be
personally liable for any debts
20
<PAGE>
or losses of the Company beyond the Member's obligation under Article III to
make Capital Contributions or as otherwise required by the Act.
Section 5.17. Indemnity of the Managers, Officers, Employees, and
---------------------------------------------------
Other Agents.
------------
(a) The Company shall indemnify, to the fullest extent now
or hereafter permitted by law, each Manager and Observer (including each former
Manager and Observer) of the Company who was or is made a party to or a witness
in or is threatened to be made a party to or a witness in any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such Person is or
was an authorized representative of the Company, against all expenses (including
attorneys' fees and disbursements), judgments, fines (including excise taxes and
penalties) and amounts paid in settlement actually and reasonably incurred by
such Person in connection with such action or proceeding.
(b) The Company shall pay all expenses (including
attorneys' fees and disbursements) incurred by a Manager or Observer (including
a former Manager or Observer) referred to in Section 5.17(a) hereof in defending
or appearing as a witness in any action or proceeding described in Section
5.17(a) hereof in advance of the final disposition of such action or proceeding
upon receipt of an undertaking by or on behalf of such Person to repay all
amounts advanced if it is ultimately determined that he or she is not entitled
to be indemnified by the Company as provided in Section 5.17(d) hereof.
(c) The Company shall, unless otherwise determined by
mutual agreement of NBC and WWFE, indemnify to the fullest extent now or
hereafter permitted by law, any Person who was or is made a party to or a
witness in or is threatened to be made a party to or a witness in, or was or is
otherwise involved in, any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such Person is or was an authorized representative of the
Company, both as to action in such Person's official capacity and as to action
in another capacity at the Company's request while holding such office or
position, against all expenses (including attorneys' fees and disbursements),
judgments, fines (including excise taxes and penalties), and amounts paid in
settlement actually and reasonably incurred by such Person in connection with
such action or proceeding. The Company shall, unless otherwise determined by
mutual agreement of NBC and WWFE, pay expenses incurred by any such Person by
reason of his or her participation in an action or proceeding referred to in
this Section 5.17(c) in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such Person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Company as provided in Section 5.17(d) hereof.
(d) Indemnification under this Section shall not be made by
the Company in any case where a court determines that the alleged act or failure
to act giving rise to the claim for indemnification (i) is expressly prohibited
by the Act or any successor statute as in effect at the time of such alleged
action or failure to take action, (ii) constitutes willful misconduct, bad
faith, gross negligence or reckless disregard of a Person's duties or (iii) is
21
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outside the scope of such Person's duties performed in his or her official
capacity or in another capacity at the Company's request.
(e) The Company may purchase and maintain insurance on
behalf of any Person who is or was a Manager or an Observer, or is or was an
authorized representative of the Company, against any liability asserted against
or incurred by such Person in any such capacity, or arising out of the status of
such Person as such, whether or not the Company would have the power to
indemnify such Person against such liability under the provisions of this
Section.
(f) Each Manager and Observer shall be deemed to act in such
capacity in reliance upon such rights of indemnification and advancement of
expenses as are provided in this Section. The rights of indemnification and
advancement of expenses provided by this Section shall not be deemed exclusive
of any other rights to which any Person seeking indemnification or advancement
of expenses may be entitled under any agreement, statute or otherwise, both as
to action in such Person's official capacity and as to action in another
capacity at the Company's request while holding such office or position, and
shall continue as to a Person who has ceased to be an authorized representative
of the Company and shall inure to the benefit of the heirs and personal
representatives of such Person. Indemnification and advancement of expenses
under this Article shall be provided whether or not the indemnified liability
arises or arose from any threatened, pending or completed action by or in the
right of the Company. Any repeal or modification of this Article shall not
adversely affect any right or protection existing at the time of such repeal or
modification to which any Person may be entitled under this Section.
(g) For purposes of this Section, references to "the
Company" shall include all constituent limited liability companies, corporations
or other entities absorbed in a consolidation, merger or division, as well as
the surviving or new limited liability companies, corporations or other entities
surviving or resulting therefrom, so that (i) any Person who is or was an
authorized representative of a constituent, surviving or new limited liability
company, corporation or other entity shall stand in the same position under the
provisions of this Section with respect to the surviving or new limited
liability company, corporation or other entity as such Person would if he or she
had served the surviving or new limited liability company, corporation or other
entity in the same capacity and (ii) any Person who is or was an authorized
representative of the Company shall stand in the same position under the
provisions of this Section with respect to the surviving or new limited
liability company, corporation or other entity as such Person would with respect
to the Company if its separate existence had continued.
(h) For the purposes of this Section, the term "authorized
representative" shall mean a Manager, Observer, officer, employee or agent of
the Company or of any subsidiary of the Company, or a trustee, custodian,
administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the Company or by any subsidiary of the Company,
or a Person serving another corporation, partnership, joint venture, trust or
other enterprise in any of the foregoing capacities at the request of the
Company.
(i) No Member shall have any obligation to indemnify any
other Member, Manager, Observer, officer, employee, agent or other authorized
representative of the Company under any circumstances.
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(j) No Member, Manager, Observer, officer, Company employee
or Affiliate of any of the foregoing or their respective agents and/or the legal
representatives of any of them shall be liable to any Member, the Company or any
other Person for mistakes of judgment or for action or inaction which such
Member, Manager, Observer, officer, Company employee, Affiliate, agent or legal
representative reasonably believed to be in or not opposed to the best interests
of the Company unless such action or inaction constitutes willful misconduct,
bad faith, gross negligence or reckless disregard of, or is outside the scope
of, his or its duties and, with respect to any criminal action, such party
reasonably believes his conduct was lawful. Each Member, Observer and Manager
may (on its own behalf or on the behalf of any representative, any Affiliates of
such Member or their respective agents and/or legal representatives of any of
them) consult with counsel, accountants and other experts in respect of the
Company's affairs and such Person shall be fully protected and justified in any
action or inaction which is taken in accordance with the advice or opinion of
such counsel, accountants or other experts. Notwithstanding any of the foregoing
to the contrary, the provisions of this Section shall not be construed so as to
relieve (or attempt to relieve) (i) any Person of any liability, to the extent
(but only to the extent) that such liability may not be waived, modified or
limited under applicable law, but shall be construed so as to effectuate the
provisions of this Section to the fullest extent permitted by law or (ii) any
Member of any liability for the breach of any contract related to the Business,
including, without limitation, this Agreement.
Section 5.18. Member Protective Provisions. Notwithstanding any
----------------------------
other provision of this Agreement to the contrary, at any time when either of
WWFE or NBC (together with their respective Affiliates) (a) has less than three
(3) Managers designated by it to the Board of Managers and (b) has a Percentage
Interest greater than fifteen percent (15%), the Company shall not take any of
the following actions without the prior written approval of such Member:
(a) Issue any additional membership Interest, or any right
to acquire any membership Interest, in the Company to any Person (except in
accordance with Section 3.2 of this Agreement);
(b) Incur or guarantee any obligation or liability (fixed
or contingent) for borrowed money such that the Company has, individually or in
the aggregate, in excess of $1,000,100 of indebtedness and amounts guaranteed
outstanding at any time;
(c) Transfer or acquire assets that, individually or in the
aggregate, have a book value in excess of $1,000,100;
(d) Merge or consolidate with any other Person or engage in
any recapitalization, reclassification, reorganization or any other
extraordinary corporate transaction;
(e) Pledge, mortgage, grant a security interest in or
permit the placing of a lien or encumbrance on all or any part of the assets of
the Company other than in the ordinary course of the Company's business;
(f) Enter into or modify the terms of any agreement, or
engage in any transaction or enter into any arrangement, understanding or
commitment, with any Member or any Affiliate of any Member;
23
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(g) Settle any litigation or other proceeding in which the
amount involved exceeds $2,000,000;
(h) Confess a judgment against the Company in connection
with any threatened or pending legal action, execute or deliver any assignment
for the benefit of creditors of the Company, authorize the filing of a
bankruptcy petition, consent to the filing of an involuntary bankruptcy
petition, consent to the appointment of a trustee, receiver or liquidator of all
or substantially all of the Company's assets or, except as expressly permitted
pursuant to Section 8.4(c), voluntarily liquidate the Company; and
(i) Make any decision which affects the calculation of
Capital Accounts, Depreciation or Gross Asset Value or make or not make any
election for federal, state, local or non-U.S. tax matters.
Section 5.19. Subsequent Business Plan. At least forty five (45)
------------------------
days prior to the end of each Fiscal Year beginning with the Fiscal Year ending
April 30, 2002, the President shall present to the Board of Managers for its
approval an annual operating budget and capital budget for the Company for the
next Fiscal Year (each, a "Subsequent Business Plan"). Each Subsequent Business
Plan shall be in substantially the form of the Initial Business Plan and shall
contain, among other things, a quarterly schedule of Additional Capital
Contributions that the Company expects to need during the next Fiscal Year (any
Additional Capital Contributions contained in the Initial Business Plan and each
Subsequent Business Plan being hereinafter referred to as the "Scheduled
Contributions"). Notwithstanding any other provision of this Agreement to the
contrary, all Scheduled Contributions, and any modification of the Initial
Business Plan or any Subsequent Business Plan so as to increase by more than 5%
(whether by a single modification or a series of modifications with such effect)
the total amount of any Scheduled Contributions with respect to any fiscal
quarter of the Company, must be approved by each of WWFE and NBC; provided,
however, that if either WWFE or NBC fails to approve any of the foregoing
matters in the immediately preceding sentence and the Board of Managers
determines, in the exercise of its reasonable judgment, that the Company
requires additional funds in excess of the Members' Capital Contributions and
any Scheduled Contributions that have been approved by WWFE and NBC, then WWFE
and/or NBC may agree to lend the Company up to a combined aggregate of $5
million (but subject to the limitation that such $5 million amount shall be the
maximum outstanding balance of all such loans made by WWFE and/or NBC pursuant
to this Section 5.19 at any given time) on terms that, taken as a whole, are at
least as favorable to the Company as the terms that could then have been
obtained in an arm's length negotiation from a party that is not a Member or an
Affiliate of a Member. If both NBC and WWFE desire to make such loans to the
Company but are unable to agree on the amount that each such Member will lend to
the Company, such loans shall be made in proportion to their then respective
Percentage Interests (which, for purposes of this Section 5.19, shall be deemed
to include the Percentage Interests of their respective Affiliates).
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ARTICLE VI
DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND
LOSSES FOR FEDERAL INCOME TAX PURPOSES
--------------------------------------
Section 6.1. Distributions.
-------------
(a) General. Except as otherwise provided herein, the Board
-------
of Managers, acting in good faith and in furtherance of the purpose of the
Company, shall have sole discretion as to the amounts and timing of
distributions to Members and distributions to Members shall be in proportion to
the Members' Percentage Interests.
(b) Tax Distributions. The Board of Managers shall use its
-----------------
best efforts to estimate the Estimated Tax Amount for each fiscal quarter of the
Company prior to the close of such fiscal quarter, and shall make distributions
to each Member in an amount equal to the Estimated Tax Amount for that period
not later than the thirtieth (30th) day following the close of the fiscal
quarter. The Board of Managers shall, subject to any applicable covenants and
restrictions contained in the Company's loan agreements and other agreements or
obligations to which the Company or its properties are subject, use its best
efforts to ensure that the Estimated Tax Amount shall be distributed to each
Member. At the close of the Fiscal Year, the Board of Managers shall make proper
adjustments as may be necessary to the amounts of such distributions to
reconcile the final Estimated Tax Amount as of the close of the Fiscal Year with
the projected Estimated Tax Amount previously distributed to each Member with
respect to such Fiscal Year.
(c) Property Distributions. Except as otherwise provided in
----------------------
the Broadcast Agreement, the Board of Managers may not distribute to the Members
any property of the Company (other than cash) without the prior approval of the
Members. Any property so distributed to the Members shall be distributed to the
Members in accordance with their respective Percentage Interests; provided,
however, that so long as WWFE is a Member, the XFL logo, all related Trademarks
and Trademark applications, the XFL URL and all other intellectual property
rights related to the XFL (the "XFL Property Rights") shall not be distributed
in kind to any Member until the dissolution of the Company pursuant to Article
IX, and then shall be distributed only to WWFE upon such dissolution provided
that WWFE (i) has a Percentage Interest of at least ten percent (10%)
immediately prior to such dissolution and (ii) pays to the Company the fair
market value of the XFL Property Rights as determined by an appraiser selected
by the Liquidator.
(d) Priority Distributions. No later than the 30th day after
----------------------
the end of each Fiscal Year, the Board of Managers shall use its best efforts to
ensure that a distribution is made to the Class C Membership Unit holder of
record in an amount equal to the excess of (i) the cumulative Priority Return
from the inception of the Company to the end of such Fiscal Year, over (ii) the
sum of all prior distributions made to the Class C Membership Unit holder of
record. Accrual and payment of the Priority Return in any Fiscal Year is
contingent upon the Company recognizing a net Profit (determined without regard
to clause (vii) of the definition of Profit) in the Fiscal Year to which such
Priority Return relates.
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Section 6.2. Allocations.
-----------
(a) Profits and Losses. After giving effect to the special
------------------
allocations set forth in Section 6.2(b), Profits and Losses for any Fiscal Year
shall be allocated to the Members in proportion to their Percentage Interests.
(b) Special Allocations.
-------------------
The following special allocations shall be made in the
following order:
(i) Minimum Gain Chargeback. Except as otherwise
-----------------------
provided in Section 1.704-2(f) of the Regulations, notwithstanding any
other provisions of this Section 6.2, if there is a net decrease in
Company Minimum Gain during any Fiscal Year, each Member shall be
specially allocated items of Company income and gain for such Fiscal
Year (and, if necessary, subsequent Fiscal Years) in an amount equal
to such Member's share of the net decrease in Company Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be
determined in accordance with sections 1.704-2(f)(6) and 1.704-2(j)(2)
of the Regulations. This Section 6.2(b)(i) is intended to comply with
the minimum gain chargeback requirement in Section 1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.
(ii) Member Minimum Gain Chargeback. Except as
------------------------------
otherwise provided in Section 1.704-2(i)(4) of the Regulations,
notwithstanding any other provision of this Section 6.2, if there is a
net decrease in Member Nonrecourse Debt Minimum Gain attributable to a
Member Nonrecourse Debt during any Fiscal Year, each Member who has a
share of the Member Nonrecourse Debt Minimum Gain attributable to such
Member Nonrecourse Debt, determined in accordance with Section 1.704-
2(i)(5) of the Regulations, shall be specially allocated items of
Company income and gain for such Fiscal Year (and, if necessary,
subsequent Fiscal Years) in an amount equal to such Member's share of
the net decrease in Member Nonrecourse Debt, determined in accordance
with Regulations Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Member pursuant thereto. The
items to be so allocated shall be determined in accordance with
Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This
Section 6.2(b)(ii) is intended to comply with the minimum gain
chargeback requirement in Section 1.704-2(i)(4) of the Regulations and
shall be interpreted consistently therewith.
(iii) Qualified Income Offset. In the event any Member
-----------------------
unexpectedly receives any adjustments, allocations or distributions
described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-
1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Regulations,
items of Company income and gain shall be specially
26
<PAGE>
allocated to such Member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted
Capital Account Deficit of the Member as quickly as possible, provided
that an allocation pursuant to this Section 6.2(b)(iii) shall be made
only if and to the extent that the Member would have an Adjusted
Capital Account Deficit after all other allocations provided for in
this Section 6.2 have been tentatively made as if this Section
6.2(b)(iii) were not in the Agreement.
(iv) Gross Income Allocation. In the event any Member has a
-----------------------
deficit Capital Account at the end of any Fiscal Year which is in
excess of the sum of (i) the amount such Member is obligated to
restore pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially
allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to
this Section 6.2(b)(iv) shall be made only if and to the extent that
such Member would have a deficit Capital Account in excess of such sum
after all other allocations provided for in this Section 6.2 have been
made as if Section 6.2(b)(iii) and this Section 6.2(b)(iv) were not in
the Agreement.
(v) Nonrecourse Deductions. Nonrecourse Deductions for any
----------------------
Fiscal Year shall be specially allocated to the Members in proportion
to their respective Percentage Interests.
(vi) Member Nonrecourse Deductions. Any Member Nonrecourse
-----------------------------
Deductions for any Fiscal Year shall be specially allocated to the
Member who bears the economic risk of loss with respect to the Member
Nonrecourse Debt to which such Member Nonrecourse Deductions are
attributable in accordance with Regulations Section 1.704-2(i)(1).
(vii) Section 754 Adjustments. To the extent an adjustment to
-----------------------
the adjusted tax basis of any Company asset, pursuant to Code Section
734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be
taken into account in determining Capital Accounts as the result of a
distribution to a Member in complete liquidation of such Member's
Interest in the Company, the amount of such adjustment to Capital
Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases
such basis) and such gain or loss shall be specially allocated to the
Members in accordance with their Interests in the Company in the event
Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member
to whom such distribution was made in the event Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Priority Return. The Class C Membership Unit shall be
---------------
allocated items of income in an amount equal to the Priority Return
accrued during the Fiscal Year.
27
<PAGE>
(ix) Certain Correlative Adjustments. In the event that the
-------------------------------
taxable income of a Member in respect of a transaction between a
Member and the Company is increased by any taxing authority (pursuant
to Section 482 of the Code or otherwise), an amount of the correlative
deduction equal to the amount of such increase shall be specially
allocated to such Member.
(c) Other Allocation Rules.
----------------------
(i) For purposes of determining the Profits, Losses, or any
other items allocable to any period, Profits, Losses, and any such
other items shall be determined on a daily, monthly, or other basis,
as determined by the Board of Managers using any permissible method
under Code Section 706 and the Regulations thereunder.
(ii) The Members are aware of the income tax consequences of the
allocations made by this Section 6.2 and hereby agree to be bound by
the provisions of this Section 6.2 in reporting their shares of
Company income and loss for income tax purposes.
(d) Tax Allocations.
---------------
(i) Section 704(b) Allocations.
(A) Each item of income, gain, loss, deduction or credit
for federal income tax purposes which corresponds to an item of
income, gain, loss or expense that is either taken into account in
computing Profits or Losses or specially allocated pursuant to Section
6.2(b) (a "Book Item") shall be allocated among the Members in the
same proportions as the corresponding Book Item is allocated among
them pursuant to Section 6.2(a) or 6.2(b).
(B) If the Company recognizes Depreciation Recapture (as
defined below) in respect of the sale of any Company asset:
(i) the portion of the gain on such sale which is
allocated to a Member pursuant to Sections 6.2(a) or 6.2(b)
shall be treated as consisting of a portion of the Company's
Depreciation Recapture on the sale and a portion of the balance
of the Company's gain on such sale under principles consistent
with Regulations Section 1.1245-1; and
(ii) if, for federal income tax purposes, the Company
recognizes both "unrecaptured 1250 gain" (as defined in Section
1(h) of the Code) and gain treated as ordinary income under
Section 1250(a) of the Code in respect of such sale the amount
treated as Depreciation Recapture under Section 6.2(d)(i)(B)(i)
shall be comprised of a proportionate share of both such types
of gain.
28
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(iii) For purposes of Section 6.2(d)(i)(B)
"Depreciation Recapture" means the portion of any gain from
the disposition of an asset of the Company which, for
federal income tax purposes, (A) is treated as ordinary
income under Section 1245 of the Code, (B) is treated as
ordinary income under Section 1250 of the Code, or (C) is
"unrecaptured 1250 gain" as such term is defined in Section
1(h) of the Code.
(ii) Section 704(c) Allocations. In the event any property
of the Company is credited to the Capital Account of a Member at a
value other than its tax basis (whether as a result of a contribution
of such property or a revaluation of such property pursuant to clause
(ii) of the definition of Gross Asset Value), then allocations of
taxable income, gain, loss and deductions with respect to such
property shall be made in a manner which will comply with Section
704(c) of the Code and the Regulations thereunder. The Company, with
the consent of all Members, may make "curative" or "remedial"
allocations (within the meaning of the Regulations under Section
704(c) of the Code) including, but not limited to:
(A) "curative" allocations which offset the effect of the
"ceiling rule" for a prior Fiscal Year (within the meaning of Regulations
Section 1.704-3(c)(3)(ii)); and
(B) "curative" allocations from dispositions of contributed
property (within the meaning of Regulations Section 1.704-3(c)(3)(iii)(B)).
(iii) Other Provisions. The tax allocations made pursuant
----------------
to this Section 6.2(d) shall be solely for tax purposes and shall not
affect any Member's Capital Account or share of non-tax allocations or
distributions under this Agreement.
(e) Tax Elections. Upon the request of a transferee of Shares
-------------
or a distributee of a Company distribution, the Company shall make the election
provided for in Section 754 of the Code.
Section 6.3. Curative Allocations. The allocations set forth in
--------------------
Sections 6.2(b)(i), 6.2(b)(ii), 6.2(b)(iii), 6.2(b)(iv), 6.2(b)(v), 6.2(b)(vi),
6.2(b)(vii) and 6.4 (the "Regulatory Allocations") are intended to comply with
certain requirements of the Regulations. It is the intent of the Members that,
to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of
Company income, gain, loss or deduction pursuant to this Section 6.3.
Therefore, notwithstanding any other provision of this Article 6 (other than the
Regulatory Allocations), the Members jointly shall make such offsetting special
allocations of Company income, gain, loss or deduction in whatever manner that
the Members determine appropriate so that, after such offsetting allocations are
made, each Member's Capital Account balance is, to the extent possible, equal to
the Capital Account balance such Member would have had if the Regulatory
Allocations were not part of the Agreement and all Company items were allocated
pursuant to Sections 6.2(a), 6.2(b)(viii) and 6.2(b)(ix).
29
<PAGE>
Section 6.4. Loss Limitation. Losses allocated pursuant to Section
---------------
6.2(a) hereof shall not exceed the maximum amount of Losses that can be
allocated without causing any Member to have an Adjusted Capital Account Deficit
at the end of any Fiscal Year. In the event some but not all of the Members
would have Adjusted Capital Account Deficits as a consequence of an allocation
of Losses pursuant to Section 6.2(a) hereof, the limitation set forth in this
Section 6.4 shall be applied on a Member-by-Member basis and Losses not
allocable to any Member as a result of such limitation shall be allocated to the
other Members in accordance with the positive balances in such Members' Capital
Accounts so as to allocate the maximum permissible Losses to each Member under
Section 1.704-1(b)(2)(ii)(d) of the Regulations.
ARTICLE VII
ACCOUNTING
----------
Section 7.1. Books and Records.
-----------------
(a) The Board of Managers, or its designee, shall keep books
of account in which will be entered fully and accurately every transaction of
the Company. The books of account shall be kept on the accrual method of
accounting and in accordance with GAAP.
(b) Such books of account, together with all correspondence,
papers and other documents, shall be kept at such offices of the Company as the
Board of Managers shall designate and shall, upon reasonable notice to the Board
of Managers, be open to the examination of any Member, Manager or its authorized
representatives who will be permitted to make copies of all or any part thereof
at such Member's or Manager's cost.
(c) If the Federal income tax return of any Member is
audited, investigated, reviewed, or questioned by the Service, the Tax Matters
Member shall provide all books, records and other necessary financial
information regarding the Company which is in its possession, or can be obtained
by the Tax Matters Member, to such Member.
Section 7.2. Fiscal Year. To the extent permitted by Code Section
-----------
706 and the Regulations promulgated thereunder, the Fiscal Year and the tax year
of the Company shall begin upon the commencement of the existence of the Company
and shall expire on April 30 thereafter.
Section 7.3. Reports.
-------
(a) The Board of Managers shall have prepared at Company
expense, documents containing: (i) Internal Revenue Service Form K-1 or similar
form as may be required by the Service stating the Member's allocation of
income, gain, loss or credit for the fiscal year annually ("Tax Statements") (if
and so long as the Company is taxed under Subchapter K of the Code); (ii)
monthly management reports (to consist of an unaudited profit and loss
statement, an unaudited statement of cash flows and an unaudited condensed
balance sheet as of and for the month and year-to-date period then ended)
("Monthly Management Reports"); and (iii) financial statements (balance sheet,
statement of profits or losses, Members' equity, and changes in financial
position) on a quarterly and annual basis, which shall be
30
<PAGE>
prepared in accordance with GAAP and shall present fairly the financial
condition and results of operations of the Company as of the end of and for the
period covered thereby ("Financial Statements"). The quarterly Financial
Statements shall present the quarterly and year-to-date results of operations of
the Company, contain a comparative analysis to the same periods in the prior
Fiscal Year and be certified by the Chief Financial Officer of the Company. The
annual Financial Statements shall be both unaudited and certified by the Chief
Financial Officer of the Company, as well as audited and certified by the
Company's independent public accountants. Tax Statements shall be distributed
within ninety (90) days after the close of each Fiscal Year. Monthly Management
Reports shall be distributed within twenty one (21) days after each calendar
month. The Financial Statements with respect to the first three fiscal quarters
of the Company shall be distributed within forty-five (45) days after the close
of each such fiscal quarter and the Financial Statements with respect to the
fourth fiscal quarter of the Company and the full Fiscal Year shall be
distributed within ninety (90) days after the close of each Fiscal Year.
(b) The Board of Managers, at Company expense, shall cause to be
prepared and timely filed with appropriate federal and state regulatory and
administrative bodies, all reports required to be filed with such entities under
then-current applicable laws, rules and regulations. Such reports shall be
prepared on the accounting or reporting basis required by such regulatory
bodies. Any Member shall be provided with a copy of any such report upon
request and without expense to such Member. The Board of Managers shall cause
all income tax information returns for the Company to be prepared and, following
review and approval by NBC, timely filed with the appropriate authorities. The
Board of Managers hereby designates Deloitte & Touche LLP as the independent
public accountants for the Company; such independent public accountants may not
be discharged or otherwise replaced without the approval of the Board of
Managers.
(c) The Tax Matters Member shall give notice to all Members of
any audit or review of the Company by the Service and shall make such additional
reports to all the Members as are reasonably necessary to keep them informed of
the status of any such review or audit and any negotiations, proposed
settlements or litigation related thereto and shall inform the Members of the
manner in which they may opt out of any proposed settlements.
ARTICLE VIII
SALE, TRANSFER, AND ADMISSION
-----------------------------
Section 8.1. General.
-------
(a) WWFE Holding Period. Except as expressly permitted in this
-------------------
Agreement, WWFE shall not Transfer all or any portion of the Shares held by it
prior to the earlier to occur of (i) June 1, 2005 or (ii) the termination of the
Broadcast Agreement and NBC Parent's obligations thereunder.
(b) NBC Holding Period. Except as expressly permitted in this
------------------
Agreement, NBC shall not Transfer all or any portion of the Shares held by it
prior to the earlier
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to occur of (i) December 31, 2002 or (ii) the termination of the Broadcast
Agreement and NBC Parent's obligations thereunder.
Section 8.2. Transfers to Affiliates. Notwithstanding Section 8.1 of
-----------------------
this Agreement, any Member may, at any time, Transfer all (but not less than
all) of the Shares held by it to an Affiliate of such Member; provided that any
such transferee shall automatically be bound by the terms of this Agreement and
shall be required as a condition precedent to the consummation of such Transfer
to join in and execute and deliver a copy of this Agreement to the Members as a
party to this Agreement. No Transfer of Shares shall relieve the transferring
Member of any duty, responsibility or obligation hereunder. Notwithstanding the
foregoing, any Transfer pursuant to this Section 8.2 which, alone or together
with previous Transfers, causes a termination of the Company pursuant to Section
708 of the Code shall require the prior written consent of the Members.
Section 8.3. Right of First Refusal. If a Member (the "Offering
----------------------
Member") desires to Transfer (other than to an Affiliate pursuant to Section 8.2
or in a public offering registered under the Securities Act) all or any portion
of the Shares held by it (the "Offered Interest"), and such Transfer is
otherwise permitted by the terms of this Agreement, the Offering Member shall
first deliver a written notice (the "Transfer Notice") to the Company and the
other Members (such other Members, the "Offered Members") indicating that the
Offering Member desires to Transfer such Shares. Each Offered Member shall have
until the later of (i) thirty (30) Business Days from the date the Offer Notice
is given and (ii) five (5) Business Days after the Fair Market Value of the
Offered Interest is determined pursuant to Section 8.5 (such period, the "Offer
Period") in which to notify the Offering Member in writing whether it elects to
purchase all (but not less than all) of its pro rata share (based on the
percentage such Offered Member's Shares bear to the aggregate number of Shares
held by all Members other than the Offering Member) of the Offered Interest for
an aggregate cash purchase price equal to the Fair Market Value of its pro rata
share of the Offered Interest. If the Offered Members elect to purchase all of
the Offered Interest in accordance with this Section 8.3, the closing of such
purchase and sale shall occur within ten (10) Business Days after the end of the
Offer Period at such place as the Offering Member and the Offered Members may
agree. After completion of the procedures described in this Section 8.3, if the
Offered Members elect not to purchase all of the Offered Interest within the
Offer Period, the Offering Member may, during the sixty (60) Business Day period
following the end of the Offer Period, Transfer to any Person (the "Transferee")
all (but not less than all) of the Offered Interest at a price not less than the
Fair Market Value of the Offered Interest so Transferred. As a condition to
such Transfer, the Transferee shall agree in writing to be bound by this
Agreement to the same extent as the Offering Member was bound. If the proposed
Transfer is not completed within the sixty (60) Business Day period described
above, the Offered Interest shall again be subject to this Section 8.3.
Section 8.4. Put/Call on Termination of Broadcast Agreement.
----------------------------------------------
(a) WWFE Call Option. At any time following the
----------------
termination of the Broadcast Agreement, WWFE or an Affiliate thereof may, but
shall not be required to (except as required by Section 8.4(b)), purchase all
(but not less than all) of the Shares then owned by NBC (the "WWFE Call Option")
for an aggregate cash purchase price equal to the Fair Market Value of the
Shares then owned by NBC. If WWFE elects to exercise the WWFE Call Option, it
shall
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so notify NBC in writing of such election (the "Call Exercise Notice"),
whereupon NBC shall be obligated to sell the Shares then owned by it to WWFE.
The closing of the purchase and sale pursuant to this Section 8.4(a) (the "Call
Closing") shall occur on the later of (i) the thirtieth (30th) Business Day
after receipt by NBC of the Call Exercise Notice and (ii) the fifth (5th)
Business Day after the Fair Market Value of the Shares owned by NBC is
determined pursuant to Section 8.5, at such place as WWFE and NBC may agree. At
the Call Closing, NBC shall assign the Shares then owned by it to WWFE and WWFE
shall pay the purchase price for such Shares in cash or other immediately
available funds.
(b) NBC Put Right. At any time following the termination of the
-------------
Broadcast Agreement, NBC may, upon written notice to WWFE (the "NBC Put
Notice"), cause WWFE or an Affiliate thereof to purchase the Shares then owned
by NBC (the "NBC Put Right") for an aggregate cash purchase price equal to the
Fair Market Value of the Shares then owned by NBC. The closing of the purchase
and sale pursuant to this Section 8.4(b) (the "Put Closing") shall occur on the
later of (i) the thirtieth (30th) Business Day after receipt by WWFE of the NBC
Put Notice and (ii) the fifth (5th) Business Day after the Fair Market Value of
the Shares owned by NBC is determined pursuant to Section 8.5, at such place as
NBC and WWFE may agree. At the Put Closing, NBC shall assign the Shares then
owned by it to WWFE and WWFE shall pay the purchase price for such Shares in
cash or other immediately available funds.
(c) NBC Put Right as a Voluntary Liquidation. Notwithstanding
----------------------------------------
Section 8.4(b), WWFE shall have the right (exercisable by written notice to NBC
within thirty (30) Business Days after receipt by WWFE of the NBC Put Notice) to
reject the exercise by NBC of the NBC Put Right (the "Put Rejection"). Upon a
Put Rejection, (i) WWFE shall have no obligation to purchase the Shares owned by
NBC pursuant to Section 8.4(b), and the Company shall as promptly as practicable
thereafter be dissolved in accordance with the provisions of Article 9 of this
Agreement and the Act and (ii) for a period of three years after such
dissolution, neither WWFE nor any of its Affiliates shall, directly or
indirectly, own, operate, support (financially or otherwise) or broadcast (via
network, cable or otherwise) any teams, games or other events of a professional
football league, or own, operate or in any way participate in any professional
football league, provided, however that, nothing in this Section shall prohibit
WWFE (or any of its Affiliates) from owning, operating, supporting or
broadcasting any NFL team, game or other event.
Section 8.5. Fair Market Value. The Fair Market Value of any Shares to be
-----------------
Transferred pursuant to Section 8.3, Section 8.4, Section 14.2 or Section 14.3
shall be determined in accordance with the procedures set forth in this Section
8.5. If NBC and WWFE do not agree on the Fair Market Value of any such Shares
within a period of ten (10) Business Days following receipt of the Transfer
Notice, the Call Exercise Notice, the NBC Put Notice, the NBC IPO Put Notice or
the WWFE IPO Call Notice, as the case may be (the "Valuation Date"), the Fair
Market Value shall be determined by an appraiser mutually agreed upon by NBC and
WWFE. If an appraiser is not agreed upon within ten (10) Business Days following
the Valuation Date, each of NBC and WWFE shall select one appraiser who together
shall select a single appraiser who shall solely determine the Fair Market Value
of such Shares. The appraiser who shall determine the Fair Market Value of the
Shares shall do so within thirty (30) Business Days after the Valuation Date,
and the determination of such appraiser shall be final and binding
33
<PAGE>
upon the Members. In making its determination, the appraiser shall take into
consideration the following factors: the terms and conditions of any bona fide
third-party offer for the Shares; whether there are currently broadcast
arrangements in place with respect to XFL games and other events, or the
likelihood that such arrangements will be made, and the terms thereof; other
sources of revenue for the Business, whether or not then in existence.
Notwithstanding the foregoing, if a bona fide third-party (i.e., other than from
an Affiliate of any Member) offer for the Shares to be Transferred has been made
in writing, then the Fair Market Value of such Shares shall not be less than the
offer price therefor. All appraisers shall be investment banking firms of
national standing with experience in valuing sports franchises. The costs of the
appraisers shall be split equally between the Members.
Section 8.6. Additional Members. Additional Persons may be admitted
------------------
to the Company as Members and membership Interests may be created and issued to
those Persons upon the unanimous approval of the Members. A Person who becomes
a new Member shall execute and deliver a joinder to this Agreement pursuant to
which that Person agrees to be bound by all of the provisions of this Agreement
applicable to Members.
Section 8.7. Preemptive Rights.
-----------------
(a) Each Member shall have a preemptive right in proportion to
its Percentage Interest to subscribe for or to purchase (i) any shares of any
class of equity interest whatsoever which the Company may hereafter issue or
sell or (ii) any obligations or securities which the Company may hereafter issue
or sell convertible into or exchangeable for any equity interest in the Company
of any class or (iii) any warrants, options or other rights which the Company
may hereafter issue or sell that confer upon the holder or owner thereof the
right to subscribe for or purchase from the Company any of its equity interest
of any class or such convertible or exchangeable securities ((i), (ii) and (iii)
collectively, "New Securities"). Such preemptive right may be exercised in full
or in part at the Member's option and shall exist regardless of the character of
the consideration proposed to be received for the interests to be issued or sold
by the Company.
(b) In the event that the Company proposes to undertake an
issuance of New Securities, the Company shall give the Members written notice of
its intention, describing the type of New Securities and the price and general
terms upon which the Company proposes to issue such New Securities. Each Member
shall have twenty (20) days from the date any such notice is given to agree to
purchase all or any part of its pro rata share of such New Securities for the
price and upon the general terms specified in the notice by giving written
notice to the Company and stating therein the quantity of New Securities to be
purchased. In the event that any Member fails to exercise in full its preemptive
right within such twenty (20) day period, the Company shall have sixty (60) days
thereafter to sell the New Securities with respect to which preemptive rights
were not exercised at a price and upon general terms no more favorable to the
purchaser(s) thereof than specified in the Company's notice to the Members. In
the event the Company has not sold such New Securities within such sixty (60)
day period, the Company shall not thereafter issue or sell such New Securities
without first offering such New Securities to the Members in the manner provided
above.
34
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(c) "New Securities" shall not include Shares or other equity
interests or securities of the Company (i) issuable upon conversion of Shares
(or other equity interests or securities) or pursuant to any options, warrants,
rights or agreements, provided that the preemptive rights established by this
Section 8.7 shall apply with respect to the initial issuance, sale, grant or
entering into by the Company of such Shares (or other equity interests or
securities), options, warrants, rights or agreements, (ii) offered to the public
generally pursuant to an effective registration statement under the Securities
Act, (iii) issued pursuant to the acquisition by the Company of all or any part
of another Person, whether by merger, purchase of shares, purchase of assets or
other transaction, (iv) issued pursuant to any employee benefit plan approved in
accordance with this Agreement, (v) issued in connection with any
recapitalization, reclassification, reorganization or similar transaction or
(vi) issued pursuant to Section 3.2 of this Agreement.
ARTICLE IX
TERM AND DISSOLUTION
--------------------
Section 9.1. Term. The term of the Company commenced on the date of
----
filing of the Certificate with the Secretary of State of the State of Delaware
and shall continue with perpetual existence until dissolved as provided herein.
Section 9.2. Dissolution. In addition to those events listed in
-----------
Section 18-801 of the Act, the Company will be dissolved upon the occurrence of
any of the following:
(a) Agreement of all Members;
(b) Pursuant to Section 8.4(c); or
(c) An order of a court of competent jurisdiction ordering the
dissolution of the Company.
The death, retirement, resignation, bankruptcy or dissolution of any Member
shall not constitute an event of dissolution of the Company unless required by
the Act.
Section 9.3. Liquidation and Termination. On dissolution of the
---------------------------
Company, NBC and WWFE shall appoint a Liquidator. The Liquidator shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the Act. The costs of liquidation shall be borne as a
Company expense. Until final distribution, the Liquidator shall continue to
operate the Company properties with all of the power and authority of the Board
of Managers. The steps to be accomplished by the Liquidator are as follows:
(a) as promptly as possible after dissolution and again after final
liquidation, the Liquidator shall cause a proper accounting to be made by a
recognized firm of certified public accountants of the Company's assets,
liabilities, and operations through the last day of the calendar month in which
the dissolution occurs or the final liquidation is completed, as applicable;
35
<PAGE>
(b) the Liquidator shall pay, satisfy or discharge from Company funds
all of the debts, liabilities and obligations of the Company (including, without
limitation, all expenses incurred in liquidation) or otherwise make adequate
provision for payment and discharge thereof (including, without limitation, the
establishment of a cash escrow fund for contingent liabilities in such amount
and for such term as the Liquidator may reasonably determine); and
(c) all remaining assets of the Company shall be distributed to the
Members as follows:
(i) the Liquidator may sell any or all Company property,
including to Members; and
(ii) Company cash and property shall be distributed first to
redeem the Class C Membership Unit in an amount equal to $12.50 plus
any accrued and unpaid Priority Return (but only to the extent that
the amount of such accrued and unpaid Priority Return does not exceed
the amount of the Company's net Profit (determined without regard to
clause (vii) of the definition of Profit) in the Fiscal Year in which
the distribution occurs) and then among the Members in proportion to
their respective Percentage Interests. Such distributions shall be
made by the end of the taxable year of the Company during which the
liquidation of the Company occurs (or, if later, 90 days after the
date of the liquidation).
All distributions in kind to the Members shall be made subject to the liability
of each distributee for costs, expenses, and liabilities theretofore incurred or
for which the Company has committed prior to the date of termination and those
costs, expenses, and liabilities shall be allocated to the distributee pursuant
to this Section 9.3.
Section 9.4. Deficit Capital Accounts. Notwithstanding anything to
------------------------
the contrary contained in this Agreement, and notwithstanding any custom or rule
of law to the contrary, to the extent that the deficit, if any, in the Capital
Account of any Member results from or is attributable to deductions and losses
of the Company (including non-cash items such as depreciation), or distributions
of money or other property pursuant to this Agreement, upon dissolution of the
Company such deficit shall not be an asset of the Company and such Member shall
not be obligated to contribute such amount to the Company to bring the balance
of such Member's Capital Account to zero.
ARTICLE X
CONVERSION OF
CLASS B MEMBERSHIP UNITS
------------------------
Section 10.1. Optional Conversion. (a) Subject to and in compliance
-------------------
with the provisions of this Section 10.1, all (but not less than all)
outstanding Class B Membership Units may, at the option of the holder thereof,
be converted into a like number of Class A Membership Units upon 365 days' prior
written notice to the Board of Managers given at any time after the second
anniversary of the date of this Agreement (the "Conversion Notice"). The
Conversion
36
<PAGE>
Notice shall set forth the effective date of the conversion of the Class B
Membership Units into Class A Membership Units. The Conversion Notice may be
withdrawn by the holder of Class B Membership Units by written notice to the
Board of Managers at any time prior to the Conversion Date without prejudice to
the rights of such holder under this Article 10 or otherwise. Notwithstanding
the foregoing, if the audited or unaudited annual Financial Statements provided
pursuant to Section 7.3(a) with respect to any Fiscal Year ending on or after
April 30, 2002 reflect annual or cumulative operating results that are 5% or
more below the annual or cumulative operating results projected in the Initial
Business Plan or the Subsequent Business Plan for such period, as the case may
be, then, for a period of thirty (30) calendar days following the receipt by the
holder of the Class B Membership Units of such Financial Statements, such holder
may convert all (but not less than all) of the Class B Membership Units held by
it into a like number of Class A Membership Units, effective immediately upon
delivery at any time during such thirty (30) calendar day period of written
notice of such conversion to the Board of Managers (the "Performance Based
Conversion Notice"). In addition, notwithstanding the foregoing, in the event
the Company undertakes an IPO, the holder of the Class B Membership Units may
convert all (but not less than all) of the Class B Membership Units held by it
into a like number of Class A Membership Units by delivering written notice of
such conversion to the Board of Managers at any time prior to the date of the
closing of the IPO, and such conversion shall be effective on the date of, and
shall be expressly conditioned upon, the closing of the IPO.
(b) Reorganization, Recapitalization or Reclassification. If the
----------------------------------------------------
Class A Membership Units shall be changed into the same or a different number of
shares of any class or classes of equity of the Company, whether by
reorganization, recapitalization, reclassification or otherwise, then and in
each such event each holder of Class B Membership Units shall have the right
thereafter to convert such units into the kind and amount of shares of equity
and other securities and property receivable upon such reorganization,
recapitalization, reclassification or other change by holders of the number of
Class A Membership Units into which such Class B Membership Units might have
been converted immediately prior to such reorganization, recapitalization,
reclassification or change.
(c) Conversion Date. The date set forth in the Conversion Notice as
---------------
the effective date for the conversion of Class B Membership Units into Class A
Membership Units, or the date of delivery of the Performance Based Conversion
Notice, or the closing date of the IPO, as applicable, shall be the "Conversion
Date." Such conversion shall be deemed to have been effected immediately prior
to the close of business on the Conversion Date, and at such time the rights of
such holder as a holder of Class B Membership Units shall cease and such Person
shall be deemed to have become a holder of Class A Membership Units with all
rights appurtenant thereto. No Class B Membership Units that have been
converted shall be reissued without the prior approval of the Members.
(d) Reservation of Class A Membership Units. The Company hereby
---------------------------------------
expressly reserves 200,000 of the authorized but unissued Class A Membership
Units solely for the purpose of effecting the conversion of the Class B
Membership Units outstanding on the date hereof. The Members agree to take all
necessary action to cause the Company to at all times reserve and keep available
out of the authorized but unissued Class A Membership Units, solely for the
purpose of effecting the conversion of the Class B Membership Units, such number
of its
37
<PAGE>
Class A Membership Units as shall from time to time be sufficient to effect the
conversion of all outstanding Class B Membership Units.
ARTICLE XI
REDEMPTION OF THE
CLASS C MEMBERSHIP UNIT
-----------------------
NBC shall have the right, exercisable by written notice to the Board
of Managers at any time on or after the Conversion Date (the "Redemption
Notice"), to cause the Company to redeem the outstanding Class C Membership Unit
at a price equal to $12.50 plus any accrued and unpaid Priority Return on the
Class C Membership Unit. The Company shall, immediately following receipt of the
Redemption Notice, redeem the Class C Membership Unit from the holder thereof.
The Class C Membership Unit redeemed pursuant to this Article 11 shall be
canceled and may not, under any circumstances, be reissued, sold or Transferred
and the Company shall take such appropriate action as may be necessary to
eliminate the authorized Class C Membership Unit.
ARTICLE XII
DISPUTE RESOLUTION
------------------
Section 12.1. Arbitration. Subject to the provisions of Section 12.2
-----------
below, all disputes arising out of, or in connection with, this Agreement or the
commercial relationships between or among the parties that are created by this
Agreement, including any disputes concerning the formation, validity,
performance or termination of this Agreement or any of the rights or obligations
created or transferred hereby, and including any disputes concerning the
jurisdiction of the arbitral tribunal or the scope of arbitrable issues
(collectively, "Disputes"), shall be finally resolved by arbitration pursuant to
the UNCITRAL Arbitration Rules (the "Rules"). Any such arbitration shall be
administered by the American Arbitration Association through its global
headquarters in New York (the "AAA Global Headquarters"), and the AAA Global
Headquarters shall act as the appointing authority under the Rules. The place of
arbitration shall be New York, New York (without prejudice to the powers of the
arbitral tribunal under Articles 16 (2) and (3) of the Rules). The law to be
applied to the merits of any Dispute shall be the law of New York and, in the
event a claim is asserted that is governed by federal law, the arbitral tribunal
shall apply federal law as it would be applied to such a dispute by a United
States District Court for the Southern District of New York.
All pleadings, proceedings and information exchanged or disclosed in
the arbitration shall be treated as confidential and shall not be disclosed by
the parties except (1) as necessary in connection with the prosecution or
defense of the arbitration, (2) to protect or assert a right provided by law, or
(3) to comply with an obligation imposed by law. The arbitral tribunal shall
have the power to implement and enforce this agreement concerning
confidentiality by appropriate order.
Section 12.2. Submission to Member Management Prior to Arbitration.
----------------------------------------------------
If a Dispute arises, the Member intending to commence arbitration concerning the
Dispute shall,
38
<PAGE>
prior to commencing the arbitration, submit to the other Members who will be
made parties to the arbitration a letter (the "Notice Letter") setting forth the
nature of the Dispute, including the claims proposed to be asserted in
arbitration, the parties involved in the Dispute, and the nature and amount of
the relief to be sought in arbitration if the Dispute cannot be resolved. The
affected Members' executive management teams shall attempt in good faith to
resolve the Dispute within 10 calendar days after receipt of the Notice Letter,
including any disagreement concerning the number of arbitrators (one or three)
to be appointed in the event the Dispute proceeds to arbitration, and including
the selection of a sole arbitrator if a sole arbitrator is to be appointed. If
the Dispute is not resolved within such period of 10 calendar days, then any
Member who is a party to the Dispute may commence arbitration pursuant to the
Rules and, absent an agreement within such 10 calendar days upon a sole
arbitrator whom the parties shall jointly nominate, a three-member arbitral
tribunal shall be formed in accordance with the Rules, and the Member commencing
the arbitration shall nominate an arbitrator in the Notice of Arbitration (which
shall include the Statement of Claim provided for in Article 18 of the Rules) at
the time the arbitration is commenced.
Section 12.3. Consent to Jurisdiction. The parties hereby consent to
-----------------------
the exclusive jurisdiction of the United States District Court for the Southern
District of New York for the purposes of any judicial proceedings relating to an
arbitrable Dispute, including any proceedings to enforce or to set aside an
arbitral award.
ARTICLE XIII
CERTAIN PRE-CLOSING MATTERS
---------------------------
Section 13.1. General; Reimbursement of Expenses. The Members
----------------------------------
acknowledge that, prior to the date of this Agreement, each of NBC and WWFE (and
their respective Affiliates) has incurred expenses, acquired property or entered
into contracts in its individual capacity but for the benefit of the Company.
As soon as practicable after the date hereof (but subject to the approval of NBC
and WWFE as described below), the Company shall reimburse each of NBC and WWFE
for the reasonable expenses incurred by each of them (and their respective
Affiliates) in good faith and upon prior consultation with the other party for
the benefit of the Company after April 1, 2000 but prior to the date of this
Agreement. Each of NBC and WWFE shall submit to the other party an itemized list
of the expenses for which it seeks reimbursement pursuant to this Section 13.1
and shall provide such additional information or explanation with respect
thereto as the other party may reasonably request. The Company shall promptly
reimburse the expenses incurred by each of NBC and WWFE (and their respective
Affiliates) that NBC and WWFE reasonably determine were incurred in good faith
by such party and upon prior consultation with the other party for the benefit
of the Company during such period. The Company shall not reimburse either NBC or
WWFE for the fees and expenses of its (and its Affiliates') counsel or other
professional advisors or the costs incurred by such party (and its Affiliates)
in the negotiation of this Agreement and the transactions related thereto.
Section 13.2. Purchase and Sale of Certain Assets.
-----------------------------------
(a) WWFE Parent does hereby sell, assign, transfer, set over and
deliver unto the Company, and the Company does hereby purchase, pay for and
accept from
39
<PAGE>
WWFE Parent, the assets and properties set forth on Exhibit B to this Agreement
(the "Purchased Assets"). The Company does hereby pay in immediately available
funds to WWFE Parent the aggregate purchase price for the Purchased Assets set
forth on Exhibit B. After the date hereof, WWFE Parent shall execute and deliver
such other documents and instruments as may be reasonably necessary or
appropriate to more fully vest title to the Purchased Assets in the Company.
(b) WWFE Parent represents and warrants to the Company the following:
WWFE Parent owns all of the Purchased Assets free and clear of any liens,
pledges, security interests, restrictions, third-party rights, claims and
encumbrances of any nature whatsoever. The intellectual property included in
the Purchased Assets (the "Purchased Intellectual Property") is valid and
subsisting. The use of the Purchased Intellectual Property does not infringe on
the rights of any Person and, to the best knowledge of WWFE Parent, no Person is
infringing on the Purchased Intellectual Property. There is no pending or, to
the best knowledge of WWFE Parent, threatened claim challenging the ownership,
validity, effectiveness or use by WWFE Parent of the Purchased Intellectual
Property.
ARTICLE XIV
INITIAL PUBLIC OFFERING
-----------------------
Section 14.1. Initial Public Offering. NBC and WWFE may mutually
-----------------------
agree at any time to undertake an initial public offering (the "IPO") of equity
interests in the Company. In the IPO, NBC and WWFE shall have equal rights of
participation. Without limiting the authority of NBC and WWFE to elect
otherwise, NBC and WWFE may, subject to applicable tax and accounting
considerations, agree to convert the Company into a corporation in order to
facilitate the IPO. Prior to incorporation, the Company shall redeem the Class C
Membership Unit at a price equal to $12.50 plus any accrued and unpaid Priority
Return (but only to the extent that the amount of such accrued and unpaid
Priority Return does not exceed the amount of the Company's net Profit
(determined without regard to clause (vii) of the definition of Profit) in the
Fiscal Year in which the redemption occurs). Upon incorporation, the total
outstanding shares of common stock of the corporation shall be distributed among
the Members in proportion to their respective Percentage Interests on the date
of incorporation. Upon incorporation, each Member shall have the registration
rights with respect to such shares of common stock as are set forth in the form
of Registration Rights Agreement attached hereto as Exhibit C. The Members shall
work diligently and shall cooperate in good faith to consummate any IPO that is
undertaken by the Company as promptly as practicable.
Section 14.2. NBC's Right to Request IPO. If, at any time after the
--------------------------
completion of the second full football season conducted by the Company, NBC
shall notify WWFE in writing (the "NBC IPO Notice") of its good faith desire to
undertake the IPO, and either (i) WWFE does not agree within ninety (90)
calendar days following receipt of the NBC IPO Notice to cause the Company to
effect the IPO or (ii) the IPO is not consummated by the first anniversary of
the date of receipt of the NBC IPO Notice, then NBC may (subject to the
remainder of this Section 14.2), upon written notice to WWFE (the "NBC IPO Put
Notice"), cause WWFE or an Affiliate thereof to purchase all or any portion of
the Shares then owned by NBC (the "NBC IPO Put Right") for an aggregate cash
purchase price equal to the Fair Market
40
<PAGE>
Value of such Shares. The closing of the purchase and sale pursuant to this
Section 14.2 shall occur on the later of (i) the thirtieth (30th) Business Day
after receipt by WWFE of the NBC IPO Put Notice and (ii) the fifth (5th)
Business Day after the Fair Market Value of the Shares then owned by NBC is
determined pursuant to Section 8.5, at such place as NBC and WWFE may agree. At
the closing, NBC shall assign the Shares being sold to WWFE and WWFE shall pay
the purchase price for such Shares in cash or other immediately available funds.
Notwithstanding the foregoing, if an underwriter of national standing mutually
acceptable to NBC and WWFE determines in good faith that market conditions are
not favorable for the IPO within the one year period referred to in clause (ii)
above, then such period shall automatically be extended until such time as such
underwriter determines in good faith that market conditions have become
favorable for the IPO. The NBC IPO Put Right shall be suspended and may not be
exercised by NBC during any such extension of the one year period referred to
above.
Section 14.3. WWFE's Right to Request IPO. If, at any time after the
---------------------------
completion of the second full football season conducted by the Company, WWFE
shall notify NBC in writing (the "WWFE IPO Notice") of its good faith desire to
undertake the IPO, and NBC does not agree within ninety (90) calendar days
following receipt of the WWFE IPO Notice to cause the Company to effect the IPO,
then WWFE or an Affiliate thereof may, upon written notice to NBC (the "WWFE IPO
Call Notice"), purchase all or any portion of the Shares then owned by NBC (the
"WWFE IPO Call Option") for an aggregate cash purchase price equal to the Fair
Market Value of such Shares. The closing of the purchase and sale pursuant to
this Section 14.3 shall occur on the later of (i) the thirtieth (30th) Business
Day after receipt by NBC of the WWFE IPO Call Notice and (ii) the fifth (5th)
Business Day after the Fair Market Value of the Shares then owned by NBC is
determined pursuant to Section 8.5, at such place as WWFE and NBC may agree. At
the closing, NBC shall assign the Shares being purchased to WWFE and WWFE shall
pay the purchase price for such Shares in cash or other immediately available
funds.
ARTICLE XV
GENERAL PROVISIONS
------------------
Section 15.1. eCommerce Activities; Merchandise Fulfillment. The
---------------------------------------------
Company shall use commercially reasonable efforts to utilize the services of
ValueVision International, Inc. as the provider of (i) direct television sales
and marketing of the Company's merchandise and (ii) fulfillment services for
electronic commerce engaged in by the Company.
Section 15.2. Binding Effect and Benefit. This Agreement will be
--------------------------
binding upon, and will inure to the benefit of, the parties hereto and their
successors and permitted assigns.
Section 15.3. Certificates, etc. At the expense of the Company, the
------------------
Members shall promptly cause to be prepared and executed all legally required
fictitious name, state qualification or other applications, registrations,
publications, certificates and affidavits for filing with the proper
governmental authorities, and shall arrange for the proper advertisement,
publication and filing thereof for record where required by applicable law in
any jurisdiction in which such is required.
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Section 15.4. Members' Relationships Inter Se. Except as expressly
-------------------------------
provided herein, nothing herein contained will be construed to constitute any
Member the agent of any other Member or in any manner to limit the Members in
the carrying on of their own respective business or activities. Except as
provided in 13.1 hereof, to the extent any Member has entered into agreements
with respect to the Company and is not entitled to be reimbursed hereunder or
under any other agreement among the parties hereto for expenses incurred in
carrying out such agreements, such expenses shall be considered the sole
obligation of the Member.
Section 15.5. Notices, Statements, etc. All notices, statements or
-------------------------
other documents which are required or contemplated by this Agreement shall be in
writing and delivered personally or sent by first class registered or certified
mail (postage prepaid, return receipt requested), overnight courier service or
telecopy to the address most recently provided to the Members or such other
address or telecopy number as may be designated in writing by any party to the
other parties hereto. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered personally, on
the business day following receipt of telecopy confirmation, if sent by
telecopy, one business day after delivery to an overnight courier service or
five days after mailing if sent by mail.
Section 15.6. Integration/Amendments. This Agreement, the
----------------------
Merchandising Agreement and the Broadcast Agreement represent the entire
understanding of the parties and supersede and cancel any and all prior
negotiations, undertakings and agreements among the parties with respect to
their subject matter. This Agreement may be amended, and any provision hereof
may be waived, at any time and from time to time with the prior consent of the
Members.
Section 15.7. Interpretation. Whenever in this Agreement reference
--------------
is made to "this Agreement" or to any provision "hereof", or words to similar
effect, such reference shall be construed to refer to this Agreement. As used
in this Agreement, any gender will include any other gender and the plural will
include the singular and the singular will include the plural, each wherever
appropriate. The titles of the articles and sections herein have been inserted
for convenience of reference only and will not control or affect the meaning or
construction of any term or provision hereof.
Section 15.8. Governing Law. This Agreement shall be interpreted and
-------------
construed in accordance with the law of the State of Delaware, without regard to
the conflict of laws provisions thereof.
Section 15.9. Severability. If one or more provisions of this
------------
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision was so excluded and shall be enforceable in
accordance with its terms.
Section 15.10. Counterparts. This Agreement may be executed in
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counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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Section 15.11. Guarantees.
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(a) By WWFE Parent. WWFE Parent hereby absolutely,
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unconditionally and irrevocably guarantees the prompt payment and performance,
in each case when due, of all obligations (monetary and non-monetary) of WWFE
and/or any of its Affiliates under this Agreement. WWFE Parent agrees that this
guarantee is continuing in nature and shall survive and continue in full force
notwithstanding the dissolution or liquidation of, or the insolvency or
bankruptcy of, merger or any other corporate change or other occurrence
whatsoever affecting the obligations and liabilities of WWFE or any such
Affiliate. WWFE Parent agrees that, with respect to the monetary obligations of
WWFE or any such Affiliate under this Agreement, this Section 15.11(a) is a
guarantee of performance and payment and not merely of collection, and that WWFE
Parent will perform said obligations without offset of any kind and without
first pursuing any rights or remedies that it may have against WWFE or any such
Affiliate, regardless of the existence or adequacy of such rights or remedies.
WWFE Parent agrees to reimburse the Company for all costs and expenses,
including reasonable attorneys' fees and expenses, incurred by the Company in
connection with the enforcement of the Company's rights under this Section
15.11(a). WWFE Parent hereby unconditionally and irrevocably waives, to the
extent permitted by applicable law, (i) notice of acceptance of the guarantee
and any notice regarding the performance or non-performance of WWFE or any such
Affiliate with respect to any of its obligations hereunder, (ii) presentment for
payment, notice of non-payment or non-performance, demand, protest, notice of
protest and notice of dishonor or default to anyone, (iii) defenses to pay or
perform based upon any of the obligations of WWFE or any such Affiliate
hereunder not being a valid and binding obligation of WWFE or any such Affiliate
enforceable in accordance with its terms for any reason whatsoever, (iv) all
other notices to which WWFE Parent may be entitled but which may legally be
waived, (v) any defense or circumstance which might otherwise constitute a legal
or equitable discharge of WWFE Parent and (vi) all rights under any state or
federal statute dealing with or affecting the rights of creditors. WWFE Parent
represents and warrants that WWFE is, and at all times during the term of this
Agreement will be, a wholly-owned subsidiary of WWFE Parent.
(b) By NBC Parent. NBC Parent hereby absolutely,
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unconditionally and irrevocably guarantees the prompt payment and performance,
in each case when due, of all obligations (monetary and non-monetary) of NBC
and/or any of its Affiliates under this Agreement. NBC Parent agrees that this
guarantee is continuing in nature and shall survive and continue in full force
notwithstanding the dissolution or liquidation of, or the insolvency or
bankruptcy of, merger or any other corporate change or other occurrence
whatsoever affecting the obligations and liabilities of NBC or any such
Affiliate. NBC Parent agrees that, with respect to the monetary obligations of
NBC or any such Affiliate under this Agreement, this Section 15.11(b) is a
guarantee of performance and payment and not merely of collection, and that NBC
Parent will perform said obligations without offset of any kind and without
first pursuing any rights or remedies that it may have against NBC or any such
Affiliate, regardless of the existence or adequacy of such rights or remedies.
NBC Parent agrees to reimburse the Company for all costs and expenses, including
reasonable attorneys' fees and expenses, incurred by the Company in connection
with the enforcement of the Company's rights under this Section 15.11(b). NBC
Parent hereby unconditionally and irrevocably waives, to the extent permitted by
applicable law, (i) notice of acceptance of the guarantee and any notice
regarding the performance or non-performance of NBC or any such Affiliate with
respect to any of its obligations hereunder, (ii)
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presentment for payment, notice of non-payment or non-performance, demand,
protest, notice of protest and notice of dishonor or default to anyone, (iii)
defenses to pay or perform based upon any of the obligations of NBC or any such
Affiliate hereunder not being a valid and binding obligation of NBC or any such
Affiliate enforceable in accordance with its terms for any reason whatsoever,
(iv) all other notices to which NBC Parent may be entitled but which may legally
be waived, (v) any defense or circumstance which might otherwise constitute a
legal or equitable discharge of NBC Parent and (vi) all rights under any state
or federal statute dealing with or affecting the rights of creditors. NBC Parent
represents and warrants that NBC is, and at all times during the term of this
Agreement will be, a wholly-owned subsidiary of NBC Parent.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
WWFE SPORTS, INC.
By:_____________________________
Title:__________________________
NBC-XFL HOLDING, INC.
By:____________________________
Title:_________________________
WORLD WRESTLING FEDERATION ENTERTAINMENT, INC.,
solely for the purpose of agreeing to be bound by Sections 13.2 and 15.11 of
this Agreement.
By:____________________________
Title:_________________________
NATIONAL BROADCASTING COMPANY, INC.,
solely for the purpose of agreeing to be bound by Section 15.11 of this
Agreement.
By:____________________________
Title:_________________________
45