OPERATING AGREEMENT
OF
AFILIAS, LLC
A Delaware Limited Liability Company
Dated as of September 25, 2000
LIMITED LIABILITY COMPANY OPERATING AGREEMENT dated as of September 25, 2000 (this "Agreement"), of Afilias, LLC, a Delaware limited liability company (the "Company") organized under the Delaware Limited Liability Company Act, as amended from time to time (the "Act"), by and among the Persons listed on Schedule A attached hereto, who have executed a counterpart of this Agreement (individually, a "Member" and collectively, the "Members"). The members listed on Schedule A as of the date hereof are collectively referred to as the "Founding Members."
WHEREAS, the Company has been formed in accordance with the provisions of the Act and the Members desire to enter into a written agreement pursuant to the Act governing the affairs of the Company and the conduct of its business.
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
"Adjusted Capital Account " shall mean, at any time, the balance, if any, in the Capital Account of a Member, at the end of the relevant Fiscal Period, after giving effect to the following adjustments:
(a) credit to such Capital Account any amounts that such Member is obligated to restore pursuant to any provisions of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Treasury Regulation Section 1.704-2(g)(1) and Treasury Regulation Section 1.704-2(i)(5), or any successor provisions; and
(b) debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.
"Affiliate" (and, with a correlative meaning, "Affiliated") shall mean, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. As used in this definition, "control" (including, with correlative meanings, "controlled by" and "under common control with") shall mean possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
"Available Cash" shall mean, for the purposes of calculating the Rebate at the end of any Fiscal Period, the Cash Available For Distribution at the end of such Fiscal Period calculated excluding the Rebate with respect to such Fiscal Period.
"Capital Account" shall mean, with respect to any Member, the capital account maintained for such Member in accordance with Section 5.6.
"Cash Available For Distribution" shall mean for any period, the excess, if any, of: (i) the sum of (A) the cash on hand of the Company and (B) any reasonable amounts withdrawn from the reserves of the Company at the discretion of the Board over (ii) the amount of any reasonable additional reserves of the Company set aside during such period at the discretion of the Board.
"Cause" shall mean with respect to any Member or Manager any of the following: (i) drug or alcohol abuse which materially affects such Member's or Manager's performance; (ii) conviction of a felony or conviction of a misdemeanor which in the determination of the Board adversely affects the Company or such Member's ability to perform his duties hereunder; (iii) adjudication as an incompetent; (iv) misappropriation of corporate funds or other acts of dishonesty with respect to the Company; (v) such Member's or Manager's breach of this Agreement in any other material respect; (vi) the failure of such Member or Manager to diligently, substantially and satisfactorily perform duties assigned by the Company; or (vii) the failure of such Member or Manager to abide by any material policy of either the Internet Corporation for Assigned Names and Numbers or its successors in interest (including its successors in interest "ICANN") or the Company. Loss of accredited status with ICANN by itself will not constitute Cause.
"Company Minimum Gain" shall have the meaning of "partnership minimum gain" set forth in Treasury Regulations Section 1.704-2(b)(2) and 1.704-2(d).
"Fiscal Period" shall mean, subject to the provisions of Section 706 of the Code: (i) the period commencing on the date of formation of the Company and ending on December 31, 2000, (ii) any subsequent 12 month period commencing on January 1 and ending on December 31, (iii) the period commencing on January 1 and ending on the date on which all of the assets of the Company are distributed to Members pursuant to Article IX, and (iv) any portion of the periods described in clauses (i), (ii) and (iii) of this sentence for which the Company is required to allocate Net Income, Net Losses or other items of Company income, gain, loss or deduction pursuant to Article VI or distribute proceeds pursuant to Article VI.
"Gross Asset Value" shall mean with respect to any Company asset, the asset's adjusted basis for federal income tax purposes, except as follows:
(a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be its fair market value on the date of the contribution;
(b) the Gross Asset Value of all Company assets will be adjusted to equal their respective fair market values, as determined by the Tax Matters Partner, as of the date of (i) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis capital contribution, (ii) the distribution by the Company of property as consideration for a Member's interest in the Company, and (iii) the liquidation of the Company, within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses (i) and (ii) above shall be made only if the Tax Matters Partner determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(c) the Gross Asset Value of any Company asset distributed (including, without limitation, in any liquidation under Article IX hereof) to any Member shall be adjusted to equal its fair market value as of the date of distribution, unreduced by any liability secured by such asset; and
(d) the Gross Asset Value of Company assets will be increased or decreased to reflect any adjustment to the adjusted basis of such assets under Code Sections 734(b) or 743(b), but only to the extent that the adjustment is taken into account in determining Capital Accounts under Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph (f) of the definition of Net Income or Net Losses; provided however, that Gross Asset Values shall not be adjusted pursuant to this paragraph (d) to the extent that the Tax Matters Partner determines that an adjustment pursuant to paragraph (b) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d); and
If the Gross Asset Value of an asset has been determined or adjusted pursuant to paragraphs (a), (b), or (d) above, such Gross Asset Value shall thereafter be adjusted by the depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.
"Member Nonrecourse Debt" shall have the meaning of "partner nonrecourse debt" as set forth in Treasury Regulation Section 1.704-2(b)(4).
"Member Nonrecourse Debt 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 Treasury Regulations Section 1.704-2(i).
"Member Nonrecourse Deductions " shall have the meaning of "partner nonrecourse deductions" set forth in Treasury Regulations Section 1.704-2(i).
"Net Income and Net Losses" shall mean for each Fiscal Period, an amount equal to the Company's items of taxable income or loss for such Fiscal Period, determined in accordance with Section 703 of the Code (for this purpose all items of income, gain, loss and deduction required to be separately stated pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments (without duplication):
(a) any income that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss shall be added to taxable income or loss;
(b) any expenditures of the Company described in Section 705(a)(2)(B) or that are treated as Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Losses, shall be subtracted from such taxable income or loss;
(c) in the event that the Gross Asset Value of any Company asset is adjusted pursuant to the definition of Gross Asset Value, the amount of such adjustment shall be taken into account 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 Net Income or Net Losses;
(d) gain or loss resulting from the 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;
(e) in lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing taxable income or loss, there shall be taken into account depreciation with respect to each asset of the Company for such Fiscal Period in an amount which bears the same ratio to the beginning Gross Asset Value of such asset as the federal income tax depreciation, amortization or cost recovery deduction for such Fiscal Period bears to such asset's beginning adjusted tax basis; provided however, that if the adjusted tax basis is zero, the depreciation shall be determined by any reasonable method determined by the Tax Matters Partner.
(f) to the extent an adjustment to the adjusted basis of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations to be taken into account in determining Capital Accounts as a result of a distribution other than in complete liquidation of a Member's interest, 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 the basis of the asset) from the disposition of the asset and shall be taken into account in computing Net Income or Net Losses; and
(g) notwithstanding any other provision of this definition, any items specially allocated pursuant to Section 6.2 shall not be considered in determining Net Income or Net Losses.
The amounts of items of Company income, gain, loss, or deduction available to be specifically allocated pursuant to Section 6.2 hereof shall be determined by applying rules analogous to those set forth in paragraphs (a) through (f) hereof.
"Nonrecourse Deductions" shall have the meaning specified in Treasury Regulation Section 1.704-2(b)(1).
"Nonrecourse Liability" shall have the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).
"Registrar " shall mean any Person accredited by ICANN to register domain names.
"Termination Event " shall mean with respect to each Member or Manager (i) filing of a petition or commencing other proceedings seeking reorganization, liquidation, arrangement or other similar relief under any federal or state law relating to bankruptcy or insolvency, (ii) consenting to or seeking the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official for itself or for a substantial part of its property, (iii) the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official for itself or for a substantial part of its property, (iv) making an assignment for the benefit of creditors, (v) admitting in writing its inability to pay its debts generally as they become due, (vi) consenting to the commencement or continuation of bankruptcy, reorganization, liquidation, insolvency or similar proceedings against it, (vii) filing an answer or other pleading admitting or failing to contest the material allegation of a petition or other pleading filed against it in any bankruptcy, reorganization, liquidation, insolvency or other similar proceedings involving such Member or Manager, (viii) taking any corporate, partnership, limited liability company, association, business trust, or any other company or entity action in furtherance of the foregoing, or (ix) becoming subject to involuntary proceedings under any bankruptcy, reorganization, liquidation, insolvency or other similar proceedings, which proceedings are not dismissed within 90 days after their commencement.
"Unit Percentage" with respect to a Member shall mean the percentage obtained by multiplying (i) a fraction where the numerator is the number of Units held by such Member and the denominator is the total number of Units held by all Members by (ii) 100%.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 Formation. The Members have formed the Company as a limited liability company pursuant to the Act. A certificate of formation described in Section 18-201 of the Act (the "Certificate of Formation") has been filed with the Secretary of State of the State of Delaware in conformity with the Act. The Company and, if required, each of the Members shall execute or cause to be executed from time to time all other instruments, certificates, notices and documents and shall do or cause to be done all such acts and things (including keeping books and records and making publications or periodic filings) as may now or hereafter be required for the formation, valid existence and, when appropriate, termination of the Company as a limited liability company under the laws of the State of Delaware.
Section 2.2 Company Name. The name of the Company is "Afilias, LLC" or such other name or names as may be selected by the Members from time to time, and its business shall be carried on in such name with such variations and changes as the Board deems necessary to comply with requirements of the jurisdictions in which the Company's operations are conducted.
Section 2.3 Registered Office; Registered Agent. The Company shall maintain a registered office in the State of Delaware at, and the name and address of the Company's registered agent in the State of Delaware is, Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The Board may, from time to time, change the Company's registered office and/or registered agent and shall forthwith amend the Certificate of Formation to reflect such change(s).
Section 2.4 Place of Business. The business address of the Company shall be determined by the Board. The Company may from time to time have such other place or places of business within or without the State of Delaware or the United States of America as the Board may deem advisable.
Section 2.5 Purpose; Nature of Business Permitted; Powers. The Company is formed for the purposes of bidding for, developing, financing, marketing, owning and operating a registry (the "Registry") to register and maintain Internet top level domain names and engaging in any other business or activity necessary, incidental, proper, advisable or convenient to accomplish the foregoing purposes. The Company shall possess and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, insofar as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business purposes or activities of the Company. The Company shall comply with all laws and regulations relating to trademarks and the prevention of cybersquatting that apply to the operation of a domain name registry.
Section 2.6 Business Transactions of a Member with the Company. In accordance with Section 18-107 of the Act, a Member may lend money to, borrow money from, act as surety, guarantor or endorser for, guarantee or assume one or more obligations of, provide collateral for, and transact other business with, the Company and, subject to applicable law, shall have the same rights and obligations with respect to any such matter as a Person who is not a Member.
Section 2.7 Company Property. No real or other property of the Company shall be deemed to be owned by any Member individually, but shall be owned by and title shall be vested solely in the Company. The interests of the Members in the Company shall constitute personal property.
Section 2.8 Term. The existence of the Company shall commence on the date of the filing of the Certificate of Formation in the office of the Secretary of State of the State of Delaware in accordance with the Act, and, subject to the provisions of Article IX hereof, the Company shall have a perpetual life.
Section 2.9 No State Law Partnership. The Members intend that the Company not be a partnership (including a limited partnership) or joint venture and that, with respect to the Company's business, no Member or Manager be a partner or joint venturer of any other Member or Manager for any purposes other than applicable tax laws. This Agreement may not be construed to suggest otherwise.
Section 2.10 Fiscal Year. The fiscal year of the Company (the "Fiscal Year") for financial statement and federal income tax purposes shall be determined by the Board.
ARTICLE III
MEMBERS
Section 3.1 Members. The name, address and Unit Percentage of the Members are set forth on Schedule A hereto, which shall be amended from time to time to reflect the admission of new Members or additional capital contributions of Members. Members may not be removed without Cause.
Section 3.2 Admission of New Members. New members may be admitted to the Company either pursuant to the procedures set forth in Section 3.6(f), or as set forth in this Section 3.2. On or about the 210th day after the date the Registry becomes operational for registration by the general public (excluding any closed registration periods) and on every anniversary thereafter (each such date, a "Subscription Date") the Board shall establish a subscription program (each such program, a "Subscription Program") for all Registrars, other than for the Founding Members for the first Subscription Program, that are active and operational as of the Subscription Date and have made at least one hundred registrations with the Registry. The Subscription Programs will permit such Registrars to subscribe for Class B Units of the Company, subject to applicable laws and the following criteria:
| (i) | each subscriber will have to satisfy such financial, technical and other criteria, which shall have been prepared by the Board and approved by a majority of the Members, in order to participate in a Subscription Program; |
| (ii) | the Board shall determine the total number of Class B Units being offered in a Subscription Program as well as the other terms and conditions of the Subscription Program and, in each Subscription Program, no subscriber will be permitted to purchase Class B Units representing more than 5% of the total number of Units outstanding on a fully diluted basis; and |
| (iii) | the subscription price for each Class B Unit will be the fair market value of such units, as determined by an independent third party selected by the Board and approved by a majority of the Members. |
Section 3.3 Classes. The membership interests of the Company shall consist of Class A membership interests ("Class A Units") and Class B membership interests ("Class B Units", and together with the Class A Units, the "Units"). Except as specifically provided in Section 3.6(a), Section 6.1 and Section 6.4, all Units shall be identical with each other in every respect.
Section 3.4 No Liability of Members. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member.
Section 3.5 Access to and Confidentiality of Information; Records.
(a) Subject to the remaining provisions of this Section 3.5, each Member shall have the right to obtain from the Company from time to time upon reasonable demand for any purpose reasonably related to such Member's interest as a member of the Company, the documents and other information described in Section 18-305(a) of the Act. Any demand by a Member pursuant to this Section 3.5(a) shall be in writing and shall state the purpose (the "Stated Purpose") of such demand. All such information and any additional information (including, without limitation, information concerning the Registry, pricing, business plans, market analysis, costs, valuations, utilization of information technologies, hardware and software assets, personnel, research, development or know-how), whether oral, written or in any other medium, concerning the Registry, the Company or any of its Members, and all analyses, compilations, forecasts, studies or other documents prepared based on any such information, are collectively referred to as "Confidential Information." Notwithstanding the foregoing, Members (other than the Board) agree that they shall not have access to confidential data regarding individual Registrars and the Board may, in its sole and absolute discretion, deny any Member access to any Confidential Information if it determines that such Member's Stated Purpose conflicts with the business of the Company or its prospects (whether immediate, long-term or otherwise) or if such disclosure would violate any applicable laws. In addition to the foregoing, Members agree that they will not, individually or collectively, compete with the Company with respect to renewal of the right to maintain and operate the Registry should the Company elect to apply for a renewal of its right to maintain and operate the Registry.
(b) Any Member directly or through its officers, directors, employees, agents, advisors, consultants, contractors, affiliates or representatives (collectively, "Representatives") receiving Confidential Information (the "Receiving Party") from the Company shall keep such Confidential Information confidential, and shall not disclose such Confidential Information to any third party. The Receiving Party may disclose the Confidential Information only to those of its Representatives who have a need to know such information for the Stated Purpose, and only if (a) such Representatives are informed of the confidential nature of the Confidential Information, and (b) such Representatives are subject to confidentiality obligations as an employee or Representative similar to those in this agreement. The Receiving Party shall use such Confidential Information solely for the Stated Purpose and not for any other purpose, including without limitation any other business or competitive purpose.
(c) The Receiving Party's obligations hereunder shall not apply to such portions of the Confidential Information which (i) are or become generally available to the public (other than as a result of a disclosure by a Receiving Party or its Representatives in violation of this Agreement or any other obligations of such person or entity), (ii) are or become available to the Receiving Party on a nonconfidential basis from a source which is entitled to disclose it, (iii) are in the possession of the Receiving Party prior to the date hereof and which were not acquired or obtained from the Company, or (iv) are developed independently by the Receiving Party.
(d) In the event that the Receiving Party is required by law, regulation or court order to disclose any of the Confidential Information, the Receiving Party shall notify the Company promptly so that the Company may seek a protective order or other appropriate remedy or, in the Company's sole discretion, waive compliance with certain terms of this Agreement. In the event that no such protective order or other remedy is obtained, or that the Company waives compliance with certain terms of this Agreement, the Receiving Party shall furnish only that portion of the Confidential Information which is required, and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information so disclosed.
(e) Upon the termination of this Agreement, or otherwise upon the Company's request, all Confidential Information furnished to the Receiving Party will be promptly returned to the Company, or at the Company's request, will be destroyed, with any such destruction confirmed by the Receiving Party in writing to the Company.
(f) Nothing herein shall grant to the Receiving Party any intellectual property rights in the Company's Confidential Information.
(g) Each of the Members, as the Receiving Party, acknowledges that, in the event of any breach of this Agreement by it, the Company would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that, in addition to any other remedy to which it may be entitled, the Company shall be entitled to seek an injunction to prevent breaches of, and to compel specific performance of, this Section 3.5. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that this Section 3.5 has been breached by a Member or its Representatives, then such breaching party will reimburse the non-breaching party its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with all such litigation.
(h) All remedies provided under this Section 3.5, as well as those obligations hereunder which by their terms extend beyond the termination date of this Agreement, shall survive termination of this Agreement.
Section 3.6 Actions by the Members; Meetings; Quorum.
(a) The Members may vote, approve a matter or take any action by the vote of the Members at a meeting, in person or by proxy, or without a meeting by written consent in accordance with Section 3.6(b). Meetings of the Members may be conducted in person or by conference telephone facilities. Each Member shall be entitled to vote upon all matters upon which Members have the right to vote. At the time of any vote on which the Members are entitled to vote:
| (i) | the Class A Units shall entitle the holders thereof to voting rights in the Company ("Voting Rights") equal to the greater of: (x) one vote per Unit for each of the Class A Units (if the percentage obtained by multiplying: (A) a fraction where the numerator is the number of Class A Units and the denominator is the aggregate of the number of Class A Units and Class B Units, by (B) 100%, is greater than 40%) or (y) 40% of the total votes of all the outstanding Units, and |
| (ii) | the Class B Units shall entitle the holders thereof to Voting Rights equal to the lesser of: (x) one vote per Unit for each of the Class B Units (if the percentage obtained by multiplying: (A) a fraction where the numerator is the number of Class B Units and the denominator is the aggregate of the number of Class A Units and Class B Units, by (B) 100%, is less than 60%) or (y) 60% of the total votes of all the outstanding Units, and |
| (iii) | in the case of clause (i)(y) of this Section 3.6(a), the Voting Rights of each holder of Class A Units shall equal the product of (A) 40% and (B) a fraction where the numerator is the number of Class A Units held by such Member and the denominator is the total number of Class A Units outstanding; and in the case of clause (ii)(y) of this Section 3.6(a), the Voting Rights of each holder of Class B Units shall equal the product of (A) 60% and (B) a fraction where the numerator is the number of Class B Units held by such Member and the denominator is the total number of Class B Units outstanding. |
(b) Any action required or permitted to be taken at any meeting of the Members may be taken without a meeting if Members with the percentage of Voting Rights sufficient to approve the action pursuant to the terms of this Agreement consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Members. In no instance where action is authorized by written consent shall it be required that a meeting of Members be called or notice be given; however, a copy of the action taken by written consent shall be sent promptly to all Members and filed with the records of the Company.
(c) The annual meeting of the Members of the Company for the election of Managers to succeed those whose terms expire, and for the transaction of such other business as may properly come before the meeting, shall be held during the month of October of each year as determined by the Board. The meeting shall be held at the principal executive office of the Company or at such other place as may be designated in the notice of the meeting, which notice shall be provided to all Members at least 30 days before the scheduled date of the meeting.
(d) Meetings of Members may be called by the Board, and shall be called by the Secretary upon the written request of any Member or Members holding 25% or more of the Voting Rights, upon at least 30 days' prior written notice (which could be electronic or by facsimile) of the time and place of such meeting. For any meeting of Members, the presence in person or by proxy of Members with more than 50% of the Voting Rights (a "Majority of Members") at the time of the action taken constitutes a quorum for the transaction of business. In the absence of a quorum, a majority of the votes cast by the holders of the Units present and entitled to vote may adjourn the meeting from time to time. At any such adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called. No notice of an adjourned meeting need be given if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken.
(e) The annual operating budget of the Company or any material amendment thereto, shall require the approval of a Majority of Members in addition to requiring approval by a Supermajority of Managers. Except as otherwise provided in this Agreement, the affirmative vote of a Majority of Members constitutes approval of any action.
(f) Notwithstanding any other provision of this Agreement, the following actions or types of transactions shall require the affirmative vote of more than 66% of the Voting Rights (a "Supermajority of Members"):
Section 3.7 Power to Bind the Company. No Member or group of Members (acting in its or their capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution duly adopted by the Board by the affirmative vote required for such matter pursuant to this Agreement or the Act.
Section 3.8 Representations and Warranties. Each Member hereby represents and warrants to the Company and each other Member as follows:
(a) Such Member is duly incorporated or formed (as the case may be), validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. All requisite actions (corporate or otherwise) necessary for the due authorization, execution, delivery and performance of this Agreement by such Member have been duly taken.
(b) Such Member has duly executed and delivered this Agreement. This Agreement constitutes a valid and binding obligation of such Member enforceable against such Member in accordance with its terms (except as may be limited by bankruptcy, insolvency, or similar laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity).
(c) Such Member's authorization, execution, delivery and performance of this Agreement does not and will not (i) conflict with, or result in a breach, default or violation of (A) the certificate or articles of incorporation and by-laws or other organizational documents of such Member, (B) any material contract or agreement to which that Member is a party or is otherwise subject, or (C) any law, order, judgment, decree, writ, injunction, or arbitration award to which that Member is subject; or (ii) require any consent, approval, or authorization from filing, or registration with, or notice to, any governmental authority or other Person, other than those that have already been obtained.
(d) Such Member is familiar with the proposed business, financial condition, properties, operations, and prospects of the Company; has asked such questions and conducted such due diligence concerning such matters and concerning its acquisition of Units as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction. Such Member has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Company. Such Member understands that owning Units involves various risks, including the restrictions on transferability set forth in this Agreement, lack of any public market for Units, the risk of owning its Units for an indefinite period of time, and the risk of losing its entire investment in the Company. Such Member is an "accredited investor" as the term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the "1933 Act"). Such Member is able to bear the economic risk of such investment; is acquiring its Units for investment and solely for its own beneficial account and not with a view to or any present intention of directly or indirectly selling, transferring, offering to sell or transfer, participating in any distribution, or otherwise disposing of all or a portion of its Units; and such Member acknowledges that the Units have not been registered under the 1933 Act or the Securities Exchange Act of 1934, as amended, or any other applicable federal or state securities laws, and that the Company has no intention, and shall not have any obligation, to register or to obtain an exemption from registration for the Units or to take action so as to permit sales pursuant to the 1933 Act (including Rules 144 and 144A thereunder).
(e) Such Member has not dealt with any broker or finder in connection with the formation of the Company or the transactions contemplated herein and agrees to indemnify and hold harmless the other Members and the Company from and against any actions, claims or demands for any commissions or fees arising from a breach of the foregoing representation and warranty.
ARTICLE IV
MANAGEMENT
Section 4.1 Management of the Company.
(a) Subject to such matters which are expressly reserved hereunder to the Members for decision, the business and affairs of the Company shall be managed by a Board of Managers (the "Board"), which shall be responsible for policy setting and approval of the overall direction of the Company. The Board shall consist of 13 individuals (the "Managers"), such Managers being identified on Schedule B hereto. No individual shall serve on the Board if such individual is an officer or representative of or affiliated with a Member or its Affiliate which already has a representative on the Board. With respect to the foregoing, being a member of Internet Council of Registrars (CORE) is not by itself an affiliation. Managers need not be Members. The Managers shall be divided into three classes, designated as Class 1, Class 2 and Class 3. Each class shall consist, as nearly as may be possible, of one-third of the total number of Managers constituting the entire Board. At each annual meeting of the Members, successors to the class of Managers whose term expires at that annual meeting shall be elected by a Majority of Members for a three-year term. If the number of Managers is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Managers in each class as nearly equal as possible, but in no case will a decrease in the number of Managers shorten the term of any incumbent Manager. Initially Class 1, Class 2 and Class 3 Managers shall be appointed for a term of one, two and three years respectively. A Manager shall hold office for his or her entire term until the annual meeting to elect his or her successor or until his or her earlier death, disability, resignation or removal. The Chairman of the Board will be elected by the Board and will hold office as such for a term of one year or until his successor is elected by the Board, or until his earlier death, resignation or removal in the manner hereinafter provided. No Manager shall serve on the Board for a period of more than two consecutive terms.
Section 4.2 Meetings of the Board.
(a) The Board shall meet at such times as may be necessary for the Company's business on at least 5 days' prior written notice of the time and place of such meeting given by any Manager. A majority of the Managers shall constitute a quorum for the transaction of business by the Board. Notice of any Board meeting may be waived by any Manager before or after such meeting.
(b) Except as otherwise set forth herein, all actions of the Board shall require the affirmative vote of a majority of the Managers. Each Manager shall be entitled to one vote upon all matters submitted to the Board.
(c) Notwithstanding any other provision of this Agreement, the following actions or types of transactions taken by the Company shall require the affirmative vote of two thirds of the entire Board (a "Supermajority of Managers"):
| (i) | the declaration or payment, directly or indirectly, of any distribution (other than Tax Distributions), whether in cash, property or securities or a combination thereof, with respect to any Unit (whether by reduction of capital or otherwise); |
| (ii) | any transaction with a Member or any of its Affiliates other than in the ordinary course of business on terms no less favorable to the Company than those which would otherwise be available from an unaffiliated third party; |
| (iii) | the approval of the annual operating budget of the Company or any material amendment thereto, which budget or amendment shall also be approved by the Majority of Members; |
| (iv) | any single or related capital expenditure in excess of US$100,000, which capital expenditure is not provided for in the budget approved by the Board and Members pursuant to subparagraph (iii) above; |
| (v) | the acquisition or leasing of any asset by the Company for aggregate consideration, which in the case of a lease shall include all lease payments, in excess of US$100,000, which acquisition or leasing is not provided for in the budget approved by the Board and Members pursuant to subparagraph (iii) above; |
| (vi) | the incurrence of indebtedness or obligations or otherwise raising capital on behalf of the Company in excess of US$100,000, which incurrence is not provided for in the budget approved by the Board and Members pursuant to subparagraph (iii) above; |
| (vii) | the disposition of any assets of the Company with a fair market value in excess of US$100,000 other than in the ordinary course of business, which disposition is not provided for in the budget approved by the Board and Members pursuant to subparagraph (iii) above; |
| (viii) | entering into a new business or line of business by the Company or the acquisition or disposition of any business or line of business by the Company which is not provided for in the budget approved by the Board and Members pursuant to subparagraph (iii) above; or |
| (ix) | removal of any Manager. |
(d) Meetings of the Board may be conducted in person or by conference telephone facilities. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if members of the Board sufficient to approve the action pursuant to the terms of this Agreement consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board.
Section 4.3 Power to Bind Company. No Manager or group of Managers (acting in his or their capacity as such) shall have any authority to bind the Company to any third party with respect to any matter except pursuant to a resolution duly adopted by the Board by the affirmative vote required for such matter pursuant to the terms of this Agreement or the Act.
Section 4.4 Committees.
(a) (i) There shall be an executive committee of the Company (the "Executive Committee"), which shall consist of three members of the Board, including the Chairman of the Board. All members of the Executive Committee shall be elected by the Managers and will hold office for a term of one year. The Chairman of the Board shall serve as chair of the Executive Committee.
| (ii) | The Executive Committee shall have the responsibility for supervising the officers of the Company. The Executive Committee shall have the authority to appoint and terminate officers of the Company and appoint and terminate employees of the Company to whom the Executive Committee may delegate duties, all in consultation with the Board generally. |
| (iii) | Members of the Executive Committee may be removed only by a Supermajority of Managers. |
| (iv) | All actions of the Executive Committee shall be recorded in minutes of its meetings and reported to the Board. The Executive Committee shall meet where and as convenient, notice of such meetings being provided generally to the Board. Special meetings of the Executive Committee may be called at any time by any member of the Executive Committee. At all meetings of the Executive Committee, the presence of a majority of the members shall be necessary to constitute a quorum, and the affirmative vote of a majority of the quorum shall be necessary and sufficient to transact business. |
(b) (i) There shall be an audit committee of the Company (the "Audit Committee"), which shall consist of three members. All members of the Audit Committee shall be elected by the Managers and will hold office for a term of one year. The Board shall designate one member of the Audit Committee as its chair.
| (ii) | The Audit Committee shall, as required or as deemed to be appropriate by the Audit Committee: |
| (A) | recommend the independent public accountants for selection as auditors by the Board; | |
| (B) | review the scope and, upon completion, the results of the audit with the Company's independent public accountants; | |
| (C) | review management letters received from the independent public accountants in connection with audits; | |
| (D) | review the Company's internal accounting controls; | |
| (E) | review the planning and results of internal audit examinations; | |
| (F) | review with management any accounting changes affecting the Company or its affiliates; | |
| (G) | meet in alternative and separate executive sessions with the independent public accountants and management; | |
| (H) | review the scope of and fees for consulting services provided by the independent public accountants; and | |
| (I) | review any interested party transaction or other conflict-of-interest situation brought to its attention. |
| (iii) | Members of the Audit Committee may be removed only by a Supermajority of Managers. |
| (iv) | All actions of the Audit Committee shall be recorded in minutes of its meetings and reported to the Board. The Audit Committee shall meet where and as convenient, notice of such meetings being provided generally to the Board. Special meetings of the Audit Committee may be called at any time by any member of the Audit Committee. At all meetings of the Audit Committee, the presence of a majority of the members shall be necessary to constitute a quorum, and the affirmative vote of a majority of the quorum shall be necessary and sufficient to transact business. |
(c) (i) There shall be a nominating committee of the Company (the "Nominating Committee"), which shall consist of three members. All members of the Nominating Committee shall be elected by the Managers and will hold office for a term of one year. The Board shall designate one member of the Nominating Committee as its chair.
| (ii) | The Nominating Committee shall, as required or as deemed to be appropriate by the Nominating Committee: |
| (A) | review qualifications of candidates for Managers from whatever sources received; | |
| (B) | recommend to the Board the slate of Manager candidates to be proposed for election by Members at the annual meeting; | |
| (C) | recommend to the Board the candidates to fill Manager vacancies which occur between annual meetings of Members; | |
| (D) | recommend to the Board criteria regarding personal qualifications for Manager nominations, including experience, skills, affiliations and characteristics; | |
| (E) | recommend to the Board criteria regarding the composition of the Board, including total size and constitution; | |
| (F) | recommend to the Board criteria relating to Manager tenure, including retirement age and continuation of a Manager in an honorary or similar capacity; and | |
| (G) | recommend to the Board the fees, if any, to be paid to Managers, including retainer, meeting and committee meeting fees, and any additional fees to be paid to a Manager for particular service. |
| (iii) | Members of the Nominating Committee may be removed only by a Supermajority of Managers. |
| (iv) | All actions of the Nominating Committee shall be recorded in minutes of its meetings and reported to the Board. The Nominating Committee shall meet where and as convenient, notice of such meetings being provided generally to the Board. Special meetings of the Nominating Committee may be called at any time by any member of the Nominating Committee. At all meetings of the Nominating Committee, the presence of a majority of the members shall be necessary to constitute a quorum, and the affirmative vote of a majority of the quorum shall be necessary and sufficient to transact business. |
(d) (i) There shall be a compensation committee of the Company (the "Compensation Committee"), which shall consist of three members. All members of the Compensation Committee shall be elected by the Managers and will hold office for a term of one year. The Board shall designate one member of the Compensation Committee as its chair.
| (ii) | The Compensation Committee shall, as required or as deemed to be appropriate by the Compensation Committee: |
| (A) | review and recommend to the Board, salary increases for officers of the Company and other employees where the proposed salary exceeds an amount set from time-to-time by the Board; | |
| (B) | report to the Board remuneration information concerning the President and any other senior managers or officers; and | |
| (C) | review and recommend to the Board employee benefit programs. |
| (iii) | Members of the Compensation Committee may be removed only by a Supermajority of Managers. |
| (iv) | All actions of the Compensation Committee shall be recorded in minutes of its meetings and reported to the Board. The Compensation Committee shall meet where and as convenient, notice of such meetings being provided generally to the Board. Special meetings of the Compensation Committee may be called at any time by any member of the Compensation Committee. At all meetings of the Compensation Committee, the presence of a majority of the members shall be necessary to constitute a quorum, and the affirmative vote of a majority of the quorum shall be necessary and sufficient to transact business. |
(e) Notwithstanding any other provision of this Agreement, none of the Executive Committee, the Audit Committee, the Nominating Committee or the Compensation Committee shall have the power to cause the Company to take any of the actions or enter into any of the types of transactions specified in Section 4.2(c) without approval of a Supermajority of Managers, or specified in Section 3.6(f) without approval of a Supermajority of Members.
(f) The Board may, by a Supermajority of Managers, establish such other committees to consist of one or more persons, and each such committee may be altered or dissolved by the Board in its sole discretion. Each duly established committee shall have the powers and perform such duties as may from time to time be assigned to it by the Board and shall be subject to the limitations of this Agreement and applicable law.
Section 4.5 Tax Matters Partner. Domain Bank, Inc. is hereby designated as the Company's "Tax Matters Partner" under Section 6231(a)(7) of the Internal Revenue Code of 1986, as amended (the "Code"), and shall have all the powers and responsibilities of such position as provided in the Code and the Treasury Regulations thereunder. If Domain Bank, Inc. is no longer qualified to be the Tax Matters Partner pursuant to Section 6231(a)(7) of the Code and the Treasury Regulations thereunder, the Board shall designate another eligible person as the Company's Tax Matters Partner. The Tax Matters Partner is specifically directed and authorized to take whatever steps are necessary or desirable to perfect such designation, including filing any forms or documents with the Internal Revenue Service and taking such other action as may from time to time be required under the Code or Treasury Regulations. The Tax Matters Partner shall cause to be prepared and shall sign all tax returns of the Company, make any tax elections for the Company allowed under the Code, Treasury Regulations or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company and monitor any governmental tax authority in any audit that such authority may conduct of the Company's books and records or other documents.
Section 4.6 Reliance by Third Parties. Persons dealing with the Company are entitled to rely conclusively upon the power and authority of the Board, the Executive Committee, the Audit Committee, the Nominating Committee and the Compensation Committee herein set forth.
Section 4.7 Removal of Managers.
(a) Any Manager may be removed, for Cause, by an affirmative vote of a Majority of Members or a majority of the Managers. Any Manager may be removed, without Cause, only by an affirmative vote of a Supermajority of Members or a Supermajority of Managers. If as a result of death, disability or resignation of a Manager (the "Vacating Manager"), there shall exist or occur any vacancy on the Board, then the Member whose representative on the Board was the Vacating Manager shall have the right to nominate an individual to fill such vacancy and such individual shall serve the unexpired term of the Vacating Manager.
(b) A Manager's power and authority to act as a Manager under the terms of this Agreement shall automatically cease upon the occurrence of a Termination Event with respect to such Manager or the Member represented by such Manager.
Section 4.8 Officers. The Board shall, or shall direct the Executive Committee to, retain a president (the "President"), a vice president of operations (the "Vice President - Operations"), a chief financial officer/controller/treasurer (the "CFO/Controller/Treasurer"), a secretary (the "Secretary") and may retain such other officers as the Board considers necessary.
Section 4.9 President. Subject to the direction of the Board, the President will be responsible for the strategy as well as the general direction and supervision of the business and affairs of the Company and will perform such other duties as from time to time may be assigned to him by the Board. The President, in general, shall have, and shall be entitled to exercise, all the powers generally appertaining to the chief executive officer of a United States business enterprise. In the absence or disability of the President, the President's duties will be performed and powers may be exercised by the Vice President - Operations.
Section 4.10 Vice President - Operations. Subject to the direction of the Board, the Vice President - Operations will be responsible for operations, including technology, of the business of the Company and will perform such other duties as from time to time may be assigned to him by the Board and the President. The Vice President - Operations, in general, shall have, and shall be entitled to exercise, all the powers generally appertaining to the chief operating officer of a United States business enterprise.
Section 4.11 The CFO/Controller/Treasurer. The CFO/Controller/Treasurer will (i) have active control of and will be responsible for all matters pertaining to the accounts of the Company and its subsidiaries; (ii) have care and custody of all funds of the Company and will deposit the same in such banks or other depositories as the Board, or any officer or officers, or any officer and agent jointly, duly authorized by the Board, will from time to time direct or approve; (iii) supervise the auditing of all payrolls and vouchers of the Company and its subsidiaries and will direct the manner of certifying the subsidiaries and all other documents relating to such payments; (iv) receive, audit and consolidate all operating financial statements of the Company, its various departments, divisions and subsidiaries, their arrangement and classification; (v) keep a full and accurate account of all funds received and paid on account of the Company; and (vi) render a statement of his accounts whenever the Board or the President will require. The CFO/Controller/Treasurer will perform all other necessary acts and duties in connection with the administration of the financial affairs of the Company, and will generally perform all the duties usually appertaining to the office of treasurer of a United States business enterprise. In the absence of the CFO/Controller/Treasurer, such person as will be designated by the President will perform the CFO/Controller/Treasurer's duties.
Section 4.12 Other Officers. Other officers may perform such duties and have such powers as may from time to time be assigned to them by the Board, the President/General Manger or the Vice President - Operations, including oversight of technology, legal, human resources and regulatory functions.
Section 4.13 The Secretary. The Secretary will attend all meetings of the Board and the Members and will record all votes and the minutes of all proceedings in a book to be kept for that purpose. The Secretary will attend to the giving of notice of all meetings of the Members and special meetings of the Board. The Secretary will generally perform all the duties usually appertaining to the office of secretary of a United States business enterprise.
Section 4.14 No Liability of Managers. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Manager shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Manager.
ARTICLE V
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 5.1 Capital Structure. The capital structure of the Company shall consist of Class A Units and Class B Units. Except as otherwise set forth in Section 3.6, Section 6.1 and Section 6.4, each of the Units shall be identical.
Section 5.2 Capital Contributions.
(a) Each Founding Member shall contribute or shall have contributed, as an initial capital contribution ("Initial Capital Contribution") to the Company, the amount of cash set forth opposite such Founding Member's name in Schedule A attached hereto.
(b) In exchange for the Initial Capital Contributions, each Member shall receive Class A Units in the Company equal to one Class A Unit per US$1,000 contributed, as set forth in Schedule A.
Section 5.3 Additional Contributions.
(a) Members shall, subject to applicable laws, be obligated to contribute an aggregate additional amount of US$3,800,000 (the "Additional Minimum Contribution"), when the Board notifies the Members that the Additional Minimum Contribution must be made in accordance with this Section 5.3(a). The Board shall notify the Members of the Additional Minimum Contribution as soon as the Board receives final notification, as determined by the Board, from ICANN of acceptance of the Company's bid to own and operate the Registry. Each Member shall, subject to Section 5.3(b), within 30 days after the receipt of such notice from the Board contribute its proportionate share of such Additional Minimum Contribution according to its respective Unit Percentage. If any Member (a "Defaulting Member") shall fail to contribute all or any portion of its pro rata share of the Additional Minimum Contribution (the "Defaulted Amount"), the Board shall give notice to such Defaulting Member, setting forth the Defaulted Amount outstanding. If, after 30 days from the date of issuance of such notice, the Defaulted Amount remains outstanding, each of the Members, other than the Defaulting Member, shall be entitled to, at its sole option and in its sole discretion, contribute to the Company the Defaulted Amount on a pro rata basis based on its Unit Percentage (determined without regard to the Defaulting Member's ownership interest); and Schedule A, including the Unit Percentage of each Member, shall be adjusted to reflect the respective contributions of each Member pursuant to this Section 5.3(a). In exchange for the Additional Minimum Contribution, each Member shall receive Class A Units in the Company equal to one Class A Unit per US$1,000 contributed.
(b) Members may advance some, but not less than US$50,000, or all of an amount equal to their portion of the Additional Minimum Contribution before the date for the submission of the bid with ICANN (such amount, the "Advance"). Such Advance will be held by the Company in escrow for such Members and the Company shall, without any further action by the Board or the Members, return such Advance to the respective Members together with accrued interest, if any, should the Company's bid to own and operate the Registry be unsuccessful, as determined by the Board or if such Members do not give the required consent pursuant to the next sentence. If the Board receives final notification, as determined by the Board, from ICANN of acceptance of the Company's bid to own and operate the Registry the Advance, if any, made by Members will, with the prior consent of such Members which consent shall not be unreasonably withheld, be treated as Additional Minimum Contribution, and such Members shall be entitled to receive Class A Units pursuant to Section 5.3(a) in exchange therefor.
(c) In addition to the foregoing, if, from time to time, the Board determines that additional capital is required to effectuate the purpose of the Company, the Board shall notify the Members of the amount of required additional capital (the "Additional Capital"). Each Member shall, within 30 days after the receipt of such notice from the Board contribute its proportionate share of such Additional Capital according to its respective Unit Percentage. If any Member (a "Non-Contributing Member") shall fail to contribute all or any portion of its pro rata share of the Additional Capital (the "Non-Contributed Amount"), the Board shall give notice to such Non-Contributing Member, setting forth the Non-Contributed Amount outstanding. If, after 30 days from the date of issuance of such notice, the Non-Contributed Amount remains outstanding, each of the Members, other than the Non-Contributing Member, shall be entitled to, at its sole option and in its sole discretion, contribute to the Company the Non-Contributed Amount on a pro rata basis based on its Unit Percentage (determined without regard to the Non-Contributing Member's ownership interest) and Schedule A, including the Unit Percentage of each Member, shall be adjusted to reflect the respective contributions of each Member pursuant to this Section 5.3(c). In exchange for the Additional Capital, each Member shall receive Class A Units or Class B Units, as the case may be, in the Company equal to one Class A Unit or Class B Unit for the greater of US$1,000 or such other amount (as determined by the Board), that is contributed.
(d) Notwithstanding any of the foregoing or anything in this Agreement to the contrary, no Member's Unit Percentage shall, at any time, exceed the Cap.
Section 5.4 Cap on Ownership. No Member's Unit Percentage shall exceed 11% (the "Cap") at any time. If any Member's Unit Percentage, at any time, is greater than the Cap for any reason whatsoever, including but not limited to additional contributions by Members, purchases by Members pursuant to Section 8.2(b), mergers, consolidations, acquisitions, or other business combinations involving the Member (such Member, the "Capped Member"), then the Units resulting in such an increase over the Cap (the "Excess Units") shall be transferred by the Capped Member to an irrevocable trust formed and administered by the Company (the "Trust"). The Excess Units shall have no voting rights when held in the Trust and shall be disregarded in computing the Voting Rights. The Company shall be responsible for all expenses relating to the Trust. The Capped Member will be the beneficiary of the Trust. At the end of each fiscal quarter, or at such other earlier date as determined by the Board, the Company, on behalf of the Trust, shall have the option to purchase the Excess Units from the Trust at a price (the "Excess Units Price") determined by an independent appraiser selected by the Board or to offer such Excess Units to third parties. The Board may, at its discretion, offer such Excess Units to the other Members in proportion to their Unit Percentages, or to other Persons at the Excess Units Price. However, in the event a Capped Member's Unit Percentage including the Excess Units held beneficially in the Trust on behalf of such Capped Member, at any time becomes less than the Cap due to the sale of Units by the Capped Member or due to additional issuances of Units by the Company, the Trust (to the extent such Capped Member's Excess Units have not been sold pursuant to this Section 5.4) shall return to the Capped Member the lesser of (x) all Excess Units of such Capped Member held in the Trust and (y) the number of Excess Units that would increase such Capped Member's Unit Percentage to 11%. Distributions, if any, made by the Company with respect to the Excess Units shall be paid to the Capped Member promptly upon receipt thereof by the Trust. The Trust shall distribute the proceeds of any sale of the Excess Units promptly upon receipt thereof to the Capped Member. Notwithstanding the foregoing, any transfer of a Unit pursuant to this Section 5.4 that would cause the Company to be treated as a publicly traded partnership taxable as a corporation under Section 7704 of the Code shall be null and void and all transfers shall be made subject to and in compliance with all applicable laws.
Section 5.5 No Withdrawal Of Capital Contributions. Except upon the dissolution and liquidation of the Company as set forth in Article IX hereof, no Member shall have the right to withdraw its capital contributions.
Section 5.6 Maintenance of Capital Accounts.
(a) The Company shall establish and maintain Capital Accounts for each Member in accordance with the following provisions:
| (i) | to each Member's Capital Account there shall be credited (x) the amount of any cash and the initial Gross Asset Value of any property (other than cash) contributed to the Company by such Member, (y) such Member's allocable share of Net Income and (z) the amount of any Company liabilities assumed by such Member which are secured by any property distributed to such Member; and |
| (ii) | to each Member's Capital Account there shall be debited (x) the amount of money and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, (y) such Member's allocable share of Net Losses and (z) the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company. |
(b) This Section and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. Notwithstanding that a particular adjustment is not set forth in this Section, the Capital Accounts of the Members shall be adjusted as required by, and in accordance with, the capital account maintenance rules of Treasury Regulations Section 1.704-1(b).
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS AND OTHER PAYMENTS
Section 6.1 Allocations of Net Income and Net Losses from Operations. After making all allocations provided for in Section 6.2, for each Fiscal Period, Net Income and Net Losses shall be allocated among the Members ratably in proportion to their respective Unit Percentages; provided, however, that if the aggregate number of the Class B Units outstanding exceeds 60% of the total outstanding Units, such allocation shall be made 40% to the holders of Class A Units and 60% to the holders of Class B Units allocated pro rata within such class relative to the number of Units of such class held by the Members. Notwithstanding the foregoing, no item of loss or deduction of the Company shall be allocated to a Member if such allocation would result in a negative balance in such Member's Capital Account. Such loss or deduction shall be allocated first among the Members with positive balances in their Capital Accounts in proportion to (and to the extent of) such positive balances and thereafter to Members in accordance with their Unit Percentages; provided, however, that if the aggregate number of Class B Units outstanding exceeds 60% of the total outstanding Units, such allocation shall be made 40% to the holders of Class A Units and 60% to the holders of Class B Units allocated pro rata within such class relative to the number of Units of such class held by the Members.
Section 6.2 Special Allocations. The following special allocations shall be made in the following order and prior to any other allocations under this Agreement:
(a) Minimum Gain Chargeback. Notwithstanding any other provision of this Article VI and except as otherwise provided in Section 1.704-2(f) of the Treasury Regulations, if there is a net decrease in Company Minimum Gain during any Fiscal Period of the Company, each Member shall be specially allocated items of Company income and gain for such Fiscal Period (and, if necessary, subsequent Fiscal Periods) in an amount equal to such Member's share of the net decrease in Company Minimum Gain, as determined under Treasury 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 Treasury Regulations Section 1.704-2(f) and (j). This Section 6.2(a) is intended to comply with the minimum gain chargeback requirement in such Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
(b) Member Minimum Gain Chargeback. Notwithstanding any other provision of this Article VI if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt, then, except as otherwise provided in Treasury Regulations Section 1.704-2(i), each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i), shall be specially allocated items of Company income and gain for such Fiscal Period (and, if necessary, subsequent Fiscal Periods) in an amount equal to such Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury 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 allocated shall be determined in accordance with Treasury Regulations Section 1.704-2(i)(4) and (j)(2). This Section 6.2(b) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Treasury Regulations and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, any Adjusted Capital Account deficit as quickly as possible, provided that an allocation pursuant to this Section 6.2(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account deficit after all other allocations provided for in this Section have been tentatively made as if this Section 6.2(c) were not in the Agreement.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Period shall be allocated to the Members in the manner determined by the Tax Matters Partner.
(e) Member Nonrecourse Deductions. In accordance with Section 1.704-2(i)(1) of the Treasury Regulations, any item of Company loss or deduction which is attributable to Member Nonrecourse Debt for which a Member bears the economic risk of loss (such as a non-recourse loan made by a Member to the Company or an otherwise non-recourse loan to the Company that has been guaranteed by a Member) shall be allocated to that Member to the extent of its economic risk of loss.
(f) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) (2) or (4) to be taken into account in determining Capital Accounts, the amount of such adjustment to the 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 allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Sections of the Treasury Regulations.
Section 6.3 Tax Allocations; Code Section 704(c). Except as otherwise provided for in this Section 6.3, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Members in the same manner as the correlative item of book income, gain, loss or deduction is allocated pursuant to Sections 6.1 and 6.2. In accordance with Code Section 704(c) and the Treasury Regulations thereunder, items of income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall, solely for U.S. federal income tax purposes, be allocated among the Members so as to take account of any variation between the adjusted tax basis of such property at the time of contribution to the Company for U.S. Federal income tax purposes and its initial Gross Asset Value at the time of contribution using an allocation method in accordance with applicable Treasury Regulations determined by the Tax Matters Partner.
In the event the Gross Asset Value of any Company asset is adjusted in accordance with the definition of Gross Asset Value hereof, subsequent allocations of items of income, gain, loss, and deductions with respect to such asset shall take account of any variation between the adjusted tax basis of such asset for federal income tax purposes and its adjusted Gross Asset Value in a manner consistent with the principles of Code Section 704(c) and the Treasury Regulations thereunder.
Any elections or other decisions relating to allocations under this Article VI shall be made by the Tax Matters Partner in any manner that reasonably reflects the purpose and intention of this Agreement. Allocations pursuant to this Section 6.3 are solely for purposes of U.S. federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member's Capital Account or share of Net Income or Net Losses, other items, or distributions pursuant to any provision of this Agreement.
Section 6.4 Distributions. Subject to Sections 6.5, 6.6 and 6.7, at such times as the Board shall deem appropriate, the Board shall ascertain the amount of Cash Available for Distribution and distribute the same to the Members in the following order and priority, provided, however, that notwithstanding the foregoing, to the extent there is any Cash Available for Distribution, the Board shall distribute the same at the end of each fiscal quarter to the Members to the extent of the Tax Distribution pursuant to Section 6.4(i) hereof:
| (i) | first, to the Members pro rata, up to an amount equal to the excess of (A) the product of (I) the cumulative amount of Net Income in excess of Net Losses allocated to such Member pursuant to this Agreement and (II) 40% over (B) the cumulative amount of distributions previously made to such Member pursuant to this Section 6.4(i) (the "Tax Distribution"); and |
| (ii) | the balance of the Cash Available for Distribution shall be distributed to the Members in proportion to their relative Unit Percentages; provided, however, that if the aggregate number of the Class B Units outstanding exceeds 60% of the total outstanding Units, such distribution shall be made 40% to the holders of Class A Units and 60% to the holders of Class B Units allocated pro rata within such class relative to the number of Units of such class held by the Members. |
Section 6.5 No Right to Distributions. No Member shall have the right to demand or receive distributions of any amount, except as expressly provided in this Article VI.
Section 6.6 Restrictions on Distributions. The foregoing provisions of this Article VI to the contrary notwithstanding, no distribution (including any Tax Distribution) shall be made if, and for so long as, such distribution would violate any contract or agreement to which the Company is then a party or any law, rule, regulation, order or directive of any governmental authority then applicable to the Company.
Section 6.7 Withholding. The Company is authorized to withhold from distributions to a Member, or with respect to allocations to a Member, and to pay over to a federal, foreign, state or local government, any amounts required to be withheld pursuant to the Code, or any provisions of any other federal, foreign, state or local law or, if no sufficiently large distribution is imminent, the Company may require the relevant Member to promptly reimburse the Company for the amount of tax withheld and paid over by the Company. Any amounts so withheld shall be treated as having been distributed to such Member pursuant to this Article VI for all purposes of this Agreement, and shall be offset against the current or next amounts otherwise distributable to such Member.
Section 6.8 Rebate. At the end of each Fiscal Period, the Board shall determine and set aside an amount (the "Rebate") equal to 25% of the Available Cash at the end of such Fiscal Period, and shall pay such amount as a fee to Registrars who have registered domain names with the Registry during such Fiscal Period, pro rata based on the number of domain names registered with the Registry by such Registrars during such Fiscal Period. Registrars need not be Members in order to receive the Rebate.
ARTICLE VII
BOOKS AND REPORTS
Section 7.1 Books and Records; Accounting. The Company shall keep or cause to be kept at the office of the Company (or at such other place as the Board in its discretion shall determine) full and accurate books and records regarding the status of the business and financial condition of the Company.
Section 7.2 Form K-l. After the end of each Fiscal Period, the Tax Matters Partner shall cause to be prepared and transmitted, as promptly as possible, all tax returns of the Company, including, without limitation, federal income tax Form K-1 and any required similar tax form for each Member.
ARTICLE VIII
WITHDRAWAL; TRANSFERS OF UNITS; CESSATION OF MEMBERSHIP
Section 8.1 Right to Withdraw; Payment Upon Withdrawal, Removal. (a) Members shall have the right to resign or withdraw at any time from the Company and such Members shall have no continuing obligations to the Company other than pursuant to the Act, this Agreement or other applicable laws or such obligations as expressly assumed by such Members. The Company shall, within a reasonable period as determined by the Board but in no event later than five years of the withdrawal or resignation of a Member, pay or cause to be paid to such Member, cash, property or a note equal to the fair market value of such Member's Units as determined by the Board; provided, however, that any Member resigning or withdrawing prior to the third anniversary of the date hereof, shall not be entitled to receive any compensation for its Units. Upon withdrawal of any Member from the Company, the Manager nominated by such Member shall be removed automatically from the Board without any further action by any of the Members or Managers.
(b) Upon the removal of any Member pursuant to Section 3.6(f)(v), the Company shall, within a reasonable period as determined by the Board but in no event later than five years of such removal, pay or cause to be paid to such Member the fair market value of such Member's Units as determined by the Board. Upon removal of any Member from the Company, the Manager nominated by such Member shall be removed automatically from the Board without any further action by any of the Members or Managers.
Section 8.2 Transfers of Units. No Member shall have the right to sell, convey, assign, transfer, pledge, grant a security interest in or otherwise dispose of (each a "Transfer") all or any part of its Units other than as follows:
(a) At any time, Members may (i) Transfer to an Affiliate of such Member that agrees to be bound by all of the provisions hereof all or less than all of their Units or (ii) Transfer less than all of their Units if such Transfers were made solely to comply with the Cap set forth in Section 5.4 hereof;
(b) After a period of 3 years from the date of filing of the Certificate of Formation with the office of the Secretary of State of the State of Delaware, Members may Transfer all, but not less than all, of their Units as follows:
| (i) | Any Member that wishes to make a Transfer pursuant to this Section 8.2(b) shall make a written offer (the "Offer") to sell to the Company or to other Members, as applicable, all of such Units and shall simultaneously send a copy of the Offer to each of the other Members. The Offer shall (A) be executed by the Member desiring to make a Transfer (the "Selling Member"), (B) specify the number of Units that such Member owns (the "Units Subject To The Offer"), (C) specify the price, which price shall be determined by an independent third party appraiser selected in consultation with the Board (the "Offer Price") and (D) specify such other material terms on which the Company may purchase the Units Subject To The Offer. An Offer, once given, shall be irrevocable. The Offer shall be dated the date it is delivered by such Selling Member to the Company and the other Members. |
| (ii) | Upon receipt of the Offer, the Company and each of the Members shall have the right to purchase, at the Offer Price, all of the Units Subject To The Offer; provided, that, if the Company delivers a Notice of Exercise, the Company's right to purchase the Units supersedes that of the other Members. The right of the Company and the Members to purchase the Units Subject To The Offer pursuant to this Section 8.2 shall be exercisable by written notice delivered to the Selling Member (a "Notice of Exercise") within 45 days of the date of the Offer (the "Option Period"). The right of the Company and the other Members pursuant to this Section 8.2 shall terminate if it is not exercised within 45 days of the date of the Offer. A Notice of Exercise shall be irrevocable after delivery to the Selling Member. |
| (iii) | Upon receipt of a Notice of Exercise from the Company within the Option Period, the Selling Member shall sell the Units Subject To The Offer to the Company and the Company shall buy such units, within 20 days of the date of receipt by the Selling Member of the Notice of Exercise and the Selling Member shall notify the other Members of such sale. If Notices of Exercise are received within the Option Period only from Members, the Selling Member shall sell the Units Subject To The Offer to such Members pro rata relative to the number of Units held by such Members, and such Members shall buy such Units, within 20 days of the date of receipt by the Selling Member of the Notice of Exercise. |
| (iv) | Upon the consummation of any purchase and sale pursuant to this Section 8.2 (b), the Selling Member shall deliver certificates evidencing the Units Subject To The Offer duly endorsed, or accompanied by written instruments of transfer, in form and substance reasonably satisfactory to the Company or the Members, as applicable, duly executed by the Selling Member, free and clear of any encumbrances, against delivery of the Offer Price payable in immediately available funds by wire transfer or certified check. The Selling Member shall be responsible for and shall pay any stamp taxes or other similar conveyance fees incurred as a result of the sale of the Units Subject To The Offer. |
| (v) | In the event neither the Company nor any of the Members exercise their option to purchase the Units Subject To The Offer, the Selling Member shall have the right, for a period of 30 days from the expiration of the Option Period to enter into an agreement to sell the Units Subject To The Offer to a third party at a price not less than the Offer Price and on such other terms as set forth in the Offer. The Selling Member shall sell the Units Subject To The Offer as promptly as practicable after it enters into such an agreement to sell such Units, and in no event later than 45 days after the date on which the Selling Member enters into such an agreement. |
| (vi) | In the event (x) neither the Company nor any of the Members exercise their option to purchase all of the Units Subject To The Offer and (y) the Selling Member shall not have entered into an agreement to sell all the Units Subject To The Offer to a third party for any reason before the expiration of the 30-day period described in Section 8.2(b)(v) or, if the Selling Member shall have entered into such an agreement in accordance with Section 8.2(b)(v), the Selling Member shall not have sold the Units Subject To The Offer for any reason before the expiration of the 45-day period described in Section 8.2(b)(v), such Selling Member shall not sell the Units Subject To The Offer without again complying with the provisions of this Section 8.2(b) and shall not make another Offer pursuant to Section 8.2(b)(i) for a period of 30 days from the last day of such 30-day or 45-day period, as the case may be. |
Section 8.3 Cessation of Membership. Any Member shall automatically cease being a member of the Company upon the occurrence of a Termination Event in respect of any such Member. The Company shall, within a reasonable period as determined by the Board but in no event later than five years of such cessation, pay or cause to be paid to such Member, cash, property or a note equal to the fair market value of such Member's Units as determined by the Board or the initial investment made by such Member for the purchase of such Units.
Section 8.4 Limitation on Transfers. All Transfers in violation of this Article VIII are null and void. All Transfers pursuant to Section 8.2(b) shall be subject to the Cap. Notwithstanding any of the forgoing provisions of this Article VIII, any transfer of a Unit that would cause the Company to be treated as a publicly traded partnership taxable as a corporation under Section 7704 of the Code shall be null and void.
ARTICLE IX
DISSOLUTION OF THE COMPANY
Section 9.1 Dissolution. The Company shall be dissolved upon the occurrence of either of the following events (each such event, a "Liquidation Event"):
(a) a determination by a Supermajority of Members to dissolve the Company; or
(b) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
No other event, including the retirement, insolvency, liquidation, dissolution, insanity, expulsion, bankruptcy, death, incapacity or adjudication of incompetency of a Member, shall cause the existence of the Company to terminate.
Section 9.2 Liquidation.
(a) In the event that a Liquidation Event shall occur, then the Company shall be liquidated and its affairs shall be wound up by the Managers. All proceeds from such liquidation shall be distributed in accordance with the provisions of Section 18-804 of the Act, and all Units shall be cancelled. Distributions to the Members shall be made in accordance with the Members' relative Capital Account balances.
(b) Prior to any liquidation or dissolution of the Company, a proper accounting shall be made to the Members from the date of the last previous accounting to the date of dissolution.
(c) In the event the Board determines that a portion of the Company's assets are best distributed in kind to the Members, then such assets shall be so distributed in kind to the Members in undivided shares therein as tenants in common in accordance with the Members relative Capital Account balances.
(d) Upon the completion of the distribution of the Company's assets, the Company shall be terminated and the Managers shall cause the Company to execute and file a certificate of cancellation in accordance with Section 18-203 of the Act.
ARTICLE X
EXCULPATION AND INDEMNIFICATION
Section 10.1 Exculpation. Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, none of the Managers, the members of the Executive Committee, the Audit Committee, the Nominating Committee or the Compensation Committee, the Members, or the officers, directors, stockholders, partners, employees, representatives or agents of any of the foregoing, nor any officer, employee, representative or agent of the Company or any of its Affiliates (individually, a "Covered Person" and, collectively, the "Covered Persons") shall be liable to the Company or any other Person for any act or omission relating to the Company and the conduct of its business, this Agreement, any related document or any transaction contemplated hereby or thereby, taken or omitted in good faith by a Covered Person and in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company, provided that such act or omission is not found by a court of competent jurisdiction or an arbitration panel to constitute fraud, willful misconduct, bad faith or gross negligence.
Section 10.2 Indemnification. To the fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative ("Claims"), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 10.2 with respect to any Claim in which such Covered Person is found by a court of competent jurisdiction to have engaged in fraud, willful misconduct, bad faith or gross negligence. Expenses incurred by a Covered Person in investigating or defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company in accordance with this Section 10.2. The Company may maintain insurance at its expense to protect itself and any Manager, officer, trustee, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Act.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Amendment to the Agreement.
(a) Except as set forth in the next sentence, this Agreement may be amended by, and only by, a written instrument executed by a Supermajority of Members. The Board may amend this Agreement, or any Schedule or Exhibit hereto, without the consent of the Members, to:
| (i) | reflect any change validly made in the membership of the Company and membership interests of the Members; |
| (ii) | reflect a change in the name of the Company validly approved by the Members pursuant to Section 2.2; |
| (iii) | make any necessary or advisable change, in the opinion of the Board, to qualify the Company as a limited liability company, or to ensure that the Company will not be treated, for income tax purposes, as an association taxable as a corporation; |
| (iv) | make a change to cure any ambiguity, or to correct or supplement any provision in this Agreement that would be inconsistent with any other provision in this Agreement, so long as such change does not adversely affect the Members; |
| (v) | make any necessary or advisable change, in the opinion of the Board, to satisfy any requirements, conditions or guidelines contained in any applicable statute or any opinion, directive, order, ruling or regulation relating thereto, so long as such change does not adversely affect the Members; |
| (vi) | make any change in any provision of this Agreement that requires any action to be taken by or on behalf of the Board or the Company pursuant to the requirements of applicable Delaware law if the provisions of applicable Delaware laws are amended, modified or revoked so that the taking of such action is no longer required; |
| (vii) | prevent the Company from in any manner being deemed an "investment company" subject to the provisions of the Investment Company Act of 1940, as amended; |
| (viii) | make any change in the amounts referred to in Section 4.2 (c)(iv), (v), (vi) or (vii) up to a maximum of US$500,000 in each such case; or |
| (ix) | make any other amendments similar to the foregoing. |
Section 11.2 Successors; Counterparts. Subject to Article VIII, this Agreement (a) shall be binding as to the executors, administrators, estates, heirs and legal successors, or nominees or representatives, of the Members and (b) may be executed in several counterparts with the same effect as if the parties executing the several counterparts had all executed one counterpart.
Section 11.3 Governing Law; Severability; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law. In particular, this Agreement shall be construed to the maximum extent possible to comply with all the terms and conditions of the Act. The parties agree that any dispute controversy or claim that arises out of or in connection with this Agreement or the breach, termination or validity thereof shall be settled by arbitration in accordance with the then current Commercial Arbitration Rules ("the Rules") of the American Arbitration Association ("AAA") except as modified herein. Such arbitration shall be held in London, England and the language of the arbitration shall be English. There shall be 3 arbitrators, one each to be chosen by the claimant(s) and the respondent(s) to the dispute within 20 days of the receipt by respondent(s) of a copy of the notice of arbitration from the AAA and the third to be chosen by the arbitrators so chosen within 30 days of the selection of the second arbitrator. If both the claimant(s) and the respondent(s) do not timely select arbitrators then all the arbitrators shall be appointed by the AAA in accordance with the striking and ranking procedure in the Rules. The arbitrators shall be required to follow the law of the State of Delaware. If it shall be determined by the arbitrators that any provisions or wording of this Agreement shall be invalid or unenforceable under the Act or other applicable law, such invalidity or unenforceability shall not invalidate the entire Agreement. In that case, this Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the requirements of applicable law, and, in the event such term or provisions cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable terms or provisions. If it shall be determined by the arbitrators that any provision relating to the distributions and allocations of the Company or to any expenses payable by the Company is invalid or unenforceable, this Agreement shall be construed or interpreted so as (a) to make it enforceable or valid and (b) to make the distributions and allocations as closely equivalent to those set forth in this Agreement as is permissible under applicable law. The proceedings of the arbitration shall be kept confidential by the parties thereto and the arbitrators. The fees and other arbitration expenses shall be borne by the parties as determined by the arbitrators. The award of the arbitrators shall be final and binding upon the parties, and shall be the sole and exclusive remedy between and among the parties regarding any claims, counterclaims, issues or accounting presented to the arbitrators. The award may be enforced in any court having jurisdiction. The parties expressly agree that leave to appeal under Section 45 or Section 69 of the English Arbitration Act 1996 may not be sought with respect to any question of law arising in the Course of the arbitration or with regard to any award made.
Section 11.4 Filings. Following the execution and delivery of this Agreement, the Members shall promptly prepare any documents required to be filed and recorded under the Act, and the Members shall promptly cause each such document to be filed and recorded in accordance with the Act and, to the extent required by local law, to be filed and recorded or notice thereof to be published in the appropriate place in each jurisdiction in which the Company may hereafter establish a place of business. The Members shall also promptly cause to be filed, recorded and published such statements of fictitious business name and any other notices, certificates, statements or other instruments required by any provision of any applicable law of the United States or any state or other jurisdiction which governs the conduct of its business from time to time.
Section 11.5 Headings. Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope or intent of this Agreement or any provision hereof.
Section 11.6 Additional Documents. Each Member agrees to perform all further acts and execute, acknowledge and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement.
Section 11.7 Notices. All notices, requests and other communications to any Member shall be in writing (including telecopier or similar writing) and shall be given to such Member (and any other Person designated by such Member) at its address or telecopier number set forth in Schedule A hereto or such other address or telecopier number as such Member may hereafter specify for the purpose by notice. Each such notice, request or other communication shall be effective (a) if given by telecopier, when transmitted to the number specified pursuant to this Section 11.7 and the appropriate confirmation is received, (b) if given by mail, 72 hours after such communication is received by the other party, or (c) if given by any other means, when delivered at the address specified pursuant to this Section 11.7.
Section 11.8 Waiver of Partition. Each of the Members hereby irrevocably waives any and all rights that such Member may have to maintain any action for partition of any of the Company's property.
Section 11.9 Interpretation. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, the feminine, or the neuter gender shall include the masculine, feminine and neuter.
Section 11.10 Compliance with Laws. It is the intention of each Member that its actions, and those of the Company, shall comply with all applicable laws, regulations, and ordinances relating to transactional activity on the Registry, including applicable antitrust/antimonopoly laws. In furtherance of this intention the Members acknowledge that their transactions using the Registry shall be the product of their independent and confidential judgment. The Members may not exchange any information among one another relating to any terms of sale, customers, markets, or other transaction specific information in any manner contrary to law. It will be the responsibility of the Board to ensure that legal counsel knowledgeable in antitrust and trade regulation laws advises the Company in the conduct of its business and the operation of the Company and the Registry including but not limited to participation in such meetings of the Board, as determined by the Board.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first above written.
1STDOMAIN.NET, A DIVISION OF G+D
INTERNATIONAL,
LLC
By:______________________
Name:
Title:
CORE
(INTERNET COUNCIL OF
REGISTRARS)
By:______________________
Name:
Title:
CORPORATE DOMAINS, INC.
By:______________________
Name:
Title:
DOMAIN BANK, INC.
By:______________________
Name:
Title:
DOMAININFO AB
By:______________________
Name:
Title:
DOMAINPEOPLE, INC.
By:______________________
Name:
Title:
DOMAIN REGISTRATION SERVICES
By:______________________
Name:
Title:
EPAG
ENTER-PRICE MULTIMEDIA
AG
By:______________________
Name:
Title:
INTERQ INC.
By:______________________
Name:
Title:
NAMESECURE, INC.
By:______________________
Name:
Title:
NETNAMES INTERNATIONAL
By:______________________
Name:
Title:
NETWORK SOLUTIONS, INC.
REGISTRAR
OPERATIONS
By:______________________
Name:
Title:
POLAR SOFTWARE LTD.
By:______________________
Name:
Title:
PROCUREMENT SERVICES
INTERNATIONAL (JAPAN), INC.
By:______________________
Name:
Title:
REGISTER.COM
By:______________________
Name:
Title:
SCHLUND + PARTNER AG
By:______________________
Name:
Title:
SITENAME
By:______________________
Name:
Title:
SPEEDNAMES, INC.
By:______________________
Name:
Title:
TUCOWS, INC.
By:______________________
Name:
Title:
CAPITAL CONTRIBUTIONS
| Name and Address of Members |
Capital Contribution |
Number of Units |
Unit Percentage |
| 1stDomain.Net, a
division of G + D International, LLC 535 Lipoa Pkwy #188 Kihei, HI96753
Attn: |
US$50,000 | 50 | 5.2631% |
| CORE (Internet Council of Registrars) World Trade Center II 29, Route De Pre-Bois-CH-1215 Geneva, Switzerland Attn: |
US$50,000 | 50 | 5.2631% |
|
Corporate Domains, Inc. 2711 Centerville Road, Suite 400, Wilmington, DE 19808 Attn: |
US$50,000 | 50 | 5.2631% |
| Domain Bank, Inc. 23 West 4th Street Bethlehem, PA 18015 Attn: |
US$50,000 | 50 | 5.2631% |
| Domaininfo AB Lilla Bommen 1 SE-41104 Goethenburg, Sweden Attn: |
US$50,000 | 50 | 5.2631% |
|
DomainPeople, Inc. 1440-555 West Hastings St. Vancouver, BC Canada V6B 4N6 Attn: |
US$50,000 | 50 | 5.2631% |
|
Domain Registration Services The dotEarth Company 101 Lombard Street Suite B Philadelphia, PA 19147 Attn: |
US$50,000 | 50 | 5.2631% |
| EPAG Enter-Price Multimedia AG TALSTRAFFE 22-44 Duesseldorf, Germany Attn: |
US$50,000 | 50 | 5.2631% |
| interQ Incorporated
Shibuya-ku Tokyo 9150-0031 Japan Attn: |
US$50,000 | 50 | 5.2631% |
| Namesecure.com, Inc. 1855 Gateway Blvd. Suite 1050 Concord, CA 94520 Attn: |
US$50,000 | 50 | 5.2631% |
| NetNames International 100 Redgate Lane Reading, MA 01867 Attn: Thomas Barrett |
US$50,000 | 50 | 5.2631% |
| Network Solutions Inc. Registrar Operations
505 Huntmar Park Drive Herndon, VA 20170-5139 Attn: |
US$50,000 | 50 | 5.2631% |
| Polar Software Ltd. A-105, Sector-5, Noida - 201301NCR-Delhi, India Attn: |
US$50,000 | 50 | 5.2631% |
| Procurement Services Interna- tional (Japan), Inc. 17300 E. 17th St, #J PMBox 2222 Tustin, CA 92780-7918 Attn: |
US$50,000 | 50 | 5.2631% |
| register.com 575 8th Ave,11th Floor New York, NY 10018 Attn: |
US$50,000 | 50 | 5.2631% |
| Schlund + Partner AG Erbprinzenstr. 4-12 D-76133 Karlsruhe, Germany Attn: |
US$50,000 | 50 | 5.2631% |
| SiteName 2 Nordau St Hertzelia, Israel Attn: |
US$50,000 | 50 | 5.2631% |
| Speednames, Inc. 6 Temasek Blvd. #22-03 Suntec Tower Four Singapore 038986 Attn: |
US$50,000 | 50 | 5.2631% |
| Tucows, Inc. 535 5th Ave New York, NY 10017 Attn: |
US$50,000 | 50 | 5.2631% |
| Total | US$950,000 | 950 | 100% |
LIST OF MANAGERS
CLASS 1 MANAGERS
1) Phillipp GrabenseeCLASS 2 MANAGERS
1) Tom Barrett
CLASS 3 MANAGERS
1) Robert Connelly