EFTA01295263.pdf

OPERATING AGREEMENT
OF
NES, LLC
A New York Limited Liability Company
THIS OPERATING AGREEMENT (this "Agreement") of NES, LLC, a New York limited
liability company (the "Company"), organized under the Limited Liability Company Law of the
State of New York (this "LLC Law") is adopted as of January 1, 2014 by the Company's sole
member, Jeffrey E. Epstein (hereinafter referred to as "Sole Member"), with an address at 6100 Red
Hook Quarter, B3, St. Thomas, U.S. Virgin Islands 00802, who has determined that the Company's
activities and the rights and responsibilities of its members shall be governed by the following terms
and conditions:
SECTION I
ORGANIZATION & FORMATION
A. Formation. The Company has been organized as a New York limited liability company
under and pursuant to the LLC Law by the filing of Articles of Organization ("Articles") with the
Secretary of State of the State of New York on August 13, 1998, as required by the LLC Law.
B. Name. The name of the Company shall be "NES, LLC". The Company upon proper
notice and filing with the Secretary of State of the State of New York may conduct its operations
under one or more assumed names.
C. Purposes. The purpose of the Company is to engage in any lawful activity, operate any
lawful enterprise or to have any other lawful purpose permitted by the LLC Law and the other
applicable laws of the State of New York. The Company shall have all the powers necessary or
convenient to affect any purpose for which it is formed, including all powers granted by the LLC
Law.
D. Duration. The Company shall continue in existence perpetually, beginning on the date
of filing of the Articles, unless terminated by law or dissolved and terminated.
E. Service Address and Place of Business. The Secretary of State of the State of New York
is designated as the agent of the Company upon whom process against the Company may be served.
The post office address within or without the State of New York to which process so served may be
sent is 9 East 71a Street, New York, New York 10021. The Company's principal place of business
shall be located in the City, State and County of New York, or such other place or places as the Sole
Member may hereafter determine.
1
SDNY_GM_00054063
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-0016887
EFTA_00164633
EFTA01295263

SECTION II
CAPITAL STRUCTURE: MEMBERSHIP UNITS AND
CONTRIBUTIONS/TRANSFER OF MEMBERSHIP UNITS
A. Capital Contribution by the Sole Member; Initial Issuance. The Sole Member's
ownership rights in the Company shall be reflected as a 100% membership interest as recorded in
the Company's records. The Sole Member may make additional capital contributions from time to
time and at any time and in any amounts that he may desire.
B. Transfer of Membership Interest. Subject to the provisions of this Section, a
Member may transfer and assign all or a portion of his interest as a member in the Company
("Membership Interest") to any one or more persons or entities, at any time and from time to
time. The transfer and assignment of all or a portion of a Membership Interest does not, in and of
itself, entitle the assignee to participate in the management and affairs of the Company or to
become a member. Such assignee is only entitled to receive, to the extent assigned, the
distributions the assigning Member would otherwise be entitled to, and such assignee shall only
become an assignee of all or a portion of a Membership Interest and not a substitute Member.
An assignee of all or a portion of a Membership Interest shall be admitted as a substitute
Member and shall be entitled to all the rights and powers of the assignor only if all the Members
consent If admitted, the substitute Member, has to the extent assigned, all of the rights and
powers, and is subject to all of the restrictions and liabilities, of a Member of the Company.
Notwithstanding the foregoing, without the consent of any other Member, the Sole Member may,
by a duly executed agreement with the assignee, assign any or all of the Membership Interest
then held by the Sole Member, together with the Sole Member's management and voting rights
in the Company with respect to the portion of the Membership Interest so assigned, and, upon the
consummation of such assignment, the assignee thereof shall be automatically admitted as a
substitute member, with all of the rights and powers held by, and subject to all of the restrictions
and liabilities imposed upon, the Sole Member immediately prior to such assignment, to the full
extent of the portion of the Membership Interest so assigned.
C. No Interest No Return of Capital. Capital contributions to the Company shall not
earn interest, except as otherwise expressly provided for in this Agreement. Except as otherwise
provided in this Agreement, a Member shall not be entitled to withdraw, or to receive a return of, a
capital contribution or any portion thereof; provided, however, that, subject to the provisions of
Section IV hereof, the Sole Member shall from time to time and at any time, in the Sole Member's
discretion, be entitled to withdraw, and receive a return of, all or any part of the Sole Member's
capital contribution.
SECTION III
CAPITAL ACCOUNT
A. Capital Account. A capital account ("Capital Account") shall be maintained for the Sole
Member, and each additional Member, if any, in accordance with the provision of this Article.
2
SDNY_GM_00054064
IDENTIAL
CONFIDENTIAL — PURSUANT TO FED. R.Q1:1?N(F DB-SONY-00 16888
EFTA_00 164634
EFTA01295264

1. Increases in Capital Account. The Capital Account of each Member shall be
increased by:
(a) The fair market value of the Member's initial capital contribution and any
additional capital contributions by the Member to the Company. If any property,
other than cash, is contributed to or distributed by the Company, the adjustments to
Capital Accounts required by Treasury Regulation Section 1.704-1(b)(2)(iv)(d), (e),
(f) and (g) and Section 1.704-1(bX4)(I) shall be made.
(b) The Member's share of the increase in the tax basis of Company property, if
any, arising out of the recapture of any tax credit.
(c) Allocations to the Member of Profit.
(d) Company income or gain (including income and gain exempt from income
taxation) as provided under this Agreement, or otherwise by Regulation Section
1.704-1(bX2)(iv).
(e) The amount of Company liabilities that are assumed by the Member.
2. Decreases in Capital Account. The Capital Account of each Member shall be
decreased by:
(a) the amount of money distributed to the Member by the Company pursuant
to any provision of this Agreement.
(b) The fair market value of property distributed to the Member by the Company
(net of liabilities secured by such distributed property that Member is considered to
assume or take subject to under Code Section 752).
(c) Allocations to the Member of Losses.
(d) Allocations to the Member of deductions, expenses, Nonrecourse
Deductions and net losses allocated to him pursuant to this Agreement, and the
Member's share of Company expenditures which are neither deductible nor properly
chargeable to Capital Accounts under Code Section 705(aX2XB) or are treated as
such expenditures under Treasury Regulation Section 1.704-1(bX2XivXD.
"Nonrecourse Deductions" shall have the meaning set forth in Treasury Regulation
Section 1.704-2.
(e) The amount of any liabilities of the Member that are assumed by the
Company.
3
SDNY_GM_00054065
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-00 16889
EFTA_00164635
EFTA01295265

SECTION IV
ALLOCATIONS AND DISTRIBUTIONS
A. Allocations. For purposes of maintaining each Member's Capital Account, all of the
Company's net profits, net losses, expenses and other items of Some, gain, loss, and credit shall be
allocated to the Member in proportion to the percentage Membership Interest of such Member. All
items of Company taxable income, gain, loss, deduction, and credit recognized or allowable for
Federal income tax purposes shall be similarly allocated and credited or charged to each Member in
proportion to the percentage Membership Interest held by such Member.
B. Distributions. Net cash flow shall be distributed at such times and in such amounts as
may be determined from time to time and at any time by the Sole Member of the Company in the
following priority:
1. First, to the Members in repayment of any advance of funds to the Company as a
lender, to the extent of and in proportion to such advances, including interest thereon, if any;
2. Additional distributions, if any will be made to the Members in proportion to the
percentage Membership Interests held by them, respectively, in such amounts and at such
times as may be determined by the Sole Member of the Company.
C. Distribution upon Liquidation of the Company.
1. At the termination of the Company and after the Company has satisfied or
provided for the satisfaction of all the Company's debts and other obligations, the
Company's assets will be distributed in cash to the Members first, in discharge of their
respective capital interests; and then, in proportion to the percentage Membership Interests
held by them, respectively.
2. If the Company lacks sufficient assets to make the distributions described in the
foregoing paragraph, the Company will make distributions in proportion to the respective
Membership Interests of the Members.
SECTION V
MANAGEMENT OF BUSINESS
A. In General. The Company shall be member-managed. The Members of the Company
shall manage the business and affairs of the Company and shall have full and complete authority,
power and discretion to do all things necessary or convenient to manage, control and carry out
the business, affairs and properties of the Company, to make all decisions regarding those
matters and to perform any and all other acts or activities customary or incident to the
management of the Company's business. All decisions and actions of the Company in connection
therewith shall be determined by the affirmative vote or the written consent of Members holding a
majority percentage of the Membership Interests of the Company.
4
SDNY_GM_00054066
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-0016890
EFTA_00164636
EFTA01295266

B. Limitation of Manager's Authority. Notwithstanding anything to the contrary
provided in the foregoing, the written consent of the Sole Member shall be required to:
1. Sell, transfer, assign, convey, or otherwise dispose of any part of the Company's
assets;
2. Cause the Company to incur any debt in excess of $5,000, whether or not in the
ordinary course of business;
3. Cause the Company to incur any debt less than $5,000 other than in the ordinary
course of business;
4. Cause the Company to encumber any assets in connection with any debt referred to
in clause 2 or 3 above;
5. Issue or sell, or approve the transfer, assignment, conveyance or other disposition of
all or any portion of any Membership Interest in the Company;
6. Adopt, amend or repeal the Operating Agreement of the Company;
7. Approve a plan of merger of the Company with any other entity;
8. Incur any single expense or combination of related expenses in excess of $5,000;
9. Cause the Company to make any distributions to its Members.
C. Voting of Membership Interests. A Membership Interest is entitled to be voted only if
it is owned by a Member, and the relative weight of the vote of each such Membership Interest
shall be proportionate to such Member's percentage Membership Interest. Neither an assignee
nor a transferee may vote a Membership Interest unless such assignee or transferee is admitted as
a Member.
SECTION VI
EXCULPATION OF LIABILITY: INDEMNIFICATION
A. Exculpation of Liability. Unless otherwise provided by law or expressly assumed
pursuant to a written instrument signed by such person, neither the Sole Member nor any other
subsequent Member of the Company shall be personally liable for the acts, debts or liabilities of the
Company.
B. indemnification.
1. Except as otherwise provided in this Section, the Company, its receiver or its trustee
shall indemnify, defend and hold harmless the Sole Member, each other subsequent Member and
their respective heirs, personal representatives, and successors, and may indemnify, defend and
hold harmless any employee or agent, who was or is a party or is threatened to be made a party to a
threatened, pending or completed action, suit or proceeding, from and against any expense, loss,
damage or liability incurred or connected with, or any claim, suit, demand, loss, judgment,
liability, cost or expense, including, without limitation, reasonable attorney's fees, arising from or
related to, the Company or any act or omission of the Sole Member, such subsequent Member or
such employee or agent on behalf of the Company, and amounts paid in settlement of any of the
above, provided that such amounts were not the result of fraud, gross negligence, or reckless or
intentional misconduct on the part of the Sole Member, such subsequent Member or such
employee or agent against whom a claim is asserted. The Company may advance to the Sole
5
SDNY_GM_00054067
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-0016891
EFTA_00I 64637
EFTA01295267

Member, such subsequent Member or any such employee or agent and their respective heirs,
personal representatives, and successors the costs of defending any claim, suit or action against
such person if such person undertakes to repay the funds advanced, with interest, if the person is
not entitled to indemnification under this Section.
2. To the extent that the Sole Member, such subsequent Member, or any such employee or
agent of the Company has been successful on the merits or otherwise in defense of an action, suit
or proceeding or in defense of any claim, issue or other matter in the action, suit or proceeding,
such person shall be indemnified against actual and reasonable expenses, including, without
limitation, attorneys' fees, incurred by such person in connection with the action, suit or
proceeding and any action, suit or proceeding brought to enforce the mandatory indemnification
provided herein.
3. Any indemnification permitted under this Section, unless ordered by a court, shall be
made by the Company only as authorized in the specific case upon a determination that the
indemnification is proper under the circumstances because the person to be indemnified has met
the applicable standard of conduct and upon an evaluation of the reasonableness of expenses and
amounts paid in settlement. This determination and evaluation shall be made by the vote of the
majority of the percentage Membership Interests. Notwithstanding the foregoing to the contrary,
no indemnification shall be provided to any Member, employee or agent of the Company for or
in connection with the receipt of a financial benefit to which such person is not entitled, voting
for or assenting to a distribution to the Members in violation of this Agreement or the LLC Law,
or a knowing violation of other law.
SECTION VII
LIOUIDATION
The Company shall be dissolved, and shall terminate and wind up its affairs, upon the
determination of the Sole Member to do so.
SECTION VIII
MISCELLANEOUS PROVISIONS
A. Section Headings. The Section headings and numbers contained in this Agreement have
been inserted only as a matter of convenience and for reference, and in no way shall be construed to
define, limit or describe the scope or intent of any provision of this Agreement.
B. Severability. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
C. Amendment. This Agreement may be amended or revoked at any time, in writing, with
the consent of the Sole Member. No change or modification to this Agreement shall be valid unless
in writing and signed by the Sole Member.
6
SDNY_GM_00054068
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-00 16892
EFTA_00164638
EFTA01295268

D. Binding Effect. Subject to the provisions of this Agreement relating to transferability,
this Agreement will be binding upon and shall inure to the benefit of the parties, and their respective
distributees, heirs, successors and assigns.
E. Governing Law. The rights and obligations of the Sole Member, and any claims and
disputes relating thereto, shall be subject to and governed by, and construed and enforced in
accordance with the laws of the State of New York, including without limitation, the LLC Law, as
well as all New York Laws applicable to contracts executed and to be fully performed within the
State of New York, without application of New York's laws relating to conflicts of law.
IN WITNESS WHEREOF, the Sole Member makes and executes this Operating
Agreement on the day and year first written above.
SOLE MEMB_Eltr
( Jeffrey E. Epstein ‘l
N__
7
SDNY_GM_00054069
IDENTIAL
CONFIDENTIAL — PURSUANT TO FED. R.CON(F DB-SONY-00 16893
EFTA_00164639
EFTA01295269