EFTA01295278.pdf

OPERATING AGREEMENT
OF
PLAN D, LLC
A U.S. Virgin Islands Limited Liability Company
THIS OPERATING AGREEMENT (this "Agreement') is made and entered into as of
October 19, 2012 by Jeffrey E. Epstein (hereinafter referred to as "Sole Member"), with an address
at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802, who hereby forms PLAN D, LLC, a U.S.
Virgin Islands limited liability company (the "Company") pursuant to the U.S. Virgin Islands
Uniform Limited Liability Company Act (the "Act") upon the following terms and conditions:
SECTION I
ORGANIZATION & FORMATION
A. Formation. The Company has been organized as a U.S. Virgin Islands limited liability
company wider and pursuant to the U.S. Virgin Islands Limited Liability Company Act (the "Act")
by the filing of Articles of Organization ("Articles") with the Office of the Lieutenant Governor, on
October 19, 2012, as required by the Act.
B. Name. The name of the Company shall be "PLAN D, LLC". The Company upon
proper notice and filing with the Office of the Lieutenant Governor of the U.S. Virgin Islands 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 law of the territory of the
U.S. Virgin Islands. 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 Act.
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. Registered Office and Resident Agent and Place of Business. The Registered Office and
Resident Agent of the Company for service of process within the territory shall be: Business Basics
VI, 1.1,C, at 9100 Port of Sale Mall, Suite 15, St. Thomas, U.S. Virgin Islands 00802. The
Company's principal place of business shall be 6100 Red Hook Quarter, 83, St. Thomas U.S.
Virgin Islands 00802 or such other place or places as the Sole Member may hereafter determine.
1
SDNY_GM_00054080
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.QQN(F DB-SONY-0016904
EFTA_00I 64650
EFTA01295278

SECTION II
CAPITAL STRUCTURE: MEMBERSHIP UNITS AND
CONTRIBUTIONSrfRANSFER OF MEMBERSHIP UNITS
A. Capital Contribution by the Sole Member; Initial Issuance. The Sole Member's
ownership rights in the Company shall be reflected in "Membership Units? as recorded in the
Company's records. Upon the formation of the Company, the Sole Member shall make a capital
contribution to the capital of the Company in the amount of cash, or of the property-in-kind, or both,
set forth opposite the Sole Member's name on the Schedule of Capital Contributions attached
hereto. The Company shall thereupon issue to the Sole Member that number of Membership Units
so subscribed and contributed for as reflected on said Schedule. 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 Units. Subject to the provisions of this Section, a Member
may transfer and assign any or all of his Membership Units to any one or more persons or entities,
at any time and from time to time. The transfer and assignment of a Membership Unit 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 a Membership Unit and not a substitute Member. An assignee of a
Membership Unit 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 Units and 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 Membership Units and 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 Membership Units and 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.
2
SDNY_GM_00054081
IDENTIAL
CONFIDENTIAL — PURSUANT TO FED. R.CON(F DB-SONY-00 16905
EFTA_00164651
EFTA01295279

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.
I. 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 1704-1(bX2)(ivXd),
(f) and (g) and Section 1.704-1(bX4X1) 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(a)(2XB) or are treated as
such expenditures under Treasury Regulation Section 1.704-1(bX2Xiv)(i).
"Nonrecourse Deductions" shall have the meaning set forth in Treasury Regulation
Section 1.704-2.
3
SDNY_GM_00054082
IDENTIAL
CONFIDENTIAL — PURSUANT TO FED. R.QPN(F DB-SONY-00 16906
EFTA_00164652
EFTA01295280

(c) The amount of any liabilities of the Member that arc assumed by the
Company.
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 income, gain, loss, and credit shall be
allocated to the Member in proportion to the Membership Units held by such Member as compared
to the total number of outstanding Membership Units. 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 Membership Units
held by such Member as compared to the total number of outstanding Membership Units.
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 hinds 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
Membership Units 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 and any dissociated members
whose interests have not been previously redeemed first, in discharge of their respective
capital interests; and then, in proportion to the Membership Units 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 amount of
the respective capital accounts of the Members and any dissociated members whose
interests have not been previously redeemed.
SECTION V
MANAGEMENT OF BUSINESS
A. In General. The Company shall be manager-managed. The initial Manager of the
Company shall be Lawrence Visoski. The Manager shall manage the business and affairs of the
4
SDNY_GM_00054083
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-00 16907
EFTA_00164653
EFTA01295281

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.
B. Limitation of Manager's Authority. Notwithstanding the authority of the Manager,
the written consent of the Sole Member shall be required for the Manager to:
I. 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
any Membership Units or Membership Interest in the Company;
6. Adopt, amend or repeal the Operating Agreement of the Company;
7. Appoint or fill the vacancy of the Manager;
8. Approve a plan of merger of the Company with any other entity;
9. Amend, alter, repeal, or take any action inconsistent with any resolution of the Sole
Member,
10. Incur any single expense or combination of related expenses in excess of $5,000;
I I. Cause the Company to make any distributions to its Members.
C. Voting of Membership Units. A Membership Unit is entitled to be voted only if it is
owned by a Member and each such Membership Unit shall be entitled to one vote. Neither an
assignee nor a transferee may vote a Membership Unit 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 the Manager
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 and the Manager 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,
5
SDNY_GM_00054084
IDENTIAL
CONFIDENTIAL — PURSUANT TO FED. R.CON(F DB-SONY-00 16908
EFTA_00 164654
EFTA01295282

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, the Manager 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, the Manager or such employee or agent
against whom a claim is asserted. The Company may advance to the Sole Member, the Manager
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, the Manager, 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 Membership Units of the members who are not panics or threatened to be made
parties to the action, suit or proceeding. Notwithstanding the foregoing to the contrary, no
indemnification shall be provided to any Manager, 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 Act, or a
knowing violation of law.
SECTION VII
LIQUIDATION
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. Sectipn Hodings. 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.
6
SDNY_GM_00054085
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.QQN(F DB-SONY-00 16909
EFTA_00164655
EFTA01295283

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.
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. Regardless of the place where this Agreement may be executed by the
Sole Member, 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 Territory of the U.S. Virgin Islands.
IN WITNESS WHEREOF, the Sole Member makes and executes this Operating Agreement on
the day and year fast written above.
DESIGNATION AS MANAGER
AND THE TERMS HEREOF
APPLICABLE TO THE MANAGER
ARE ACCEPTAED
e Visoski
7
SDNY_GM_00054086
IDENTIAL
CONFIDENTIAL - PURSUANT TO FED. R.CON(F DB-SONY-0016910
EFTA_OOI 64656
EFTA01295284