EFTA Document EFTA01295547

AMENDED AND RESTATED OPERATING AGREEMENT OF LSJE, A U.S. Virgin Islands Limited Liability Company THIS AMENDED AND RESTATED OPERATING AGREEMENT (this "Agreement') is made and entered into as of March 13, 2013 by Jeffrey E. Epstein (hereinafter referred to as "Sole Member'), with an address at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802, who formed LSJE, LLC, a United States Virgin Islands limited liability company (the "Company") pursuant to the United States Virgin Islands Uniform Limited Liability Company Act (the "Act") and hereby amends and restates the Company's Operating to provide for the operation of the Company and the conduct of its affairs upon the following terms and conditions: SECTION I ORGANIZATION & FORMATION A. Formation. The Company was organized as a U.S. Virgin Islands limited liability company under and pursuant to the United States Virgin Islands Limited Liability Company Act (the "Act') by the filing of Articles of Organization ("Articles") with the Office of the Lieutenant Governor of the United States Virgin Islands on October 27, 2011, as required by the Act. A Certificate of Amendment to the Articles (the "Amendment") was filed with the Office of the Lieutenant Governor of the United States Virgin Islands on March 13, 2013 in order to change the name of the Company from "LSJ Employees, LLC" to "LSJE, LLC" B. Name. The name of the Company shall be "LSJE, LLC". The Company was formerly named "LSJ EMPLOYEES, LLC", but the Company's name was changed to "LSJE, LW" by the filing of the Amendment with the Office of the Lieutenant Governor of the United States Virgin Islands. The Company upon proper notice and filing with the Office of the Lieutenant Governor of the United States Virgin Islands may conduct its business 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 United States 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 The Registered Office and Resident Agent of the Company for service of process within the territory shall be: Business Basics VI, LLC, 9100 Port of Sale Mall, Suite 15, St. Thomas, U.S. Virgin Islands 00802. The Company's principal place of business is 6100 Red Hook Quarter, B3, St. Thomas U.S. Virgin Islands 00802 or such other place or places as the Sole Member may hereafter determine. I SDNY_GM_00055126 CONFIDENTIAL - PURSUANT TO FED R.QPN(F IDENTIAL DB-SDNY-0017950 EFTA_00165696 EFTA01295547 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 in "Membership Units," of which there are 100, as recorded in the Company's records. Upon the formation of the Company, the Sole Member has made 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 thereupon issued to the Sole Member that number and class of Units so subscribed and contributed for. The Sole Member may make additional capital contributions at any time and in any amount that it may desire. B. floater of Membership Units. The Sole Member may transfer any or all of its Membership Units to any person or persons, at any time and from lime to time. Subject to the provisions of this Section, the Sole Member may assign its Membership Units in the Company in whole or in part. The assignment of a Membership Unit does not 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 Sole Member would otherwise be entitled to, and such assignee shall only become an assignee of a Membership Unit and not a substituted 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 the members. Notwithstanding the foregoing, the Sole Member may, by a duly executed agreement, assign all of its Membership Interest, together with the management and voting rights in the Company, whereupon the assignee shall, without any further action or consent by any member, manager or other person, become a substitute member of the Company. C. No Interest: 'o Return of Canitaj. 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, the Sole Member shall not be entitled to withdraw, or to receive a return of, a capital contribution or any portion thereof. SECTION III CAPITAL ACCOUNT A. Capital Account. A capital account ("Capital Account") shall be maintained for the Sole Member, and any additional member in accordance with the provisions of this Article. 1. Increases in Capital Account. The Capital Account of the members shall be increased by: SDNY_GM_00055127 CONFIDENTIAL - PURSUANT TO FED_ R.Q0 .,11FIDENTIAL DB-SDNY-0017951 EFTA_0O165697 EFTA01295548 (a) The fair market value of the members' initial capital contribution and any additional capital contributions by the members 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(bX2)(iv)(d), (e), (1) and (g) and Section 1.704-1(b)(4)(1) shall be made. (b) The members' 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 members 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(b)(2)(iv). (e) The amount of Company liabilities that are assumed by the Sole Member. 2. pecreases in_ Capital Account. The Capital Account of the members shall be decreased by: (a) The amount of money distributed to the members by the Company pursuant to any provision of this Agreement. (b) The fair market value of property distributed to the members by the Company (net of liabilities secured by such distributed property that such members am considered to assume or take subject to under Code Section 752). (c) Allocations to the members of Losses. (d) Allocations to the members of deductions, expenses, Nonrecourse Deductions and net losses allocated to them pursuant to this Agreement, and the members' share of Company expenditures which are neither deductible nor properly chargeable to Capital Accounts under Code Section 7O5(aX2)(B) or are treated as such expenditures under Treasury Regulation Section 1.704-1(bX2)(iv)(i). "Nonrecourse Deductions" shall have the meaning set forth in Treasury Regulation Section 1.704-2. (e) The amount of any liabilities of the members that are assumed by the Company. SECTION IV ALLOCATIONS AM) DISTRIBUTIONS A. Allocations. For purposes of maintaining the Sole 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 Sole Member. All items of Company taxable income, gain, loss, deduction, and 3 SDNY_GM_00055128 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017952 EFTA_00I 65698 EFTA01295549 credit recognized or allowable for Federal income tax purposes shall be allocated and credited or charged to the Sole Member. B. Distributions. Net cash flow shall be distributed in the following priority: 1. First, to the Sole Member 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 Sole Member, in such amounts and at such times as determined by the Sole Member. C. Distribution upon Liquidation of the cloi play. I. 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 Sole Member 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. 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 Sole Member and any dissociated members whose interests have not been previously redeemed. SECTION V MANAGEMENT OF MINIM A. In General. The Company shall be manager-managed. The initial Manager of the Company shall be Jeanne Brennan. The Manager 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. B. Limitation of Manager's Authority. Notwithstanding the authority of the Manager, the consent of the Sole Member shall be required %r the Manager 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 S5,000 other than in the ordinary course of business; 4 SDNY_GM_00055129 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F 1DENTIAL DB-SONY-00 17953 EFTA_0() 1 65699 EFTA01295550 4. Cause the Company to encumber any assets in connection with any debt referred to in clause 2 or 3 above; 5. Issue, sell, transfer, assign, convey or otherwise dispose of any 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; and 10. Incur any single expense or combination of related expenses in excess of $5,000. 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; INDEMNIFICAIION A. Exculnation 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. 13. Jndemnifiestion. 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, 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 5 SDNY_GM_00055130 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017954 EFTA_00 I 657(X) EFTA01295551 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 parties or threatened to be made parties to the action, suit or proceeding, unless there is only one member, in which case it shall be made by the sole member, whether or not such member is a party or threatened to be made a party to the action. 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. Section Headings. 'Ile 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. Severabiliiv. 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. Dindina 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 6 SDNY_GM_00055131 CONFIDENTIAL - PURSUANT TO FED. R.ctc.)N(FIDENTIAL DB-SONY-00 17955 EFTA_00165701 EFTA01295552 thereto, shall be subject to and governed by, and construed and enforced in accordance with the laws of the 'territory of the United States Virgin Islands. IN WITNESS WHEREOF, the Sole Member makes and executes this Amended and Restated Operating Agreement on the day and year first written above. Jeffy E. Epstein 7 SDNY_GM_00055132 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17956 EFTA_00 165702 EFTA01295553 EXHIBIT A MEMBER LISTING; CAPITAL CONTRIBUTIONS Member Cppital Contributed Membership US Percentage Interest JEFFREY E. EPSTEIN $1000.00 100 100% 0101-ciA. (3, ao( 3 JEFFREY E. EPSTEIN DATE 8 SDNY_GM_00055133 CONFIDENTIAL - PURSUANT TO FED „QC) .NE I DENTIAL DB-SDNY-0017957 EFTA_00165703 EFTA01295554