{"id":41642,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/limited-liability-company-agreement-marketwatch-com-llc-cbs.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"limited-liability-company-agreement-marketwatch-com-llc-cbs","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/limited-liability-company-agreement-marketwatch-com-llc-cbs.html","title":{"rendered":"Limited Liability Company Agreement &#8211; MarketWatch.com LLC, CBS Inc. and Data Broadcasting Corp."},"content":{"rendered":"<pre>================================================================================\n\n\n\n\n\n                       LIMITED LIABILITY COMPANY AGREEMENT\n                                       of\n                              MARKETWATCH.COM, LLC\n                                     between\n                                    CBS INC.\n                                       and\n                          DATA BROADCASTING CORPORATION\n\n\n\n\n\n                          Dated as of October 29, 1997\n\n\n\n\n\n================================================================================\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                            Page\n                                                                                                            ----\n                                                                                                      \n                                    ARTICLE I\n\n                                   Definitions\n\nSECTION 1.01.     Definitions ................................................................................1\nSECTION 1.02.     Definitions Generally.......................................................................4\n\n\n                                   ARTICLE II\n\n                               General Provisions\n\nSECTION 2.01.     Formation...................................................................................4\nSECTION 2.02.     Name .......................................................................................4\nSECTION 2.03.     Term .......................................................................................4\nSECTION 2.04.     Purpose ....................................................................................4\nSECTION 2.05.     Registered Office\/Agent.....................................................................5\nSECTION 2.06.     Principal Office............................................................................5\nSECTION 2.07.     Members ....................................................................................5\n\n\n                                   ARTICLE III\n\n                              Capital Contributions\n\nSECTION 3.01.     Initial Capital Contributions...............................................................5\nSECTION 3.02.     Additional Capital Contributions............................................................5\nSECTION 3.03.     Withdrawals, Interest and Capital Accounts..................................................5\n\n\n                                   ARTICLE IV\n\n                                  Distributions\n\nSECTION 4.01.     Distributions...............................................................................5\nSECTION 4.02.     Distributions in Kind.......................................................................5\nSECTION 4.03.     Tax Withholding.............................................................................6\n\n\n\n\n                                       i\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                            Page\n                                                                                                            ----\n                                                                                                      \n                                    ARTICLE V\n\n                        Allocations and Other Tax Matters\n\nSECTION 5.01.     Capital Accounts............................................................................6\nSECTION 5.02.     Allocation of Net Profits and Net Losses....................................................7\nSECTION 5.03.     Definition of Net Profits and Net Losses....................................................7\nSECTION 5.04.     Federal Income Tax Allocations..............................................................7\nSECTION 5.05.     Elections...................................................................................8\nSECTION 5.06.     Fiscal Year.................................................................................8\nSECTION 5.07.     Tax Matters Partner.........................................................................8\nSECTION 5.08.     Other Tax Matters...........................................................................8\n\n\n                                   ARTICLE VI\n\n                                   Management\n\nSECTION 6.01.     Delegation of Authority.....................................................................9\nSECTION 6.02.     Management Committee........................................................................9\nSECTION 6.03.     Employees; Officers.........................................................................11\nSECTION 6.04.     Business Plan...............................................................................11\nSECTION 6.05.     Matters Requiring the Consent of All Members................................................12\n\n\n                                   ARTICLE VII\n\n                               Dispute Resolution\n\nSECTION 7.01.     Negotiation.................................................................................12\nSECTION 7.02.     Dispute Resolution..........................................................................12\n\n\n                                  ARTICLE VIII\n\n                                Books and Records\n\nSECTION 8.01.     Books and Records...........................................................................14\nSECTION 8.02.     Reports to Members; Budgets.................................................................14\n\n\n\n\n                                       ii\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                            Page\n                                                                                                            ----\n                                                                                                      \n                                   ARTICLE IX\n\n                         Admission of Members; Transfers\n\nSECTION 9.01.     Admission of Substitute or Additional Members...............................................15\nSECTION 9.02.     Restriction on Transfer.....................................................................15\nSECTION 9.03.     Right of First Refusal......................................................................15\n\n\n                                    ARTICLE X\n\n                         Exculpation and Indemnification\n\nSECTION 10.01.    Exculpation and Indemnification.............................................................16\nSECTION 10.02.    Liability of the Members....................................................................17\n\n\n                                   ARTICLE XI\n\n                      Dissolution, Liquidation and Transfer\n\nSECTION 11.01.    Dissolution.................................................................................17\nSECTION 11.02.    Liquidation.................................................................................17\nSECTION 11.03.    Time Limitation.............................................................................18\nSECTION 11.04.    Mandatory Transfers.........................................................................18\nSECTION 11.05.    Claims of Members...........................................................................19\n\n\n                                   ARTICLE XII\n\n                                    DBC Loan\n\nSECTION 12.01.    DBC Loan ...................................................................................19\n\n\n                                  ARTICLE XIII\n\n                            Agreement Not To Compete\n\nSECTION 13.01.    Agreement Not To Compete....................................................................19\nSECTION 13.02.    Enforcement.................................................................................21\n\n\n\n\n                                      iii\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                            Page\n                                                                                                            ----\n                                                                                                      \n                                   ARTICLE XIV\n\n                                  Miscellaneous\n\nSECTION 14.01.    Amendments..................................................................................21\nSECTION 14.02.    Notices ....................................................................................21\nSECTION 14.03.    Counterparts................................................................................21\nSECTION 14.04.    Severability................................................................................21\nSECTION 14.05.    No Third-Party Beneficiaries................................................................22\nSECTION 14.06.    Governing Law...............................................................................22\nSECTION 14.07.    Publicity...................................................................................22\nSECTION 14.08.    WAIVER OF JURY TRIAL........................................................................22\nSECTION 14.09.    Consent to Jurisdiction.....................................................................22\nSECTION 14.10.    Headings ...................................................................................22\nSECTION 14.11.    Survival ...................................................................................22\nSECTION 14.12.    No Waiver...................................................................................23\nSECTION 14.13.    Entire Agreement............................................................................23\nSECTION 14.14.    Further Assurance...........................................................................23\n\n\nEXHIBIT A         Addresses for Notices\nEXHIBIT B         Management Committee\n\n\n\n\n                                       iv\n\n\n\n                  LIMITED LIABILITY COMPANY AGREEMENT dated as of October 29,\n1997, between CBS INC., a New York corporation ('CBS'), and DATA BROADCASTING\nCORPORATION, a Delaware corporation ('DBC').\n\n\n                              Preliminary Statement\n\n                  WHEREAS, having formed a limited liability company with the\nname 'Marketwatch.Com, LLC' (the 'Company') under the Act (as hereinafter\ndefined) by the filing of a Certificate of Formation with the Secretary of State\nof the State of Delaware on the date hereof, the parties hereto now desire to\nenter into this Agreement to govern their rights and obligations as members\nthereof;\n\n                  WHEREAS, immediately following the execution and delivery of\nthis Agreement, CBS ad DBC are entering into the Contribution Agreement dated as\nof the date hereof (the 'Contribution Agreement'), among CBS, DBC and the\nCompany; and\n\n                  WHEREAS, simultaneously with the execution and delivery of the\nContribution Agreement, CBS and the Company are entering into the License\nAgreement and DBC and the Company are entering into the DBC Services Agreement.\n\n                  NOW, THEREFORE, in consideration of the premises and the\nmutual agreements herein, and for other good and valuable consideration, the\nreceipt and adequacy of which are hereby acknowledged, the parties hereto,\nintending to be legally bound by the terms hereof applicable to each of them,\nhereby agree as follows:\n\n                                    ARTICLE I\n\n                                   Definitions\n\n                  SECTION 1.01. Definitions. When used herein, the following\nterms have the following meanings:\n\n                  'Act' means the Delaware Limited Liability Company Act as in\neffect from time to time, or any successor statute.\n\n                  'Affiliate' means, with respect to any Person, any other\nPerson directly or indirectly, through one or more intermediaries, Controlling\nor Controlled by or under common Control with such Person.\n\n                  'Agreement' means this Limited Liability Company Agreement as\nit may be amended, supplemented or otherwise modified from time to time.\n\n                  'Arbitrator' has the meaning assigned to that term in Section\n7.02.\n\n                  'Business' means the business conducted by the Company, which\nshall be the businesses conducted with the assets contributed to the Company by\nDBC pursuant to the\n\n\n\n\nContribution Agreement as such businesses may be expanded or otherwise changed\nfrom time to time by the Company pursuant to the terms hereof.\n\n                  'Business Day' means a day that is not a Saturday, Sunday or\nother day on which banking institutions in the State of New York are authorized\nor required by law, regulation or executive order to be closed.\n\n                  'Business Plan' has the meaning assigned to that term in\nSection 6.04.\n\n                  'Capital Account' has the meaning assigned to that term in\nSection 5.01.\n\n                  'CBS' has the meaning assigned to that term in the preamble.\n\n                  'CBS Competitive Activities' has the meaning assigned to that\nterm in Section 13.01(b).\n\n                  'Certificate of Formation' means the Certificate of Formation\nof the Company as filed with the Secretary of State of the State of Delaware on\nthe date hereof, as the same may be amended, modified or otherwise supplemented\nfrom time to time in accordance with the terms hereof.\n\n                  'Code' means the Internal Revenue Code of 1986, as amended\nfrom time to time.\n\n                  'Company' has the meaning assigned to that term in the\npreamble.\n\n                  'Contribution Agreement' has the meaning assigned to that term\nin the preamble.\n\n                  'Control' means the possession, directly or indirectly, of the\npower to direct or cause the direction of the management or policies of a\nPerson, whether through the ownership of voting securities or general\npartnership or managing member interests, by contract or otherwise, and\n'Controlling' and 'Controlled' shall have meanings correlative thereto. Without\nlimiting the generality of the foregoing, a Person shall be deemed to Control\nany other Person in which it owns, directly or indirectly, a majority of the\nownership interests or a majority of all outstanding voting stock of such\nPerson.\n\n                  'DBC' has the meaning assigned to that term in the preamble.\n\n                  'DBC Change of Control' has the meaning assigned to that term\nin Section 11.04.\n\n                  'DBC Competitive Activities' has the meaning assigned to that\nterm in Section 13.01(a)(i).\n\n                  'DBC Loan' has the meaning assigned to that term in Section\n12.01.\n\n                  'DBC Offer' has the meaning assigned to that term in Section\n11.04.\n\n\n\n                                       2\n\n\n                  'DBC Services Agreement' means the Services Agreement dated as\nof the date hereof, among DBC and the Company.\n\n                  'Definitive Documents' means this Agreement, the Contribution\nAgreement, the License Agreement, the DBC Services Agreement and all other\nagreements and documents contemplated by any of the foregoing , as the same may\nbe amended, supplemented or otherwise modified in accordance with the terms\nhereof or thereof, as applicable.\n\n                  'Detrimental Activities' has the meaning assigned to that term\nin Section 13.01.\n\n                  'Initial Capital Contributions' has the meaning assigned to\nthat term in Section 3.01.\n\n                  'Interest' means the interest of a Member in the Company at\nany particular time, including the right of such Member to any and all benefits\nto which such Member may be entitled as provided in this Agreement, together\nwith the obligations of such Member to comply with all the terms and provisions\nof this Agreement.\n\n                  'License Agreement' means the License Agreement dated as of\nthe date hereof, among CBS and the Company.\n\n                  'Management Committee' has the meaning assigned to that term\nin Section 6.01.\n\n                  'Member Nonrecourse Debt' means any Company liability (or\nportion thereof) that is a 'partner nonrecourse debt' within the meaning of\nTreasury Regulation Section 1.704-2(b)(4).\n\n                  'Members' means CBS and DBC and any Persons admitted as\nadditional or substitute Members of the Company pursuant to Section 9.01.\n\n                  'Membership Percentages' means, with respect to each Member,\nsuch Member's ownership Interest in the Company, expressed as a percentage. The\ninitial Membership Percentages are 50% with respect to CBS and 50% with respect\nto DBC.\n\n                  'Negotiation Period' has the meaning assigned to that term in\nSection 7.02.\n\n                  'Net Losses' has the meaning assigned to that term in Section\n5.03.\n\n                  'Net Profits' has the meaning assigned to that term in Section\n5.03.\n\n                  'Nonselling Member' has the meaning assigned to that term in\nSection 9.03.\n\n                  'Offer Notification' has the meaning assigned to that term in\nSection 9.03.\n\n                  'Person' means any individual, corporation, partnership, joint\nventure, limited liability company, limited liability partnership, association,\njoint-stock company, trust, unincorporated organization or other organization,\nwhether or not a legal entity, and any governmental authority.\n\n\n\n                                       3\n\n\n                  'Section 704(c) Property' means any property that is\ncontributed to the Company at a time when its adjusted tax basis differs from\nits fair market value and any Company property that is the subject of a\nrevaluation pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) at a\ntime when its adjusted tax basis differs from its fair market value.\n\n                  'Selling Member' has the meaning assigned to that term in\nSection 9.03.\n\n                  'Submission Date' has the meaning assigned to that term in\nSection 7.02.\n\n                  'Third Party Offer' has the meaning assigned to that term in\nSection 9.03.\n\n                  'Transfer' means, with respect to any item of property, any\ndirect or indirect sale, assignment, disposition of or other transfer, pledge or\nencumbrance of such item, and 'Transferred' has a meaning correlative to the\nforegoing.\n\n                  'Triggering Event' has the meaning assigned to that term in\nSection 11.04.\n\n                  SECTION 1.02. Definitions Generally. Definitions in this\nAgreement apply equally to both the singular and plural forms of the defined\nterms. The words 'include' and 'including' shall be deemed to be followed by the\nphrase 'without limitation' when such phrase does not otherwise appear. The\nterms 'herein', 'hereof' and 'hereunder' and other words of similar import refer\nto this Agreement as a whole and not to any particular section, paragraph or\nsubdivision. The article and section titles appear as a matter of convenience\nonly and shall not affect the interpretation of this Agreement. All article,\nsection, paragraph, clause, exhibit or schedule references not attributed to a\nparticular document shall be references to such parts of this Agreement.\n\n                                   ARTICLE II\n\n                               General Provisions\n\n                  SECTION 2.01. Formation. The Company has been formed as a\nlimited liability company pursuant to the provisions of the Act by the filing of\nthe Certificate of Formation with the Secretary of State of the State of\nDelaware. Each member hereby adopts, confirms and ratifies the Certificate of\nFormation and all acts taken in connection therewith.\n\n                  SECTION 2.02. Name. The name of the Company is\n'Marketwatch.Com, LLC'. The Management Committee may change the name of the\nCompany or adopt such trade or fictitious names as it may determine with the\napproval of the Members.\n\n                  SECTION 2.03. Term. The term of the Company began on the date\nhereof and shall continue in perpetuity or until terminated in accordance with\nthe terms hereof.\n\n                  SECTION 2.04. Purpose. The purpose of the Company shall be to\ncarry on any lawful business, purpose or activity for a limited liability\ncompany under the Act.\n\n\n\n                                       4\n\n\n                  SECTION 2.05. Registered Office\/Agent. The registered office\nof the Company in the State of Delaware is The Corporation Trust Company,\nCorporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The\nname and address of the registered agent of the Company for service of process\non the Company in the State of Delaware is The Corporation Trust Company,\nCorporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.\n\n                  SECTION 2.06. Principal Office. The Company's principal place\nof business will be at 1900 South Norfolk Street, San Mateo, CA 94403, or such\nother address as the Management Committee shall specify from time to time by\nwritten notice to the Members.\n\n                  SECTION 2.07. Members. The addresses of the initial Members\nare as set forth in Exhibit A attached hereto.\n\n                                   ARTICLE III\n\n                              Capital Contributions\n\n                  SECTION 3.01. Initial Capital Contributions. Pursuant to the\nContribution Agreement, each of the Members will make an initial capital\ncontribution (the 'Initial Capital Contributions') as set forth in the\nContribution Agreement in exchange for the their respective Interests. The\nInitial Capital Contributions made by each of the Members are deemed to have\nequal discounted present values.\n\n                  SECTION 3.02. Additional Capital Contributions. Upon request\nfrom the Management Committee, and subject to the unanimous consent and approval\nof the Members, the Members will make additional capital contributions to the\nCompany pro rata in accordance with their respective Membership Percentages.\n\n                  SECTION 3.03. Withdrawals, Interest and Capital Accounts. No\nmember shall have the right to withdraw any part of its capital contribution or\nto receive any distribution except in accordance with the provisions of this\nAgreement. No interest shall be paid on any capital contribution to the Company\nexcept as may be set forth in this Agreement. A member shall not have any\nobligation to the Company or to any other Member to restore any negative balance\nin the Capital Account of such Member.\n\n                                   ARTICLE IV\n\n                                  Distributions\n\n                  SECTION 4.01. Distributions. The Company will make cash\ndistributions to the Members in accordance with their Membership Percentages at\nsuch times and in such amounts as the Management Committee shall determine in\nits sole discretion.\n\n                  SECTION 4.02. Distributions in Kind. The Company shall not\ndistribute any assets in kind unless approved by all of the Members. Such\nproperty distributions shall be distributed based upon their fair market value\nin the same proportions as if cash were distributed. \n\n\n\n                                       5\n\n\nIf cash and property in kind are to be distributed simultaneously, the Company\nshall distribute such cash and property in kind in the same proportion to each\nMember, unless otherwise agreed by the Members.\n\n                  SECTION 4.03. Tax Withholding. Notwithstanding any provision\nherein to the contrary, the Management Committee may take any and all actions\nthat it determines to be necessary or appropriate to ensure that the Company\nsatisfies any and all withholding and tax payment obligations under Section\n1441, 1445 or 1446 of the Code or any other provision of the Code or other\napplicable law. Without limiting the generality of the foregoing, the Management\nCommittee may withhold any amount of taxes that it determines is required to be\nwithheld from amounts otherwise distributable to any Member pursuant to this\nArticle IV; provided, however, that such amount shall be deemed to have been\ndistributed to such Member for purposes of applying this Agreement.\n\n                                    ARTICLE V\n\n                        Allocations and Other Tax Matters\n\n                  SECTION 5.01. Capital Accounts. (a) There shall be established\nfor each Member on the books of the Company an account (a 'Capital Account') to\nbe maintained pursuant to this Agreement. The Capital Account of each Member\nshall be credited with (i) the amount of all cash contributed by a Member to the\nCompany, (ii) the fair market value of any property contributed to the Company\n(net of any liabilities secured by such property that the Company is considered\nto assume or take subject to under Section 752 of the Code) and (iii) the amount\nof any Net Profits (or items of income) allocated to a Member pursuant to\nSection 5.02, and shall be decreased by (a) the amount of any cash distributed\nto a Member by the Company, (b) the fair market value of any property\ndistributed to a Member by the Company (net of any liabilities secured by such\ndistributed property that such Member is considered to assume or take subject to\nunder Section 752 of the Code), (c) the amount of any expenditure of the Company\ndescribed in Section 705(a)(2)(B) of the Code (or treated as a Section\n705(a)(2)(B) expenditure for purposes of Section 704(b) of the Code) that is\nallocable to a Member and (d) the amount of any Net Losses (or item of loss or\ndeduction) allocated to a Member pursuant to Section 5.02. The Capital Accounts\nof the Members shall also be adjusted appropriately for their respective shares\nof any other adjustment required under Treasury Regulation Sections 1.704-1(b)\nand 1.704-2.\n\n                  (b) In the event that any Interest in the Company is\nTransferred, the transferee of such Interest shall succeed to the pro rata\nportion of the transferor's Capital Account attributable to such Interest.\n\n                  (c) Upon the occurrence of any event specified in Treasury\nRegulation Section 1.704-1(b) (2) (iv) (f), the Management Committee may cause\nthe Capital Accounts of the Members to be adjusted to reflect the fair market\nvalue of the Company's property at such time, as provided in such regulation.\n\n\n\n                                       6\n\n\n                  SECTION 5.02. Allocation of Net Profits and Net Losses. (a)\nSubject to Section 5.02(b), the Net Profits and Net Losses of the Company for\neach taxable year shall be allocated among the Members pro rata in proportion to\ntheir respective Membership Percentages.\n\n                  (b) Notwithstanding Section 5.02(a), special allocations of\nNet Profits, Net Losses or specific items of income, gain, loss or deduction may\nbe required for any taxable year as follows:\n\n                  (i) The Company shall allocate items of Company income and\n         gain among the Members at such times and in such amounts as necessary\n         to satisfy the minimum gain chargeback requirements of Treasury\n         Regulation Sections 1.704-2(f) and 1.704-2(i)(4).\n\n                  (ii) Any deductions attributable to Member Nonrecourse Debt\n         shall be allocated among the Members that bear the economic risk of\n         loss for such Member Nonrecourse Debt in accordance with the ratios in\n         which such Members share such economic risk of loss and in a manner\n         consistent with the requirements of Treasury Regulation Sections\n         1.704-2(c), 1.704-2(i)(2) and 1.704-2(j) (1).\n\n                  (iii) The Company shall specially allocate Net Losses and\n         items of income and gain when and to the extent required to satisfy the\n         'qualified income offset' requirement within the meaning of Treasury\n         Regulation Section 1.704-1(b)(2)(ii) (d).\n\n                  (iv) During the taxable year in which a liquidation occurs,\n         the Company shall allocate Net Profits or Net Losses and any other item\n         allocable to such taxable year such that the balance in each Member's\n         Capital Account equals the amount to be distributed to that Member\n         pursuant to Section 11.02(b).\n\n                  (v) In the event a Member's contribution to the Company causes\n         any Member to recognize income for Federal income tax purposes, the\n         entire amount of any deductions associated with such contribution shall\n         be allocated to the Member that recognizes income or, if more than one\n         Member recognizes income as a result of such contributions to the\n         Company, shall be allocated proportionately based upon the amount of\n         income so recognized by each Member.\n\n                  SECTION 5.03. Definition of Net Profits and Net Losses. The\n'Net Profits' or 'Net Losses' of the Company, as appropriate, shall be the\ntaxable income or tax loss of the Company as determined for Federal income tax\npurposes for a given taxable year, taking into account any separately stated\nitems, increased by the amount of any tax exempt income of the Company during\nsuch taxable year and decreased by the amount of any Code Section 705(a)(2)(B)\nexpenditures (within the meaning of Treasury Regulation Section\n1.704-1(b)(2)(iv)(i)) of the Company during such taxable year; provided,\nhowever, that items of income, gain, loss and deduction attributable to Section\n704(c) Property shall be determined in accordance with the principles of\nTreasury Regulation Section 1.704-1(b)(2)(iv)(g).\n\n                  SECTION 5.04. Federal Income Tax Allocations. Section 5.02\nprovides for the allocation of Net Profits and Net Losses for accounting and\nCapital Account maintenance \n\n\n\n                                       7\n\n\npurposes. The Company's ordinary income and losses and capital gains and losses\nas determined for Federal income tax purposes (and each item of income, gain,\nloss or deduction entering into the computation thereof) shall be allocated to\nthe Members in the same proportions as the corresponding 'book' items are\nallocated pursuant to the preceding provisions of this Article V; provided,\nhowever, that items of income, gain, loss and deduction relating to Section\n704(c) Property shall be allocated in accordance with Section 704(c)(1)(A) of\nthe Code and the Treasury Regulations thereunder. Items described in this\nSection shall neither be credited nor charged to the Members' Capital Accounts.\n\n                  SECTION 5.05. Elections. (a) The Management Committee shall\ncause the Company to make an election under Section 754 of the Code upon receipt\nof a written request therefor from any transferee of an Interest permitted\nhereunder.\n\n                  (b) The Members intend that the Company be treated as a\npartnership for Federal income tax purposes. Accordingly, neither the Management\nCommittee nor any Member shall file any election on behalf of the Company that\nis inconsistent with that intent.\n\n                  (c) Except as otherwise expressly provided herein, any tax\nelections required or permitted to be made by the Company under the Code or\notherwise shall be made in such manner as may be reasonably determined by the\nManagement Committee.\n\n                  SECTION 5.06. Fiscal Year. The fiscal year of the Company\nshall end on the last day of December of each year.\n\n                  SECTION 5.07. Tax Matters Partner. DBC, or such other Member\nas shall be designated by a majority in Membership Percentage, shall be the 'tax\nmatters partner' of the Company within the meaning of Section 6231(a)(7) of the\nCode and shall act in any similar capacity under state or local tax law. The\ndesignated Member shall keep each other Member fully informed regarding matters\nfor which it is responsible while acting in such capacity. The designated Member\nshall perform only ministerial duties in its capacity as 'tax matters partner'\nand shall not take any material action in such capacity without the consent of\nthe Management Committee. All reasonable expenses incurred by the 'tax matters\npartner' while acting in such capacity shall be paid or reimbursed by the\nCompany.\n\n                  SECTION 5.08. Other Tax Matters. The Members agree to treat\ncontributions made pursuant to the Contribution Agreement as governed by Section\n721 of the Code, unless a final determination (which shall include the execution\nof a Form 870-AD or successor form) requires a different treatment for U.S.\nFederal income tax purposes. In the event that any taxing authority contests\nsuch agreed treatment of the contributions or the treatment of any other item as\nagreed to by the Members in the Definitive Documents, a Member receiving notice\nof such contest from such taxing authority shall promptly give written notice of\nsuch contest to each other Member. Such other Members may, at their own expense,\nparticipate in the defense of such contest. The Members shall reasonably\ncooperate in defending any such contest, and no Member shall settle or otherwise\ncompromise such a contest without the written consent of the other Members\n(which shall not be unreasonably delayed or withheld). In the event of a\nMember's refusal to consent to a settlement, such Member shall, to the extent\npermitted by law, \n\n\n\n                                       8\n\n\nassume control of the defense of such contest, and such Member shall bear any\nlegal fees incurred by such Member in undertaking such defense to the extent\nincurred after the assumption.\n\n                                   ARTICLE VI\n\n                                   Management\n\n                  SECTION 6.01. Delegation of Authority. Except as otherwise\nprovided herein, each of the Members agree that the power to direct and control\nthe Company shall be delegated to a management committee (the 'Management\nCommittee'). Approval or action taken by the Management Committee in accordance\nwith this Agreement shall constitute approval or action by the Company and shall\nbe binding on each Member.\n\n                  SECTION 6.02. Management Committee. (a) Voting and Members.\n(i) CBS shall appoint three members of the Management Committee and DBC shall\nappoint three members of the Management Committee. Each member of the Management\nCommittee, including any alternate member designated by any Member, shall be an\nemployee of the Member making such appointment or an employee of the Company.\nThe initial members and alternative members of the Management Committee and\ntheir respective telephone and telecopier numbers are set forth in Exhibit B.\n\n                  (ii) For purposes of any approval or action taken by the\nManagement Committee, each member of the Management Committee shall have one\nvote. Except as set forth herein, a majority vote of all of the members of the\nManagement Committee shall constitute action on that matter that is binding upon\nthe Company and the Members. In the event that the Vote of the Management\nCommittee is evenly divided, and the members of the Management Committee cannot\nresolve such conflict by good faith negotiation within 15 days, the Management\nCommittee shall, by written notice to the Members, submit such issue for\nresolution as set forth in Article VII hereof.\n\n                  (iii) The quorum necessary for any meeting of the Management\nCommittee shall be those members entitled to cast all of the votes held by the\nmembers of the Management Committee. A quorum shall be deemed not be present at\nany meeting for which notice was not properly given as provided for herein,\nunless the member or members as to whom such notice was not properly given\nattend such meeting without protesting the lack of notice or duly execute and\ndeliver a written waiver of notice or a written consent to the holding of such\nmeeting.\n\n                  (iv) Each Member shall be entitled to name an alternate member\nto serve in the place of any member of the Management Committee appointed by\nsuch Member should any such member not be able to attend a meeting or meetings\nof the Management Committee. Each member or alternate member shall serve at the\nrequest of the designating Member and may be removed as such by the designating\nMember with or without cause. Each Member shall bear any cost incurred by any\nmember designated by it to serve on the Management Committee, and no member of\nthe Management Committee shall be entitled to compensation from the Company for\nserving in such capacity. Each member shall notify the other Member and the\nCompany of the \n\n\n\n                                       9\n\n\nname, business address and business telephone and facsimile numbers of each\nmember and each alternate member that such Member has appointed to the\nManagement Committee. Each Member shall promptly notify the other Member and the\nCompany of any change in such Member's appointments or of any change in any such\naddress or number. Each appointment by a Member to the Management Committee\nshall remain in effect until the Member making such appointment notifies the\nCompany of a change in such appointment. The resignation or removal of a member\nof the Management Committee shall not invalidate any act of such member taken\nbefore the giving of such written notice of the removal or resignation of such\nmember.\n\n                  (v) Any action taken by a member of the Management Committee\nin such member's capacity as such shall, so far as the Members are concerned, be\ndeemed to have been duly authorized by the Member that appointed such member;\nprovided, however, that any such action shall not be deemed to be an approval,\nconsent or agreement of such Member for any purposes of this Agreement for which\napproval, consent or agreement must be separately obtained from such Member\npursuant to the terms of this Agreement.\n\n                  (vi) CBS shall be entitled to appoint the Chairman of the\nManagement Committee.\n\n                  (b) Meetings and Notices. (i) Meetings of the Management\nCommittee, which shall be led by the Chairman of the Management Committee, shall\nbe held at the principal offices of the Company or at such other place as may be\ndetermined by the Management Committee. A meeting of the Management Committee\nmay be held by conference telephone or similar communications equipment by means\nof which all members participating in the meeting can be heard by all other\nparticipants. Regular meetings of the Management Committee shall be held at\nleast semi-annually on such dates and at such times as shall be determined by\nthe Management Committee. Notice of any regular meeting shall be given to each\nmember of the Management Committee by the Company or any Member at least five\nBusiness Days prior to such meeting. Special meetings of the Management\nCommittee may be called by any Member on at least five Business Days' notice to\neach member and alternate member thereof, which notice shall state the purpose\nor purposes for which such meeting is being called. The failure to identify\nspecifically any action to be taken or business to be transacted at a special\nmeeting shall not invalidate any action taken or business transacted at such\nspecial meeting.\n\n                  (ii) The actions taken by the Management Committee at any\nmeeting, however called and noticed, shall be as valid as though taken at a\nmeeting duly held after regular call and notice if (but not until), either\nbefore, at or after the meeting, the member or members as to whom it was\nimproperly held duly executes and delivers a written waiver of notice or a\nwritten consent to the holding of such meeting. A vote of the Management\nCommittee may be taken either in a meeting of the members thereof or by\nunanimous written consent without a meeting.\n\n                  (iii) Unless otherwise determined by the Management Committee\nwith respect to any meeting of the Management Committee, any member of the\nManagement Committee may bring a reasonable number of nonvoting observers\n(including lawyers and accountants) to any meeting of the Management Committee.\nThe Management Committee may establish reasonable \n\n\n\n                                       10\n\n\nrules and regulations to limit the number and participation of observers and\nrequire them to observe confidentiality obligations.\n\n                  (iv) The Management Committee may establish reasonable rules\nand regulations to provide for the keeping of minutes and other internal\nManagement Committee governance not inconsistent with the terms of this\nAgreement.\n\n                  (c) Nothing in this Section shall derogate from the power of\nthe Members, which is absolute, to mutually agree in writing to cause the\nCompany to act or refrain from acting.\n\n                  (d) Notwithstanding anything herein to the contrary, the\nCompany may enforce its rights under any agreement with any Member without such\nMember's consent and without the approval of the members of the Management\nCommittee appointed by such Member.\n\n                  SECTION 6.03. Employees; Officers. (a) General. (i) The\nManagement Committee shall retain and employ officers, including a Chief\nExecutive Officer and such other officers as shall be deemed necessary or\nadvisable to operate the Company; provided, however, that CBS shall be entitled\nto appoint the Chairman of the Management Committee (pursuant to clause\n6.01(a)(iv)) and DBC shall be entitled to appoint the Chief Executive Officer,\nwho shall be one of the members of the Management Committee appointed by DBC\nhereunder.\n\n                  (ii) The Chief Executive Officer and the Chairman of the\nManagement Committee shall jointly approve the appointment of all key personnel\nof the Company other than the Chief Executive Officer, subject, in each case, to\nthe ratification of such appointments by the Management Committee. The officers\nof the Company shall be subject to removal with or without cause by the\nManagement Committee; provided, however, that the Chief Executive Officer shall\nbe subject to removal without cause only by DBC, and the Chairman shall be\nsubject to removal without cause only by CBS.\n\n                  (iii) All officers of the Company (other than the Chief\nExecutive Officer) shall (A) report to the Chief Executive Officer or another\nofficer designated by the Chief Executive Officer and (B) attend meetings of the\nManagement Committee as requested.\n\n                  (b) The Chief Executive Officer. The Chief Executive Officer\nshall be the most senior officer of the Company and shall be responsible for the\nday to day operation of the Company, subject to the control of the Management\nCommittee. He or she shall report to the Management Committee.\n\n                  SECTION 6.04. Business Plan. The Chief Executive Officer will\nprepare annually a business plan for the Company which will be submitted to the\nManagement Committee for approval (the business plan so approved, the 'Business\nPlan'). If any annual update of the Business Plan is not approved as set forth\nherein, then the prior Business Plan then in effect in accordance with this\nSection will continue in effect.\n\n\n\n                                       11\n\n\n                  SECTION 6.05. Matters Requiring the Consent of All Members.\n(a) Each Member shall designate one individual who shall be authorized to act on\nbehalf of such Member in connection with consents or approvals necessary or\nappropriate pursuant to the terms of this Agreement; provided that all such acts\non behalf of a Member shall be in writing. Each Member agrees to give any\nconsent or approval required pursuant to the terms of this Agreement, or to\nindicate that such consent or approval will not be given, within 30 days of\nwritten request by the other Member or the Company.\n\n                  (b) Each provision of this Agreement that requires the vote,\nconsent or approval of the Members shall require the vote, consent or approval\nof each Member, notwithstanding the size of such Member's Interest in the\nCompany or its entitlement to allocations or distributions.\n\n                                   ARTICLE VII\n\n                               Dispute Resolution\n\n                  SECTION 7.01. Negotiation. (a) The Members shall attempt in\ngood faith to resolve promptly any impasse on any issue before the Management\nCommittee by referring such matters to negotiation between Bill Korn, Executive\nVice President, Planning and Operations of CBS, and Mark Imperiale, Chief\nOperating Officer of DBC, or, in the event that either of such officers is no\nlonger serving in such position or a comparable senior executive position, a\nsenior executive of such Member designated by such member.\n\n                  (b) If any Member determines in good faith that there is a\ndisagreement among the Members as to the need for additional capital\ncontributions to the Company or as to the scope of the business or activities to\nbe conducted by the Company or any other fundamental strategic matter relating\nto the Company, such Member shall give written notice to the other Members of\nsuch disagreement. Such disagreement shall be referred for negotiation between\nBill Korn, Executive Vice President, Planning and Operations of CBS, and Mark\nImperiale, Chief Operating Officer of DBC, or, in the event that either of such\nofficers is no longer serving in such position or a comparable senior executive\nposition, a senior executive of such Member designated by such Member. In the\nevent that such disagreement has not been resolved to the mutual satisfaction of\neach Member within 30 days after the delivery notice of such disagreement, any\nMember may give notice in writing to the other Members of its election to\ntrigger the mandatory transfer provisions of Section 11.04.\n\n                  SECTION 7.02. Dispute Resolution. Any claim or controversy\nwith respect to a matter which is within the authority of the Management\nCommittee and which is not resolved within 15 days (the 'Negotiation Period')\nafter the Members receive written notice of the impasse of the Management\nCommittee pursuant to Section 6.02(a)(ii), will, upon the request of either\nMember, be resolved by arbitration as set forth below. The Members agree that\nthe dispute resolution procedure described in this Section 7.02 shall not apply\nto any matter other than those specifically contemplated by the previous\nsentence, including, without limitation, any dispute regarding the\ninterpretation of this Agreement, the rights and obligations of the Members\n\n\n\n                                       12\n\n\nunder this Agreement or other matters not involving the management of the\nbusiness, operations or affairs of the Company. Such arbitration shall be\nconducted in accordance with the following:\n\n                  (a) As promptly as practicable (and in any event within 10\ndays) after the expiration of the Negotiation Period, the Company shall appoint\nan arbitrator from the list attached hereto as Schedule 7.02. The arbitrator\nappointed shall be the first name listed on such Schedule or if such person does\nnot consent to serve as the arbitrator, the next such person on such Schedule\nwho so consents to serve (the 'Arbitrator'). Notwithstanding the foregoing, in\nthe event that the Arbitrator so selected has already served as an arbitrator\nunder this Agreement, then such Arbitrator shall be disqualified if any of the\nMembers so elect and the next name listed on such Schedule (provided such next\nperson has not served in the capacity of arbitrator (as set forth above)) shall\nbe considered to be the 'first name listed' for purposes of the selection of the\nArbitrator. The foregoing disqualification shall not occur if such disqualified\nbut otherwise consenting Arbitrator is the only consenting person on such\nSchedule, or if all other persons on such Schedule are similarly disqualified\n(i.e., have served as arbitrator an equal number of times). The Arbitrator shall\nthen proceed under the procedures outlined in this Section 7.02.\n\n                  (b) Following the designation of the Arbitrator, the Members,\ntogether with the Arbitrator, shall promptly undertake appropriate informal\nefforts to mediate and negotiate a solution to the matter covered by the\noriginal notice.\n\n                  (c) If a negotiated solution cannot be achieved within 10\nBusiness Days after the date on which the Arbitrator is appointed, then the\nArbitrator shall promptly notify the Members of such fact and the matter will be\nresolved as set forth below.\n\n                  (i) Each of the Members will submit to the Arbitrator (and\n         provide copies of the same to the other Member), in writing, within 5\n         Business Days after such notice from the Arbitrator (the date by which\n         both Members shall have made such submissions is referred to herein as\n         the 'Submission Date'), its statement of facts with respect to the\n         disputed matter, together with its proposed resolution of the matter,\n         all in reasonable detail and containing such supporting materials as it\n         may choose to submit. The Arbitrator will resolve the dispute by\n         choosing one of the proposed resolutions, without modification, using\n         the principles set forth in subclause (ii) below to make such\n         determination:\n\n                  (ii) In resolving the dispute, the Arbitrator shall select the\n         proposed resolution that it believes to be in the best interests of the\n         Company;\n\n                  (iii) No hearings or other form of discovery shall be\n         conducted, provided that each Member shall make itself available to\n         respond to inquiries from, and provide information requested by, the\n         Arbitrator;\n\n                  (iv) The Arbitrator shall issue a decision within 15 Business\n         Days after the Submission Date; and\n\n\n\n                                       13\n\n\n                  (v) The fees and expenses of the Arbitrator will be shared\n         equally between the Members. All other costs incurred by a Member in\n         connection with such arbitration shall be borne by the Member incurring\n         such cost.\n\n                  (d) In connection with the enforcement of the mediation and\narbitration provisions of this Section 7.02, any agreement, decision or award\nshall be final and conclusive as to any such claim.\n\n                                  ARTICLE VIII\n\n                                Books and Records\n\n                  SECTION 8.01. Books and Records. The Management Committee\nshall keep or cause to be kept complete and accurate books of account and\nrecords with respect to the Company's business. The books of the Company shall\nat all times be maintained by the Management Committee. Each Member and its duly\nauthorized representatives shall have the right to examine and copy the\nCompany's books, records and documents during normal business hours. The\nCompany's books of account shall be kept in accordance with generally accepted\naccounting principles, consistently applied. The Company's independent auditors\nshall be an independent public accounting firm selected by the Management\nCommittee.\n\n                  SECTION 8.02. Reports to Members; Budgets. (a) Within 60 days\nafter the end of each of the first three fiscal quarters of each year, the\nCompany shall prepare and mail to the Members an unaudited report setting forth:\n(i) a balance sheet of the Company as of the end of such fiscal quarter and (ii)\nan income statement of the Company for such fiscal quarter, comparing actual\nresults to the budget for such period.\n\n                  (b) The Company shall use diligent efforts to prepare (or\ncause to be prepared) and mail to the Members, within 120 days after the end of\neach fiscal year, an audited report setting forth: (i) a balance sheet of the\nCompany as of the end of such fiscal year, (ii) an income statement of the\nCompany for such fiscal year, and (iii) a statement of such Member's Capital\nAccount as of the end of such fiscal year.\n\n                  (c) The Company shall use reasonable efforts to prepare or\ncause the Company's independent accountants to prepare and transmit to each\nMember within 90 days following each calendar quarter a Federal income tax\nschedule and such other tax information as may be reasonably necessary to enable\nsuch Member to prepare its Federal, state and local income tax returns as they\nrelate to the Company for such fiscal year. The Company will provide estimates\nof the Company's taxable income as may be reasonably requested by any Member in\nwriting from time to time.\n\n\n\n                                       14\n\n\n                                   ARTICLE IX\n\n                         Admission of Members; Transfers\n\n                  SECTION 9.01. Admission of Substitute or Additional Members.\nNo substitute or additional Member shall be admitted to the Company without the\nprior written approval of each of the other Members.\n\n                  SECTION 9.02. Restrictions on Transfer. (a) No Member shall\nTransfer its Interest in the Company except for Transfers in accordance with\nSections 9.02(b) or 11.04. Any purported Transfer of all or any part of any\nInterest in the Company in violation of this Section 9.02(a) shall be null and\nvoid ab initio and of no force or effect.\n\n                  (b) The Interest of a Member in the Company may be Transferred\nonly in whole and not in part, may only be Transferred by a sale of such\nMember's entire Interest in the Company and, other than Transfers by CBS\npursuant to the exception to the immediately succeeding sentence, may only be\ntransferred following the fifth anniversary of the date hereof. A Member may\nTransfer its Interest only pursuant to a sale after such Member has fully\ncomplied with the provisions of Section 9.03 with respect to such sale, except\nthat CBS may Transfer its Interest to any entity controlling, controlled by or\nunder common control with, CBS, or to any entity that acquires CBS by purchase\nof stock or by merger or otherwise, or by acquiring all or substantially all of\nCBS's assets, without complying with such provisions. Regardless of whether a\nTransfer of an Interest in the Company is permitted hereunder, such Transfer\nwill not release the transferor from any liability under this Agreement, whether\narising before or after such Transfer, unless and until the transferee is\nadmitted as a Member of the Company in accordance with Section 9.01.\n\n                  SECTION 9.03. Right of First Refusal. If at any time a Member\nshall desire to Transfer its Interest in the Company to a third party, then such\nMember (the 'Selling Member') shall obtain a bona fide written offer from an\nunaffiliated third party (a 'Third Party Offer') to purchase all, but not less\nthan all, the Interest of the Selling Member. No Third Party Offer shall\nencompass or be conditioned upon the sale of any property other than all, but\nnot less than all, the Interest of the Selling Member in the Company. If the\nSelling Member wishes to accept a Third Party Offer, it shall give a notice (an\n'Offer Notification') to the other Member (the 'Nonselling Member') which shall\ninclude a copy of the Third Party Offer and shall set forth in reasonable detail\nthe name and address of the proposed buyer, the identities of the proposed\nbuyer's business principals, the nature of the proposed buyer's and its\nAffiliates' business, and the amount, terms and conditions of the sales price.\nThe Nonselling Member shall then have 60 days to give notice to the Selling\nMember that it wishes to a acquire all, but not less than all, the Interest of\nthe Selling Member at the price and on the terms and conditions set forth in\nsuch Third Party Offer; provided, however, that if any consideration to be paid\nto the Selling Member pursuant to the Third Party Offer is other than cash, the\nNonselling Member shall have the option to pay either such non-cash,\nconsideration or the fair market value thereof in connection with exercising its\nright of first refusal hereunder. Such notice from the Nonselling Member shall\nstate a closing date no later than the later of 90 days after the date of such\nnotice and the closing \n\n\n\n                                       15\n\n\ndate set forth in the Third Party Offer. If the Nonselling member (i) does not\ngive such notice within the 60-day period following the Offer Notification from\nthe Selling Member or (ii) does give such notice but fails to close the sale\nwithin the time period stated in the immediately preceding sentence, then the\nSelling Member may, no later than 120 days after the latter to occur of the\ndates referred to in clauses (i) and (ii) above, sell all, but not less than\nall, its Interest to the third party at the price and on terms and conditions no\nless favorable to the Selling Member than those contained in the Third Party\nOffer.\n\n                                    ARTICLE X\n\n                         Exculpation and Indemnification\n\n                  SECTION 10.01. Exculpation and Indemnification. (a) No Member\nshall be liable to the Company or to any other Member for any losses, claims,\ndamages or liabilities arising from, relating to, or in connection with, this\nAgreement or the business or affairs of the Company, except for any losses,\nclaims, damages or liabilities as are determined by final judgment of a court of\ncompetent jurisdiction to have resulted from such Member's gross negligence,\nwillful misconduct or from the failure by such Member to make a capital\ncontribution required to be made by it pursuant to Article III.\n\n                  (b) The Company shall, to the fullest extent permitted by\napplicable law, indemnify and hold harmless each Member against any losses,\nclaims, damages or liabilities to which such Member may become subject in\nconnection with any matter arising from, relating to, or in connection with,\nthis Agreement or the business or affairs of the Company, except for any losses,\nclaims, damages or liabilities as are determined by final judgment of a court of\ncompetent jurisdiction to have resulted from such Member's gross negligence,\nwillful misconduct or from the failure by such Member to make a capital\ncontribution required to be made by it pursuant to Article III. If any Member\nbecomes involved in any capacity in any action, proceeding or investigation in\nconnection with any matter arising from, relating to, or in connection with this\nAgreement or the business or affairs of the Company, whether or not pending or\nthreatened and whether or not any Member is a party thereto, the Company will\nperiodically reimburse such Member for its actual legal and other expenses\n(including the cost of any investigation and preparation) incurred in connection\ntherewith upon submission by such Member of paid receipts or other evidence of\nsuch expenses satisfactory to the Company; provided, however, that such Member\nshall promptly repay to the Company the amount of any such reimbursed expenses\npaid to it to the extent that it shall ultimately be determined that such Member\nis not entitled to be indemnified by the Company in connection with such action,\nproceeding or investigation as provided in the exception contained in the\nimmediately preceding sentence. If for any reason (other than the gross\nnegligence or willful misconduct of such Member) the foregoing indemnification\nis unavailable to such Member, or insufficient to hold it harmless, then the\nCompany shall contribute to the amount paid or payable by such member as a\nresult of such loss, claim, damage or liability in such proportion as is\nappropriate to reflect the relative benefits received by the Company on the one\nhand and such Member on the other hand or, if such allocation is not permitted\nby applicable law, to reflect not only the relative benefits referred to above\nbut also any other relevant equitable considerations.\n\n\n\n                                       16\n\n\n                  (c) Notwithstanding anything else contained in this Agreement,\nthe reimbursement, indemnity and contribution obligations of the Company under\nparagraph (b) above shall (i) be in addition to any liability that the Company\nmay otherwise have, (ii) extend upon the same terms and conditions to the\ndirectors, officers, trustees, committee members, employees, stockholders,\nmembers, partners, agents and representatives of each Member and of each\nAffiliate of each Member, (iii) be binding upon and inure to the benefit of any\nsuccessors or assigns permitted under this Agreement, heirs and personal\nrepresentatives of each member and (iv) be limited to the assets of the Company.\n\n                  (d) The foregoing provisions of this Section shall survive any\ntermination of this Agreement.\n\n                  SECTION 10.02. Liability of the Members. Except as otherwise\nexpressly provided in the Act, the debts, obligations and liabilities of the\nCompany, whether arising in contract, tort or otherwise, shall be solely the\ndebts, obligations and liabilities of the Company, and no Member shall be\nobligated personally for any such debt, obligation or liability of the Company\nsolely by reason of being a Member. Except as otherwise expressly provided in\nthe Act, the liability of each Member for capital contributions shall be limited\nto the amount of capital contributions required to be made by such Member in\naccordance with the provisions of this Agreement, but only when and to the\nextent the same shall become due pursuant to the provisions of this Agreement.\nIn no event shall any Member enter into any agreement or instrument that would\ncreate or purport to create personal liability on the part of any other Member\nfor any debts, obligations or liabilities of the Company without the prior\nwritten consent of such other Member.\n\n                                   ARTICLE XI\n\n                      Dissolution, Liquidation and Transfer\n\n                  SECTION 11.01. Dissolution. The Company shall be dissolved and\nits affairs shall be wound up upon the bankruptcy or dissolution of any Member,\nunless within 90 days of such event a majority of the remaining Members\ndetermine to continue the business of the Company.\n\n                  SECTION 11.02. Liquidation. (a) Upon a dissolution pursuant to\nSection 11.01, the Company's business and assets shall be liquidated in an\norderly manner. The Management Committee shall act as the liquidator to wind up\nthe affairs of the Company pursuant to this Agreement. If there shall be no\nManagement Committee, the remaining Members may approve one or more liquidators\nto act as the liquidator in carrying out such liquidation. In performing its\nduties, the liquidator shall be authorized to sell, distribute, exchange or\notherwise dispose of Company assets in accordance with the Act in any reasonable\nmanner that the liquidator shall determine to be in the best interest of the\nMembers.\n\n                  (b) The proceeds of the liquidation of the Company shall be\ndistributed in the following order and priority:\n\n\n\n                                       17\n\n\n                  (i) first, to creditors of the Company that are not Members\n         (or Affiliates of Members) in order of priority as provided by law in\n         payment of unpaid liabilities of the Company to the extent required by\n         law or under agreement with such creditors;\n\n                  (ii) second, to the setting of any reserves which the\n         liquidator reasonably deems necessary for any anticipated, contingent\n         or unforeseen liabilities or obligations of the Company arising out of\n         or in connection with the conduct of the Company's business, provided\n         that at the expiration of such period the balance thereof shall be\n         distributed in accordance with the balance of this Section 11.02(b);\n\n                  (iii) third, to any Member (or Affiliate of a Member) for any\n         other loans or debts owing to such Member (or Affiliate) by the Company\n         (including reimbursement of costs or expenses incurred on behalf of the\n         Company in accordance with the terms hereof);\n\n                  (iv) fourth, the balance, if any, pro rata to each Member in\n         accordance with its Membership Percentage.\n\n                  SECTION 11.03. Time Limitation. Any liquidating distribution\npursuant to this Article XI (except pursuant to Section 11.02(b) (ii)) shall be\nmade no later than the later of (a) the end of the taxable year during which\nsuch liquidation occurs and (b) 90 days after the date of such liquidation.\n\n         SECTION 11.04. Mandatory Transfers. (a) Not withstanding anything\nherein to the contrary, and absent agreement of the Members to do otherwise, one\nMember shall purchase the other Member's Interest in the Company pursuant to the\nterms of Section 11.04(b) upon the earliest to occur of: (i) the mutual written\nagreement by the Members to terminate the Company, (ii) CBS giving notice in\nwriting to DBC of its election to trigger the mandatory transfer provisions of\nthis Section 11.04 within 60 days after any Person has acquired ownership of\nmore than 30% of the outstanding shares of common stock, par value $.01 per\nshare or securities representing, in the aggregate, more than 30% of the voting\npower, of DBC, or all or substantially all of DBC's assets, (a 'DBC Change of\nControl'), without the prior written consent of CBS, (iii) the entry of a decree\nof judicial dissolution of the Company pursuant to Section 802 of the Act or\n(iv) any Member giving notice in writing to the other Members of its election to\ntrigger the mandatory transfer provisions of this Section 11.04 pursuant to\nSection 7.01(b) (each, a 'Triggering Event'). The parties hereby agree that DBC\nmay give CBS confidential notice of its intent to enter into an agreement which\nwould cause a DBC Change of Control, together with a description of the party\nwith whom DBC intends to effect such a transaction. CBS shall have twenty (20)\ndays from receipt of such notice to respond to DBC in writing as to whether it\nwould elect to trigger the mandatory transfer provisions of this Section 11.04\nwith respect to such potential DBC Change of Control. If, and only if, CBS\nnotifies DBC that it would not make such election, CBS shall be deemed to have\nwaived its right to trigger such mandatory transfer provisions with respect to\nsuch potential DBC Change of Control.\n\n\n\n                                       18\n\n\n                  (b) Upon the occurrence of a Triggering Event and (i) prior to\nthe first anniversary of the date hereof, DBC shall pay CBS, within 45 days of\nthe occurrence of such event, the sum of 50% of the aggregate rate card value of\nthe advertising time actually contributed by CBS to the Company pursuant to the\nterms of the Contribution Agreement (such amount not to exceed $5,000,000) and\n30% of the net advertising revenue of the Company prior to such Triggering Event\nin exchange for CBS's Interest, and (ii) on or after the first anniversary of\nthe date hereof, DBC shall, within 30 days of the date of the Triggering Event,\nsubmit in writing to CBS and the Company an offer to purchase, within 45 days\nfrom acceptance of such offer, for cash (the 'DBC Offer') all of CBS's Interest;\nthereafter, CBS shall have 30 days to accept such offer by written notice to DBC\nand the Company or to purchase all of DBC's Interest for: (A) 245% of the DBC\nOffer, if the Triggering Event occurred on or after the first anniversary and\nbefore the second anniversary of the date hereof, (B) 163% of the DBC Offer, if\nthe Triggering Event occurred on or after the second anniversary and before the\nthird anniversary of the date hereof and (C) 100% of the DBC Offer, if the\nTriggering Event occurred on or after the third anniversary of the date hereof.\nUpon the consummation of a Transfer by either Member pursuant to the above, the\nother Member shall be released from all of its rights and obligations hereunder\nand under the Definitive Documents and shall no longer be a Member.\n\n                  SECTION 11.05. Claims of Members. The Members shall look\nsolely to the Company's assets for the return of their capital contributions,\nand if the assets of the Company remaining after payment of or reasonable\nprovision for the payment of all liabilities of the Company are insufficient to\nreturn such capital contributions, the Member shall have no recourse against the\nCompany or any other Member.\n\n                                   ARTICLE XII\n\n                                    DBC Loan\n\n                  SECTION 12.01. DBC Loan. Until the third anniversary of the\ndate hereof, DBC shall provide to the Company, on an unsecured, revolving basis,\nloans in amounts up to an aggregate of $5,000,000 (the 'DBC Loan') to be used by\nthe Company in connection with the Business, including but not limited to for\nworking capital financing. Any loans made by DBC to the Company pursuant to this\nArticle XII shall bear interest at a variable rate per annum equal to the rate\nannounced from time to time by The Chase Manhattan Bank as its prime rate in\neffect at its principal office in New York City plus 2% (but in no event higher\nthan the highest lawful rate), and shall be repayable by the Company from time\nto time as soon as possible at such time or times as the Company shall have\nsufficient cash or cash equivalents to make such payment or payments after\ntaking into account the cash needs of the Company.\n\n                                  ARTICLE XIII\n\n                            Agreement Not To Compete\n\n                  SECTION 13.01. Agreement Not To Compete. (a) Agreement of DBC\nNot To Compete. DBC understands that the Company shall be entitled to protect\nand preserve the going concern value of the Business to the extent permitted by\nlaw and, therefore, for a period ending \n\n\n\n                                       19\n\n\non the earlier of the fifth anniversary of the date hereof and such date on\nwhich neither DBC or any of its wholly owned subsidiaries is a Member, DBC shall\nnot, and shall cause its Affiliates not to, directly or indirectly, without the\nprior written consent of each other Member:\n\n                  (i) (A) sell advertising on an Internet website that primarily\n         disseminates or delivers business or financial new or information or\n         (B) use the Internet to sell real time snap-quotes to institutional or\n         individual subscribers or customers who pay a fee for such information\n         ('DBC Competitive Activities'), including assisting any person in any\n         way to do, or attempt to do, anything prohibited by this clause; and\n\n                  (ii) perform any action, activity or course of conduct that is\n         substantially detrimental to the Business or business reputation\n         ('Detrimental Activities'), including (A) soliciting, recruiting or\n         hiring any employees of the Business or persons who have worked for the\n         Business, (B) soliciting or encouraging any employee of the Business to\n         leave the employment of the Business and (C) disclosing or furnishing\n         to anyone any confidential information relating to the Business or\n         otherwise using such confidential information for its own benefit or\n         the benefit of any other person;\n\n                  The Company acknowledges that the maintenance and continued\noperation of dbc.com by DBC shall not be considered to be a violation of this\nSection 13.01(a) provided that dbc.com does not engage in any DBC Competitive\nActivities or Detrimental Activities.\n\n                  (b) Agreement of CBS Not To Compete. CBS understands that the\nCompany shall be entitled to protect and preserve the going concern value of the\nBusiness to the extent permitted by law and, therefore, for a period ending on\nthe earlier of the fifth anniversary of the date hereof and such date on which\nneither CBS or any of its wholly owned subsidiaries is a Member, CBS shall cause\nthe CBS Television Network (which, for purposes of this Section 13.01(b), shall\nmean the News, Sports and Entertainment Divisions of CBS Inc.) not to engage in\nor establish any new on-line businesses that primarily engage in delivering\ncomprehensive real-time or delayed stock market quotations or financial news in\nthe English language over the Internet to consumers ('CBS Competitive\nActivities').\n\n                  (c) Sections 13.01(a) and 13.01(b) shall be deemed not\nbreached as a result of the ownership by CBS or DBC or any of their respective\nAffiliates of:\n\n                  (i) less than an aggregate of 5% of any class of stock of a\n         Person engaged, directly or indirectly, in CBS or DBC Competitive\n         Activities, respectively;\n\n                  (ii) less than 10% in value of any instrument of indebtedness\n         of a Person engaged, directly or indirectly, in CBS or DBC Competitive\n         Activities, respectively;\n\n                  (iii) a Person that engages, directly or indirectly, in CBS or\n         DBC Competitive Activities, respectively, if such CBS or DBC\n         Competitive Activities account for less than 10% of such Person's\n         consolidated annual revenues; or\n\n\n\n                                       20\n\n\n                  (iv) a Person that engages, directly or indirectly, in CBS or\n         DBC Competitive Activities, respectively, if such CBS or DBC\n         Competitive Activities are not the predominant business of such Person\n         and if CBS or DBC, or their respective Affiliates, as applicable, uses\n         reasonable efforts to divest the business of such Person that\n         constitutes a CBS or DBC Competitive Activity, as applicable, and\n         actually divests itself of such business within 270 days of the\n         acquisition thereof.\n\n                  The Members and the Company acknowledge that the provisions of\nthis Section 13.01 shall terminate and cease to apply in the event that the\nCompany is dissolved or liquidated; provided, however, that the provisions of\nthis Section 13.01 or a successor provision mutually agreeable to CBS and DBC\nshall continue to apply in the event that the Company's organization as a\nlimited liability company is terminated but the Business is continued by CBS and\nDBC in the form of a new Person.\n\n                  SECTION 13.02. Enforcement. Notwithstanding any other\nprovision of this Agreement, it is understood and agreed that the remedies at\nlaw would be inadequate in the case of any breach of the covenants contained in\nSections 13.01(a) and 13.01(b). Therefore, the Company shall be entitled to\nequitable relief, including the remedy of specific performance, with respect to\nany breach or attempted breach of such covenants.\n\n                                   ARTICLE XIV\n\n                                  Miscellaneous\n\n                  SECTION 14.01. Amendments. This Agreement and the Certificate\nof Formation may be amended, supplemented or otherwise modified only by written\ninstrument executed by each Member.\n\n                  SECTION 14.02. Notices. All notices or other communications\nrequired or permitted to be given hereunder shall be in writing and shall be\ndelivered by hand or sent, postage prepaid, by registered, certified or express\nmail or reputable overnight courier service and shall be deemed given when so\ndelivered by hand or, if mailed, three days after mailing (one business day in\nthe case of express mail or overnight courier service), at the address for such\nPerson set forth in Exhibit A or at such other address as such Person may\nhereafter specify.\n\n                  SECTION 14.03. Counterparts. This Agreement may be executed in\none or more counterparts, all of which shall be considered one and the same\nagreement, and shall become effective when one or more such counterparts have\nbeen signed by each of the parties and delivered to each of the other parties.\n\n                  SECTION 14.04. Severability. If any provision of this\nAgreement (or any portion thereof) or the application of any such provision (or\nany portion thereof) to any Person or circumstance shall be held invalid,\nillegal or unenforceable in any respect by a court of competent jurisdiction,\nsuch invalidity, illegality or unenforceability shall not affect any other\nprovision hereof (or the remaining portion thereof) or the application of such\nprovision to any other Persons or circumstances.\n\n\n\n                                       21\n\n\n                  SECTION 14.05. No Third-Party Beneficiaries. Except as\nprovided in Article X, this Agreement is for the sole benefit of the parties\nhereto and their permitted assigns and nothing herein expressed or implied shall\ngive or be construed to give to any Person, other than the parties hereto and\nsuch assigns, any legal or equitable rights hereunder.\n\n                  SECTION 14.06. Governing Law. This Agreement shall be governed\nby and construed in accordance with the internal laws of the State of New York\napplicable to agreements made and to be performed entirely within such State,\nwithout regard to the conflicts of laws principles of such state.\n\n                  SECTION 14.07. Publicity. No advertisement, press release or\nother publicity concerning this Agreement or the transactions contemplated by\nthis Agreement will be made or disseminated without the consent of the Members.\n\n                  SECTION 14.08. WAIVER OF JURY TRIAL. THE MEMBERS HEREBY\nIRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR\nPROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.\n\n                  SECTION 14.09. Consent to Jurisdiction. Each Member\nirrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of\nthe State of New York, New York County, and (b) the United States District Court\nfor the Southern District of New York, for the purposes of any suit, action or\nother proceeding arising out of this Agreement or any Definitive Document, or\nany transaction contemplated hereby or thereby. Each Member agrees to commence\nany such action, suit or proceeding either in the United States District Court\nfor the Southern District of New York or if such suit, action or other\nproceeding may not be brought in such court for jurisdictional reasons, in the\nSupreme Court of the State of New York, New York County. Each Member further\nagrees that service of any process, summons, notice or document by U.S.\nregistered mail to such party's respective address set forth in Exhibit A shall\nbe effective service of process for any action, suit or proceeding in New York\nwith respect to any matters to which it has submitted to jurisdiction in this\nSection 14.09. Each Member irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this\nAgreement, any Definitive Document or the transactions contemplated hereby and\nthereby in (i) the Supreme Court of the State of New York, New York County, or\n(ii) the United States District Court for the Southern District of New York, and\nhereby and thereby further irrevocably and unconditionally waives and agrees not\nto plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n\n                  SECTION 14.10. Headings. The headings contained in this\nAgreement, in any Exhibit or Schedule hereto and in the table of contents to\nthis Agreement are for reference purposes only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n\n                  SECTION 14.11. Survival. The covenants contained in this\nAgreement which, by their terms, require their performance after the expiration\nor termination of this Agreement shall be enforceable notwithstanding the\nexpiration or other termination of this Agreement.\n\n\n\n                                       22\n\n\n                  SECTION 14.12. No Waiver. The failure of any Member to insist\nin any one or more instances upon the strict performance of any one or more of\nthe agreements, terms, covenants, conditions or obligations of this Agreement,\nor to exercise any right, remedy or election herein contained, shall not be\nconstrued as a waiver or relinquishment for the future of the performance of any\none or more of said obligations of this Agreement or of the right to exercise\nsuch election, but the same shall continue in full force and effect with respect\nto any subsequent breach, act or omission, whether of a similar nature or\notherwise.\n\n                  SECTION 14.13. Entire Agreement. This Agreement and the\nDefinitive Documents, along with the Schedules and Exhibits hereto and thereto,\ncontain the entire agreement and understanding between the parties hereto with\nrespect to the subject matter hereof and supersede all prior agreements and\nunderstandings relating to such subject matter. Neither party shall be liable or\nbound to any other party in any manner by any representations, warranties or\ncovenants relating to such subject matter except as specifically set forth\nherein or in the Definitive Documents.\n\n                  SECTION 14.14. Further Assurance. Each party hereto shall\nexecute and deliver all such other and additional instruments and documents and\ndo all such other acts and things as may be necessary more fully to effectuate\nthe terms of this Agreement.\n\n\n\n                                       23\n\n\n                  IN WITNESS WHEREOF, the undersigned have duly executed this\nAgreement as of the date first above written.\n\n                                        CBS INC.,\n\n                                           by\n\n                                             \/s\/ FREDRIC G. REYNOLDS \n                                             -----------------------------------\n                                             Name:  Fredric G. Reynolds\n                                             Title: Executive Vice President and\n                                                    Chief Financial Officer\n\n\n\n                                        DATA BROADCASTING CORPORATION,\n\n                                           by\n\n                                             \/s\/ MARK F. IMPERIALE\n                                             -----------------------------------\n                                             Name:  Mark F. Imperiale\n                                             Title: President\n\n\n\n                                       24\n\n\n                                                                       EXHIBIT A\n\n\n                              Addresses for Notices\n\n\n                           (i)      if to the Company,\n\n                                    c\/o Data Broadcasting Corporation\n                                    1900 South Norfolk Street\n                                    San Mateo, CA  94403\n\n                                    Attention:  Larry Kramer\n\n                  with a copy to CBS and DBC as set forth below;\n\n                           (ii)     if to CBS,\n\n                                    CBS Inc.\n                                    51 West 52nd Street\n                                    New York, NY  10019\n\n                                    Attention:  Derek Reisfield\n\n                  with copies to:\n\n                                    CBS Inc.\n                                    51 West 52nd Street\n                                    New York, NY  10019\n\n                                    Attention:  Sanford Kryle, and\n\n                                    Cravath, Swaine &amp; Moore\n                                    825 Eighth Avenue\n                                    New York, NY  10019\n\n                      Attention: Peter S. Wilson, Esq.; and\n\n                           (iii)    if to DBC,\n\n                                    Data Broadcasting Corporation\n                                    1900 South Norfolk Street\n                                    San Mateo, CA  94403\n\n                                    Attention:  Mark Imperiale\n\n\n\n\n\n                 with a copy to:\n\n                                    Camhy Karlinsky &amp; Stein LLP\n                                    1740 Broadway\n                                    Sixteenth Floor\n                                    New York, NY  10019\n\n                                    Attention:  Alan I. Annex, Esq.\n\n\n\n                                       2\n\n\n                                                                       EXHIBIT B\n\n\n                              Management Committee\n\n\n\nDBC Management Committee Members:\n\nLarry Kramer\nMark Imperiale\nJames Kaplan\n\nDBC Alternate Management Committee Members:\n\nAllan Tessler\n\nCBS Management Committee Members:\n\nHarry Fuller\nLinda Fluger\nDerek Reisfield\n\nCBS Alternate Management Committee Members:\n\nTom Gentile\n\n\n\n\n\n                                                                   Schedule 7.02\n\n\n                                   Arbitrators\n\n\n<font size=\"2\">1.       Peter Vestal, Esq.\n         Law Offices of Peter Vestal\n         300 Montgomery Street (Suite 300)\n         San Francisco, CA  94104\n         (415) 956-2580\n\n2.       Mr. Leonard Toboroff\n         c\/o Riddell\n         900 Third Avenue\n         New York, NY  10022\n         (212) 826-4300\n\n3.       Theodore A. Kury, Esq. \n         Debevoise &amp; Plimpton \n         875 Third Avenue \n         New York, NY 10022 \n         (212) 909-6388\n\n4.       Mr. Robert H. Lessin\n         Vice Chairman\n         Smith Barney, Inc.\n         388 Greenwich Street\n         New York, NY  10013\n         (212) 816-7695\n\n5.       Robert McDowell, Esq.\n         9129 Old Courthouse Road\n         Vienna, VA\n         (703) 938-0128\n\n6.       Paulette Kendler, Esq.\n<\/font>         Hutton Ingram Yuzek Gainen Carroll &amp; Bertolotti\n         250 Park Avenue\n         New York, NY  10177\n         (212) 907-9600\n\n<font size=\"2\">7.       Mr. Theodore MacVeagh\n         Bromberg &amp; Sonstein LLP\n         125 Summer Street\n         Boston, MA  02110\n         (617) 661-6505\n\n\n\n\n\n8.       Mr. Arthur Dubrof\n         Enhance Financial Services Inc.\n         335 Madison Avenue\n         New York, NY  10017\n         (212) 983-3100\n\n9.       Mr. Chris Gerard\n         Reynolds, Richards LLP\n         67 Wall Street\n         New York, NY  10005\n\n10.      Mr. John Castro\n         Merrill\n         1 Merrill Circle\n         St. Paul, MN  55108\n         (612) 646-4501\n\n\n\n<\/font>                                       2\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7878,9252],"corporate_contracts_industries":[9465,9418],"corporate_contracts_types":[9573,9576],"class_list":["post-41642","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-interactive-data-corp","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-media__broadcasting","corporate_contracts_industries-financial__securities","corporate_contracts_types-formation","corporate_contracts_types-formation__llc"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41642","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41642"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41642"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41642"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41642"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}