Exhibit 10.13


 


LIMITED
LIABILITY COMPANY AGREEMENT

OF

RICH DAD EDUCATION, LLC


 


This LIMITED LIABILITY
COMPANY AGREEMENT (this “Agreement”) is entered into as July 18,
2006 (the “Effective Date”), between Rich Global, LLC., a(n) Wyoming
limited liability company (“Rich Dad”), and Whitney Information Network, Inc..
a Colorado corporation (“WIN”), as Members, and WIN as the initial Manager of
Rich Dad Education, LLC, a Wyoming limited liability company (the “Company”).


 


RECITALS


 


WHEREAS, WIN is in the
business of developing, producing and marketing educational curricula on real
estate, business development, and asset protection;


 


WHEREAS, Rich Dad is in
the business of developing, producing and marketing educational curricula on
securities and financial investment and asset protection;


 


WHEREAS, WIN and Rich Dad
desire to form the joint venture described in this Agreement for the purpose of
conducting the Business (defined below);


 


NOW, THEREFORE, for good
and valuable consideration, the receipt of sufficiency of which his hereby
acknowledged, the parties agree as follows:


 


SECTION 1.
DEFINITIONS; THE COMPANY


 


1.1           Definitions.
Capitalized words and phrases used in this Agreement shall have the meanings
set forth in Section 11.14 hereof


 


1.2           Formation. The
Members hereby form the Company as a limited liability company pursuant to the
provisions of the Act and upon the terms and conditions set forth in this
Agreement and in the Certificate.


 


1.3           Name. The name
of the Company is Rich Dad Education, LLC. The name of the Company may be
changed by the Manager upon the prior written consent of all Members.


 


1.4           Purposes. The
purposes of the Company and the general character of its business are to market
and fulfill to current and prospective customers of Rich Dad and WIN and to the
general public through new acquisition channels developed by the Company, real
estate, business and stock based trainings throughout the United States and
Canada using the Rich Dad logo, trademark(s), branding and goodwill associated
with such logo and trademarks and to engage in any and all other activities
reasonably related or incidental to the foregoing not prohibited by this
Agreement, and any other purposes agreed to by the Members in a writing
executed by all the Members (collectively, the “Business”). The Members
intend that the Business shall be based on a modified version of WIN’s
marketing model described in Appendix 1.4, which shall be subject to a
Licensing Agreement to be entered into between the Company and WIN, and
utilizing WIN’s operations and fulfillment centers with the exception of
coaching services which shall be provided by Rich Dad’s 


 

















 


coaching provider or such
other entity as may be agreed upon by the Members. The Members agree that the
scope of the Company’s business purpose shall be to provide education to
current and prospective customers of Rich Dad and WIN and to the general public
through new acquisition channels developed by the Company and that the Company
shall have no authority to offer investments or opportunities to invest
(investment opportunities) to its existing or prospective students during the
course of its training or otherwise.


 


The Company shall be a
limited liability company only for the purposes specified in this Section 1.4
(the “Core Activities”). The Company shall not engage in any activity or
business other than the Core Activities, and no Member or Manager shall have
any authority to hold itself out as a general agent of any other Member in any
other business or activity.


 


1.5           Intent. It is
the intent of the Members that the Company shall always be operated in a manner
consistent with its treatment as a “partnership” for federal and state income
tax purposes. The Company is not a “partnership” for purposes of the Wyoming
Uniform Partnership Act or a “limited partnership” for purposes of the Wyoming
Uniform Limited Partnership Act, and the Members are not partners. It also is
the intent of the Members that the Company not be operated or treated as a “partnership”
for purposes of Section 303 of the federal Bankruptcy Code. No Member
shall take any action inconsistent with the express intent of the parties
hereto.


 


1.6           Office. The
principal office of the Company shall be maintained at Whitney Information
Network, Inc., 1612 E. Cape Coral Parkway, Cape Coral, Florida 33904,
Attn: Thomas McElroy, or at such other location or locations in Lee County,
Florida as the Manager may from time to time designate by written notice to all
Members.


 


1.7           Registered Office
and Agent for Service of Process. The registered office of the Company in
the State of Wyoming is c/o Corporate Direct, 60 East Simpson Ave., Jackson,
Wyoming 83001 or such other location as Manager shall select from time to time
in compliance with the Act. The name and business address of the Company’s
agent for service of process are Corporate Direct, 60 East Simpson Ave.,
Jackson, Wyoming 83001 (mailing Address P.O. Box 2869, Jackson, Wyoming
83001), or such other qualified person or entity and such other business
address as Manager shall select from time to time in compliance with the Act.
The Manager shall comply, and the Members hereby agree to timely execute all
documents and take all actions as determined by Manager as may be necessary to
comply with the requirements of the laws of the States of Wyoming, Arizona,
Colorado, and any other applicable jurisdiction, for the formation,
registration, continuation, qualification and operation of a limited liability
company.


 


1.8           Term. The term
of the Company shall commence on the date the Certificate of Formation (the “Certificate”)
is filed with the Wyoming Secretary of State and shall continue until the
Company is dissolved in accordance with this Agreement.


 


1.9          Independent
Activities.


 


1.9.1 General Scope of
Independent Activities. Except as otherwise provided below, the Members
hereby expressly acknowledge that each Member (either directly or through its
Affiliates) is involved in transactions, investments and business ventures and
undertakings of every nature, which include, without limitation, activities
associated with real 


 

















 


estate and stock based
training (all such investments and activities being referred to individually as
an “Independent Activity” and collectively as “Independent Activities”).


 


1.9.2 Waiver of Rights
with Respect to Independent Activities. Except as provided below, nothing
in this Agreement shall be construed to: (i) prohibit any Member or its
Affiliates from continuing, acquiring, owning or otherwise participating in any
Independent Activity that is not owned or operated by the Company, even if such
Independent Activity is or may be in competition with the Company or (ii) require
any Member to allow the Company or the other Members to participate in the
ownership or profits of any such Independent Activity. To the extent any Member
would have any rights or claims against the other Member as a result of the
Independent Activities of such Member or its Affiliates, whether arising by
statute, common law or in equity, the same are hereby waived with respect to
the operation of the Company except as provided below.


 


1.9.3 Confidential
Information. During the course of this Agreement, each Member may come
into possession of confidential information and materials of the Company, the
other Member and their respective members and Affiliates, which comprises
confidential and proprietary information or data which is not readily
ascertainable by proper means and which derives economic value, actual or
potential, from not being generally known. All information regarding the
products or the business of the Company or other Members or their respective
members to which a Member may obtain access to under this Agreement shall be
deemed to be confidential and proprietary information or data of the Company or
other Member as applicable, unless such Member can show such information has
become generally known to the public other than as a result of a breach or
default of this Agreement. Any such information or materials are “Confidential,”
and each Member agrees not to use or disclose such information except in
accordance with the terms of this Agreement. Each Member further agrees to
maintain Confidential information of the Company and of other Members in
confidence and limit disclosure on a need to know basis, to take all reasonable
precautions to prevent unauthorized disclosure, and to treat such information
at least as much care as it treats its own information of a similar nature,
until the information becomes publicly available through no fault of the
nondisclosing party. All Members shall keep confidential and not disclose to,
discuss with or otherwise make available to any Person any Confidential
information of the Company and of other Members, except to any affiliates,
shareholders, principals, officers, employees, agents, attorneys, potential investors,
advisors, lenders, consultants, suppliers or other persons acting for or on
behalf of any Member or the Company (“Representatives”) on a “need-to-know”
basis to the extent the assistance of Representatives is required in connection
with the purposes of the Company. If disclosure is required by applicable law,
rule, or regulation, or is compelled by a court or governmental agency,
authority, or body: (i) the parties shall use all legitimate and legal
means available to minimize the disclosure to third parties, including without
limitation seeking a confidential treatment request or protective order; (ii) the
Member compelled to make the disclosure shall inform the Company and the other
Member at least ten (10) business days (i.e., not a Saturday, Sunday, or a
day on which banks are not open for business in the geographic area in which
the non-disclosing party’s principal office is located) in advance of the
disclosure; and (iii) the Member compelled to make disclosure shall give
the Company or the other Member, as the case may be, a reasonable opportunity
to review and comment upon the disclosure, and any request for confidential
treatment or a protective order pertaining thereto, prior to making such
disclosure. Moreover, no press release or other information release shall be
made by the Company or any Member without the prior approval 


 

















 


and consent of the
Members.


 


1.9.4 Enforcement.
The Company and each Member recognizes that irreparable harm and damage will
result to the affected party in the event of any breach by any Member or the
Company of any of the covenants contained in this Agreement relating to
confidentiality. The Company and each Member agrees to use commercially
reasonable efforts to obtain an executed confidentiality agreement from any
Representatives in accordance with Section 1.9.3 prior to the disclosure
of any Confidential information to such Representatives. The Company and each
Member agrees that, in the event of such a breach and in addition to any other
legal or equitable remedies to which the affected party may be entitled or
which may be available, the affected party will be entitled to an injunction
from a court of law to restrain the violation of those covenants by the Company
or Member and all other Persons acting for or with such party, to damages or to
both an injunction and damages. The Company and each Member further agree that,
in the event an affected party brings an action for the enforcement of those
covenants, and if the court finds any part of the covenants unreasonable as to
time, area, or activity covered, the disclosing party agrees to abide by any
finding, judgment or decree of the court as to what is reasonable and the
disclosing party agrees that the affect party may enforce this Agreement to the
extent of such finding, judgment or decree. The Company and each Member further
acknowledges that the provisions of this Section 1.9 shall survive the
termination of this Agreement, and shall continue thereafter in full force and
effect in accordance with the terms of this Section 1.9.


 


1.9.5 Acknowledgment
of Reasonableness. The Members hereby expressly acknowledge, represent and
warrant that they are sophisticated investors, they understand the terms,
conditions and waivers set forth in this Section 1.9, and that the
provisions of this Section 1.9 are reasonable, taking into account the
relative sophistication and bargaining position of the Members.


 


SECTION 2.
MEMBERS; MANAGER; PROFITS INTERESTS; CAPITAL CONTRIBUTIONS; LOANS


 


2.1           Members and Manager.
The name and address of the Manager and each Member are set forth on Exhibit A.
In addition to being a Member of the Company, WIN is also the initial Manager
of the Company.


 


2.2           Profits Interests.
The Members’ Profits Interests in the Company shall be as set forth on Exhibit A,
and are subject to adjustment as provided in this Agreement.


 


2.3           Initial Capital
Contributions. The Members shall make the contributions to the Company set
forth opposite their names on Exhibit A within 15 calendar days of the
Effective Date.


 


2.4           Additional Capital
Contributions. If, during the term of the Company, funds available to the
Company (including any borrowings) are insufficient for the Company to carry
out its purposes hereunder, the Manager may send a written request to each
Member and each Member shall contribute within 15 days following such written
request their pro rata share (based on their then existing profits interest) of
the funds needed for the Company to carry out its purposes hereunder Rich Dad’s
capital contribution shall be based on the following percentage split: Rich Dad
45%, WIN 55%.


 

















 


2.5           Limitations
Pertaining to Capital Contributions.


 


2.5.1 Return of
Capital. Except as otherwise provided in this Agreement, no Member shall
withdraw any Capital Contributions or any money or other property from the
Company without the written consent of each other Member. Except as otherwise
may be provided for in this Agreement, under circumstances requiring a return
of any Capital Contributions, no Member shall have the right to receive
property other than cash, unless otherwise specifically agreed to in writing by
the Members at the time of such distribution.


 


2.5.2 No Interest or
Salary. No Member shall receive any interest, salary or drawing with
respect to its Capital Contributions or its Capital Account or for services
rendered on behalf of the Company or otherwise in its capacity as the Manager
or as a Member, except as otherwise expressly provided in this Agreement.


 


2.5.3 Liability of
Members. Except as agreed upon in writings signed by the Members, no Member
shall be liable for the debts, liabilities, contracts or any other obligations
of the Company. Except as agreed upon in writings signed by the Members, and
except as otherwise provided by the Act or by any other applicable state law,
the Members shall be liable only to make their Capital Contributions as
provided in Sections 2.3 and 2.4 hereof and no Member shall be required to make
any other Capital Contributions or to loan any amounts to the Company. No
Member shall have any personal liability for the repayment of the Capital
Contributions or loans of any other Member, unless agreed upon in writing.


 


2.5.4 No Third Party
Rights. Nothing contained in this Agreement is intended or will be deemed
to benefit any creditor of the Company, and no creditor of the Company will be
entitled to require the Manager or any Member to solicit or demand Additional
Capital Contributions.


 


2.5.5 Withdrawal.
Except as provided in Section 8 hereof, no Member may withdraw from the
Company or terminate its interest therein without the prior written consent of
each other Member, except a member may withdraw if a License Agreement from
such Member to the Company is terminated for any reason. Any Member who
withdraws from the Company in breach of this Section 2.5.5:


 


2.5.5.1               shall be treated as
an assignee of a Member’s interest, as provided in the Act;


 


2.5.5.2               shall have no right
to participate in the business and affairs of the Company or to exercise any
rights of a Member under this Agreement or the Act; and


 


2.5.5.3 shall, subject to
Section 8.5 hereof, continue to share in distributions from the Company,
on the same basis as if such Member had not withdrawn, provided that any
damages to the Company as a result of such withdrawal shall be offset against
amounts that would otherwise be distributed to such Member. The right to share
in distributions granted under this Section 2.5.5 shall be in lieu of any
right the withdrawn Member may have under the Act to receive a distribution or
payment of the fair value of the Member’s interest in the Company.


 

















 


2.6           Failure to
Contribute.


 


2.6.1 Remedy for
Failure to Contribute Capital Contributions. If any Member fails to fund
its Initial Capital Contributions or Additional Capital Contributions when due,
then the contributing Member shall have the right to either (a) cause an
adjustment in the Members’ Profits Interests to the equal of the overall
percentage of contributions made by each party over the course of the previous
twelve months; or (b) initiate the buy-out provisions set forth in Section 8.8
below.


 


2.6.2 Treatment of
Distributions. Upon a change in the Members’ Profits Interests as described
in Section 2.6.1, all future distributions of the Company occurring after
such date shall be in accordance with the Members’ adjusted Profits Interests.


 


2.7           Member Loans.
With the consent of the Manager, any Member may make loans (“Member Loans”)
to the Company to pay Approved Expenses. Unless otherwise approved in writing
by the Manager at the time of a Member Loan, (a) each Member Loan shall
bear simple noncompounded) interest at the Prime Rate per annum (provided that
any Wyoming laws limiting the rate of interest that may be legally charged with
respect to a Member Loan shall be taken into account and, if applicable, the
rate of interest charged on the Member Loan shall be reduced to the maximum
rate of interest permitted by such laws), and shall be repaid solely from the
Company’s Net Cash Flow, prior to any distributions to the Members pursuant to
Sections 3.1 or 9 hereof, and (b) all payments on Member Loans shall be
applied first to repay interest on all Member Loans, in proportion to the
unpaid interest outstanding on all such Member Loans, and then to repay
principal on all Member Loans, in proportion to the unpaid principal
outstanding on all such Member Loans. No Member shall be required to make a
Member Loan, unless that Member has agreed in writing to make such Member Loan
and no Member shall have any obligation to repay the Member Loans of any other
Member or to make Additional Capital Contributions to the Company to provide it
with funds with which to repay Member Loans. Each Member shall have the right
to fund its pro rata share, based on the Member’s Profits Interest, of any
Member Loan pursuant to this Section 2.7.


 


2.8                               Contribution
of Database and Lead Sources; Generation and Ownership of Leads.


 


2.8.1        In furtherance of the Business, each
Member agrees to use its reasonable best efforts to generate leads (i.e., identify
potential new customers not in existing database) for the Company’s marketing
purposes and shall share leads with the Company arising from such Member’s
internal database or lead source.


 


2.8.2        Notwithstanding the sharing of leads
with the Company, any Member generating such leads shall be deemed to jointly
own such leads with the Company. The non-originating Member shall have no
ownership claim (joint or otherwise) or right whatsoever to leads generated by
the other Member and shall not disclose such leads or use such leads other than
on behalf of the Company. Original leads provided by a Member which do not in
fact result in a consumer response are not leads generated by the Company, and
the Company shall have no ownership or licensing claims with respect to such
original leads, and such original leads shall remain the sole property of the
Member who contributed them. Notwithstanding the joint ownership of leads by an
originating Member and the Company, in no event shall any Member, whether
during the existence of the Company or following its dissolution, be restricted
in any way whatsoever from continuing to utilize leads and/or databases which
were originated by such Member and shared with the Company.


 


2.8.3        All leads generated by the Company prior
to its dissolution shall be deemed to be jointly owned by each Member and,
following dissolution, each Member shall have the right to use such lead in any
manner whatsoever.


 


2.8.4        The Company shall maintain records
identifying the source (Rich Dad, WIN, or the Company) of all leads, the accuracy
of which shall be subject to review from time to time by each Member in their
sole discretion.


 


2.9           Product and
Materials.


 


2.9.1 Promptly following
the Effective Date, the Members shall review the WIN Materials for the purpose
of determining which Materials shall be used by the Company in the Business. In
consideration for the license rights granted by Rich Dad to the Company
pursuant to the Rich Dad License Agreement, Rich Dad shall have editorial and
educational approval rights pursuant to the terms and conditions set forth in
the Rich Dad License 


 

















 


Agreement with respect to
the selection of WIN Materials and any other related materials for use by the
Company.


 


2.9.2  Within 15 days of the Effective Date, Rich
Dad and the Company shall enter into the Rich Dad License Agreement.


 


2.9.3  Within 15 days of the Effective Date, WIN and
the Company shall enter into the WIN License Agreement.


 


SECTION 3.
DISTRIBUTIONS


 


3.1           Distributions.
Except as provided in Section 9 hereof or as otherwise provided below, and
subject to the provisions of Section 2.7 hereof, distributions of Net Cash
Flow, if available, shall be made to the Members on a quarterly basis in the
following order of priority:


 


3.1.1        First, to the extent of
Net Cash Flow, the Manager shall make periodic cash distributions from Net Cash
Flow to each Member. Notwithstanding the above, no distribution shall be made
until the Company has accumulated 90 days of working capital, and provided
that, unless agreed to in writing by the Members, mandatory distributions shall
be from funds accumulated in excess of the 90 days of working capital.


 


3.1.2        Second, to the Members in
proportion to their respective Unreturned Capital Contributions, until each
Member’s Unreturned Capital Contribution has been reduced to zero; and


 


3.1.3       The balance, to the Members
in proportion to their Profits Interests.


 


SECTION 4. TAX
ALLOCATIONS


 


4.1          Allocation of Profits
and Loss. (not used)


 


4.2          Limitation on
Allocation of Losses. (not used)


 


4.3           Qualified Income
Offset. If any Member unexpectedly receives any adjustments, allocation or
distributions described in clauses (4), (5) or (6) of Regulations Section 1.704-1(b)(2)(ii)(d),
items of Company income shall be specially allocated to such Member in an
amount and manner sufficient to eliminate the Adjusted Capital Account Deficit
created by such adjustments, allocations or distributions as quickly as
possible. This Section 4.3 is intended to constitute a “qualified income
offset” within the meaning of Regulations Section 1.7041(b)(2)(ii)(d)(3).


 


4.4           Minimum Gain
Chargeback. If there is a net decrease in Company Minimum Gain during a
Fiscal Year, each Member will be allocated, before any other allocation under
this Section 4, items of income and gain for such fiscal year (and if
necessary, subsequent years) in proportion to and to the extent of an amount
equal to such Member’s share of the net decrease in Company Minimum Gain
determined in accordance with Regulations Section 1.7042(g)(2). This Section 4.4
is intended to comply with, and shall be interpreted 


 

















 


consistently with, the “minimum
gain chargeback” provisions of Regulations Section 1.704-2(f).


 


4.5           Member Nonrecourse
Debt Minimum Gain Chargeback. Notwithstanding any other provision of this Section 4,
except Section 4.4 hereof, if there is a net decrease in Member
Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Fiscal Year of the Company, each Member who has a share of the Member
Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5),
shall be specially allocated items of Company income and gain for such year
(and, if necessary, subsequent years) in an amount equal such Member’s share of
the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such
Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance with
Regulations Section 1.704-2(i)(4). This Section 4.5 is intended to
comply with a minimum gain chargeback requirement of that Section of the
Regulations and shall be interpreted consistently therewith.


 


4.6           Nonrecourse
Deductions. (not used)


 


4.7           Member Nonrecourse
Deductions. (not used)


 


4.8           Special Allocations.
Any special allocations of items of gain, income, loss, or deduction pursuant
to this Section 4 shall be taken into account in computing subsequent
allocations of Profits or Losses or items thereof pursuant to this Section 4
so that the net amount of any items so allocated and the gain, loss and any
other item allocated to each Member pursuant to this Agreement shall, to the
extent possible, be equal to the net amount that would have been allocated to
each such Member pursuant to the provisions of this Section 4 if such
special allocations had not occurred.


 


4.9           Fees To Members Or
Affiliates. Notwithstanding the provisions of this Section 4, in the
event that any fees, interest, or other amounts paid to any Member or any
Affiliate thereof pursuant to this Agreement or any other agreement between the
Company and any Member or Affiliate thereof providing for the payment of such
amount, and deducted by the Company in reliance on Section 707(a) and/or
707(c) of the Code, are disallowed as deductions to the Company on its
federal income tax return and are treated as Company distributions, then:


 


4.9.1 the Profits or
Losses, as the case may be, for the fiscal year in which such fees, interest,
or other amounts were paid shall be increased or decreased, as the case may be,
by the amount of such fees, interest, or other amounts that are treated as
Company distributions; and


 


4.9.2 there shall be allocated
to the Member to which (or to whose Affiliate) such fees, interest, or other
amounts were paid, prior to the allocations pursuant to Section 4.1
hereof, an amount of items of gross income or expense for the fiscal year equal
to the amount of such fees, interest, or other amounts that are treated as
Company distributions.


 


4.10         Code Section 704(c).
In accordance with Code Section 704(c) and the 


 

















 


Regulations thereunder,
income, gain, loss and deduction with respect to any property contributed to the
capital of the Company shall, solely for tax purposes, be allocated among the
Members by the Manager so as to take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes
and its fair market value as agreed to by the Manager and the contributing
Member using any method approved of under the Code, Regulations, or any other
IRS issuance.


 


SECTION 5.
MANAGEMENT


 


5.1                     Management
of Company.


 


5.1.1 General.
Except as specifically provided in Sections 5.4, 5.5 and 5.11 hereof, the right
to manage, control and conduct the business and affairs of the Company shall be
vested solely in the Manager. Subject to the provisions of Sections 2.9, 5.4,
5.5 and 5.11, the Manager shall be responsible for conducting the daily
business affairs of the Company, for making the day-to-day operating decisions
in carrying out the purposes, objectives and policies established by this
Agreement and the Members, and for implementing all Approved Business Plans and
Approved Budgets adopted pursuant to the terms of this Agreement. The Manager
shall devote such time to the Company and its business as is appropriate to
carry out the Manager’s responsibilities hereunder, but shall not be obligated
to devote its full time efforts to the Company. Subject to the terms of the
Approved Business Plans and Approved Budgets, the Manager (exercising such
skill and care as a prudent person with experience in the Business would
exercise in dealing with its own property), shall have the rights and the
duties to exert commercially reasonable efforts in a prompt, courteous and
businesslike manner to do, accomplish and complete, in accordance with this
Agreement, all of the following:


 


5.1.1.1 Borrow money in
the name of the Company on terms and conditions set forth in the Approved
Business Plan then in effect or otherwise as approved by all the Members;


 


5.1.1.2 Implement, using
the Manager’s commercially reasonable efforts and subject to 5.5, the Approved
Business Plan, and in connection therewith, undertake each and every act on
behalf of the Company as deemed necessary by the Manager to implement the
purposes of the Company, pursuant to authority delegated to the Manager
pursuant to this Section 5.1;


 


5.1.1.3 Engage and
supervise, at the Manager’s expenses, such officers, assistants, employees,
sales personnel, contractors, accountants, attorneys, operations staff, and
other persons necessary or appropriate to carry out the business of the Company
and to maintain the books of account and other records and to produce the
reports required by the terms of this Agreement;


 


5.1.1.4 Monitor the
Company’s activities and use commercially reasonable efforts to ensure that the
Company maintains adequate insurance with respect to its operations and assets
and not (i) commit or permit others to commit any waste on or of such
assets, or (ii) make any change in the use of the assets that will in any
way increase the risk of fire or other hazard arising out of the use or
operation of such assets;


 


5.1.1.5 Pay, at the
expense of the Company and to the extent funds of


 
















 


the Company are
available, all bills and expenses of the Company in accordance with the
Approved Budgets;


 


5.1.1.6  Cause all books of account and other records
of the Company to be kept in accordance with the terms of this Agreement;


 


5.1.1.7  Prepare and deliver to each Member all
reports required by the terms of this Agreement and as requested from time to
time by the Company or any Member;


 


5.1.1.8 Maintain all
funds of the Company in a Company account in a bank or banks located in Lee
County, Florida or any other location as agreed upon by the Members, and be the
signatory to such accounts;


 


5.1.1.9  Make distributions periodically to the
Members in accordance with the provisions of this Agreement;


 


5.1.1.10 Undertake such
actions as are necessary or desirable in order that the Company promptly
complies with all material present and future laws, ordinances, orders, rules,
regulations and requirements of all governmental authorities having
jurisdiction which may be applicable to the Company, its assets, and the
operations and management of the Company; and


 


5.1.1.11 Provide such
other administrative and operational assistance as required from time to time
by the Company with respect to the following departmental activities of the
Company: legal, accounting and finance, booking, confirmations, education.
facilities maintenance, human resources, information technologies, marketing,
operations, sales and shipping;


 


5.1.1.12 Supervision and
direction of the general operations of the departments listed in Section 5.1.1.11
and operate such departments efficiently and with proper economy;


 


5.1.1.13  Develop internal policies necessary for
maximizing the Company’s net income;


 


5.1.1.15  Take such activities as are reasonably
necessary to stimulate and facilitate the general business of the Company; and


 


5.1.1.16 Perform all
other duties otherwise described in this Agreement to he carried out by the
Manager and take all actions reasonably deemed necessary to carry out any of
the above rights and duties.


 


5.1.2 Designation of
Manager. WIN is the initial Manager of the Company. Any Person then serving
as Manager (whether WIN or a successor Manager) may be removed for “cause,”
which shall mean and be limited to a default by the Manager under this
Agreement or engaging in acts constituting fraud, gross negligence or willful
misconduct, unless in the case of a default, the Manager cures such default
within 30 days after receipt of notice of default (a “Notice of Default”)
from any Member specifying in reasonable detail the facts and circumstances of
such default, or (ii) in the case of a default, the Manager in good faith
commences to cure the default within 30 days following the Manager’s receipt of
the 


 

















 


Notice of Default and
thereafter prosecutes to completion with diligence and continuity the curing
thereof and cures such default within a reasonable period of time. With respect
to matters involving fraud, gross negligence or willful misconduct, the Manager
shall have no cure period. If the Manager disputes that “cause” exists under
the preceding sentences, it shall promptly so advise the Members in writing and
the determination of whether “cause” exists shall be made through the procedure
described in Section 5.7. During the pendency of the dispute resolution
process, the 30-day cure period shall be shall be tolled pending the outcome
thereof, and if “cause” is determined to exist, such cure period shall commence
upon the date of such determination. Upon the removal of a Manager, a
replacement Manager may be designated only upon the unanimous written approval
of the Members. At any time during the term of the Company when there is no
Manager, management of the Company shall revert to the Members. Nothing in this
Section 5.1.2 shall be construed to affect the rights and remedies of the
other Members under Section 2.6 if the Manager fails to make Additional
Capital Contributions as and when required under this Agreement.


 


5.1.3 Signature Power
of Manager. The Manager, acting alone and without the joinder of any other
Member, shall have the power to execute and deliver documents and instruments
of every type and nature on behalf of the Company, which shall be binding on
the Company. Any Person dealing with the Company may rely, without further
inquiry, upon the identity of the Manager set forth in the Company’s
Certificate at the time action is taken by or on behalf of the Company by the
Manager, and may rely on a certificate signed by the Manager as to the
existence or nonexistence of any fact or facts which constitute a condition
precedent to acts by the Manager or which are in any other manner germane to
the affairs of the Company.


 


5.1.4 Delegation of
Authority to Officers. Subject to the approval of the Members, the Manager
may designate one or more Persons, including its Affiliates, as officers of the
Company. The officers shall have the authority to act for and bind the Company,
to the extent of the authority granted to them by the Members. The officers of
the Company may include a chairman, chief executive officer, president, vice
presidents, a secretary and such other officers as the Manager deems
appropriate in the exercise of its discretion. The officers of the Company will
not be entitled to compensation for their services except in accordance with an
Approved Budget.


 


5.1.5 Insurance.
The Manager shall purchase and maintain or cause to be purchased and maintained
for and at the expense of the Company policies of insurance for the Company’s
operations, for protection of the Company’s assets, as may be reasonably
required to comply with third party requirements, and as the Members’ agree in
the Approved Business Plan. The liability of the Manager shall be limited, and
the Manager shall be indemnified for its acts, to the extent provided in Section 5.8
hereof. At the request of the Manager, the Company shall procure at the Company’s
sole expense (as an Approved Expense) errors and omissions insurance coverage
for the Manager and insurance to fund the indemnification described in Section 5.8
hereof, with policy limits and for risks reasonably acceptable to the Manager.


 


5.2 Submission and
Approval of Business Plan. Within 15 days following the Effective Date, the
Manager shall prepare and submit to the Members for review and approval in
accordance with Section 5.4 hereof an overall proposed plan (the “Business
Plan”) for the development and operation of the Business. The Manager may
from time to 


 

















 


time submit revisions or
modifications to the Business Plan to the Members for approval in the same
manner; provided that the Manager shall submit annually an updated Business
Plan containing such revisions and modifications as may be needed for approval
by the Members not later than November 1 of the year preceding the year
covered by the proposed Business Plan, and the Members shall approve the
updated Business Plan by December 1 of each year in accordance with the
provisions of Section 5.4. The Business Plan, including modifications
thereto, approved by the Members shall be termed the “Approved Business Plan.”


 


5.3 Budgets. In furtherance
of the Business Plan, the Manager shall have prepared and attached hereto as Exhibit B
(the “Initial Operating Budget”) an operating budget for the remainder
of 2006, which shall have been approved by the Members. From time to time
during the development and operation of the Business, the Manager shall prepare
and present for the approval of the Members in accordance with Section 5.4
a separate annual budget for the Business (each, a “Budget”). The
Manager shall update all outstanding Budgets, including the annual operating
budget, and present such Budgets for approval by the Members not later than November 1
of the year preceding the year covered by the proposed Budget, and the Members
shall approve the updated Budgets, including the annual operating budget by December 1
of each year in accordance with the provisions of Section 5.4. Budgets
shall include a reasonable contingency reserve for unanticipated costs
associated with the matters covered thereby. The Manager may from time to time
submit revisions or modifications to Budgets to the Members for approval;
provided that no revisions or modifications shall be implemented unless
approved in accordance with Section 5.4 hereof. The Initial Operating
Budget and each other Budget, including any revisions thereto, which is
approved separately or as part of a Business Plan in accordance with Section 5.4
hereof, shall be termed an “Approved Budget.” Specific expenditures to develop
and operate the Business may be made only pursuant to an Approved Budget; provided
that the Manager shall have discretion to use contingency reserves included in
any Approved Budget in any reasonable manner and shall be permitted to make
reasonable adjustments between line items reflected on an Approved Budget if
the expenses intended to be paid pursuant to the line item from which funds are
transferred are in fact incurred and paid (at a total cost less than budgeted)
and the items on which the transferred funds are expended were included among
the items set forth in the Approved Budget (and were incurred at a cost greater
than budgeted). Notwithstanding the foregoing, any increase in excess of ten
percent (10%) in any individual line item in an Approved Budget that also
exceeds $100,000 shall require the approval of the Members. All expense items
identified in the Company’s Approved Budget from time to time shall constitute “Approved
Expenses” of the Company. Until a Budget is otherwise modified as provided in
this Agreement, each Budget shall remain in effect subject to modifications
required by an increases in Non-Discretionary Expenditures in order to avoid a
material adverse change to the financial condition or assets of the Company.
Non-Discretionary Expenditures shall be deemed Approved Expenses until one
Member or the other disapproves of such expenditures. The Manager shall inform
the Members within a reasonable time of any incurrence of a Non-discretionary
Expenditure.


 


5.4 Mechanism for
Obtaining Consents. The Manager may propose approval of a Business Plan,
Budgets and amendments thereto and other matters required to be approved by the
Members pursuant to this Agreement (except for those matters indicated in Section 5.5)
by giving notice thereof to each Member. Where the Manager is required to
obtain Member consent pursuant to Section 5.5, the procedure set forth in
5.5.29 shall apply and not 


 

















 


this Section 5.4.
The Members shall cooperate in good faith to reach mutual agreement on all
matters submitted for the approval of the Members within 30 days of their
submission to the Members. All matters submitted for approval by the Members
shall require the affirmative approval of all the Members.


 


5.5  Major
Decisions. Notwithstanding any provision of this Agreement to the contrary,
the following matters shall require the consent of all Members, which may be
withheld in the sole and absolute discretion of each Member.


 


5.5.1                        Any amendment to this
Agreement;


 


5.5.2                        Requesting for approval all or
any part of a Business Plan in a manner that is inconsistent with this
Agreement;


 


5.5.3                        An act which is outside the
scope of the Company’s Core Activities;


 


5.5.4                        The dissolution of the Company
pursuant to Section 9.1.3 hereof,


 


5.5.5                        Admission of any new Member to
the Company;


 


5.5.6                        Filing a voluntary petition on
behalf of the Company seeking protection under the United States Bankruptcy
Code or debtor relief or insolvency laws of any jurisdiction;


 


5.5.7                        Acquiring by lease, purchase
assets exceeding $5,000 other than those described in the Business Plan or in
this or other Agreements as may be entered into by the Members from time to
time;


 


5.5.8                        Any call for Additional Capital
Contributions in excess of an Approved Budget unless they are: (i) any
Non-Discretionary Expenditures, (ii) any expense paid in an Emergency
Situation, (iii) any other Approved Expenses, and (iv) the permitted
variances to an Approved Budget as described in Section 5.3 hereof or as
otherwise permitted herein;


 


5.5.9                        Except as set forth in Section 5.9,
entering into any contracts between the Company and any Member, Manager or
Affiliate.


 


5.5.10                      Selling, conveying, exchanging,
leasing, pledging, hypothecating, encumbering or otherwise transferring all or
any portion of the assets of the Company;


 


5.5.11                      Except for Member Loans permitted
by Section 2.7 and 


 

















 


5.1.1, borrowing
or incurring any indebtedness on behalf of the Company, making or delivering on
behalf of the Company any indemnity bond or surety bond, lending funds
belonging to the Company to any Member or its Affiliate or to any third party,
or extending credit on behalf of the Company to any person, or obligating the
Company or another Member as a surety, guarantor, or accommodation party to any
obligation, or granting any lien or encumbrance on the assets of the Company,
including, without limitation, any modification of any of the foregoing, unless
in accordance with the Member Loans permitted by Section 2.7 hereof;


 


5.5.12                      The Manager delegating any of its
duties set forth herein other than to its directors, officers, employees and
any contractors, agents or consultants engaged by the Company in accordance
with the Approved Business Plan;


 


5.5.13                      Possessing, assigning, or using
funds or other property of the Company for other than a Company purpose;


 


5.5.14                      Making, executing or delivering
on behalf of the Company an assignment for the benefit of creditors; causing
the Company, a Member’s Company interest or any part thereof or interest
therein to be subject to the authority of any trustee, custodian or receiver or
to be subject to any proceedings for bankruptcy, insolvency. reorganization,
arrangement, readjustment of debt, relief of debtors, dissolution or
liquidation or similar proceedings;


 


5.5.15                      Partitioning all or any portion
of the assets of the Company, or filing any complaint or institute any proceeding
at law or in equity seeking such partition;


 


5.5.16                      Confessing a judgment against the
Company; settling or adjusting any claims against the Company; or commencing,
negotiating and settling any legal actions or proceedings brought by the
Company against unaffiliated third parties in excess of $100,000;


 


5.5.17                      The recapitalization, equity
splitting or any similar transaction of or with respect to the Company, or the
issuance of any equity interest, debentures or other securities of or in the
Company or the issuance of any options, warrants or rights to purchase or
acquire or effectuate any of the foregoing;


 


5.5.18                      Doing any act that would make it
impossible to carry on the Business;


 

















 


5.5.19                      Entering into any contracts
between the Company and any Member, Manager or Affiliate, except as provided in
the Approved Business Plan or Section 5.9 hereof;


 


5.5.20                      Executing any bond in the Company’s
name, except in the ordinary course of business;


 


5.5.21                      Making loans on behalf of the
Company or causing the Company to guarantee the obligations of others;


 


5.5.22                      Pledging or encumbering any
Company asset as security for an obligation of a Member or any Affiliate of a
Member;


 


5.5.23                      Commingling any Company funds or
capital with the funds of any other person;


 


5.5.24                      Accepting voluntary Capital
Contributions from any Member without first offering each Member the
opportunity to make a pro-rata share of any such voluntary Capital
Contributions, based on that Member’s Profits Interest in the Company;


 


5.5.25                      Entering into one or more
partnerships, joint ventures, limited liability companies or other business
associations between the Company and other Persons, except as described in an
Approved Business Plan;


 


5.5.26                      Except as provided in this
Agreement, dissolving, terminating or liquidating the Company prior to the
occurrence of an event described in Section 9.1,


 


5.5.27                      Taking any action inconsistent
with the Approved Business Plan;


 


5.5.28                      Engaging or changing the Company’s
independent accountants; or


 


5.5.29                      Taking any other action with this
Agreement specifically requires to be agreed upon by all members under the Act
(unless this Agreement supersedes such rights)


 


The Manager shall seek
the consent required by this Section 5.5 by delivering reasonably detailed
written notice of the matter(s) requiring such consent to each Member in
any manner reasonably designed to reach the Member, including via electronic
mail, or in the matter set forth in Section 11. 1. Each Member shall have
15 days from the receipt of such notice to advise the Manager of its decision(s) regarding
such matter(s). A Member’s failure to respond to such consent request within
such 15 day period shall be deemed to be an affirmative vote 


 

















 


with respect to the
matter(s) subject to such consent request.


 


5.6                         In
providing the services hereunder, the Manager shall not at any time do or cause
to be done any act or thing or make or cause to be any omission that would:


 


(a) tend
to impair or damage the goodwill associated with any trademarks or service marks
used by the Company, whether such marks are owned by the Company or used under
license from a third party;


 


(b) contest
or in any way impair or tend to impair any part of the licensor’s right, title
and interest in trademarks or service marks used by the Company under license
from a third party; or


 


(c) violate
or infringe any right of privacy or publicity, copyright, or trademark or
constitute defamatory, obscene, or unlawful matter, or otherwise violate or
infringe any personal or propriety rights of any person, firm or corporation;
or


 


(d)            violate or breach any
license agreement to the Company from a Member.


 


5.7                         Dispute
Resolution.


 


5.7.1 Initial Dispute
Resolution. It is the Parties’ desire that any disputes that might arise
between them be amicably settled, without resort to litigation, and the Parties
will attempt to settle any such disputes through consultation and negotiation
in good faith and in a spirit of mutual cooperation. All disputes or
disagreements arising between the Parties, out of or relating to this
Agreement, that cannot be resolved by the involved employees of the Parties,
shall be brought before a conciliation committee, consisting of one management
executive from each Party. The executives shall be of at least vice
presidential level, and with the authority to bind the Parties. The
conciliation committee shall, within fifteen (15) days after a written request
from either Party, meet in person (or telephonically, if agreeable to both
Parties) and attempt to work out a settlement. Such meeting shall be held at
the facility of the nonrequesting Party, or such other location as mutually
agreed upon by the Parties


 


5.7.2 Litigation.
If, after complying with the requirements of 5.7.1, no resolution is reached;
either Party may initiate litigation proceedings. The parties agree that any
claims arising from or in connection with the subject matter of this Agreement
must be brought in (i) the state or federal courts in and for Lee, Palm
Beach or Broward Counties, Florida, if an action is commenced by Rich Dad or (ii) the
state of federal courts in Arizona if an action is commenced by WIN. The
parties further waive the right and hereby agree not to assert by way of
motion, as a defense or otherwise in any action, suit or other legal proceeding
brought in any such court, any claim that it, he or she is not subject to the
jurisdiction of such court, that such action, suit or proceeding is brought in
an inconvenient forum or that the venue of such action, suit or proceeding is
improper. Each party irrevocably and unconditionally consents to the service of
any process, pleadings, notices or other papers in a manner permitted by the rules of
the state and federal courts serving the respective lawsuit. The prevailing
party shall be entitled to reasonable attorneys’ fees and costs.


 

















 


5.8           Limitations on
Liability; Indemnity. No Member (including the Manager) or its Affiliates
or their members, officers, directors, partners, stockholders, employees,
contractors, advisors or consultant (each an “Indemnitee”) shall be
liable to the Company or the other Members for actions taken in good faith by
the Indemnitee in connection with the Company or its business. The Company, its
receiver or trustee shall indemnify, defend and hold harmless each Indemnitee,
to the extent of the Company’s assets (without any obligation of any Member to
make contributions to the Company to fulfill such indemnity), from and against
any liability, damage, cost, expense, loss, claim or judgment incurred by the
Indemnitee arising out of any claim based upon acts performed or omitted to be
performed by the Indemnitee in connection with the business of the Company,
including without limitation attorneys’ fees and costs incurred by the
Indemnitee in the settlement or defense of such claim; provided that no
Indemnitee shall be indemnified for claims based upon acts performed or omitted
in an intentional breach of this Agreement or which constitute fraud, willful
misconduct or gross negligence. Notwithstanding anything in this Section 5.8
to the contrary, the Manager shall not be entitled to indemnification with
respect to the matters set forth in Section 5.6.


 


5.9                      Compensation.


 


5.9.1 Fees.
In consideration for the services to be performed by the Manager under this
Agreement, the Company shall pay the Manager a monthly fee  equal to *** of the
Company’s Net Seminar Revenues. Any adjustments in the fee shall be subject to
the unaminous written consent of the Members.


 


As used herein the term “Net Seminar Revenues” shall
mean monies actually received by the Company less:


 


(a)           a reasonable reserve for returns and
refunds (ten percent or such other percentage as agreed upon by the parties)
adjusted to actual returns on a quarterly basis;


 


(b)           royalty payments to the parties or
third parties;


 


(c)           applicable taxes; and


 


(d)           merchant fees.


 


5.9.2 Reimbursement of
Expenses of the Manager. The Manager shall be entitled to reimbursement
from the Company for all reasonable out of pocket costs and expenses paid to
third parties in connection with the performance of its duties hereunder,
including all actual and necessary direct expenses incurred by the Manager for
legal, accounting, auditing and similar services (whether rendered by
Affiliates of the Manager or otherwise). For purposes of clarification, such expenses
shall not include any payments made to affiliates of WIN, the salaries of any
employee of WIN or Affiliates of WIN (other than reasonable direct compensation
to seminar leaders) or any overhead expenses of WIN or Affiliates of WIN, which
amounts shall be paid by the Manager outside of the fees pursuant to Section 5.9.1.
The total amount reimbursable to the Manager for any period shall be set forth
in the Company’s Approved Budget for such period, and shall be identified as a
separate line item in such Approved Budget (i.e., the Approved Budget shall
include a line item stating “amounts reimbursable to Manager”). No specific
allocation of reimbursements to the Manager will be included in the Approved
Budget (i.e., the line item will be an aggregate number for all
reimbursements), but amounts actually paid or reimbursed to the Manager or its
Affiliates pursuant to this Section 5.9.1 will be reported to the Members
in accordance with Section 6.3 The Members shall have the right to object
to the amount of reimbursements paid or payable to the Manager or its
Affiliates (in connection with the adoption of the Approved Budget or revisions
or modifications thereto and following delivery of the reports required under Section 6.3,
regardless of whether a Budget may be an Approved Budget), on the basis that
the amounts paid or payable to the Manager failed to satisfy the requirements
of this Section 5.92, but the Members shall have no right to object to the
Manager’s right to receive reimbursements which actually satisfy the
requirements of this Section 5.9.2.


 


5.9.3 Limitation.
Except as set forth in this Section 5.9, the Manager and the Members shall
not receive any reimbursements, fees or other compensation unless unanimously
agreed from time to time by the Members. Approval of the budget, however, 


 


[***] Confidential treatment requested. Omitted
portions have been filed separately with the Securities and Exchange
Commission.


 

















 


constitutes default
approval of any of the aforementioned, if applicable.


 


5.10                       Emergency
Situations. Notwithstanding anything herein to the contrary, if the
Manager, in its commercially reasonable business judgment, concludes that
emergency repairs, replacements or other actions (including by way of example
and limitation, the signing of documents) are immediately necessary for the
preservation or safety of persons or any portion of the Business (individually
or collectively, an “Emergency Situation”) and the Manager after using
reasonably diligent efforts is unable to consult with the Members prior to
taking any action, then the Manager may take said action without the prior
approval of the Members. If the Manager takes such action by reason of an
Emergency Situation, the Manager shall notify the Members in writing as quickly
as possible after taking the action, the reasons therefor and the cost thereof.


 


SECTION 6.
BOOKS, RECORDS, REPORTS AND ACCOUNTING


 


6.1 Records. The
Manager shall keep or cause to be kept at the specified office of the Company
the following: (a) a current list of the full name and last known
business, residence or mailing address of each Member, (b) a copy of the
initial Certificate and all amendments thereto, (c) copies of all written
operating agreements, including this Agreement, and all amendments to the
operating agreements, including any prior written operating agreements, no
longer in effect, (d) copies of any written and signed promises by Members
to make Additional Capital Contributions or Member Loans to the Company, (e) copies
of the Company’s federal, state and local income tax returns and reports, (f) copies
of all prepared financial statements of the Company, and (g) minutes of
every meeting of the Members as well as any written consents of Members or
actions taken by Members without a meeting. Any such records maintained by the
Company may be kept on or be in the form of any information storage device, or
kept off site pursuant to arrangements with a suitable outside vendor
specializing in data and document storage, provided that the records so kept
can be obtained or are convertible into legible written form within a
reasonable period of time. Any Member or its designated representative shall
have the right, at any reasonable time, to have access to and inspect and copy
the contents of such books or records, which, upon request, shall be made
available to such Member at the Company’s specified office in Lee County,
Florida.


 


6.2 Fiscal Year and
Accounting. The fiscal year of the Company shall be the calendar year. All
amounts computed for the purposes of this Agreement and all applicable
questions concerning the rights of Members shall be determined using the cash
method of accounting. All decisions as to other accounting matters, except as
specifically provided to the contrary herein, shall be made by the Manager.


 


6.3 Annual Reports.
As soon as practicable, but in no event later than four months after the close
of each fiscal year, the Manager shall make available to the Members as of the
last day of that fiscal year reports containing unaudited financial statements
on an accrual basis (as determined by the Manager) of the Company for the
fiscal year, presented in accordance with generally accepted accounting
principles, including a balance sheet, a statement of income, a statement of
Members’ investment and a statement of cash flows.


 


6.4 Interim Reports.
The Manager shall provide the Members with interim written reports on a cash
basis in such detail as the Members may reasonably require setting out the 


 

















 


progress and status of
the business of the Company. In addition, as soon as practicable, but in no
event later than 45 days after the close of each calendar quarter, the Manager
shall use its best efforts to furnish to the Members as of the last day of that
calendar quarter reports containing unaudited financial statements of the
Company for that calendar quarter, including a balance sheet and statements of
income and cash flows. The Manager also shall provide monthly statements to the
Members comparing actual Company expenses with those projected on the then
current Approved Budget.


 


6.5 Preparation of Tax
Returns. The Manager shall arrange for the preparation and timely filing of
all returns of Company income, gains, deductions, losses and other items
necessary for federal and state income tax purposes and shall cause to be
furnished to the Members the tax information reasonably required for federal
and state income tax reporting purposes. The classification, realization and
recognition of income, gain, losses and deductions and other items, for federal
income tax purposes, shall be on that method of accounting as the Manager shall
determine in its reasonable discretion with the advice of the Members and the
Company’s independent accountants.


 


6.6 Tax Elections.
The Manager may in its reasonable discretion determine, with the advice of the
Company’s independent accountants and in the best interests of all Members,
whether to make any available elections pursuant to the Code.


 


6.7 Tax Controversies.
Subject to the provisions hereof, the Manager is designated the “Tax Matters
Partner” pursuant to the Code and is authorized and required to represent the
Company in connection with all examinations of the Company’s affairs by tax
authorities, including resulting administrative and judicial proceedings, and
to expend Company funds for professional services and costs associated
therewith. The Members agree to cooperate with the Manager and to do or refrain
from doing any or all things reasonably required by the Manager to conduct
those proceedings. The Manager agrees to promptly notify the Members upon the
receipt of any correspondence from any federal, state or local tax authorities
relating to any examination of the Company’s affairs. The Manager shall be
prohibited from entering into any settlement or arrangement in excess of $5,000
on behalf of the Company with respect to any federal, state or local tax
authorities without the express written approval of the Members.


 


SECTION 7.
AMENDMENTS


 


7.1   Amendments. This Agreement may not be
amended, except by a written instrument signed by the Manager and all Members.


 


SECTION 8.
TRANSFER OF COMPANY INTERESTS; NEW MEMBERS


 


8.1 General.
Except as otherwise set forth herein, no Member shall sell, assign, pledge,
hypothecate, encumber or otherwise voluntarily transfer by any means whatever (“Transfer”)
all or any portion of its interest in the Company (or permit any Person
directly or indirectly holding any interest in such Member directly or
indirectly to Transfer any part of such interest), except for Transfers (a) approved
in writing by all Members, or (b) permitted as described in Sections 8.2,
8.7 and 8.8 hereof. A transferee of a Member’s interest in the Company will be
admitted as a Substituted Member only pursuant to Section 8.4 hereof, Any
purported Transfer which does not comply with the provisions of this Section 8
shall be void 


 

















 


and of no force or
effect.


 


8.2 Permitted
Transfers. A Member may transfer or assign its Company interest to a
Controlled Affiliate upon the consent of the other Member, which consent shall
not be unreasonably be withheld, conditioned or delayed. Notwithstanding any
language to the contrary herein, any changes in ownership of Member shall not
affect such Member’s status as “Member” for all purposes of this Agreement.
Further, a transferee of a Company interest permitted under this Section 8.2
shall automatically be a Substituted Member after such transfer or transfers if
such transferee assumes all the obligations of the transferor under this
Agreement and the transferor acknowledges that it is not relieved of its
financial obligations hereunder until 6 months after the date of the transfer.


 


8.3 Assignee of Member’s
Interest. If, pursuant to a Transfer of an interest in the Company by
operation of law and without violation of Section 8.1 hereof (or pursuant
to a Transfer that the Company is required to recognize notwithstanding any
contrary provisions of this Agreement), a Person acquires an interest in the
Company, but is not admitted as a Substituted Member pursuant to Sections 8.4
or 8.5.9 hereof, then, subject to Section 8.5 hereof, such Person:


 


8.3.1        shall be treated as an
assignee of a Member’s interest, as provided in the Act;


 


8.3.2        shall have no right to
participate in the business and affairs of the Company or to exercise any rights
of a Member under this Agreement or the Act; and


 


8.3.3        shall share in
distributions from the Company with respect to the transferred interest, on the
same basis as the transferring Member.


 


8.4           Substituted Members.
Except as specifically provided in Sections 8.2 and 8.5.9 or elsewhere in this
Agreement, no Person taking or acquiring, by whatever means, the interest of
any Member in the Company shall be admitted as a substituted Member in the
Company (a “Substituted Member”) without the written consent of all
Members, which consent may be withheld or granted in the sole and absolute
discretion of each Member.


 


8.5           Option to Purchase.


 


8.5.1 General.
Upon any Transfer of an interest in the Company in violation of this Section 8
or upon a Transfer of any interest in a Member that is prohibited by this
Agreement (a “Triggering Event”), the Members to whom a Triggering Event
has not occurred (the “Option Members”) shall have the right, but not the
obligation, to purchase the entire interest in the Company (the “Option
Interest’) of the Member to whom the Triggering Event occurred (the “Selling
Member”), on the terms and conditions set forth in this Section 8.5.


 


8.5.2 Election.
Any Option Member may invoke the valuation procedure of Section 8.5.3 by
giving written notice (the “Valuation Notice”) to the Selling Member
(or, if applicable, its representatives, successors, or assigns) and to each
other Option Member at any time within six months following the Option Member’s
actual knowledge of the Triggering Event.


 
















 


8.5.3 Valuation
Procedure. For a period of 60 days following the Valuation Notice, the
Option Members and the Selling Member (or, if applicable, the representatives,
successors or assigns of the Selling Member) shall negotiate in good faith to
determine the fair market value of all of the Company’s assets, taken as a
whole, exclusive of any goodwill or other intangible asset that does not have a
book value for accounting purposes (the “Assets”). If the parties are
unable to agree on the fair market value of the Assets within the prescribed
60-day period, the parties shall, within 15 days following the end of such
60-day period, unanimously select an appraiser or appraisers to determine the
fair market value of the Assets. If the parties are unable to agree on an
appraiser or appraisers within the foregoing 15day period, then at the election
of any party, the selection of an appraiser or appraisers shall be made as
follows: (a) each party shall select an appraiser, and (b) the
appraisers selected by the parties shall in turn appoint another appraiser to
perform the appraisal. Following his or their selection, the appraiser(s) shall
determine as soon as practicable the fair market value of the Assets assuming,
for purposes of determining such value, that the Assets are liquidated in an
orderly manner over a period of six months. The parties’ agreement as to value,
or if applicable, the appraiser’s (appraisers’) determination of value shall be
binding on all parties for purposes of this Agreement. The date of the parties’
agreement on the value of the Assets, or, if applicable, the date of the final
appraisal report(s), is referred to hereinafter as the “Valuation Date.”
All appraisal costs shall be borne by the Selling Member.


 


8.5.4 Purchase Price.
The purchase price of the Option Interest shall equal 75% of the amount the
Selling Member would receive pursuant to Section 9.2.3 if the Assets were
sold for cash at their fair market value (determined in accordance with Section 8.5.3),
the Company immediately dissolved, and its assets were applied and distributed
in liquidation pursuant to Section 9.2 hereof. For the avoidance of all
doubt, no discount for marketability, minority interest or any other discount
shall apply to the Selling Member’s interest.


 


8.5.5 Exercise of
Right. Within 60 days following the Valuation Date, each Option Member
shall give written notice to the other Members stating whether such Option
Member desires to purchase the Option Interest. Each Option Member who gives a
timely notice stating its intent to purchase the Option Interest is referred to
hereinafter as a “Purchasing Member.” If there is more than one
Purchasing Member, the Purchasing Members shall be entitled to purchase the
Option Interest in proportion to their Profits Interests, or in such other
proportions as they may agree (with such proportions being referred to
hereinafter as the “Purchase Percentages”). Each Purchasing Member shall
thereafter be entitled to purchase its proportionate share of the Option
Interest (determined as provided in the immediately preceding sentence) by
delivering to the Selling Member (or, if applicable, to the representatives,
successors or assigns of the Selling Member) the Purchasing Member’s negotiable
promissory note (the “Note”) in a principal amount equal to the purchase
price determined under Section 8.5.4 multiplied by the Purchasing Member’s
Purchase Percentage, payable in equal annual installments of principal together
with annual payments of interest at the Prime Rate, over a period not to exceed
five years, with the first installment due and payable one year from the date
of sale. The Note shall be secured by a collateral assignment of the portion of
the Option Interest acquired by the Purchasing Member, in a commercially
reasonable form determined by the Purchasing Member.


 


8.5.6 Deliveries by
Selling Member. Upon receipt of a Purchasing Member’s 


 

















 


Note, the Selling Member
(or, if applicable, its representatives, successors or assigns) shall deliver
to the Purchasing Member an executed assignment of the portion of the Option
Interest to be acquired by the Purchasing Member, sufficient to convey such
interest to the Purchasing Member free and clear of any liens, claims or
encumbrances, except those taken subject to by the Purchasing Member, as
provided in Section 8.5.8 below.


 


8.5.7 Assumption and
Release. In connection with the purchase of any portion of the Option
Interest hereunder, the Purchasing Member shall release the Selling Member from
and assume, as appropriate, such Company-related obligations and guarantees as
shall relate to the transferred portion of the Option Interest and agree to
indemnify and hold harmless the Selling Member with respect to all such
obligations and guarantees.


 


8.5.8 Closing
Adjustments. If the Option Interest is subject to any lien, claim or
encumbrance, a Purchasing Member may elect (a) to cause the purchase price
(or a portion thereof) to be applied to discharge such lien, claim or
encumbrance, or (b) to take the relevant portion of the Option Interest
subject to such lien, claim or encumbrance and to reduce the purchase price
otherwise payable by the Purchasing Member to the Selling Member by the amount
of such lien, claim or encumbrance.


 


8.5.9 Use of Nominee.
At the election of a Purchasing Member, the purchase of all or part of the
Option Interest pursuant to this Section 8.5 may be completed by a nominee
of the Purchasing Member, in which case, the obligations of the Purchasing
Member under this Section 8.5 shall be performed by the nominee rather
than the Purchasing Member. If a nominee completes the purchase of the Option
Interest, the nominee shall be admitted as a Substituted Member in the Company
upon the execution and delivery by such nominee to the remaining Members of an
instrument in a form approved by the remaining Members in their reasonable
discretion, whereby such nominee agrees to be bound by the terms and conditions
of this Agreement from and after the date the nominee acquires the Option
Interest.


 


8.6           Distributions in
Respect of Transferred Interests. If any interest in the Company is
transferred during any accounting period in compliance with the provisions of
this Section 8, all distributions on or before the date of such Transfer
shall be made to the transferor, and all distributions thereafter shall be made
to the transferee.


 


8.7           Right of First
Refusal. In the event any Member proposes to sell all or any portion of its
interest in the Company (at “Transferring Member”) to a third party,
such Transferring Member shall deliver a written notice (the “Transfer
Notice”) to the Company and to the other Member (the “ROFO Offeree”).
The Transfer Notice shall specify the interest in the Company the Transferring
Member proposes to sell (the “Transfer Securities”) and shall describe
the material terms of the third party offer (the “Third Party Offer”).
If, following delivery of the Transfer Notice, the ROFO Offeree is interested
in purchasing all of the Transfer Securities, the ROFO Offeree shall, within
twenty (20) days thereafter, deliver a written notice to the Transferring
Member expressing the ROFO Offeree’s interest in acquiring the Transfer
Securities on the same terms as set forth in the Third Party Offer (the “Expression
of Interest”). If, following delivery of the Transfer Notice, the ROFO Offerree
determines it is not interested in purchasing all of the Transfer Securities,
the ROFO Offeree shall, within twenty (20) days thereafter, deliver a written
notice of its decision not to purchase the Transfer Securities (the “Rejection
Notice”). If the ROFO Offeree elects to 


 

















 


proceed with the purchase
of the Transfer Securities, such sale transaction shall be consummated within
ninety (90) days following delivery of the Expression of Interest. In the event
the ROFO Offeree elects not to purchase the Transfer Securities pursuant to the
Rejection Notice, the Transferring Holder shall have the right to sell the
Transfer Securities to the third party pursuant to the terms of the Third Party
Offer. If such sale transaction is not completed with ninety (90) days of the
receipt of the Rejection Notice, the Transferring Member shall be obligated to
reinitiate the right of first offer procedures set forth in this Section 8.8.


 


8.8 Buy-Sell Rights.
If either the Company or either Member shall request the written consent of the
other Member to any of the actions set forth in Sections [1.9.3, 5.3, 5.5,
5.9.1] or any License Agreement from Rich Dad to the Company or from WIN to the
Company is terminated for any reason, and one Member (the “Consenting Member”)
gives such consent but the other Member (the “Non-Consenting Member”)
does not so consent (such situation is hereinafter referred to as a “Deadlock
Event”), then the Consenting Member and the NonConsenting Member shall each
have the right to initiate the following buy/sell option:


 


8.8.1 Company Notice;
Buy/Sell Notice. Within ten (10) days of the occurrence of a Deadlock
Event, the Company shall give written notice (the “Company Notice”) to
the Consenting Member and the Non-Consenting Member of the occurrence of such
Deadlock Event. Each of the Consenting Member and the Non-Consenting Member
shall have an option, continuing for a period of ninety (90) days, beginning
with the day following receipt of the Company Notice by both the Consenting and
Non-Consenting Members to exercise its buy/sell rights pursuant to this Section 8.8.
If the Consenting or Non-Consenting Member desires to exercise its buy/sell
rights under this Section 8.8, such Consenting or Non-Consenting Member
(the “Notifying Member”) shall send written notice (“Buy/Sell Notice”)
to the other Member as the case may be (the “Notified Member”), which
shall set forth the interest in the Company held by such Notifying Member (the “Specified
Interests”) and the price (the “Selling Price”) at which the Specified
Shares may be transferred, which shall be determined pursuant to the same
valuation procedures set forth in Section 8.5.3 hereof. The Specified
Interests shall include all Interests held by the Notifying Member. In the
event both the Consenting Member and the NonConsenting Member attempt to
exercise their buy/sell rights under this Section 8.8, the operative
Buy/Sell Notice shall be the first notice received by a Notified Member.
Notwithstanding anything in this Section 8.8 to the contrary, in the event
any license agreement from (i) Rich Dad to the Company is terminated for
any reason, then only Rich Dad shall have the right to deliver a Buy/Sell
Notice, and (ii) WIN to the Company is terminated for any reason, then
only WIN shall have the right to deliver a Buy/Sell Notice.


 


8.8.2 Notified Member’s
Option. The Notified Member shall have an option, continuing for a period
of ninety (90) days beginning with the day following receipt of the Buy/Sell
Notice to elect: (i) to acquire all, but not less than all, of the
Specified Shares at the Selling Price and on the terms set forth in the
Buy/Sell Notice, or (ii) to sell all, but not less than all, of the Shares
then held by such Notified Member to the Notifying Member at the Selling Price
and on the terms set forth in the Buy/Sell Notice. The Notified Member must
select one of the two foregoing options within such ninety day period and shall
notify the Notifying Member of the option it has selected prior to the
expiration of such ninety day period. If the Notified Member fails to notify
the Notifying Member of its selection prior to the expiration of such ninety
day period, the Notified Member shall be deemed to have 


 

















 


elected to sell its
Shares to the Notifying Member at the Selling Price.


 


8.8.3 Transfer of
Interest. Upon the determination of which Member is to sell its Interest
under this Section 8.8, both Members shall thereupon take all action as
may be required or necessary to effectuate the transfer of such Interest to the
purchasing Member pursuant to the terms set forth in this Section 8.8 as
promptly as practicable, but in no event later than sixty (60) days thereafter.


 


SECTION 9.
DISSOLUTION AND TERMINATION


 


9.1                         The
Company shall dissolve upon the first to occur of any of the following events:


 


9.1.1             The sale of all or
substantially all of the assets of the Company and the collection of the
proceeds of such sale;


 


9.1.2             The unanimous
election by the Members to dissolve the Company;


 


9.1.3             Upon the entry of a
decree of dissolution under the Act; or


 


9.1.4 Upon any other
Withdrawal Event, unless the business of the Company is continued by the
specific written consent of the remaining Member(s) given within 90 days
after such event.


 


9.2                         Winding
Up.


 


9.2.1 Notice of
Winding Up. Following the dissolution of the Company, as provided in Section 9.1
hereof, the Manager, or if there is no Manager, any remaining Member, may
execute and file a notice of winding up with the Wyoming Secretary of State.


 


9.2.2 Effect of
Filing. After the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of
its business, but the Company’s separate existence shall continue until
articles of termination have been filed with the Wyoming Secretary of State or
until a decree dissolving the Company has been entered by a court of competent
jurisdiction.


 


9.2.3 Liquidation and
Distribution of Assets. Upon the dissolution of the Company, the Manager,
or, if there is no Manager, the remaining Member(s), or a court appointed
trustee if there is no remaining Member, shall take full account of the Company’s
liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof During the period of liquidation,
the business and affairs of the Company shall continue to be governed by the
provisions of this Agreement, with the management of the Company continuing as
provided in Section 5 hereof. The proceeds from liquidation of the Company’s
property, to the extent sufficient therefore, shall be applied and distributed
in the following order:


 


9.2.3.1 To the payment
and discharge of all of the Company’s debts and liabilities, including those to
Members who are creditors (to the extent permitted by law), and to the
establishment of any necessary reserves; and


 

















 


9.2.3.2               To the Members and
in accordance with Sections 3.1.2 and 3.1.3 hereof.


 


9.2.4 Winding Up
Period. The Company shall have up to one year from the occurrence of the
dissolution event to wind up its affairs, during which the Company shall
fulfill all outstanding trainings as of the date of the dissolution event.


 


9.3 Deficit Capital
Accounts. In no event shall a Member’s negative or deficit Capital Account
balance be considered a debt or obligation owed to the Company, nor shall any
Member with a negative or deficit Capital Account balance have any obligation
to restore such Capital Account by means of an Additional Capital Contribution
to the Company.


 


9.4 Articles of
Termination. When all debts, liabilities and obligations of the Company
have been paid and discharged or adequate provisions have been made therefore
and all of the remaining property and assets of the Company have been
distributed to the Members. articles of termination shall be executed and filed
by the Manager, or if there is no Manager, by the remaining Members, with the
Wyoming Secretary of State.


 


9.5 Rights of the
Members Following Dissolution. Upon dissolution of the Company as described
in this Section 9, the Members shall have the following rights with
respect to the assets of the Company:


 


9.5.1.1 WIN shall have
the exclusive right to use all proprietary information owned by the Company at
the time of dissolution, including, without limitation, all handouts,
workbooks, presentation manuals, software programs, or any other literature or
material and other collateral (the “Company Materials”) to the extent,
and only to the extent, that WIN was the owner of any original works which gave
rise to the derivative works comprising the Company Materials, provided,
however, that WIN shall remove any and all Rich Dad logos, trademark(s) and
branding, as well as any materials comprising Rich Dad materials, or which are
derived from Rich Dad materials or which would tend to create a likelihood of
confusion with respect to affiliation or sponsorship (the “Rich Dad
Proprietary Materials”), between the Company and Rich Dad, from such
materials prior to any use and shall provide evidence of the same to Rich Dad.
WIN shall have the exclusive right to use any WIN Proprietary Material
contributed to the Company.


 


9.5.1.2 Rich Dad shall
have the exclusive right to use all proprietary information owned by the
Company at the time of dissolution, including, without limitation, the Company
Materials to the extent, and only to the extent, that Rich Dad was the owner of
any original works which gave rise to the derivative works comprising the
Company Materials, provided,  however, that Rich Dad shall remove
any and all WIN trademark(s) and branding, as well as any materials
comprising WIN materials, or which are derived from WIN materials or which
would tend to create a likelihood of confusion with respect to affiliation or
sponsorship (the “WIN Proprietary Materials”), between the Company and
WIN, from such materials prior to any use and shall provide evidence of the
same to WIN. Rich Dad shall have the exclusive right to use any Rich Dad
Proprietary Material contributed to the Company.


 


9.5.1.3 Neither Member
shall have any right whatsoever to use any 


 

















 


Company logo or trade
name, unless agreed to in writing by the Members, provided, however, that Rich
Dad shall have the exclusive right to use the Rich Dad Education name upon the
dissolution of the Company, however, not in connection with any products or services
as offered by the Company under 9.5.1.1 herein.


 


9.5.1.4 Any and all
licenses of intellectual property entered into between the Company and a Member
that provide for the right by the Company to use the Member’s intellectual
property described in such license agreement shall automatically terminate upon
the occurrence of a dissolution event and shall be of no further force or
effect.


 


9.5.1.5 In the event that
the Company develops any new Company Materials (the “Company Developed
Proprietary Materials”) that are not derived from Rich Dad Proprietary
Materials or from any WIN Materials, each party shall have the non-exclusive
right to use the Company Development Materials upon the dissolution of the
Company.


 


SECTION 10.
CONVERSION TO CORPORATE FORM  Notwithstanding
anything to the contrary set forth in this Agreement, upon the consent of the
Members, the Members may, at any time upon not fewer than [twenty (20) days]
prior written notice given to each Member (unless such notice period is waived
by the Members), cause the Company to convert into a corporation (the “Successor
Corporation”), by such means (including, without limitation, filing of
appropriate certificates of conversion and incorporation; merger or
consolidation or other business combination; transfer of all or a part of the
Company’s assets; and/or exchange of interest in the Company for securities of
the Successor Corporation) as the Manager may reasonably select. Upon such
conversion:


 


(a)  each
Member’s interest in the Company shall be exchanged for, or otherwise converted
into, the number of shares of common stock of the Successor Corporation
representing, as nearly as reasonably practicable, an equity interest therein
equivalent to the “economic interest” in the Company represented by such Member’s
interest immediately prior to the conversion (without regard to whether such
corporation is subject to federal or state income taxation at the entity
level); and


 


(b)  the
certificate of incorporation, bylaws and other organizational documents of such
corporation (and/or, to the extent determined by the Members to be customary
with respect to the particular provisions of this Agreement in documentation
typically used in joint venture transactions, agreements among security holders
of such corporation) shall, to the extent reasonably practicable and unless
such conversion is being effected in connection with an initial public offering
(“IPO) (in which case the Members shall be expressly authorized hereby
to make such modifications with respect thereto as the deemed necessary or
advisable in connection with the IPO), reflect voting, management, exculpation,
indemnification and other arrangements among the stockholders and directors
which are comparable to the voting, management, exculpation, indemnification
and other arrangements among the Members contained in this Agreement.


 


SECTION 11.                       MISCELLANEOUS


 


11.1 Notices.
Except for communication and/or consents under Section 5.5 and its 


 

















 


subsections, any notice,
payment, demand or communication required or permitted to be given by any
provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, sent by registered or
certified mail, return receipt requested, addressed to the Manager or any Member
at the address appearing below such Person’s name on Exhibit A, or
by facsimile transmission to the “FAX” number set below such Person’s name on Exhibit A,
or if to the Company, by notice to the Manager and each Member as herein
provided, or to such other address as the parties may from time to time specify
by notice in accordance with this Section 11.1. Any such notice shall be
deemed to be delivered, given and received for all purposes as of the date so
delivered, if delivered personally or if sent by facsimile transmission, or, if
sent by certified or registered mail, three days following the date on which
the same was deposited in a regularly maintained receptacle for the deposit of
United States mail, postage and charges prepaid.


 


11.2 Binding Effect.
Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of
the Members and their respective heirs, legatees, legal representatives,
successors, transferees and assigns.


 


11.3   Construction. Every covenant, term
and provision of this Agreement shall be construed simply according to its fair
meaning and not strictly for or against any Member.


 


11.4   Time. Time is of the essence with
respect to this Agreement.


 


11.5 Headings. Section and
other headings contained in this Agreement are for reference purposes only and
are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.


 


11.6 Severability.
Every provision of this Agreement is intended to be severable. If any term or
provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement.


 


11.7 Incorporation by
Reference. Every exhibit, schedule and other appendix attached to this
Agreement and referred to herein is hereby incorporated in this Agreement by
reference.


 


11.8 Additional
Documents. Each Member, upon the request of any other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents
which may be reasonably necessary, appropriate or desirable to carry out the
provisions of this Agreement.


 


11.9 Variation of
Pronouns. All pronouns and any variations thereof shall be deemed to refer
to masculine, feminine or neuter, singular or plural, as the identity of the
Person or Persons may require.


 


11.10 Wyoming Law.
The laws of the State of Wyoming shall govern the validity of this Agreement,
the construction of its terms, and the interpretation of the rights and duties
of the Members.


 


11.11 Waiver of Action
for Partition. Each Member irrevocably waives any right that such Member
may have to maintain any action for partition with respect to any of the 


 

















 


Company’s property.


 


11.12 Counterpart
Execution; Facsimile Signatures. This Agreement may be executed in any
number of counterparts pursuant to original or facsimile copies of signatures
with the same effect as if the Manager and all of the Members had signed the
same document pursuant to original signatures. All counterparts shall be
construed together and shall constitute one agreement.


 


11.13 Representations
and Warranties. Effective upon the execution of this Agreement, and as of
the Effective Date, each Member represents and warrants to the Company, to the
Manager and to each other Member that:


 


11.13.1 It has acquired
its interest in the Company for its own account, for investment, and not with a
view to or for the resale, distribution, subdivision or fractionalization
thereof;


 


11.13.2 Except as
otherwise permitted herein, it has no contract, undertaking, understanding,
agreement or arrangement, formal or informal, with any person to sell, transfer
or pledge all or any portion of its interest in the Company and has no current
plans to enter into any such contract, undertaking, understanding, agreement or
arrangement;


 


11.13.3 It has such
business and financial experience alone, or together with its professional
advisers, that it has the capacity to protect its own interests in connection
with its acquisition of an interest in the Company;


 


11.13.4 It has sufficient
financial strength to hold the interest in the Company as an investment and
bear the economic risks of that investment (including possible complete loss of
such investment) for an indefinite period of time;


 


11.13.5 It has been
afforded an opportunity to ask such questions as it has deemed necessary or
desirable in order to evaluate the merits and risks of the investment
contemplated herein;


 


11.13.6 It acknowledges
that it has performed its own due diligence with respect to its interest in the
Company and is relying on that due diligence in making this investment and that
it is not relying on the Manager or any other Member or their respective Affiliates
with respect to tax, suitability or other economic considerations;


 


11.13.7   This Agreement constitutes a legal, valid
and binding obligation of the Member enforceable against the Member in
accordance with its terms;


 


11.13.8 To the Member’s
knowledge, the execution, delivery and performance of this Agreement by the
Member does not and will not violate, conflict with or contravene any judgment,
order, decree, writ or injunction, or any law, rule, regulation, contract or
agreement to which the Member is subject; and


 


11.13.9 Rich Dad hereby
represents and warrants to WIN that, to the knowledge of Rich Dad, neither the
formation of this joint venture nor the participation therein by Rich Dad
(after giving due consideration to WIN’s 51% Profits Interest in the Company
and status as a publicly traded company) shall give rise to any legal or
financial 


 

















 


reporting or regulatory
requirements on the part of Rich Dad, including, without limitation, filings
with the Federal Trade Commission under the Hart-Scott Rodino Antitrust
Improvements Act of 1976, as amended, except for such obligations to report
Rich Dad’s allocable share of profits and losses under applicable state and
federal tax laws.


 


11.14    Glossary. For purposes of this
Agreement, the following terms shall have the meanings specified in this Section 11.14:


 


“Act” means the Wyoming
Limited Liability Company Act, as amended from time to time (or any
corresponding provisions of succeeding law).


 


“Additional Capital
Contributions” means the additional Capital Contributions
made under Section 2.4 hereof.


 


“Adjusted Capital Account
Deficit” means an amount with respect to any Member equal to
the deficit balance in such Member’s Capital Account at the end of the relevant
fiscal year, after increasing the balance in such Member’s Capital Account by
any amount which such Member is obligated to or deemed to be obligated to
restore pursuant to Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5).
The foregoing definition of Adjusted Capital Account Deficit generally is
intended to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.


 


“Affiliate”
means, with respect to any Person: (a) any Person directly or indirectly
controlling, controlled by or under common control with such Person; (b) any
Person owning or controlling 10% or more of the outstanding voting interests of
such Person; (c) any officer, director, or general partner of such Person;
or (d) any Person who is an officer, director, general partner, trustee or
holder of 10% or more of the voting interests of any Person described in
clauses (a) through (c) of this definition.


 


“Agreement”
means this Limited Liability Company Agreement, as amended from time to time.
Words such as “herein,” “hereinafter,” “hereinafter,” “hereto” and “hereunder,”
refer to this Agreement as a whole, unless the context otherwise requires.


 


“Approved Budget”
has the meaning given that term in Section 5.3 hereof.


 


“Approved Expenses”
has the meaning given that term in Section 5.3 hereof.


 


“Approved Business Plan”
has the meaning given that term in Section 5.2 hereof.


 


“Assets”
has the meaning given that term in Section 8.5.3 hereof


 


“Asset Acquisition Fee”
has the meaning given such term in Section 5.9.2 hereof.


 


“Asset Management Fee”
has the meaning given such term in Section 5.9.2 hereof


 


“Book Value”
has the meaning given that term in Section 4.1.2 hereof. 


 

















 


“Budget”
has the meaning given that term in Section 5.3 hereof.  


 


“Business Plan”
has the meaning given that term in Section 5.2 hereof.


 


“Capital Account”
means, with respect to any Member or assignee, the Capital Account maintained
for such Person in accordance with the following provisions:


 


(a) To each
Person’s Capital Account there shall be credited such Person’s Capital
Contributions, such Person’s distributive share of Profits and any items in the
nature of income or gain which are specialty allocated pursuant to Section 4,
and the amount of any Company liabilities assumed by such Person or which are secured
by any Property distributed to such Person.


 


(b) To each
Person’s Capital Account there shall be debited the amount of cash and the
Gross Asset Value of any Property distributed to such Person pursuant to any
provision of this Agreement, such Person’s distributive share of Losses and any
items in the nature of expenses or losses which are specially allocated
pursuant to Section 4, and the amount of any liabilities of such Person
assumed by the Company or which are secured by any property contributed by such
Person to the Company.


 


(c) In the
event all or a portion of an interest in the Company is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to
the Capital Account of the transferor to the extent it relates to the
transferred interest.


 


(d) In
determining the amount of any liability for purposes of (a) and (b) of
this definition, there shall be taken into account Code Section 752(c) and
any other applicable provisions of the Code and Regulations.


 


The foregoing provisions
and the other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations Section 1.704-1(b),
and shall be interpreted and applied in a manner consistent with such
Regulations. In the event the Manager shall determine that it is prudent to
modify the manner in which the Capital Accounts, or any debits or credits
thereto (including, without limitation, debits or credits relating to
liabilities which are secured by contributions or distributed property or which
are assumed by the Company, a Member, or assignee), are computed in order to
comply with such Regulations, the Manager may make such modification, provided
that it is not likely to have a material effect on the amounts distributed to any
Person pursuant to Section 9 of this Agreement upon the dissolution of the
Company. The Manager also shall (i) make any adjustments that are
necessary or appropriate to maintain equality between the Capital Accounts of
the Members and assignees and the amount of Company capital reflected on the
Company’s balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704- 1 (b)(2)(iv)(g), and (ii) make any
appropriate modifications in the event unanticipated events might otherwise
cause this Agreement not to comply with Regulations Section 1.704-1(b).


 


“Capital Account
Depreciation” shall mean for each calendar year or other
period, an amount equal to the depreciation, amortization or other cost
recovery deduction allowable with respect to an asset for such fiscal year or
other period, except that if the Gross Asset 


 

















 


Value of an asset differs
from its adjusted basis for federal income tax purposes at the beginning of
such fiscal year or other period, Capital Account Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization or other cost recovery deduction
for such fiscal year or other period bears to such beginning adjusted tax
basis.


 


“Capital Contribution”
means, with respect to any Member, the amount of money and the net fair market
value of any property (other than money) contributed to the Company by such
Member pursuant to any provision of this Agreement.


 


“Certificate”
has the meaning given that term in Section 1.8 hereof.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).


 


“Company”
has the meaning given that term in the introductory paragraph to this Agreement,
but shall also include any limited liability company continuing the business of
this Company in the event of dissolution as herein provided.


 


“Company Materials”
means all handouts, workbooks, presentations, manuals, software programs, DVDs,
CDs, tapes and such other literature, material and collateral used by the
Company in the Business.


 


“Company Minimum Gain”
has the meaning set forth in Regulations Section 1.7042(b)(2) and is
determined by computing with respect to each nonrecourse liability of the
Company, the amount of gain (of whatever character), if any, that would be
realized by the Company if it disposed (in a taxable transaction) of the
Property subject to such liability in full satisfaction thereof, and by then
aggregating the amounts so computed as set forth in Regulations Section 1.704-2(d).


 


“Confidential”
has the meaning given such term in Section 1.9.5 hereof.


 


“Controlled Affiliate”
means as to any Person, any other Person controlled by or under common control
with such Person. For the purposes of this definition, the terms “controlled”
and “control” means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of a Person, whether
through ownership of voting securities or a partnership or membership interest,
by contract or otherwise.


 


“Core Activities”
has the meaning given that term in Section 1.4 hereof.


 


“Effective Date”
has the meaning given that term in the introductory paragraph to this
Agreement.


 


“Emergency Situations”
has the meaning given such term in Section 5.10 hereof.


 


“Gross Asset Value”
shall mean, with respect to any Company asset, the asset’s adjusted basis for
federal income tax purposes, except as follows:


 


(a) The
initial Gross Asset Value of any asset contributed by a Member to the Company
shall be the fair market value of such asset at the time of contribution to the


 
















 


Company, as determined by
the contributing Member and the Company as reflected in this Agreement or
another writing agreed to by all the Members;


 


(b) The Gross
Asset Value of all Company assets shall be adjusted to equal their respective
gross fair market values, as determined by the Members, as of the following
times: (A) the acquisition of an additional interest in the Company by any
new or existing Members in exchange for more than a de minimis Capital
Contribution if the Members determine that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Members in the
Company; (B) the distribution by the Company to a Member of more than a de
minimis amount of Company property as consideration for an interest in
the Company if the Members determine that such adjustment i s necessary or
appropriate to reflect the relative economic interests of the Members in the
Company; (C) the liquidation of the Company within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); and (D) upon the grant of
an interest in the Company (other than a de minimis interest) in consideration
for the provision of services to or for the benefit of the Company by an
existing Member acting in a Member capacity, or by a New Member acting in a
Member capacity, or in anticipation of being a Member;


 


(c) If the
Gross Asset Value has been determined or adjusted pursuant to Subsections (a) and
(b) above, such Gross Asset Value shall be thereafter adjusted by the
Capital Account Depreciation taken into account for purposes of computing
Profits or Losses; and


 


(d) if an
election under Code Section 754 has been made, the Gross Asset Value of
Company assets shall be increased (or decreased) to reflect any adjustments to
the adjusted basis of the assets pursuant to Code Section 734(b) or
Code Section 743(b), but only to the extent that those adjustments are
taken into account in determining Capital Accounts pursuant to Treasury
Regulation Section 1.704-1(b)(2)(iv)(m) and Section 4.1 hereof;
provided, however, that Gross Asset Value shall not be adjusted pursuant to
this subsection (d) to the extent that the Manager determines that an
adjustment pursuant to subsection (b) hereof is necessary or appropriate
in connection with a transaction that would otherwise result in an adjustment
pursuant to this subsection (d).


 


“Indemnitee”
has the meaning given that term in Section 5.8 hereof.


 


“Independent Activity”
and “Independent Activities” has the meaning given such terms in Section 1.9
hereof.


 


“Initial Capital Contribution”
has the meaning given that term in Section 2.3 hereof.


 


“Initial Operating Budpet”
has the meaning given that term in Section 5.3 hereof.


 

















 


“Liquidated Damages”
has the meaning given such term in Section 2.3 hereof.


 


“Loan”
has the meaning given such term in Section 1.4. 10 hereof.


 


“Manager”
means the Person identified as the Manager in the introductory paragraph to
this Agreement, and any new Manager selected by the Manager pursuant to Section 5.1.2
hereof.


 


“Member”
means any Person identified as a Member in the introductory paragraph to this
Agreement. If any Person is admitted as Substituted Member pursuant to the
terms of this Agreement, “Member” shall be deemed to refer also to such Person.
“Members” refers collectively to all Persons who are designated as a “Member”
pursuant to this definition.


 


“Member Loans”
has the meaning given that term in Section 2.7 hereof.


 


“Member
Nonrecourse Debt” has the meaning set forth in Section L704-2(b)(4) of
the Regulations.


 


“Member
Nonrecourse Debt Minimum Gain” means an amount, with respect
to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1.704-2(i)(3) of the Regulations.


 


“Net Cash Flow”
means the gross cash proceeds from Company operations (including from sales,
dispositions or refinancing of Company property), less the portion thereof used
to (a) pay any royalties due pursuant to the Rich Dad License Agreement
and WIN License Agreement, and (b) pay or establish reserves for Company
expenses, debt payments (other than payments to Members in relation to Member
Loans under Section 2.7 of this Agreement), capital improvements,
replacements and contingencies, all as reasonably determined by the Manager,
consistent with any Approved Budget then in effect.


 


“Non-Discretionary
Expenditure” means expenditures which the Company is required
to pay by law or pursuant to existing contracts between the Company and any
third party in accordance with an Approved Business Plan. For example, such
expenditures may include increases in taxes, loan payments, etc.


 


“Nonrecourse
Liability” has the meaning set forth in Section 1.704-2(b)(3) of
the Regulations.


 


“Note”
has the meaning given that term in Section 8.5.5 hereof.


 


“Notice of Default”
has the meaning given that term in Section 5.1.2 hereof.


 


“Option
Interest” has the meaning given that term in Section 8.5.1
hereof.


 


“Option
Member” has the meaning given that term in Section 8.5.1
hereof.


 

















 


“Person”
means any individual, partnership, limited liability company, corporation,
trust or other entity.


 


“Prime Rate”
means the prime rate of interest announced publicly from time to time by Bank
of America NT & SA, or its successor.


 


“Profits Interest”
means, with respect to each Member, the percentage identified on Exhibit A
as that Member’s “Profits Interest” in the Company, subject to adjustment as
provided in Section 2.6 of this Agreement.


 


“Profits”
and “Losses” means, for each fiscal year or other period, an amount
equal to the Company’s taxable income or loss for such year or period
determined in accordance with Code Section 703(a) (including in such
taxable income or loss all items of income, gain, loss or deduction required by
Code Section 703(a) to be stated separately) with the following
adjustments:


 


(a) Any
income of the Company that is exempt from federal income tax, and not otherwise
taken into account in this definition in computing Profits or Losses, shall be
added to such taxable income or loss;


 


(b) Any
Company expenditures described in Code Section 705(a)(2)(B), or treated as
such pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in this definition in computing Profits or Losses
shall be subtracted from such taxable income or loss;


 


(c) Gain
or loss resulting from any disposition of Company property shall be computed by
reference to the Gross Asset Value of the Company property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its
Gross Asset Value;


 


(d) In
lieu of the depreciation, amortization and other cost recovery deductions taken
into account in computing such taxable income or loss, there shall be taken
into account the “Capital Account Depreciation” computed in accordance with
such definition contained above;


 


(e) In
the event the Gross Asset Value of any Company asset is adjusted as required by
subsections (b) or (c) of the definition of Gross Asset Value, the
amount of that adjustment shall be taken into account as gain or loss from the
disposition of that asset (assuming the asset was disposed of just prior to the
adjustment) for purposes of computing Profits or Losses in the Fiscal Year of
adjustment; and


 


 (f) Notwithstanding any other provision
of this subsection, any items of income, gain; loss or deduction which are
specifically allocated shall not be taken into account in computing Profits or
Losses.


 


“Purchase Percentage”
has the meaning given that term in Section 8.5.5 hereof.


 

















 


“Purchasing Member”
has the meaning given that term in Section 8.5.5 hereof.


 


“Regulations”
means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).


 


“Rich Dad License
Agreement” means that certain License Agreement dated as of
the Effective Date between the Company and Rich Dad relating to the Company’s
use of the Rich Dad logo on the Company Materials, a copy of which is attached
as Exhibit C to this Agreement.


 


“Rich Dad Proprietary
Materials” has the meaning given that term in Section 9.5.1.2.


 


“Selling Member”
has the meaning given that term in Section 8.5.1 hereof. 


 


“Substituted Member”
has the meaning given that term in Section 8.4 hereof.


 


“Target Account”
means, with respect to any Member for any period, a balance (which may be
positive or negative) equal to (i) the hypothetical amount that Member
would receive upon the liquidation of the Company, assuming that (x) all
assets of the Company were sold for an amount equal to their respective Gross
Asset Values, (y) all liabilities of the Company allocable to those
properties became due and were satisfied in accordance with their terms
(limited with respect to each non-recourse liability, to the Gross Asset Value
of the asset securing such liability), and (z) all net assets of the
Company were distributed pursuant to Section 9.2.3.2 hereof as of the last
day of the fiscal year or the applicable period, reduced by (ii) the
Member’s share of Company Minimum Gain and Member Nonrecourse Debt Minimum
Gain, as determined pursuant to Regulations Section 1.704-2.


 


“Transfer”
has the meaning given that term in Section 8.1 hereof.


 


“Triggering Event”
has the meaning given that term in Section 8.5.1 hereof.


 


“Unreturned Capital
Contribution” means, with respect to each Member, such Member’s
total Capital Contributions less distributions previously received by such
Member pursuant to Section 3.1.2 of this Agreement.


 


“Valuation Date”
has the meaning given that term in Section 8.5.3 hereof.


 


“Valuation Notice”
has the meaning given that term in Section 8.5.2 hereof.


 


“WIN License Agreement”
means that certain License Agreement dated as of the Effective Date by and
among the Company and the WIN Subsidiaries relating to the Company’s use of the
WIN Materials, a copy of which is attached hereto as Exhibit D to
this Agreement.


 


“WIN Materials”
means the following propriety information of WIN: handouts, workbooks,
presentations, manuals, software programs, and other literature and material
described on Exhibit E attached hereto.


 

















 


“WIN Subsidiaries”
means the following entities: Whitney Education Group, Inc. Whitney Canada, Inc.,
EduTrades, Inc., Wealth Intelligence Academy, Inc.


 


“Withdrawal Event”
means those events and circumstances listed in Section                            of
the Act.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK.]


 

















 


IN WITNESS WHEREOF, the
parties have entered into this Agreement as of the date first above written.


 


	
   

  	
  MANAGER/MEMBER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WHITNEY INFORMATION NETWORK,

  INC., a Colorado
  corporation, its Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Ronald Simon

  
	
   

  	
  Name:

  	
   Ronald Simon

  
	
   

  	
  Title:

  	
    EUP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  1612 E. Cape Coral Parkway

  
	
   

  	
  Cape Coral,Florida 33904

  
	
   

  	
   

  
	
   

  	
  Attn: Thomas McElroy

  	
   

  
	
   

  	
  Fax No.: (239) 540-6501

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OTHER MEMBER:

  
	
   

  	
   

  
	
   

  	
  RICH GLOBAL, LLC, a(n) Wyoming limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Sharon L Lechter

  
	
   

  	
  Name:

  	
    Sharon L Lechter

  
	
   

  	
  Its:

  	
        Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  4330 North Civic Center Plaza

  
	
   

  	
  Scottsdale, Arizona 85251

  
	
   

  	
  Attn: 

  	
  Sharon Lechter

  
	
   

  	
  Fax No: (   )    -    

  
								



 

















 


EXHIBIT A


 


	
  Manager and Members

  	
   

  	
  Profits

  	
   

  	
  Initial Capital

  	
   

  
	
  Names and Addresses

  	
   

  	
  Interests

  	
   

  	
  Contribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manager/Member:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Whitney
  Information Network, Inc.

  	
   

  	
  51

  	
  %

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fax No.: (     )      

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Member:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rich Global, LLC

  	
   

  	
  49

  	
  %

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn:                                         

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fax No.: (~

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT C




Rich Dad License
Agreement


 


(See Attachment)


 

















 


EXHIBIT C


 


LICENSE AGREEMENT


 


This
is an Agreement between Rich Global, LLC. a Wyoming limited liability company
(Rich Dad) and Rich Dad Education, LLC, a Wyoming limited liability company, (the
“Licensee”),


 


WHEREAS,
Rich Dad and Whitney Information Network, Inc., a Colorado corporation
(“WIN”), have entered into a Limited Liability Company Agreement of even date
herewith pursuant to which Rich Dad has agreed to enter into this License
Agreement and WIN has agreed to enter into a license agreement through which
Licensee is given the right to use certain intellectual properties relating to
marketing models and systems for conducting seminars (the WIN model) and
certain trade names, trademarks, and servicemarks (“Wealth Intelligence Academy
Marks”);


 


WHEREAS,
Rich Dad has the right to grant licenses with respect to use of certain
intellectual properties, including certain valuable trademarks, service marks,
names, characters, symbols, designs, likenesses and visual representations
thereof.


 


WHEREAS,
Licensee desires to utilize certain of those intellectual properties upon and
in connection with certain seminars hereinafter described;


 


Accordingly,
the parties agree as follows:


 


1.
Definitions.


 


1.1.                            The term “Business” means the sole activities
of promoting, marketing, and conducting educational seminars on Permitted
Subjects utilizing the “Modified WIN Marketing Model” described in Appendix
1.1.


 


1.2.                            The term “Permitted Subjects” mean the
subjects of real estate, business, the stock market, and such other subjects,
if any, identified in Schedule 1.2 as may be amended in writing from time to
time by the parties.


 


1.3.                            The term “Field of Use” means seminars on the
Permitted Subjects offered to the general public which are not represented as
having Rich Dad Personalities as speakers or participants. The Field of Use
does not include “Coaching” or other subscription based programs.


 


1.4.                            The term “Rich Dad Personalities” means
authors or co-authors of a work in the “Rich Dad”, “Rich Dad Advisor”, “Rich
Family” or “Rich Woman” series of books and individuals otherwise associated
with the Rich Dad brand and affiliated brands.


 


1.5.                            The term Know-How” means general and specific
knowledge, experience and information, not in written or printed form.


 


1.6.                            The term “Business Data” means documents and
other media (whether in human or machine readable form) pertaining to
conducting the Business including, but


 

















 


not
limited to, plans, specifications, descriptions of procedures, quality and
inspection standards, test records and data.


 


1.7.                            The term “Customer Data” means documents and
other media (whether in human or machine readable form) containing information,
regarding customer and prospective customers.


 


1.8.                            The term “Business Information” means
Know-How, Business Data, and Customer Data.


 


1.9.                            The term “Licensed Rich Dad Business
Information” means Business Information applicable to the development or
conducting the Business communicated to, or embodied in items delivered to, the
Licensee by or on behalf of Rich Dad.


 


1.10.                      The term “Seminars” means seminars presented
by Licensee during the term of this License Agreement.


 


1.11.                      The term “Seminar Materials” means all
advertising and promotional materials, handouts, workbooks, presentations,
manuals, software programs, and any other literature or material and other
collateral items employed, provided, distributed, sold, or otherwise made
available in connection with the Seminars.


 


1.12.                      The term “Confidential Information”, as used
in this License Agreement, means any and all Technology, business information
and/or data which is not readily ascertainable by proper means and which
derives economic value, actual or potential, from not being generally known,
and which has been the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. All Business Information and/or
information relating to the products or operations of a party, which is
provided to the other party, or to which the other party otherwise obtains
access, pursuant to, or as a result of, this Agreement shall be treated as
Confidential Information hereunder; Except such information which the other
party can clearly show: (a) at the time of this Agreement is publicly and
openly known; (b) after the date of this Agreement becomes publicly and
openly known through no fault of the other party; (c) comes into the other
party’s possession and lawfully obtained by the other party from a source other
than from the party or a source deriving from the party, and not subject to any
obligation of confidentiality or restrictions on use; or (d) is approved
for release by written authorization of the other party.


 


1.13.                      The term “Licensed Marks” means the trade
name “Rich Dad Education”, the Rich Dad Education Logo (more particularly
identified in Schedule 1.13 to this License Agreement), and such other trade
names, trademarks, and servicemarks identified in Schedule 1.13 (as may be
amended from time to time by written agreement of the parties), as well as any
abbreviations, initialisms, and derivations thereof.


 


1.14.                      The term “Wealth Intelligence Academy Marks”
means the trade names, trademarks, and servicemarks identified in Schedule 1.14
to this License


 

















 


Agreement (as may be
amended from time to time by written agreement of the parties), as well as any
abbreviations, initialisms, and derivations thereof.


 


1.15.                      The term “Territory” means the
United States of America and Canada.


 


1.16.                      The term “Accounting Period”
shall mean a three (3) month period commencing on January 1, April 1, July 1 and October 1 and ending on March 31, June 30,
September 30 and December 31, respectively, during the Term of this
License Agreement.


 


1.17.                      The term “Term” means the period
of time from the execution date of this Agreement until the Agreement is
terminated as provided in Paragraph 10.2 hereof.


 


2.
Grant of License:


 


2.1.                            Subject
to the terms and conditions of this License Agreement, Rich Dad hereby grants
to the Licensee:


 


a.                                     A
right and license to use, subject to Section 6, the Licensed Rich Dad
Business Information in, and in connection with, the Business in the Field of
Use in the Territory.


 


b.                                    A
right and license to use the Licensed Marks in connection with the Business in
the Field of Use in the Territory.


 


2.2.                            The
Licensee shall not:


 


a.                                     use
the Licensed Rich Dad Business Information other than as permitted by this
License Agreement;


 


b.                                    use
the Licensed Marks other than as permitted by this License Agreement,


 


c.                                     during
the term of this License Agreement provide seminars or, subject to Section 5,
products or services, with which the trade name “Rich Dad Education”, the Rich
Dad Education Logo, and such other Licensed Marks as may be agreed to by the
parties are not used;


 


d.                                    during
the term of this License Agreement use any trademarks, service marks, or trade
names other than Licensed Marks in connection with seminars or, subject to Section 5,
products or services; except
that certain seminars of the type presently known as Wealth Intelligence
Academy (WIA), more fully identified in Schedule 2.2d, may be co-branded with
the Wealth Intelligence Academy Marks


 


e.                                     during
the term of this License Agreement provide seminars other than pursuant to this
License Agreement; or


 

















 


f.                                       during
the term of this License Agreement, advise on, promote, offer for sale or sell:


 


i.                                        any
investments or opportunities to invest; or


 


ii.                                     any
product or service not approved by Rich Dad before hand in writing pursuant to Section 5.


 


2.3.                            Rich
Dad shall not, during the term of this License Agreement, grant any third party
a license to use the Licensed Trademarks within the Field Of Use except that
Rich Dad may license third-party use of licensed trademarks within Field Of Use
in connection with courses that are taught as part of the curriculum at
learning institutions (e.g. K-12, Colleges, Universities). Licensee
acknowledges that Rich Dad may itself provide, or separately license others to
provide, products and/or services outside of the Field of Use. Rich Dad may
provide seminars under the Licensed Marks in which Rich Dad Personalities are
speakers or participants, and Rich Dad Personalities may speak or participate
in seminars hosted or sponsored by third parties.


 


2.4.                            The
Licensee may not grant sublicenses hereunder or assign this License to any
third party without the prior written approval of Rich Dad. Any attempted
sublicense or assignment in derogation of this provision shall be null and
void.


 


3. Use of and Rights in the Licensed Rich Dad
Business Information


 


3.1.                            Rich
Dad shall provide to Licensee, in such form as reasonably requested by
Licensee, Customer Data applicable to the development or conducting the
Business (i.e., comprising Licensed Rich Dad Business Information), pursuant to
the LLC Agreement within a reasonable time, and shall provide seasonable
updates.


 


3.2.                            Licensee
shall submit a marketing plan to Rich Dad for approval specifying the frequency
of contact with respect to customers reflected in the Customer Data and such
other information as Rich Dad may reasonably request. Licensee shall not
contact such customers until such plan is approved by Rich Dad or other than in
accordance with such approved plan.


 


3.3.                            Licensee
acknowledges and agrees that this License Agreement grants Licensee no title or
right of ownership in or to the Licensed Rich Dad Business Information. The
Licensee shall not at any time do or cause to be done any act, omission, or
thing contesting or in any way impairing or tending to impair any part of Rich
Dad’s right, title and interest in the Licensed Rich Dad Business Information.


 


3.4.                            In
the event the Licensee shall be deemed to have acquired any rights in the
Licensed Rich Dad Business Information in the Territory (or anywhere in the
world), the Licensee shall assign, and agrees to execute all documents
reasonably requested by Rich Dad to assign, all such rights in the Licensed
Rich Dad Business Information to Rich Dad or its nominee.


 

















 


3.5.                            Nothing
in this License Agreement shall limit the right of Rich Dad to limit the rights
or access of the Rich Dad to its own Business Information, or Licensed Rich Dad
Business Information.


 


4.
Use of and Rights in the Licensed Marks, Marking:


 


4.1.                            The
Licensee shall use the Licensed Marks only in accordance with the terms of this
Agreement, and shall not use the Licensed Marks, any derivations thereof, or
any Mark confusingly similar thereto, except as permitted under this Agreement.


 


4.2.                            The
Licensee shall maintain high standards of quality, style, appearance and
service with respect to all seminars provided hereunder, and Seminar Materials.
All seminars; and Seminar Materials, shall be in accordance with all applicable
laws and regulations, and shall not violate or infringe any right of privacy or
publicity, copyright, or trademark or constitute defamatory, obscene, or
unlawful matter, or otherwise violate or infringe any personal or proprietary
rights of any person, firm, or corporation.


 


4.3.                            All
uses of Licensed Marks are subject to approval of Rich Dad. The Licensed Marks
shall be used only in connection with seminars and Seminar Materials that have
been approved by Rich Dad pursuant to Section 5.


 


4.4.                            All
Seminar Materials shall prominently display the Rich Dad name, Rich Dad Logo,
and such other Licensed Marks as agreed to by the parties, and shall include
all proprietary notices (e.g., trademark markings, copyright notice, patent
marking) reasonably requested by Rich Dad.


 


4.5.                            The
Licensee acknowledges the validity of the Licensed Marks. The Licensed Marks
(and all versions and derivatives thereof) are owned by Rich Dad and shall be
and remain the exclusive property of Rich Dad. All rights in and to the
Licensed Marks other than those specifically granted to the Licensee herein,
are reserved to Rich Dad for its own use and benefit. The Licensee shall not
acquire any ownership rights in or to the Licensed Marks and all use of the
Licensed Marks by the Licensee shall inure to the benefit of Rich Dad or its
nominee.


 


4.6.                            In
the event the Licensee shall be deemed to have acquired any rights in the
Licensed Marks within the Territory (or anywhere in the world), the Licensee
shall assign, and agrees to execute all documents reasonably requested by Rich
Dad to assign, all such rights in the Licensed Marks to Rich Dad or its
nominee.


 


5.
Quality Control


 


5.1.                            All
Seminars (including curriculum) and all Seminar Materials shall be subject to
approval of Rich Dad. The Licensee shall provide Rich Dad access to samples for
quality review upon Rich Dad’s reasonable request.


 


5.2.                            Approval
Process


 

















 


a.                                     Licensee
shall provide Rich Dad a syllabus (in such form as Rich Dad may reasonably
request) for each Seminar and samples of all associated Seminar Materials
(including any collateral items not bearing the Licensed Marks) prior to
offering or conducting the Seminar or distributing or offering for sale or
otherwise making available to the public the Seminar Materials.


 


b.                                    Unless
Rich Dad notifies Licensee that the Seminar or Seminar Materials are rejected
within thirty (30) days from receipt by Rich Dad of the samples, Licensee may
go forward with offering the Seminar and Seminar Materials, subject to
paragraph 5.3.


 


c.                                     After
samples have been approved Licensee may not make any material change in the
merchandise or materials without Rich Dad’s prior approval.


 


d.                                    Licensee
shall provide Rich Dad, without charge, additional samples of each item of
Seminar Materials from time to time as Rich Dad may reasonably request.


 


e.                                     Paragraph
5.2b notwithstanding, any product, service or other collateral items (whether
or not bearing the Licensed Marks) provided, distributed, offered for sale, or
otherwise made available in connection with the Seminars shall be separately
submitted to Rich Dad, and shall not be provided, distributed, offered for
sale, or otherwise made available in connection with the Seminars unless and
until Rich Dad approves such product, service or other collateral items in
writing.


 


5.3.                            If
Rich Dad determines at any time that there is a deficiency in a Seminar or
Seminar Materials, Rich Dad shall notify Licensee of the deficiency, and
Licensee shall, as soon as practicable, but in any case within a 30-day period
from such notice remedy the deficiency to Rich Dad’s satisfaction.


 


6.
Confidentiality


 


6.1.                            Each
party acknowledges the other’s Confidential Information is unique and valuable
and was developed or otherwise acquired by the other at great expense, and that
any unauthorized disclosure or use of the other’s Confidential Information
would cause the other irreparable injury loss for which damages would be an
inadequate remedy. The party agrees to hold such Confidential Information in
strictest confidence, to use all efforts reasonable under the circumstances to
maintain the secrecy thereof, and not to make use thereof other than in
accordance with this License Agreement, and not to release or disclose
Confidential Information to any third party without the other’s prior written
consent, subject to a court order, or subject to a sublicense consistent with
this Agreement and requiring the
sublicensee to maintain the Confidential Information in strictest confidence,
to use all efforts reasonable under the circumstances to maintain the secrecy
thereof,


 

















 


not to make use thereof
other than in accordance with the sublicense Agreement, and not to release or
disclose Confidential Information to any third party without the other’s prior
written consent.


 


6.2.                            Each
party further acknowledges that any violation of this Section 6 shall
constitute a material breach of this License Agreement resulting in irreparable
injury to the non-breaching party and agree that, in addition to any and all
other rights available to the non-breaching party by law or by this Agreement,
the non-breaching party shall have the right to have an injunction entered
against the party to enjoin any further violations of this Agreement.


 


7.
License Fees and Reporting


 


7.1.                            In
partial consideration of the Licenses granted hereunder, the Licensee shall pay
to Rich Dad a royalty in the amount of *** of gross revenue. Royalties with
respect to activities within an Accounting Period shall be paid to Rich Dad
within 30 days of the end of the Accounting Period except that no royalties or
license fees shall be paid to Rich Dad prior to one hundred fifty (150) days
following the initial free customer acquisition Seminar. Payments will be made
in U.S. Dollars and shall be considered to have been made when received by Rich
Dad at its principal place of business.


 


7.2.                            Gross
revenue shall be considered realized when received by Licensee and shall be net
of any separately itemized taxes, shipping, rebates, and discounts.


 


7.3.                            For
each Accounting Period, the Licensee shall render to Rich Dad, a written
statement, in such form as Rich Dad may request, setting forth the place, date,
subject and attendance of seminars provided by Licensee during the Accounting
Period, the applicable admission price, and such other information as Rich Dad
may reasonably request to verify the royalty payments due hereunder. Such
statement shall be provided whether or not a royalty payment for the Accounting
Period is to be made. The Licensee shall keep-such written records respecting
seminars and attendance thereat put on by the Licensee as Rich Dad may
reasonably request so that royalties payable hereunder may be accurately
determined, and shall permit such records to be examined by Rich Dad or its
authorized representative at any reasonable time during regular business hours
to verify the records, reports and payments herein provided.


 


7.4.                            Licensee
shall be responsible for, and shall pay, all sales, value added and similar
taxes, if any, which may be imposed on any receipts of the seminars hereunder,
as well as any other tax based upon Licensee’s use of the Licensed Rich Dad
Business Information, or Licensed Marks in connection with the seminars.


 


8.
Performance Requirements


 


8.1.                            Licensee
shall use all reasonable commercial efforts to exploit and use the Licensed
Rich Dad Business Information and Licensed Marks for the benefit of Licensee
and Rich Dad.


 


[***] Confidential terms
omitted and provided separately to the Securities and Exchange Commission.


 

















 


8.2.                            Licensee
shall advertise and promote the seminars in a manner consistent with normal
business practices using all reasonable commercial efforts to achieve the
maximum attendance possible for its seminars.


 


8.3.                            In
the event of any of the following circumstances, Rich Dad at its sole
discretion may, by written notice, terminate the licenses under this License
Agreement:


 


a.                                     the
Licensee fails to make seminars available for sale in the marketplace within 6
months of the Effective Date;


 


b.                                    any
time after the first anniversary of this Agreement, the number of free customer
acquisition Seminars provided fall below 6 in two of three successive
Accounting Periods.


 


9.
Warranties and Representations.


 


9.1.                            Rich
Dad warrants and represents that:


 


a.                                     It
has the right to grant the licenses and enter into this Agreement without
seeking the approval or consent of any third party and without payments to any
third party;


 


b.                                    There
are no existing or threatened claims or proceedings by any entity relating to
the Licensed Rich Dad Business Information, or Licensed Marks or challenging
Rich Dad’s ownership of the same;


 


c.                                     None
of the Licensed Rich Dad Business Information, or Licensed Marks are subject to
any outstanding order, decree, judgment, stipulation, written restriction,
undertaking or agreement limiting the scope or use of the Licensed Rich Dad
Business Information, or Licensed Marks or declaring any of it abandoned;


 


d.                                    To
the best of Rich Dad’s knowledge, with respect to the Licensed Rich Dad
Business Information, or Licensed Marks, Rich Dad has not interfered with,
infringed upon, misappropriated, or otherwise come into conflict with any
intellectual property rights of third parties, and Rich Dad has not received
any charge, complaint, claim, or notice alleging any such interference,
infringement, misappropriation or violation nor does Rich Dad have any
knowledge that any such charge or claim may be forthcoming; and


 


e.                                     To
the best of Rich Dad’s knowledge, any trade secrets comprising part of the
Licensed Rich Dad Business Information have been properly maintained as trade
secrets.


 


9.2.                            Licensee
warrants and represents that::


 


a.                                     Licensee
has all rights necessary and is fully authorized to enter into and perform
under this Agreement;


 
















 


b.                                      There are no existing or threatened
claims or proceedings by any entity against Licensee that would impair Licensee’s
ability to perform under this agreement.


 


10.
Term and Termination.


 


10.1.                      The license
hereunder shall commence upon the Effective Date, and shall continue until
terminated pursuant to Paragraph 10.2 of this Agreement.


 


10.2.                      The license
hereunder may be terminated


 


a.                                       By either party
in the event of a breach of this License Agreement by another party that is
susceptible of cure, immediately, upon the end of a 30-day period after written
notice of such breach to the breaching party, if such breach is not cured
within the 30-day period.


 


b.                                      By either
party, in the event of a breach of this Agreement by another party that is not
susceptible of cure, immediately, upon written notice of such breach to the
other party.


 


c.                                       By either
party, immediately, if the other party becomes insolvent, makes an assignment
for the benefit of its creditors, or becomes the subject of any bankruptcy or
insolvency proceedings, or ceases to do business.


 


d.                                      By Rich Dad
pursuant to Paragraph 8.3.


 


e.                                       By Rich Dad,
immediately, in the event of a breach by Licensee (that is susceptible of cure)
which impairs or tends to impair the value of, the goodwill associated with, or
any part of Rich Dad’s right, title and interest in, the Licensed Trademarks
and/or the Licensed Rich Dad Business Information, if after written notice of
such breach to Licensee, such breach is not cured as soon as practicable, but
in any case within a 30-day period from such notice.


 


f.                                         By Rich Dad,
immediately, in the event that Licensee attempts to assign, transfer or
sublicense any of the rights and licenses’ granted hereunder without Rich Dad’s
prior written approval except as permitted under Paragraph 2.4


 


g.                                      By Licensee,
immediately, in the event that Licensee is enjoined from practicing the
Licensed Rich Dad Business Information by a court of competent jurisdiction, by
reason of the Licensed Rich Dad Business Information per se violating the rights
of a third party. This provision, however, shall not apply if the injunction
relates to:


 


i.                                        a product,
system, combination, method or process in which the Licensed Rich Dad Business
Information is or may be used, where use of the Licensed Rich Dad Business
Information standing alone is not


 

















 


enjoined;


 


ii.                                     a modification
or other alteration of the Licensed Rich Dad Business Information by any person
or entity other than Rich Dad, where use of the unmodified or unaltered
Licensed Rich Dad Business Information provided by Rich Dad is not enjoined;


 


iii.                                  an aspect or
feature of the Licensed Rich Dad Business Information, not specifically
proposed by Rich Dad and specifically required by Licensee or implemented by or
for Licensee, where the Licensed Rich Dad Business Information, without such
aspect or feature is not enjoined; or


 


iv.                                 one manner of
practicing the Licensed Rich Dad Business Information, where the practice of
another commercially viable manner of practicing the Licensed Rich Dad Business
Information is not enjoined.


 


10.3.                      Upon
termination of the license hereunder, all rights and privileges in and to the
Licensed Rich Dad Business Information and Licensed Marks granted to the
Licensee herein shall automatically revert to Rich Dad or its nominee, and the
Licensee shall immediately cease any use thereof.


 


10.4.                      Paragraphs 3.4,
and 4.6, and Sections 6 (Confidentiality), and 11 (Indemnification) hereof
shall survive termination (for any reason) of this License Agreement.


 


11. Indemnification.


 


11.1.                      Each party
shall defend, indemnify and hold harmless the other party against and from all
claims, demands or causes of  action, as well as any and all damages, expenses, costs, interest and
reasonable legal fees, including such fees incurred on appeal, in any way
related to, arising out of or connected with a breach of the indemnifying party’s
representations, warranties or agreements, or otherwise with respect to the
indemnifying party’s conduct and actions, under and pursuant to this Agreement.


 


12. Insurance.


 


12.1.                      Licensee shall
obtain and maintain in effect during the term of this Agreement and so long as
Licensee uses Licensed Rich Dad Business Information and/or the Licensed Marks,
appropriate liability insurance policies in such amounts and against such risks
as are obtained and maintained by companies similarly situated, and Licensee
shall, at Licensee’s expense, name Rich Dad as an additional insured under such
policies. Licensee shall furnish Rich Dad, for Rich Dad’s review and approval,
a certificate of insurance evidencing the insurance coverage then in effect,
which certificate shall indicate that the policies of insurance shall not be
cancelable without at least 30 days prior written notice to Rich Dad.


 

















 


13. Waiver.


 


13.1.                      The failure of
either party at any time or times to demand strict performance by the other
party of any of the terms, covenants or conditions set forth herein shall not
be construed as a continuing waiver or relinquishment thereof, and either party
may at any time demand strict and complete performance by the other party of
said terms, covenants and conditions.


 


14. Notices.


 


14.1.                      All notices and
other written communications required to be given under this Agreement shall be
in writing and shall be delivered to the addressee in person, mailed by
registered or certified mail, return receipt requested, or transmitted via
tele-facsimile (fax). Any such notice shall be deemed to be delivered, given
and received for all purposes as of the date so delivered, if delivered personally
or if sent by facsimile transmission, or, if sent by certified or registered
mail, three days following the date on which the same was deposited in a
regularly maintained receptacle for the deposit of United States mail, postage
and charges prepaid. The addresses and Fax numbers of the parties (until
written notice of change shall have been given) shall be as follows:


 


	
  To
  Rich Dad

  	
   

  	
  Rich
  Global LLC

  
	
   

  	
   

  	
  4330
  North Civic Center Plaza,

  
	
   

  	
   

  	
  Scottsdale,
  Arizona 85251

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  To
  Licensee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


15. Binding Effect.


 


15.1.                      This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.


 

















 


16. Governing Law.


 


16.1.                      This agreement
is made under and shall be governed by and construed in accordance with the
laws of the United States and the internal laws of the State of Arizona without
reference to principles of conflict of laws.


 


17. Force Majeure.


 


17.1.                      To the extent
any event beyond the control of either party (such as an act of God, action of
the elements, man-made or natural disaster, industry or supplier strike or
other labor disturbance, or civil or military disturbance) shall prevent such
party from performing any of its duties or obligations hereunder by the date
provided or to be provided, the time for such performance shall be deemed
extended for a period of time equivalent to the duration of such event;
provided, however, that the party so prevented from performing must give prompt
written notice to the other party of the nature of such event, the date when
such event shall have taken place, and the date when the duration of such event
shall have terminated; and further provided, however, that if performance shall
be so prevented for a period of more than six months, the other party may
terminate this Agreement by written notice of such termination, and thereafter
neither party hereto shall be under any
further liability or obligation to the other hereunder.


 


18. Dispute Resolution.


 


18.1.                      It is the
Parties’ desire that any disputes that might arise between them be amicably
settled, without resort to litigation, and the Parties will attempt to settle
any such disputes through consultation and negotiation in good faith and in a
spirit of mutual cooperation. All disputes or disagreements arising between the
Parties, out of or relating to this Agreement, that cannot be resolved by the
involved employees of the Parties, shall be brought before a conciliation
committee, consisting of one management executive from each Party. The
executives shall be of at least vice presidential level, and with the authority
to bind the Parties. The conciliation committee shall, within fifteen (15) days
after a written request from either Party, meet in person (or telephonically,
if agreeable to both Parties) and attempt to work out a settlement. Such
meeting shall be held at the facility of the non-requesting Party, or such
other location as mutually agreed upon by the Parties.


 


18.2.                      Notwithstanding
this Section 18, judicial proceedings may be brought without need for
prior arbitration:


 


a.                                       by either
Party, for interim relief pending resolution pursuant to this Section 18
of the Agreement; or


 


b.                                      by Rich Dad for
nonpayment by Licensee of undisputed royalties


 


c.                                       by either Party
for injunctive relief pertaining to violation of Section 6,
Confidentiality.


 

















 


19.
Enforcement of Intellectual Property Rights


 


19.1.                      Notice of
Infringement. Rich Dad and Licensee shall promptly notify one another in
writing of any alleged infringement of the Licensed Marks within
the Field Of Use. Within 15 days of the receipt of such notice or such other
period as may be agreed to by the parties, Rich Dad and Licensee shall meet and
formulate a strategy for resolving the alleged infringement.


 


19.2.                      Rich Dad and
Licensee (to the extent permitted under the law) each shall have the right to
institute an action for such an infringement of the Licensed Marks against such
third party in accordance with the following:


 


a.                                       If Rich Dad and
Licensee agree to institute suit jointly, the suit shall be brought in both
their names; the out-of-pocket costs thereof shall be borne equally by Rich Dad
and Licensee or as otherwise agreed by the parties; and recoveries, if any,
whether by judgment, award, decree or settlement, shall be divided in order as
follows:


 


i.                                        reimbursement
to Rich Dad and Licensee for all costs of the litigation; and


 


ii.                                     any remaining
recovery will be divided between Rich Dad and Licensee with damages
attributable to activities outside of the Field of Use (if any) paid to the
Rich Dad and the remainder divided equally between the parties. Rich Dad shall
choose lead legal counsel, subject to Licensee’s approval, which shall not be
unreasonably withheld, and shall exercise control over such action. However,
Rich Dad shall not enter into any settlement without Licensee’s approval, which
approval shall not be unreasonably withheld, and Licensee may, if it so
desires, be represented by counsel of its own selection, the fees for which
counsel shall be paid by Licensee at Licensee’s sole expense (and not
reimbursable hereunder).


 


b.                                      In the absence
of agreement to institute a suit jointly, Rich Dad may institute suit, and, at
its option, join Licensee as a plaintiff or otherwise appropriate participant
in such legal process. Rich Dad shall bear the entire cost of such litigation
and shall be entitled to retain the entire amount of any recovery by way of
judgment or settlement, Rich Dad shall choose lead legal counsel and exercise control
over such action, provided, however, that Licensee may, if it so desires, be
represented by counsel of its own selection, the fees for which counsel shall
be paid by Licensee at Licensee’s sole expense (and not reimbursable
hereunder).


 


c.                                       In the absence
of agreement to institute a suit jointly and Rich Dad determines not to
institute a suit, as provided in paragraph 19.2b above, Licensee shall have the
right, but not the obligation, to pursue legal process to redress any alleged
infringement. Upon Rich Dad’s written consent, Licensee may bring such legal
action in the name of Rich Dad and may make Rich Dad a party plaintiff or
otherwise appropriate participant in such


 

















 


legal
process. Licensee shall pay Rich Dad’s legal expenses incurred in such legal
process, and shall indemnify Rich Dad against any order for costs that may be
made against Rich Dad in such proceedings. Should Licensee decide to pursue
legal process under this paragraph, Licensee shall have the right to select
lead legal counsel, subject to Rich Dad’s approval, which shall not be unreasonably
withheld, and shall exercise control over such litigation. However, Licensee
shall not enter into any settlement without Rich Dad’s approval, which approval
shall not be unreasonably withheld. Any monetary recovery for an infringement
in a suit brought by Licensee shall be considered Licensee’s recovery. However,
any recovery in excess of expenses shall be considered gross revenue subject to
royalty payments pursuant to Section 7 of this Agreement.


 


d.                                      Should either
Rich Dad or Licensee commence a suit under the provisions of this Section and
thereafter elect to abandon the same, it shall give timely notice to the other
party who may, if it so desires, continue prosecution of such suit, provided, however,
that the sharing of expenses and a recovery in such suit shall be as agreed
upon between Rich Dad and Licensee.


 


19.3.                      Rich Dad and
Licensee shall cooperate in any legal process concerning alleged infringement
of the Licensed Marks. Each party shall, to the fullest extent possible, make
available its employees, records, information and the like as relevant to the
legal process.


 


20.
Further documents.


 


20.1.                      The parties
agree to execute and deliver all such further documents, agreements and instruments
and take such other and further action as may be necessary or appropriate to carry out
the purposes and intent of this Agreement.


 


21.
Entire Agreement.


 


21.1.                      This Agreement,
along with any attachments, exhibits, schedules and documents incorporated by
reference herein, constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
communications, writings and other documents with regard thereto. No
modification, amendment or waiver of any provision hereof shall be binding upon
either party hereto unless it is in writing and executed by both of the parties
hereto or, in the case of a waiver, by the party waiving compliance.


 


22.
Relationship of Parties.


 


22.1.                      Nothing
contained in this Agreement shall be deemed or construed by the parties hereto
or by any third person to create the relationship of principal and agent or of
partnership or of joint venture or of any association between the parties. None
of the provisions contained in this Agreement nor any acts of the parties
hereto shall be deemed to create any relationship between the parties other
than the relationship specified in this Agreement.


 

















 


23.
Captions.


 


23.1.                      The division of
this Agreement into and the use of captions for paragraphs is for convenience
of reference only and shall not affect the interpretation or construction of
this Agreement.


 


24.
Severability.


 


24.1.                      In the event
any provision of this Agreement or the application of any provision shall be
held by a tribunal of competent jurisdiction to be contrary to law, then, the
remaining provisions of this Agreement shall be unimpaired, and the illegal,
invalid or unenforceable provision shall be replaced by a provision, which,
being legal, valid and enforceable, comes closest to the intent of the parties
underlying the illegal, invalid or unenforceable provision. In any event an
illegal, invalid or unenforceable provision shall not affect the enforceability
or the validity of the remaining terms or portions thereof, and each such
unenforceable or invalid provision or portion thereof shall be severable from
the remainder of this Agreement.


 


25.
Cost of Enforcement.


 


25.1.                      If a party
commences any arbitration, action at law or in equity, or for declaratory
relief, or in appellate proceedings, to secure or protect any rights under, or
to enforce any provision of, this License Agreement, then, in addition to any
judgment, order, or other relief obtained in such proceedings, the prevailing
party shall be entitled to recover from the losing party all reasonable costs,
expenses, and attorneys’ fees incurred by the party in connection with such
proceedings, including, attorneys’ fees incurred for consultation and other
legal services performed prior to the filing of such proceeding.


 


 


	
  Licensee

  	
   

  	
  Licensor

  
	
  Rich Dad Education, LLC

  	
   

  	
  Rich Global, LLC

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Ronald S. Simon

  	
   

  	
  By:

  	
  /s/ Sharon L Lechter

  
	
  Name:

  	
  Ronald S. Simon

  	
   

  	
  Name:

  	
  Sharon L Lechter

  
	
   

  	
   

  	
   

  	
  Member

  



 
















 


EXHIBIT D




WIN License
Agreement


 


(See Attachment)


 

















 


EXHIBIT
D


 


LICENSE AGREEMENT


 


This is an Agreement between Whitney Information Network, Inc., a
Colorado corporation (“WIN”) and Rich Dad Education, LLC, a Wyoming limited
liability company, (the “Licensee”),


 


WHEREAS, WIN and Rich Global, LLC. a Wyoming limited liability company
(Rich Dad), have entered into a Limited Liability Company Agreement (the “LLC
Agreement”) of even date herewith pursuant to which WIN has agreed to enter
into this License Agreement and Rich Dad has agreed to enter into a license
agreement through which Licensee is given the right to use certain intellectual
properties relating to certain Business Information and certain trade names,
trademarks, and servicemarks (“Rich Dad Marks”);


 


WHEREAS, WIN has the right to grant licenses with respect to use of
certain intellectual properties relating to marketing models and systems for
conducting seminars (the WIN model).


 


WHEREAS, Licensee desires to utilize certain of those intellectual properties
upon and in connection with certain seminars hereinafter described;


 


Accordingly, the parties agree as follows:


 


1. Definitions.


 


1.1.                            The
term “Business” means the sole activities of promoting, marketing, and
conducting educational seminars on Permitted Subjects utilizing the “Modified
WIN Marketing Model” described in Appendix 1.1.


 


1.2.                            The
term “Permitted Subjects” mean the subjects of real estate, business, the stock
market, and such other subjects, if any, identified in Schedule 1.2 as may be
amended in writing from time to time by the parties.


 


1.3.                            The
term “Field of Use” means seminars on the Permitted Subjects offered to the
general public which are not represented as having WIN Personalities as
speakers or participants. The Field of Use does not include “Coaching” or other
subscription based programs.


 


1.4.                            The
term “WIN Personalities” means Russ Whitney and other individuals otherwise
associated with WIN and its affiliated brands.


 


1.5.                            The
term Know-How” means general and specific knowledge, experience and
information, not in written or printed form.


 


1.6.                            The
term “Business Data” means documents and other media (whether in human or
machine readable form) pertaining to conducting the Business including, but not
limited to,
plans, specifications, descriptions of procedures, quality and inspection
standards, test records and data.


 

















 


1.7.                            The term “Customer Data” means documents and
other media (whether in human or machine readable form) containing information,
regarding customer and prospective customers.


 


1.8.                            The term “Business Information” means
Know-How, Business Data, and Customer Data.


 


1.9.                            The term “Licensed WIN Business Information”
means Business Information applicable to the development or conducting the
Business communicated to, or embodied in items delivered to, the Licensee by or
on behalf of WIN.


 


1.10.                      The term “Seminars” means seminars presented
by Licensee during the term of this License Agreement.


 


1.11.                      The term “Seminar Materials” means all
advertising and promotional materials, handouts, workbooks, presentations,
manuals, software programs, and any other literature or material and other
collateral items employed, provided, distributed, sold, or otherwise made
available in connection with the Seminars.


 


1.12.                      The term “Confidential Information”, as used
in this License Agreement, means any and all Technology, business information
and/or data which is not readily ascertainable by proper means and which
derives economic value, actual or potential, from not being generally known,
and which has been the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. All Business Information and/or
information relating to the products or operations of a party, which is
provided to the other party, or to which the other party otherwise obtains
access, pursuant to, or as a result of, this Agreement shall be treated as
Confidential Information hereunder; Except such information which the other
party can clearly show: (a) at the time of this Agreement is publicly and
openly known; (b) after the date of this Agreement becomes publicly and
openly known through no fault of the other party; (c) comes into the other
party’s possession and lawfully obtained by the other party from a source other
than from the party or a source deriving from the party, and not subject to any
obligation of confidentiality or restrictions on use; or (d) is approved
for release by written authorization of the other party.


 


1.13.                      The term “Licensed Marks” means the trade
names, trademarks, and servicemarks identified in Schedule 1.13 to this License
Agreement (as may be amended from time to time by written agreement of the
parties), as well as any abbreviations, initialisms, and derivations thereof.


 


1.14.                      The term “Rich Dad Marks” means the trade
name “Rich Dad Education”, the Rich Dad Education Logo, and such other trade
names, trademarks, and servicemarks identified in Schedule 1.14, as well as any
abbreviations, initialisms, and derivations thereof.


 


1.15.                      The term “Territory” means the United States
of America and Canada.


 

















 


1.16.                      The term
“Accounting Period” shall mean a three (3) month period commencing on
January 1, April 1, July 1
and October 1 and ending on March 31, June 30, September 30
and December 31, respectively, during the Term of this License Agreement.


 


1.17.                      The term
“Term” means the period of time from the execution date of this Agreement until
the Agreement is terminated as provided in Paragraph 10.2 hereof.


 


2. Grant
of License:


 


2.1.                            Subject
to the terms and conditions of this License Agreement, WIN hereby grants to the
Licensee:


 


a.                                     A
right and license to use, subject to Section 5, the Licensed WIN Business
Information in, and in connection with, the Business in the Field of Use in the
Territory.


 


b.                                    A
right and license to use the Licensed Marks in connection with the Business in
the Field of Use in the Territory, but solely in conjunction with use of the
Rich Dad Marks pursuant to the license agreement between licensee and Rich Dad.


 


2.2.                            The
Licensee shall not:


 


a.                                     use
the Licensed WIN Business Information or Licensed Marks other than as permitted
by this License Agreement;


 


b.                                    during
the term of this License Agreement provide Seminars with which Know-How and
Business Data comprising Licensed WIN Business Information are not used;


 


c.                                     during
the term of this License Agreement provide seminars other than pursuant to this
License Agreement; or


 


d.                                    during
the term of this License Agreement, advise on, promote, offer for sale or sell:


 


i.                                          any
investments or opportunities to invest; or


 


ii.                                       any
product or service not approved by WIN before hand in writing pursuant to
Section 5.


 


2.3.                            WIN
shall not, during the term of this License Agreement, grant any third party a
license to use the Licensed Trademarks within the Field Of Use. Licensee
acknowledges that WIN may itself provide, or separately license others to
provide, products and/or services outside of the Field of Use. WIN may provide
seminars under the Licensed Marks in which WIN Personalities are speakers or
participants,


 

















 


and WIN Personalities may speak or participate in
seminars hosted or sponsored by third parties.


 


2.4.                            The
Licensee may not grant sublicenses hereunder or assign this License to any
third party without the prior written approval of WIN. Any attempted sublicense
or assignment in derogation of this provision shall be null and void.


 


3. Use of and Rights in the Licensed WIN Business
Information


 


3.1.                            WIN shall provide to Licensee, in such
form as reasonably requested by Licensee, Customer Data applicable to the
development or conducting the Business (i.e., comprising Licensed WIN Business
Information), pursuant to the LLC Agreement within a reasonable time, and shall
provide seasonable updates.


 


3.2.                            WIN
shall provide to Licensee, in such form as reasonably requested by Licensee,
access to Know-How and Business Data comprising Licensed WIN Business
Information sufficient for the development or conducting the Business.


 


3.3.                            Licensee
shall submit a marketing plan to WIN for approval specifying the frequency of
contact with respect to customers reflected in the Customer Data and such other
information as WIN may reasonably request. Licensee shall not contact such
customers until such plan is approved by WIN or other than in accordance with
such approved plan.


 


3.4.                            All Seminar Materials including or
derived from WIN Business Information shall include all proprietary notices
(e.g. copyright notice, patent marking) reasonably requested by WIN.


 


3.5.                            Licensee
acknowledges and agrees that this License Agreement grants Licensee no title or
right of ownership in or to the Licensed WIN Business Information. The Licensee
shall not at any time do or cause to be done any act, omission, or thing
contesting or in any way impairing or tending to impair any part of WIN’S right,
title and interest in the Licensed WIN Business Information.


 


3.6.                            In the
event the Licensee shall be deemed to have acquired any rights in the Licensed
WIN Business Information in the Territory (or anywhere in the world), the
Licensee shall assign, and agrees to execute all documents reasonably requested
by WIN to assign, all such rights in the Licensed WIN Business Information to
WIN or its nominee.


 


3.7.                            Nothing
in this License Agreement shall limit the right of WIN to limit the rights or
access of the WIN to its own Business Information, or Licensed WIN Business
Information.


 

















 


4. Use
of and Rights in the Licensed Marks, Marking:


 


4.1.                            The
Licensee shall use the Licensed Marks only in accordance with the terms of this
Agreement, and shall not use the Licensed Marks, any derivations thereof, or
any Mark confusingly similar thereto, except as permitted under this Agreement.


 


4.2.                            The
Licensee shall maintain high standards of quality, style, appearance and
service with respect to all seminars provided hereunder, and Seminar Materials.
All seminars; and Seminar Materials, shall be in accordance with all applicable
laws and regulations, and shall not violate or infringe any right of privacy or
publicity, copyright, or trademark or constitute defamatory, obscene, or
unlawful matter, or otherwise violate or infringe any personal or proprietary
rights of any person, firm, or corporation.


 


4.3.                            All
uses of Licensed Marks are subject to approval of WIN. The Licensed Marks shall
be used only in connection with seminars and Seminar Materials that have been
approved by WIN pursuant to Section 5.


 


4.4.                            All
Seminar Materials shall include all proprietary notices (e.g., trademark
markings, copyright notice, patent marking) reasonably requested by WIN.


 


4.5.                            The
Licensee acknowledges the validity of the Licensed Marks. The Licensed Marks
(and all versions and derivatives thereof) are owned by WIN and shall be and
remain the exclusive property of WIN. All rights in and to the Licensed Marks
other than those specifically granted to the Licensee herein, are reserved to
WIN for its own use and benefit.
The Licensee shall not acquire any ownership rights in or to the Licensed Marks
and all use of the Licensed Marks by the Licensee shall inure to the benefit of
WIN or its nominee.


 


4.6.                            In the
event the Licensee shall be deemed to have acquired any rights in the Licensed
Marks within the Territory (or anywhere in the world), the Licensee shall
assign, and agrees to execute all documents reasonably requested by WIN to
assign, all such rights in the Licensed Marks to WIN or its nominee.


 


5. Quality Control


 


5.1.                            All
Seminars (including curriculum) and all Seminar Materials shall be subject to
approval of WIN. The Licensee shall provide WIN access to samples for quality
review upon WIN’s reasonable request.


 


5.2.                            Approval
Process


 


a.                                     Licensee
shall provide WIN a syllabus (in such form as WIN may reasonably request) for
each Seminar and samples of all associated Seminar Materials (including any
collateral items not bearing the Licensed Marks) prior to offering or
conducting the Seminar or distributing or offering for sale or otherwise making
available to the public the Seminar Materials.


 


b.                                    Unless
WIN notifies Licensee that the Seminar or Seminar Materials are rejected within
thirty (30) days from receipt by WIN of the


 

















 


samples,
Licensee may go forward with offering the Seminar and Seminar Materials,
subject to paragraph 5.3.


 


c.                                     After samples have been approved Licensee may
not make any material change in the merchandise or materials without WIN’s
prior approval.


 


d.                                    Licensee shall provide WIN, without charge,
additional samples of each item of Seminar Materials from time to time as WIN
may reasonably request.


 


e.                                     Paragraph 5.2b notwithstanding, any product,
service or other collateral items (whether or not bearing the Licensed Marks)
provided, distributed, offered for sale, or otherwise made available in
connection with the Seminars shall be separately submitted to WIN, and shall
not be provided, distributed, offered for sale, or otherwise made available in
connection with the Seminars unless and until WIN approves such product,
service or other collateral items in writing.


 


5.3.                            If WIN determines at any time that there is a
deficiency in a Seminar or Seminar Materials, WIN shall notify Licensee of the
deficiency, and Licensee shall, as soon as practicable, but in any case within
a 30-day period from such notice remedy the deficiency to WIN’s satisfaction.


 


6.
Confidentiality


 


6.1.                            Each party acknowledges the other’s
Confidential Information is unique and valuable and was developed or otherwise
acquired by the other at great expense, and that any unauthorized disclosure or
use of the other’s Confidential Information would cause the other irreparable
injury loss for which damages would be an inadequate remedy. The party agrees
to hold such Confidential Information in strictest confidence, to use all
efforts reasonable under the circumstances to maintain the secrecy thereof, and
not to make use thereof other than in accordance with this License Agreement,
and not to release or disclose Confidential Information to any third party
without the other’s prior written consent, subject to a court order, or subject
to a sublicense consistent with this Agreement and requiring the sublicensee to
maintain the Confidential Information in strictest confidence, to use all
efforts reasonable under the circumstances to maintain the secrecy thereof, not
to make use thereof other than in accordance with the sublicense Agreement, and
not to release or disclose Confidential Information to any third party without
the other’s prior written consent.


 


6.2.                            Each party further acknowledges that any
violation of this Section 6 shall constitute a material breach of this
License Agreement resulting in irreparable injury to the non-breaching party
and agree that, in addition to any and all other rights available to the
non-breaching party by law or by this Agreement, the non-breaching party


 

















 


shall have the right to have an injunction entered
against the party to enjoin any further violations of this Agreement.


 


7. License
Fees and Reporting


 


7.1.                            In
partial consideration of the Licenses granted hereunder, the Licensee shall pay
to WIN a royalty in the amount of *** of gross revenue. Royalties with respect
to activities within an Accounting Period shall be paid to WIN within 30 days
of the end of the Accounting Period, except that no royalties or license fees
shall be paid to WIN prior to one hundred fifty (150) days following the
initial free customer acquisition Seminar. Payments will be made in U.S.
Dollars and shall be considered to have been made when received by WIN at its
principal place of business.


 


7.2.                            Gross
revenue shall be considered realized when received by Licensee and shall be net
of any separately itemized taxes, shipping, rebates, and discounts.


 


7.3.                            For
each Accounting Period, the Licensee shall render to WIN, a written statement,
in such form as WIN may request, setting forth the place, date, subject and
attendance of seminars provided by Licensee during the Accounting Period, the
applicable admission price, and such other information as WIN may reasonably
request to verify the royalty payments due hereunder. Such statement shall be
provided whether or not a royalty payment for the Accounting Period is to be
made. The Licensee shall keep-such written records respecting seminars and
attendance thereat put on by the Licensee as WIN may reasonably request so that
royalties payable hereunder may be accurately determined, and shall permit such
records to be examined by WIN or its authorized representative at any
reasonable time during regular business hours to verify the records, reports
and payments herein provided.


 


7.4.                            Licensee
shall be responsible for, and shall pay, all sales, value added and similar
taxes, if any, which may be imposed on any receipts of the seminars hereunder,
as well as any other tax based upon Licensee’s use of the Licensed WIN Business
Information, or Licensed Marks in connection with the seminars.


 


8. Performance
Requirements


 


8.1.                            Licensee
shall use all reasonable commercial efforts to exploit and use the Licensed WIN
Business Information for the benefit of Licensee and WIN.


 


8.2.                            Licensee
shall advertise and promote the seminars in a manner consistent with normal
business practices using all reasonable commercial efforts to achieve the
maximum attendance possible for its seminars.


 


8.3.                            In the
event of any of the following circumstances, WIN at its sole discretion may, by
written notice, terminate the licenses under this License Agreement:


 


[***] Confidential terms
omitted and provided separately to the Securities and Exchange Commission.


 

















 


a.                                     the
Licensee fails to make seminars available for sale in the marketplace within 6
months of the Effective Date;


 


b.                                    any
time after the first anniversary of this Agreement, the number of free customer
acquisition Seminars provided fall below 6 in two of three successive
Accounting Periods.


 


9.
Warranties and Representations.


 


9.1.                            WIN
warrants and represents that:


 


a.                                     It
has the right to grant the licenses and enter into this Agreement without
seeking the approval or consent of any third party and without payments to any
third party;


 


b.                                    There
are no existing or threatened claims or proceedings by any entity relating to
the Licensed WIN Business Information, or Licensed Marks or challenging WIN’s
ownership of the same;


 


c.                                     None
of the Licensed WIN Business Information, or Licensed Marks are subject to any
outstanding order, decree, judgment, stipulation, written restriction,
undertaking or agreement limiting the scope or use of the Licensed WIN Business
Information, or Licensed Marks or declaring any of it abandoned;


 


d.                                    To
the best of WIN’s knowledge, with respect to the Licensed WIN Business
Information, or Licensed Marks, WIN has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any intellectual property
rights of third parties, and WIN has not received any charge, complaint, claim,
or notice alleging any such interference, infringement, misappropriation or
violation nor does WIN have any knowledge that any such charge or claim may be
forthcoming; and


 


e.                                     To
the best of WIN’s knowledge, any trade secrets comprising part of the Licensed
WIN Business Information have been properly maintained as trade secrets.


 


9.2.                            Licensee
warrants and represents that::


 


a.                                     Licensee
has all rights necessary and is fully authorized to enter into and perform
under this Agreement;


 


b.                                    There
are no existing or threatened claims or proceedings by any entity against
Licensee that would impair Licensee’s ability to perform under this agreement.


 
















 


10. Term
and Termination.


 


10.1.                      The license
hereunder shall commence upon the Effective Date, and shall continue until
terminated pursuant to Paragraph 10.2 of this Agreement.


 


10.2.                      The license
hereunder may be terminated


 


a.                                     By
either party in the event of a breach of this License Agreement by another
party that is susceptible of cure, immediately, upon the end of a 30-day period
after written notice of such breach to the breaching party, if such breach is not cured within the
30-day period.


 


b.                                    By
either party, in the event of a breach of this Agreement by another party that
is not susceptible of cure, immediately, upon written notice of such breach to
the other party.


 


c.                                     By
either party, immediately, if the other party becomes insolvent, makes an assignment
for the benefit of its creditors, or becomes the subject of any bankruptcy or
insolvency proceedings, or ceases to do business.


 


d.                                    By
WIN pursuant to Paragraph 8.3.


 


e.                                     By
WIN, immediately, in the event of a breach by Licensee (that is susceptible of
cure) which impairs or tends to impair the value of, the goodwill associated
with, or any part of WIN’s right, title and interest in, the Licensed
Trademarks and/or the Licensed WIN Business Information, if after written
notice of such breach to Licensee, such breach is not cured as soon as
practicable, but in any case within a 30-day period from such notice.


 


f.                                       By
WIN, immediately, in the event that Licensee attempts to assign, transfer or
sublicense any of the rights and licenses’ granted hereunder without WIN’s
prior written approval except as permitted under Paragraph 2.3


 


g.                                    By
Licensee, immediately, in the event that Licensee is enjoined from practicing
the Licensed WIN Business Information by a court of competent jurisdiction, by
reason of the Licensed WIN Business Information per se violating the rights of
a third party. This provision, however, shall not apply if the injunction
relates to:


 


i.                                        a
product, system, combination, method or process in which the Licensed WIN
Business Information is or may be used, where use  of
the Licensed WIN Business Information standing alone is not enjoined;


 


ii.                                     a
modification or other alteration of the Licensed WIN Business Information by
any person or entity other than WIN, where use of the unmodified or unaltered
Licensed WIN Business Information provided by WIN is not enjoined;


 


iii.                                  an
aspect or feature of the Licensed WIN Business Information, not


 

















 


specifically proposed by
WIN and specifically required by Licensee or implemented by or for Licensee,
where the Licensed WIN Business Information, without such aspect or feature is
not enjoined; or


 


iv.                                 one
manner of practicing the Licensed WIN Business Information, where the practice
of another commercially viable manner of practicing the Licensed WIN Business
Information is not enjoined.


 


10.3.                      Upon
termination of the license hereunder, all rights and privileges in and to the
Licensed WIN Business Information and Licensed Marks granted to the Licensee
herein shall automatically revert to WIN or its nominee, and the Licensee shall
immediately cease any use thereof.


 


10.4.                      Paragraphs
3.6, and Sections 6 (Confidentiality), and 11 (Indemnification) hereof shall
survive termination (for any reason) of this License Agreement.


 


11.
Indemnification.


 


11.1.                      Each party
shall defend, indemnify and hold harmless the other party against and from all
claims, demands or causes of action, as well as any and all damages, expenses,
costs, interest and reasonable legal fees, including those incurred on appeal,
in any way related to, arising out of or connected with a breach of the
indemnifying party’s representations, warranties or agreements, or otherwise
with respect to the indemnifying party’s conduct and actions, under and
pursuant to this Agreement.


 


12.
Insurance.


 


12.1.                      Licensee
shall obtain and maintain in effect during the term of this Agreement and so
long as Licensee uses Licensed WIN Business Information and/or the Licensed
Marks, appropriate liability insurance policies in such amounts and against
such risks as are obtained and maintained by companies similarly situated, and
Licensee shall, at Licensee’s expense, name WIN as an additional insured under
such policies. Licensee shall furnish WIN, for WIN’s review and approval, a certificate of insurance
evidencing the insurance coverage then in effect, which certificate shall
indicate that the policies of insurance shall not be cancelable without at
least 30 days prior written notice to WIN.


 


13. Waiver.


 


13.1.                      The failure
of either party at any time or times to demand strict performance by the other
party of any of the terms, covenants or conditions set forth herein shall not
be construed as a continuing waiver or relinquishment thereof, and either party
may at any time demand strict and complete performance by the other party of
said terms, covenants and conditions.


 

















 


14. Notices.


 


14.1.                      All notices
and other written communications required to be given under this Agreement
shall be in writing and shall be delivered to the addressee in person, mailed
by registered or certified mail, return receipt requested, or transmitted via
tele-facsimile (fax). Any such notice shall be deemed to be delivered, given
and received for all purposes as of the date so delivered, if delivered
personally or if sent by facsimile transmission, or, if sent by certified or
registered mail, three days following the date on which the same was deposited
in a regularly maintained receptacle for the deposit of United States mail,
postage and charges prepaid. The addresses and Fax numbers of the parties (until
written notice of change shall have been given) shall be as follows:


 


To WIN


 


 


 


Fax:


 


With a copy to:


 


To Licensee:


 


 


With a copy to:


 


 


15. Binding
Effect.


 


15.1.                      This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.


 


16. Governing
Law.


 


16.1.                      This
agreement is made under and shall be governed by and construed in accordance
with the laws of the United States and the internal laws of the State of
Arizona without reference to principles of conflict of laws.


 


17. Force
Majeure.


 


17.1.                      To the
extent any event beyond the control of either party (such as an act of God,
action of the elements, man-made or natural disaster, industry or supplier
strike or other labor disturbance, or civil or military disturbance) shall
prevent such party from
performing any of its duties or obligations hereunder by the date provided or
to be provided, the time for such performance shall be deemed


 

















 


extended for a period of time equivalent to the duration
of such event; provided, however, that the party so prevented from performing
must give prompt written notice to the other party of the nature of such event,
the date when such event shall have taken place, and the date when the duration
of such event shall have terminated; and further provided, however, that if
performance shall be so prevented for a period of more than six months, the
other party may terminate this Agreement by written notice of such termination,
and thereafter neither party hereto shall be under any further liability or
obligation to the other hereunder.


 


18.
Dispute Resolution.


 


18.1.                      It is the
Parties’ desire that any disputes that might arise between them be amicably
settled, without resort to litigation, and the Parties will attempt to settle
any such disputes through consultation and negotiation in good faith and in a
spirit of mutual cooperation, All disputes or disagreements arising between the
Parties, out of or relating to this Agreement, that cannot be resolved by the involved
employees of the Parties, shall be brought before a conciliation committee,
consisting of one management executive from each Party. The executives shall be
of at least vice presidential level, and with the authority to bind the
Parties. The conciliation committee shall, within fifteen (15) days after a
written request from either Party, meet in person (or telephonically, if
agreeable to both Parties) and attempt to work out a settlement. Such meeting
shall be held at the facility of the non-requesting Party, or such other
location as mutually agreed upon by the Parties.


 


18.2.                      Notwithstanding
this Section 18, judicial proceedings may be brought without need for
prior arbitration:


 


a.                                     by
either Party, for interim relief pending resolution pursuant to this
Section 18 of the Agreement;


 


b.                                    by
WIN for nonpayment by Licensee of undisputed royalties; or


 


c.                                     by
either Party for injunctive relief pertaining to violation of Section 6,
Confidentiality.


 


19.
Enforcement of Intellectual Property Rights


 


19.1.                      Notice of
Infringement. WIN and Licensee shall promptly notify one another in writing of
any alleged infringement of the Licensed Marks within the Field Of Use. Within
15 days of the receipt of such notice or such other period as may be agreed to
by the parties, WIN and Licensee shall meet and formulate a strategy for
resolving the alleged infringement.


 


19.2.                      WIN and
Licensee (to the extent permitted under the law) each shall have the right to
institute an action for such an infringement of the Licensed Marks against such
third party in accordance with the following:


 

















 


a.                                     If
WIN and Licensee agree to institute suit jointly, the suit shall be brought in
both their names; the out-of-pocket costs thereof shall be borne equally by WIN
and Licensee or as otherwise agreed by the parties; and recoveries, if any,
whether by judgment, award, decree or settlement, shall be divided in order as
follows:


 


i.                                        reimbursement
to WIN and Licensee for all costs of the litigation; and


 


ii.                                     any
remaining recovery will be divided between WIN and Licensee with damages
attributable to activities outside of the Field of Use (if any) paid to the WIN
and the remainder divided equally between the parties. WIN shall choose lead
legal counsel, subject to Licensee’s approval, which shall not be unreasonably
withheld, and shall exercise control over such action. However, WIN shall not
enter into any settlement without Licensee’s approval, which approval shall not
be unreasonably withheld, and Licensee may, if it so desires, be represented by
counsel of its own selection, the fees for which counsel shall be paid by
Licensee at Licensee’s sole expense (and not reimbursable hereunder).


 


b.                                    In
the absence of agreement to institute a suit jointly, WIN may institute suit,
and, at its option, join Licensee as a plaintiff or otherwise appropriate participant
in such legal process. WIN shall bear the entire cost of such litigation and
shall be entitled to retain the entire amount of any recovery by way of
judgment or settlement. WIN shall choose lead legal counsel and exercise
control over such action, provided, however, that Licensee may, if it so
desires, be represented by counsel of its own selection, the fees for which
counsel shall be paid by Licensee at Licensee’s sole expense (and not
reimbursable hereunder).


 


c.                                     In
the absence of agreement to institute a suit jointly and WIN determines not to
institute a suit, as provided in paragraph 19.2b above, Licensee shall have the right, but not the obligation, to
pursue legal process to redress any alleged infringement. Upon WIN’s
written consent, Licensee may bring such legal action in the name of WIN and
may make WIN a party plaintiff or otherwise appropriate participant in such
legal process. Licensee shall pay WIN’s legal expenses incurred in such legal process,
and shall indemnify WIN against any order for costs that may be made against
WIN in such proceedings. Should Licensee decide to pursue legal process under
this paragraph, Licensee shall have the right to select lead legal counsel,
subject to WIN’s approval, which shall not be unreasonably withheld, and shall
exercise control over such litigation. However, Licensee shall not enter into
any settlement without WIN’s approval, which approval shall not be unreasonably
withheld. Any monetary recovery for an infringement in a suit brought by
Licensee shall be considered Licensee’s recovery. However, any recovery in
excess of expenses shall be considered
gross revenue subject to royalty payments pursuant to Section 7 of
this Agreement.


 

















 


d.                                    Should
either WIN or Licensee commence a suit under the provisions of this
Section and thereafter elect to abandon the same, it shall give timely
notice to the other party who may, if it so desires, continue prosecution of
such suit, provided, however, that the sharing of expenses and a recovery in
such suit shall be as agreed upon between WIN and Licensee.


 


19.3.                      WIN and
Licensee shall cooperate in any legal process concerning alleged infringement
of the Licensed Marks. Each party shall, to the fullest extent possible, make
available its employees, records, information and the like as relevant to the
legal process.


 


20. Further documents.


 


20.1.                      The parties
agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or
appropriate to carry out the purposes and intent of this Agreement.


 


21. Entire Agreement.


 


21.1.                      This
Agreement, along with any attachments, exhibits, schedules and documents
incorporated by reference herein, constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior communications, writings and other documents with regard thereto. No
modification, amendment or waiver of any provision hereof shall be binding upon
either party hereto unless it is in writing and executed by both of the parties
hereto or, in the case of a waiver, by the party waiving compliance.


 


22. Relationship of Parties.


 


22.1.                      Nothing
contained in this Agreement shall be deemed or construed by the parties hereto
or by any third person to create the relationship of principal and agent or of
partnership or of joint venture or of any association between the parties. None
of the provisions contained in this Agreement nor any acts of the parties hereto
shall be deemed to create any relationship between the parties other than the
relationship specified in this Agreement.


 


23. Captions.


 


23.1.                      The division
of this Agreement into and the use of captions for paragraphs is for
convenience of reference only and shall not affect the interpretation or
construction of this Agreement.


 


24. Severability.


 


24.1.                      In the event
any provision of this Agreement or the application of any provision shall be
held by a tribunal of competent jurisdiction to be contrary to law, then, the
remaining provisions of this Agreement shall be unimpaired, and the illegal,
invalid or unenforceable provision shall be replaced by a provision, which,


 

















 


being legal, valid and enforceable, comes closest to
the intent of the parties underlying the illegal, invalid or unenforceable
provision. In any event an illegal, invalid or unenforceable provision shall
not affect the enforceability or the validity of the remaining terms or
portions thereof, and each such unenforceable or invalid provision or portion
thereof shall be severable from the remainder of this Agreement.


 


25. Cost
of Enforcement.


 


25.1.                      If a party
commences any arbitration, action at law or in equity, or for declaratory
relief, or in appellate proceedings, to secure or protect any rights under, or
to enforce any provision of, this License Agreement, then, in addition to any
judgment, order, or other relief obtained in such proceedings, the prevailing
party shall be entitled to recover from the losing party all reasonable costs,
expenses, and attorneys’ fees incurred by the party in connection with such
proceedings, including, attorneys’ fees incurred for consultation and other
legal services performed prior to the filing of such proceeding.


 


 


	
  Licensee

  	
   

  	
  Licensor

  
	
  Rich Dad Education, LLC

  	
   

  	
  Whitney Information Network, Inc.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Sharon L Lechter

  	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  
	
  Name:

  	
  Sharon L Lechter

  Member

  	
   

  	
  Name: