MEANS ANY INDIVIDUAL, PARTNERSHIP, JOINT
VENTURE, CORPORATION, LIMITED LIABILITY COMPANY, TRUST, OR OTHER ASSOCIATION OR
ENTITY.
1.27
"REGULATIONS" MEANS THE REGULATIONS PROMULGATED
BY THE UNITED STATES DEPARTMENT OF THE TREASURY PURSUANT TO AND IN RESPECT OF
PROVISIONS OF THE CODE.
ALL REFERENCES HEREIN TO SECTIONS OF THE REGULATIONS
SHALL INCLUDE ANY CORRESPONDING PROVISION OR PROVISIONS OF SUCCEEDING, SIMILAR,
SUBSTITUTE, PROPOSED OR FINAL REGULATIONS.
1.28
"SECURITIES ACT" MEANS THE SECURITIES ACT OF
1933, AS AMENDED FROM TIME TO TIME.
3
ARTICLE 2:
ORGANIZATION AND FORMATION
2.1
FORMATION.
BALLANTYNE AND REAL D HEREBY
FORM THE COMPANY AS A LIMITED LIABILITY COMPANY UNDER THE ACT.
2.2
CERTIFICATE OF FORMATION.
IN FURTHERANCE OF
THE FOREGOING, THE MEMBERS SHALL PROMPTLY CAUSE A CERTIFICATE OF FORMATION
SUBSTANTIALLY IN THE FORM OF EXHIBIT D HERETO (AS AMENDED FROM TIME TO TIME, THE
"CERTIFICATE") TO BE FILED WITH THE SECRETARY OF STATE OF DELAWARE AS REQUIRED
BY THE ACT.
2.3
NAME OF THE COMPANY.
THE NAME OF THE
COMPANY SHALL BE DIGITAL LINK II, LLC, AND ALL BUSINESS AND AFFAIRS OF THE
COMPANY SHALL BE CONDUCTED UNDER SUCH NAME.
2.4
PRINCIPAL OFFICE OF THE COMPANY.
THE
COMPANY'S PRINCIPAL OFFICE SHALL BE AT SUCH PLACE AS THE BOARD SHALL FROM TIME
TO TIME DESIGNATE.
2.5
BUSINESS OF THE COMPANY.
THE COMPANY IS
BEING FORMED FOR THE PURPOSE OF (I) MARKETING AND SELLING THE SYSTEMS AND
RELATED PRODUCTS TO OPERATORS OF THEATRE VENUES, AND THE PROVISION OF RELATED
PRODUCTS AND SERVICES (ACTIVITIES DESCRIBED IN THIS CLAUSE (I) BEING REFERRED TO
AS THE "BUSINESS"), (II) PERFORMING ANY AND ALL OTHER ACTIVITIES WHICH MAY BE
NECESSARY, INCIDENTAL OR CONVENIENT TO CARRY ON THE BUSINESS, AND (III) ENGAGING
IN ANY OTHER BUSINESS WHICH IT IS LAWFUL FOR A LIMITED LIABILITY COMPANY TO
ENGAGE PURSUANT TO THE ACT.
THIS AGREEMENT SHALL NOT BE DEEMED TO CREATE A
PARTNERSHIP OR JOINT VENTURE BETWEEN THE MEMBERS, FOR ANY PURPOSES OTHER THAN
FEDERAL, STATE AND LOCAL TAX PURPOSES.
2.6
TERM.
THE TERM OF THE COMPANY SHALL
COMMENCE EFFECTIVE AS OF THE CLOSE OF BUSINESS ON THE DATE OF FILING OF THE
CERTIFICATE WITH THE SECRETARY OF STATE OF DELAWARE AND SHALL HAVE PERPETUAL
EXISTENCE, UNLESS TERMINATED AS PROVIDED IN THIS AGREEMENT OR BY THE ACT.
NO
MEMBER SHALL HAVE THE RIGHT, AND EACH MEMBER HEREBY AGREES NOT TO WITHDRAW FROM
THE COMPANY, NOR TO DISSOLVE, TERMINATE OR LIQUIDATE, OR TO PETITION A COURT FOR
THE DISSOLUTION, TERMINATION OR LIQUIDATION OF THE COMPANY, EXCEPT AS EXPRESSLY
PERMITTED IN THIS AGREEMENT, AND NO MEMBER AT ANY TIME SHALL HAVE THE RIGHT,
WITHOUT THE CONSENT OF THE COMPANY, TO PETITION OR TO TAKE ANY ACTION TO SUBJECT
THE COMPANY ASSETS, OR ANY PART THEREOF, TO THE AUTHORITY OF ANY COURT OF
BANKRUPTCY, INSOLVENCY, RECEIVERSHIP OR SIMILAR PROCEEDING.
2.7
REGISTERED AGENT AND OFFICE.
THE REGISTERED
AGENT FOR THE COMPANY IN THE STATE OF DELAWARE SHALL BE CORPORATION TRUST
CENTER, OR SUCH OTHER PERSON AS THE BOARD MAY DESIGNATE.
THE REGISTERED OFFICE
OF THE COMPANY SHALL BE 1209 ORANGE STREET, WILMINGTON,