Complaint Phigogam v. JWOWW (W/ All 21 Exhibits)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) ERIC BRAMLETT,
(2) WESLEY COX, and
(3) PAUL RUDNICKI,
Individually and d/b/a PHIGOGAM,
LLC, an unincorporated common
law partnership,
Plaintiffs,
vs.
(1) JENNI FARLEY a/k/a JWOWW;
(2) JENNY FARLEY, LLC, a New
York limited liability company;
(3) JWOWW BEAUTY, LLC, a New
York limited liability company;
(4) AUSTRALIAN GOLD, LLC, an
I n d i a n a l i mi t e d l i a b i l i t y
company; and
(5) NEW SUNSHINE, LLC, an Indiana
limited liability company,
Defendants.
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VERIFIED COMPLAINT
CIV-11-898-C
Case 5:11-cv-00898-C Document 1 Filed 08/10/11 Page 1 of 23
Page 2 of 23
1. The Plaintiffs, Eric Bramlett, Wesley Cox, and Paul Rudnicki, were college
friends, having attended the University of Oklahoma together. Collectively, Cox, Rudnicki
and Bramlett will be referred to as Plaintiffs. Plaintiffs each contributed to the ideas and
business plans at issue in this litigation. Each of them brought a particular bit of business
savvy and/or experience with the tanning industry to the table that resulted in a synergistic
partnership. The resulting concepts, business plans, and product designs were so well
conceived that they were appropriated whole cloth by Defendants and have been wildly
successful. In fact, Defendant Jenni Farley claimed that the tanning lotion, marketed in a
bottle designed by Plaintiff Cox and promoted by her, set a record as the fastest tanning
lotion to sell 115,000 bottles in only five months. See Exhibit 1, March 18, 2011 tweets
posted by Farley on her Twitter account. In the days before this Complaint was filed,
Farleys Facebook page featured her holding two bottles of tanning lotion featuring designs
created by Plaintiffs. See Figure 1, below.
2. Plaintiff Wesley Cox is a graphic designer who does business as Winston
Media, LLC. Cox currently resides in Norman, Oklahoma, but during earlier times relevant
to this litigation, he resided in Tulsa, Oklahoma. Cox conceived, among other aspects of the
Plaintiffs intellectual property, the design of the bottle in which tanning lotions bearing the
name JWOWW are currently sold by Australian Gold.
3. Plaintiff Paul Rudnicki owns tanning salons in the Oklahoma City, Oklahoma
metropolitan area. Rudnicki purchased the first tanning salon in 2003, shortly after
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graduating from college. He purchased a second tanning salon in 2007, and a third in 2009.
Currently, Rudnicki is working on the purchase of a fourth salon. Rudnicki has, through
hands-on management and day-to-day operation of these three tanning salons become
intimately familiar with the tanning industry and tanning lotions. Rudnicki resides in
Norman, Oklahoma.
Figure 1: Farleys Facebook Page as of July 27, 2011
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4. Plaintiff Eric Bramlett is an entrepreneur and internet marketing expert. In
2006, he launched an internet based real estate brokerage that he currently operates. In 2009,
he launched a real estate web applications and development firm, Displet.com, that has
expanded to 21 markets in 24 months. Bramlett resides in Austin, Texas.
5. Together, Plaintiffs started a website to sell tanning lotions direct to the public.
Plaintiffs direct-to-the-public website, Tantans.com, sold its first tanning lotion on October
22, 2007. In operating Tantans.com, Plaintiffs realized that, to increase their margins, they
needed to have their own line of tanning lotions, rather than simply carrying brands produced
by others. The profit margins selling lotions produced by others were simply not large
enough to make the Tantans.com venture very profitable, but with their own line, they could
put a larger portion of the sale price of each tanning lotion bottle in their own pockets.
Plaintiffs wanted to avoid a position as a mere re-seller of tan lotions and to circumvent
entrenched industry positions.
6. Thus, in 2009, Plaintiffs began discussing the particulars regarding their own
line of tanning products. Fairly early in the discussions, they decided that having a celebrity
tie-in would be desirable. In considering possible celebrity associations, they made a
connection between the reality show JERSEY SHORE on MTV (Jersey Shore) and
tanning products. Jersey Shore premiered in December 2009, and three seasons have aired
since that time. The fourth season premiered on August 4, 2011. The life of Jersey Shore
cast members revolves around a daily routine involving working out at the gym, tanning, and
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doing their laundry. This routine has given rise to the acronym GTL, which stands for
gym, tan, laundry, and this acronym is well known to Jersey Shore fans. See e.g., Farleys
August 4, 2011 Facebook post and Tweet in which JWOWW advises her fans to Ask for
some Jwoww Black Bronzer at your local tanning salon to get the T down in GTL.... Since
tanning was an integral part of the fame of Jersey Shore and its cast members, Plaintiffs
decided to approach cast members about endorsing their independent line of tanning lotions.
7. Plaintiffs agreed that they would each have an equal share in the proceeds from
their own line of tanning products. Each Plaintiff is a 1/3 owner of the business concept, the
intellectual property, and all other valuable facets of the business enterprise or any resulting
endeavor. In dealing with this matter, Plaintiffs did business as Phigogam, LLC, though that
entity was never formally organized as a limited liability company. See, e.g., Exhibit 2, at
1.10 (naming Phigogam, LLC a member of JWOWW Beauty, LLC, and an owner of 49%
of that entity) and p.43 (Plaintiff Cox signing as managing member of Phigogam, LLC).
Therefore, Plaintiffs are de facto members of a common law partnership doing business
under the name Phigogam, LLC.
8. Initially, since Mike The Situation Sorrentino and Paul Pauly D
Delvecchio were two of the best known Jersey Shore regulars, Plaintiffs first approached
them with the idea. However, Plaintiffs did not receive any initial response from Sorrentino
and Delvecchio. Instead of making additional efforts to interest Sorrentino or Delvechhio,
Plaintiffs re-examined their approach and decided that a female spokesperson would actually
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be preferable. They considered approaching Nicole Snooki Polizzi, but they felt that her
look was not what they needed. Instead, they decided on approaching Defendant Jenni
Farley, also known as JWOWW. Her look and image was what Plaintiffs had in mind for
promotion of their line of tanning lotions.
9. Defendant Jenni Farley is also a regular cast member of Jersey Shore. When
not filming Jersey Shore in New Jersey, Farley resides in New York City, New York. She
is the owner of a U.S. Trademark application Ser. No. 77/938,448 for JWOWW in which she
is represented by Rudolph (Rudy) Fusco. Farley owns or controls two limited liability
companies named as Defendants herein, to wit: JENNY FARLEY, LLC, a New York limited
liability company; and JWOWW BEAUTY, LLC, a New York limited liability company.
Plaintiffs will reference Farley along with the two limited liability companies she owns or
controls in this Complaint as Defendant Farley Defendants unless one of them is more
specifically referenced. When Farley alone is mentioned, Plaintiffs are referencing
individual Defendant Jenni Farley.
10. Defendant Australian Gold, LLC (Australian Gold) is an Indiana limited
liability company with its principal place of business ironically located at 6270 Corporate
Drive, Indianapolis, IN 46278-2900. Australian Gold manufactures and distributes a variety
of well-known tanning products. New Sunshine Enterprises, LLC, (New Sunshine) which
is a holding company set up to operate multiple smaller tanning companies purchased and
aggregated under common ownership. Australian Gold is a subsidiary of New Sunshine.
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Many of Plaintiffs emails were with individuals who work for New Sunshine, but that entity
is synonymous with the businesses publicly known as Australian Gold. When referencing
both Australian Gold and New Sunshine herein, they will be called Corporate Defendants.
11. Plaintiffs first contacted Farley through her then-agent and boyfriend, Tom
Lippolis. The initial approach to Lippolis was via email on February 3, 2010. See Exhibit 3,
email from Plaintiff Cox to Lippolis. That same day, Plaintiff Cox talked with Lippolis on
the phone, then forwarded a proposal to Lippolis outlining the business proposition.
See Exhibit 4, February 3, 2010 business proposal on Phigogam letterhead. The initial
proposal from Plaintiffs was for Farley to receive 20% of gross royalties. Lippolis responded
positively to the concept presented by Plaintiffs, but he indicated the percentage proposed
by Plaintiffs was not agreeable. See Exhibit 5, at p. 1, a February 6, 2010 email from Lippolis
to Plaintiff Cox, in which Lippolis asserted that 20% royalties, no ownership etc is not going
to fly.
12. Shortly after these initial communications, Rudolph (Rudy) Fusco, the Farley
Defendants attorney, became involved in discussions. See, Exhibit 5 at p.2, a February 25,
2010 email from Fusco to Plaintiff Cox following on a teleconference between them.
On March 15, 2010 Fusco sent a proposed operating agreement for JWOWW Beauty, LLC
to Plaintiff Cox. Id. at p.4, a March 15, 2010 email from Fusco to Plaintiff Cox with the
operating agreement attached. As noted above, Plaintiff Cox, on behalf of Phigogam, LLC,
signed and sent the agreement back to Fusco. Id. at p.5, a March 29, 2010 email from
Page 8 of 23
Plaintiff Cox to Fusco with a copy sent to Lippolis; and Exhibit 2, the operating agreement
signed by Plaintiff Cox on behalf of Phigogam, LLC. In addition to returning an executed
copy of the JWOWW Beauty, LLC operating agreement, Plaintiffs sent a $225 check to
Fusco Law Group to pay the filing fee for JWOWW Beauty, LLC. See Exhibit 6, check
number 1031 dated April 15, 2010 drawn on the account of Tan Tans. Fusco used the funds
from this check to pay the filing fee for JWOWW Beauty, LLC. JWOWW Beauty, LLC
which was established about a month later on May 17, 2010 as a New York limited liability
company naming Fusco Law Group, PC as the recipient of process for the LLC.
13. Regarding the design of the bottle for the initial tanning lotion, Plaintiff Cox
sent four original proposed designs for a tanning lotion bottle to Farley care of Lippolis.
See Exhibit 7, July 11, 2010 email from Plaintiff Cox to Lippolis. Exhibit 7 includes color
versions of the four alternate designs prepared by Plaintiff Cox. Each of the four designs is
the subject of an issued United States copyright registration. See Exhibit 8, copyright
registration for Option One Black Gold; Exhibit 9, copyright registration for Option Two
Icy Black; Exhibit 10, copyright registration for Option Three Baller Gold; and
Exhibit 11, copyright registration for Option Four Royal Gold. The four design options
are reproduced side-by-side in Fig. 2, and they will be referenced collectively herein as
Original Copyrighted Works.
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Figure 2: Original Copyrighted Works
Page 10 of 23
14. Upon information and belief, Plaintiffs assert that Farley, or someone on her
behalf, made revisions to Plaintiffs designs, and they were transmitted back to Plaintiff Cox.
See Exhibit 12, July 15, 2010 email from Lippolis to Plaintiff Cox along with a color version
of the revised design. The revised design combines elements of, inter alia, Option Three
(banner shape and flat black background, for example) and Option Four (banner color and
contrasting text color on the banner, for example), creating a derivative work from at least
two of the Original Copyrighted
Works. The derivative work
created by Farley, or someone
on her behalf, is reproduced
in Fig. 3.
15. Plaintiff Cox took
the revisions by or on behalf of
JWOWW and polished them to
come up with the final design.
A copy of the final design was
transmitted to Defendant New
Sunshine, LLC with a copy to
Lippolis. See Exhibit 13, July
26, 2010 email from Cox to
Figure 3: JWOWWs Derivative Work
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Figure 4: Final Bottle Design
Paula Ryan at New Sunshine, LLC along with a color version of the final design. The final
design is reproduced in Fig. 4. The final design represented in Fig. 4 will hereinafter be
referenced as Final Bottle Design.
16. Plaintiffs had identified and communicated with a couple of companies that
were capable of producing tanning lotions, and Plaintiffs had worked up plans to purchase
an initial allotment of the tanning lotion of around 20,000 bottles. See Exhibit 14, emails
r e l a t e d t o p o t e n t i a l
manufacturers of the tanning
lotion and regarding purchase of
an initial allotment.
17. In late July 2010
Lippolis, or someone else on
behalf of Farley Defendants
suggested to Plaintiffs the idea
of taking the concept to
A u s t r a l i a n G o l d .
See Exhibit 15, emails related to
a p p r o a c h t o Co r po r at e
Defendants. Plaintiffs were
receptive to this, and they
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worked with Lippolis to pitch the concept to Australian Gold, providing them with the
product designs as well as other input into the proposed marketing campaign and product
placement associated with their business plan. Plaintiffs sent their Final Bottle Design to
Corporate Defendants for their consideration. Exhibit 15 at p.3, a July 26, 2010 email from
Plaintiff Cox to Paula Ryan at New Sunshine with a copy to Lippolis. During a
teleconference on or about July 26, the Corporate Defendants personnel made it clear that
they were very interested in the business developed by Plaintiffs. Subsequently, Wes Broyles
from Australian Gold asked Plaintiff Cox for a hi resolution version of the Final Bottle
Design, which Plaintiff Cox did. Exhibit 16, August 2, 2010 emails among Plaintiff Cox and
Wesley Broyles at Australian Gold.
18. Lippolis and Farley were dating when Jersey Shore began filming in 2009, but
they broke up after Farley had a relationship with Paul DelVecchio, also known as Pauly D
(Pauly D), a fellow Jersey Shore cast member, during the filming of the shows third
season. The Farley-Lippolis breakup occurred during final negotiations with Australian
Gold, and it was acknowledged by Plaintiff Cox in an email to Farleys attorney, Rudy Fusco,
in which Cox asks if Lippolis will still be involved. See Exhibit 17, August 20, 2010 at 10:21
a.m. email from Plaintiff Cox to Fusco (Plaintiff Cox asking: Have you heard from Tom
recently? I have been unable to get in touch with him since the news broke about the big
breakup. I am assuming that he is no longer involved with the venture?).
T h e a r t i c l e i s c u r r e n t l y a v a i l a b l e o n l i n e a t
1
http://entertainment.blogs.foxnews.com/2011/01/21/jwowws-lawyer-blocked-nude-pix-a-l
ot-more-graphic-than-her-ex-admits/
Page 13 of 23
19. Lippolis is currently suing Farley claiming, among other things, that he
negotiated a tanning lotion contract on her behalf. See Exhibit 18, verified complaint filed
against Farley by Lippolis in New York State court.
20. Rudy Fusco is a New York attorney who represents Farley. Mr. Fusco
represented Farley both before and after she split with Lippolis. On information and belief,
Plaintifs assert that Fusco is currently representing Farley in her various litigation and/or
arbitration matters with Lippolis. See, for example, Exhibit 19, an article from a Fox News
related to a dispute between Farley and Lippolis about publication of nude pictures Lippolis
took of Farley while they were still a couple. The Fox article quotes Fusco speaking on
1
Farleys behalf as her attorney.
21. Thereafter, both Fusco, on behalf of Farley, and Australian Gold ceased
meaningful communication with Plaintiffs regarding their agreement. Plaintiffs inquired
about the status of the deal, but no meaningful responses were received. See Exhibit 17.
Defendants have since refused to meaningfully communicate with Plaintiffs about the
agreement, and Defendants, instead, appropriated the entire deal to themselves and cut
Plaintiffs out of the picture. Plaintiffs were left with no option to vindicate their rights but
to file this suit.
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JURISDICTION AND VENUE
22. Jurisdiction and venue of this Court are properly invoked under 28 U.S.C.
1331, 1332, 1337, 1338, 1367, 1391(b) and (c) and 1400 for Plaintiffs claims arising
under 17 U.S.C. 101 et seq and related causes of action as more fully set forth below.
FIRST CAUSE OF ACTION
Copyright Infringement
23. Plaintiffs restate and incorporates herein by reference the preceding and
subsequent allegations of this Complaint.
24. Plaintiffs Original Copyrighted Works comprise original works of authorship
fixed in a tangible medium of expression.
25. Plaintiffs Original Copyrighted Works are registered with the United States
Copyright Office, and, as an owner and holder of copyright protection, has the exclusive
rights of reproduction, preparation of derivative works, distribution, and display of same.
17 U.S.C. 106.
26. Defendants copied, distributed and sold, without Plaintiffs consent or
permission, Plaintiffs works for Defendants commercial use and benefit, including without
limitation, for the purpose of financial gain and obtaining a competitive edge over Plaintiffs
and competing tanning lotion retailers.
27. By way of illustration, and not of limitation, Farley prepared a derivative work
from Plaintiffs Original Copyrighted Works, to wit, a modification that was transmitted by
The Final Bottle Design is also properly the subject of a copyright registration
2
naming Plaintiff Cox as an author. However, since the Final Bottle Design also incorporates
contributions from Farley, Plaintiffs did not seek copyright protection on this work, but they
are seeking an order of the Court requiring Farley to reasonably cooperate in the registration
of the final Bottle Design with the U.S. Copyright Office.
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Farley or on her behalf back to Plaintiffs. See Fig. 3. Thereafter, Plaintiff Cox prepared the
Final Bottle Design. See Fig. 4. The Final Bottle Design incorporated creative elements
2
from the Original Copyrighted Works and from the modifications transmitted by, or on behalf
of, Farley back to Plaintiffs. Defendants then took and appropriated the Final Bottle Design
and used it commercially on a product known as JWOWW Black Bronzer, which Farley
is holding in the picture included in this Complaint as Fig. 1. Plaintiffs have valuable rights
in both the Original Copyrighted Works and in the Final Bottle Design, and these rights are
referenced herein as Plaintiffs Copyrights.
28. A large volume of the tanning lotion has been sold by Corporate Defendants
in bottles bearing the Final Bottle Design. Farley reported that 115,000 bottles of Black
Bronzer were sold in the first five months it was marketed. See Exhibit 1 (115,000 sold as
of March 16, 2011). That is a pace of around 23,000 bottles per month. At that pace, an
additional 115,000 bottles or so would have been sold between March 16, 2011 and the time
this Complaint is being drafted in early August 2011. Thus, total sales of the Black Bronzer
product have been around 230,000 bottles by early August 2011. For each of these bottles
of Black Bronzer, damages, including, but not limited to a reasonable royalty are owed
associated with use of Plaintiffs Copyrights.
Page 16 of 23
29. In addition to the Black Bronzer product, Defendants developed and marketed
a Private Reserve ultra toning black bronzer. See Exhibit 20, March 18, 2011 tweets by
Farley related to the Private Reserve Toning Bronzer. As can be seen from the picture
provided by Farley in her tweet, the design is clearly derived from, and a modification of, the
design used on the Black Bronzer bottle. In short, the Black Bronzer bottle had a black
background with a gold shield bearing a shaded gradient whereas the Private Reserve Toning
Bronzer has a gold-flecked background
and shield. The Private Reserve Toning
Bronzer bottle design is reproduced in
Fig. 5. Damages, including but not
limited to royalties, are also owed in
connection with the Private Reserve
Toning Bronzers infringement on
Plaintiffs Copyrights.
30. Defendants are introducing
a Skincare Kit on or about September
25, 2011, and the publicity materials for
these products show bottle product
packaging designs that also infringe on
Plaintiffs Copyrights. See Exhibit 21,
Figure 5: Private Reserve Toning Bronzer
Page 17 of 23
press release from Corporate Defendants. Products in the Skincare Kit include a facial
cleanser, an eye therapy cream, and a color enhancing moisturizer. The Skincare Kit will be
marketed with a suggested retail price of $49.99. This expansion of Defendants product
slate, as currently shown in the release, will continue Defendants infringement of
SECOND CAUSE OF ACTION
Vicarious and/or Contributory Copyright Infringement
31. Plaintiffs restate and incorporate herein by reference the preceding and
32. In conjunction and/or in concert Defendants copied, reproduced, sold, and
distributed Plaintiffs protected artwork for Defendants financial gain.
33. Defendants knew or should have known that their conduct would infringe
Plaintiffs rights in their copyrighted works, to wit, Defendants had actual or constructive
knowledge regarding copying, reproducing, distributing and selling the subject works, and
Defendants failed or refused to stop same, which resulted in an infringement of protected
works of expression, and that said conduct would damage Plaintiffs.
34. Farley had intimate personal knowledge of the development of the copyrighted
works and of the derivative work on the Final Bottle Design. Corporate Defendants knew
or should have known that Plaintiffs authored works that were incorporated into the Final
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Bottle Design. After all, Australian Gold specifically asked Plaintiff Cox to provide a high
resolution version of the derivative work present on the Final Bottle Design. See Exhibit 16.
THIRD CAUSE OF ACTION
Breach of Contract
36. Plaintiffs formed agreement with Farley Defendants to split revenue and other
benefits from the sale and promotion of JWOWW-branded tanning lotions and associated
products. Plaintiffs were to receive 49%, and Farley Defendants would receive the
remaining 51%. In contravention of this agreement, Farley Defendants have kept all of the
revenue associated with sale and promotion of JWOWW-branded tanning lotions and
associated products.
37. Given the above-noted sales volume of circa 230,000 bottles of lotion with
Farley Defendants receiving $2.50 per bottle, Farley Defendants have already received nearly
$600,000 in compensation from Corporate Defendants, damaging Plaintiffs by at
least $300,000.
38. Farley Defendants have received not only cash, but also trips, co-promotion
value, and other items of value from Corporate Defendants. For example, earlier this year
Corporate Defendants provided Farley Defendants with a high-end tanning bed. See Fig. 6
(described by Farley as sick, which means, upon information and belief, that she really
Page 19 of 23
liked it). Plaintiffs seek their contractual
percentage of the fair market value of all
i t e ms o f va l u e r e c e i v e d b y
Farley Defendants.
FOURTH CAUSE OF ACTION
Unjust Enrichment
39. Plaintiffs restate and
incorporate herein by reference the
preceding and subsequent allegations of
this Complaint.
40. The money lost by Plaintiffs
constitutes a benefit conferred upon
Defendants by Plaintiffs. Under the
circumstances, and as a matter of equity,
Defendants were unjustly enriched by
their receipt of that money and other items of value, and Defendants should return that value
to Plaintiffs.
41. Defendants received and retained money and other items of value due and
owing to Plaintiffs. The retention of these monies by Defendants resulted in an increase in
Figure 6: March 25, 2011 Tweet About
Tanning Bed from Australian Gold
Page 20 of 23
Defendants profits and a harmed Plaintiffs. Defendants retention of such profits is unjust
and unwarranted for all of the reasons set forth herein.
FIFTH CAUSE OF ACTION
Accounting
43. Plaintiffs seek a declaration of amounts relevant to contractual and royalty
calculations. To this end, Plaintiffs seek a full accounting of sales associated with JWOWW-
branded tanning lotions and associated products and also of payments by Corporate
Defendants to Farley Defendants in connection with sales of JWOWW-branded tanning
lotions and associated products.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants as follows and for the
following relief:
a. That Defendants, their subsidiaries, affiliates, parents, successors, assigns,
officers, agents, servants, employees, attorneys, and all persons acting in concert or in
participation with them, or any of them, be temporarily and preliminarily enjoined during the
pendency of this action, and permanently enjoined thereafter from further infringing
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b. That Defendants be directed to fully compensate Plaintiffs for all damages
attributable to Defendants direct, indirect, or contributory copyright infringement.
c. That Defendants be ordered to deliver to Plaintiffs all products that result from
Defendants copyright infringement.
d. That Defendants be required to account for all gains, profits, advantages, and
unjust enrichment derived from their violations of copyright law.
e. That Plaintiffs be awarded punitive damages.
f. That Plaintiffs be awarded damage consistent with Farley Defendants breach
of their agreement with Plaintiffs.
g. That Plaintiffs be awarded damages to rectify Defendants unjust enrichment.
h. That Plaintiffs be awarded reasonable attorneys fees.
i. That Plaintiffs be awarded the costs of suit, and an assessment of interest.
j. That Plaintiffs have such other, further, and different relief as the court deems
proper under the circumstances.
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Respectfully submitted,
/s/ Edward L. White
Edward L. White, OBA #16549
Edward L. White, P.C.
9301 Cedar Lake Ave., Suite 200
Oklahoma City, Oklahoma 73114
Telephone: 405-810-8188
Facsimile: 405-608-0971
Email: ed@edwhitelaw.com
-and-
S. Alex Yaffe, OBA #21063
Eric Cavett, OBA #22098
FOSHEE & YAFFE LAW
P.O. Box 890420
Oklahoma City, Oklahoma 73189
Telephone: 405-264-5777
Facsimile: 405-632-3036
Email: ayaffe@fosheeyaffe.com
ecavett@fosheeyaffe.com
ATTORNEYS FOR PLAINTIFFS
ATTORNEYS LIEN CLAIMED
JURY TRIAL DEMANDED
Figure 1: March 18, 2011 Tweet No. 1 Lotion, Broke Records
Figure 2: March 18, 2011 Tweet 115,000 Bottles in 5 Months
Complaint Exhibit 1
Page 1 of 1
Case 5:11-cv-00898-C Document 1-1 Filed 08/10/11 Page 1 of 1
1

JWOWW BEAUTY, LLC
OPERATING AGREEMENT

This Agreement, dated , 2010 by and between undersigned Members (the
Initial Members), is hereby adopted as the written Operating Agreement of JWOWW
BEAUTY, LLC who promptly after the formation shall be added as a party to the
Agreement, and

WHEREAS, the undersigned presently own all of the Membership interest in the
LLC; and

WHEREAS, this agreement does not contain any provisions inconsistent with the
Articles of Organization of this Company, and

WHEREAS, the Members wish to set forth provisions relating to the business of
this limited liability company, the conduct of its affairs and the rights, powers, preferences,
limitations or responsibilities of its Members, Managers, employees or agents, as the case
may be; and,

WHEREAS, this agreement sets forth the agreement among the parties as to the
internal affairs of the LLC and the conduct of its business;

NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned agree to be legally bound,
agree as follows:

ARTICLE 1
FORMATION

1.1 EFFECTIVE DATE OF AGREEMENT

The effective date of this Agreement (the Effective Date) shall be the date that the last of
the Initial Members signs and dates this Agreement.

1.2 ENFORCEABILITY OF AGREEMENT

On the Effective Date and thereafter until the parties amend or terminate this Agreement, all
rights, duties and liabilities of the LLC and its Members shall be enforceable against the LLC
and its Members in accordance with the terms of this Agreement.

Complaint Exhibit 2
Page 1 of 43
2

1.3 LLC FORMATION

A. The Initial Members intend to form the LLC under the Limited Liability
Company Act of the State of New York and they have authorized the formation of this
limited liability company by an organizer who prepared, executed and filed the Articles of
Organization with the New York Secretary of State, pursuant to the New York Limited
Liability Company Law.

B. Upon its formation, the LLC shall be a separate and distinct legal entity from
its Members.

1.4 LLC NAME

The name of this Limited Liability Company is JWOWW BEAUTY, LLC.

1.5 PRINCIPAL PLACE OF BUSINESS

The Principal office of the LLC is in the State of New York, and shall be c/o The Fusco
Law Group, P.C. located at 1267 East Main Street, Riverhead, NY 11901. The Managers, if
any, or if none then the Members may change the LLCs principal place of business from
time to time upon reasonable notice in writing to the Members. The LLC may have such
other offices, either within or without the State of New York, as the Members may designate
or as the business of the LLC may require.

1.6 LLC DURATION

The duration of the LLC shall be indefinite unless terminated sooner by operation of law or
by unanimous agreement between the Members.

1.7 LLC PURPOSE

A. Business Purpose: The Company is formed for the purpose of conducting
any lawful business and shall have all the powers set forth in Sec. 202(a) 202(q) of the New
York Limited Liability Company Law.

1.8 LLC Powers

Except as expressly otherwise provided in this Agreement, the LLC shall have all powers
provided to LLCs under the LLC Act.

Complaint Exhibit 2
Page 2 of 43
3

1.9 LLC REGISTERED AGENT AND REGISTERED OFFICE

A. The name and registered office address of the Registered Agent of this
Company is: Rudolph J. Fusco Jr. Esq. located at The Fusco Law Group, P.C. 1267 East
main Street, Riverhead, NY 11901 or such person or persons as designated by the Members
or by the Managing Members, if any, from time to time.

B. The Secretary of State of New York is designated as agent of this LLC upon
whom process against it may be served, and the post office address to which the Secretary of
State shall mail a copy of such process against the Company served upon him is: Rudolph J
Fusco Jr. Esq. C/O The Fusco Law Group, P.C. 1267 East Main Street, Riverhead, NY
11901

1.10 IDENTITY OF MEMBERS

On the date of formation of the LLC, the Initial Members shall be the only Members of the
LLC. Additional Members shall be admitted to the LLC in accordance with Article 5. The
initial members of Provost LLC are;

1. Jenni Farley, LLC -51% Interest and Managing Member
2. Phigogam, LLC- 49% Interest
427 S. Boston Ave. Suite 509
Tulsa, OK 74103

1.11 LIMITED LIABILITY OF MEMBERS

No Member shall be personally liable to any third party for any debts, obligations or
liabilities of the LLC or of any other Member, solely by reason of his or her being a Member
of this Company, whether such debt arose in contract, tort or otherwise. However, such
Member shall be personally liable for the payment of his or her Capital Contribution or for
any other matter which may be set forth in this Operating Agreement. A Member shall have
the option to waive such limitation of liability pursuant to 609 of the New York Limited
Liability Company Law and may be legally liable pursuant to other applicable law in his or
her capacity as a Member.

1.12 FIDUCIARY DUTIES AND LIABILITIES OF MEMBERS

A. All of the Members may be related to one another, however they are or shall
be dealing with one another on an arm's length basis, each controlling his/her/its interest as
represented herein, and each desiring to comply with the requirements of the New York
Limited Liability Company Law and their fiduciary responsibilities to the LLC and the other
Members. The Member(s) who is managing and operating the LLC expressly agrees to be
bound by fiduciary duties to promote the purposes and best interests of the LLC.

B. Fiduciary responsibilities shall mean any fiduciary duties or liabilities to the
LLC or to the other Members resulting from participation in the management of the LLC
Complaint Exhibit 2
Page 3 of 43
4

1.13 MANAGEMENT

Except as otherwise expressly provided in Article 2.2 of this Agreement, the
management of the business and internal affairs of the LLC shall be reserved to its
Managers.

1.14 TAXATION OF LLC AND MEMBERS

A. Under federal tax law and to the maximum extent possible under the tax laws
of each state and the District of Columbia, the LLC and its Members shall be taxable as a
partnership and as partners.

B. The provisions of this Agreement shall be construed and applied in such a
manner as to ensure full compliance with the provisions of the Internal Revenue Code
applicable to partnerships and with the regulations thereunder.

C. Neither this Company nor any Member may make an election for the
Company to be excluded from the application of Subchapter K of Chapter 1 of Subtitle A of
the Internal Revenue Code or similar provisions of applicable state law, and no provisions of
this agreement shall be interpreted to authorize any such election.

1.15 ANNUAL ACCOUNTING PERIOD OF LLC

The LLCs annual accounting period for financial and tax purposes shall be the calendar
year.

1.16 LLC METHOD OF ACCOUNTING

The LLC shall keep books and records pursuant to Sec. 1102 of the New York Limited
Liability Company Law, either in written form or in other than written form if easily
converted into such written form within a reasonable amount of time. Such books and
records shall be maintained on a cash basis, and the Accounting Year of this Company shall
end on December 31st.

1.17 ADDITION OF LLC AS PARTY TO AGREEMENT

Promptly after the formation of the LLC, a Member shall sign this Agreement on behalf of
the LLC, and the LLC shall become a party to the Agreement.

1.18 EFFECT OF LLC ACT

Except as otherwise provided in this Agreement or by law, the business and internal affairs
of the LLC shall be governed by the LLC Act as in effect on the Effective Date.

Complaint Exhibit 2
Page 4 of 43
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1.19 RELATION OF AGREEMENT TO ARTICLES

If there is any conflict between the provisions of this Agreement and those of the Articles of
Organization, then, in any dispute among the Members, the provisions of this Agreement
shall prevail.

1.20 AMENDMENT OF AGREEMENT AND ARTICLES

No amendment of this Agreement or of the Articles of Organization shall be valid except
upon the affirmative vote of all Members.

1.21 QUALIFICATION OF LLC IN OTHER JURISDICTIONS

Before conducting business in any jurisdiction other than NY, the LLC shall file all forms
and shall do all other things required under the laws, including the tax laws, of that
jurisdiction in order to conduct that business.

ARTICLE 2
MEMBERS, MANAGERS AND MEMBERS CONTRIBUTIONS TO LLC

2.1 CLASSES OF MEMBERS

The LLC shall have a single class of Members. Managing Members shall not be considered a
separate class. Unless specifically set forth otherwise in the Articles of Organization or by
amendment thereto, management of this Company shall be vested in the Members, who
shall be subject to all of the rights, duties, privileges and liabilities of Managers, as set forth
in the New York Limited Liability Company Law. Such Member names and addresses shall
be set forth in the Books and Records of this Company.

2.2 MANAGING MEMBER

A. The Initial Managing Member is Jenni Farley, LLC.

B. Additional Provisions regarding Managing Members (Managers) are located
in Article 12.
2.3 CONTRIBUTIONS TO BE MADE BY MEMBERS
A. Promptly after the LLCs formation, the Initial Members shall, in exchange
for their Memberships, make contributions to the LLC All capital contributions to the LLC
shall be in the form of cash, property or services rendered, or a promissory note or other
obligation to contribute cash or property or to render services.

Complaint Exhibit 2
Page 5 of 43
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B. Each Member shall own that share of the total LLC capital (i) in proportion
to each Members contribution to the total LLC capital, and/or (ii) that which is gifted to a
Member by another Member, or by a Member to a new Member as herein provided.

C. All of the Members agree to share in all pre and post formation capital
contributions, profits, losses and surplus of the LLC according to the percentage of their
Membership.

D. Each Member owns an undivided interest in the business.

E. All property owned by the LLC, whether real or personal, tangible or
intangible, shall be deemed to be owned by the LLC as an entity. No Member shall have any
direct ownership of any LLC property.

F. If the Members or the Managing Member at any time or from time to time
determine that the Company required additional Capital Contributions, then notice shall be
given to each Member stating (i) the total amount of additional Capital Contributions
required; (ii) the reason the additional Capital Contribution is required; (iii) each Members
proportionate share of the total additional Capital Contribution (determined in accordance
with this ); and (iv) the date each Members additional Capital Contribution is due and
payable, which date shall be not less then thirty (30) days after the notice has been given. A
Members share of the additional Capital Contributions shall be equal to the product
obtained by multiplying the Members Percentage and the total additional Capital
Contribution required. Each Member shall pay his or her share, in cash or by certified or
bank check or by wire transfer, to the Company.
2.4 VALUATION OF NON CASH CONTRIBUTIONS

Before any Member makes a contribution to the LLC in a form other than money, the
Manager shall determine the value of that contribution in dollars. In the absence of fraud,
the Managers determination shall be conclusive as to that value.
2.5 PENALTIES FOR FAILURE TO CONTRIBUTE
If, any Member fails to make a contribution on the date required, the other Members by vote
of Members holding a majority of Member votes (exclusive of the votes of the Member
failing to make the contribution) may impose upon the Member any penalty that the other
Members agree is reasonable in the circumstances, including:

A. Reduction or elimination of the Members proportionate interest in the LLC;
B. Forfeiture of all or a portion of the Members Membership rights; or

C. Subordination of the defaulting Members interest to that of the non-
defaulting Members; and/or

D. Forced sale of the defaulting Members interest; In determining which
penalty to apply under this Article 2.5, the Members shall consult with the LLCs tax
adviser under Article 15.
Complaint Exhibit 2
Page 6 of 43
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E. The lending by the other Members of the amount necessary to meet the
defaulting Members commitment; and/or

1. Any advances made by one or more of the remaining Partners shall
constitute, on the part of the defaulting Member, a demand obligation owing to the
advancing Member(s), with interest thereon from the date of the advance at six (6%)
per cent above the lowest Prime Rate as published in the New York Times, but in no
event higher than the maximum legal interest rate permissible under the laws of the
State of New York.

2. By his or her execution of this Agreement, each defaulting Member
hereby grants in favor of the advancing Member(s) a security interest and lien in such
defaulting Partner's right, title and interest in and to his or her Interest and all rights
appurtenant thereto including, without limitation, the right to receive cash
distributions.

3. Each defaulting Partner, upon written request of an advancing
Partner, will sign a Uniform Commercial Code financing statement to permit the
security interest granted hereby to be perfected and authorizes the filing of such
uniform commercial code financing statement without his or her signature.

F. Any other reasonable and lawful method to rectify such Members failure to
meet his or her obligation.

G. These remedies are in addition to any other remedies allowed by law or by
this Agreement.
2.6 NO INTEREST ON CONTRIBUTIONS
No Member shall be entitled to interest on his or her Capital Contribution nor is such
Member entitled as a matter of right, to a return, in part or in whole, of his or her Capital
Contribution, notwithstanding anything to the contrary herein.

2.7 MEMBER LOANS TO LLC

The members or the managers may at any time or from time to time, authorize loans made
to the company or from the company.
2.8 MEMBER GUARANTEES OF LLC OBLIGATIONS
The Members, by unanimous vote, may at any time or from time to time, authorize loans
made to the Company to be guaranteed by the Members.
2.9 MEMBER TIME COMMITMENTS AND RESPONSIBILITIES
A. No Member shall be required to perform services for the Company solely by
virtue of being a Member. Unless approved by the Members, no Member shall be entitled to
compensation for services performed for the Company. However, upon substantiation of
Complaint Exhibit 2
Page 7 of 43
8
the amount and purpose thereof, the Members shall be entitled to reimbursement for
expenses reasonably incurred in connection with the activities of the Company. The
Managing Member, if any, must approve of all amounts in advance.
B. If the management of this Company is vested in the Members, then every
Member is an agent of this Company for the purpose of its business and the act of every
Member, including the execution in the name of this Company of any instrument, for
apparently carrying on in the usual way the business of this Company, shall bind this
Company unless it is contrary to Sec. 412 of the New York Limited Liability Law.

ARTICLE 3
MEMBERS NON-ECONOMIC RIGHTS

3.1 ANNUAL MEETING

This Company shall hold its annual meeting of Members within thirty (30) days of the filing
of its Federal Income Tax return or at such other time as shall be determined by vote or
written consent of Membership interests at the office of the LLC or at such other place also
determined by vote or written consent of the Membership Interests, for the purpose of
transacting such business as may come before such meeting. Special Meetings may be called
for any purpose by a Manager or any Member or group of Members holding not less than
ten percent of the Membership Interest.

3.2 NOTICE OF MEETING

Whenever it is anticipated that Members will be required or permitted to take any action by
vote at a meeting, written notice shall be given stating the place, date and hour of the
meeting, stating the purpose of such meeting, and under whose direction such meeting has
been called. Such notice of meeting shall be given personally or by first class mail, not less
than ten nor more than fifty days before the date of such meeting. Such notice of meeting
need not be given to any Member who submits a signed waiver of notice, in person or by
proxy, whether before or after the meeting.
3.3 NUMBER OF VOTES THAT MEMBERS MAY CAST
Except as otherwise expressly provided in this Agreement, each Member shall have one
vote.
3.4 NUMBER OF VOTES NECESSARY TO DECIDE MEMBER MATTERS
Except as otherwise expressly provided in this Agreement, each Member matter shall be
decided by the affirmative vote of Members holding a majority of Member votes.

3.5 QUORUM

At a meeting of Members for the transaction of any business a majority in interest of the
Members, in person or by proxy, entitled to vote shall constitute a quorum. The Members
present, despite not being a quorum, may adjourn the meeting. No notice of adjourned
meeting in necessary if the time and place of the adjourned meeting is announced at the
Complaint Exhibit 2
Page 8 of 43
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meeting at which the adjournment is taken. At a meeting in which a quorum is initially
present, such quorum is not broken by the subsequent withdrawal of any Member, despite
the fact that such withdrawal results in less than a quorum being present and all votes taken
are binding upon the Members of this Company. All acts at a meeting of Members at which
a quorum is present, shall be the act of all the Members and be binding upon them, except
such vote requires a greater proportion or number of Membership interests pursuant to the
New York Limited Liability Company Law, or the Articles of Organization or this
Agreement.

3.6 PROXY

Members may vote on Member matters in person, by phone, by fax or by any other
reasonable means. Every proxy shall be revocable at the will of the Member. Such proxy
shall automatically be revoked, if prior to its use, the death or incompetence of the Member
occurred, and notice of such death or adjudication of incompetence is received by the Proxy
Holder.

3.7 ACTION WITHOUT MEETING

Whenever the Members of this Company are required or permitted to take any action by
vote, such action may be taken without a meeting, without prior notice and without a vote, if
a consent or consents in writing, setting forth the action so taken shall be signed by the
Members who hold the voting interests having not less than the minimum number of votes
that would be necessary to authorize to take such action at a meeting at which all of the
Members entitled to vote therein were present and voted and shall be delivered to the Office
of this Company, its principal place of business or a Manager, employee or agent of this
Company. Delivery made to the office of this Company shall be by hand or by certified or
registered mail, return receipt requested.

3.8 CONSENT

Every written consent shall bear the date of signature of each Member who signs the
consent, and no written consent shall be effective to take the action referred to therein
unless, within sixty days of the earliest dated consent delivered in the manner required by
this paragraph to this Company, written consents signed by a sufficient number of Members
to take the action are delivered to the office of this Company, its principal place of business
or a Manager, employee or agent of this Company having custody of the records of this
Company. Delivery made to such office, principal place of business or Manager, employee
or agent shall be by hand or by certified or registered mail, return receipt requested.

3.9 VOTING AGREEMENT

Two or more Members may enter into a binding agreement, in writing and executed by the
Members seeking to be bound, which provides that the Membership Interests held by them
shall be voted in accordance with such Agreement or pursuant to any lawful procedure
agreed upon by them.
Complaint Exhibit 2
Page 9 of 43
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3.10 PROCEDURAL RULES GOVERNING MEMBER VOTING
A. In the absence of fraud or bad faith, no vote by the Members on any
Member matter shall be deemed to be invalid on any procedural or similar ground, including
any ground relating to lack of notice, lack of meeting, lack of quorum, or failure to record
votes. The terms procedural or similar ground shall be construed broadly.

B. The invalidity or unenforceability of any particular provision of this
agreement shall not affect the other provisions hereof, and the agreement shall be construed
in all respects as if such invalid or unenforceable provisions were omitted.
3.11 MEMBERS HAVE NO AGENCY RIGHT OR POWER
No Member, except a sole Managing Member, shall have the right or power to bind the LLC
in dealings with third parties, in statements about the LLC or in any other manner.
3.12 RIGHT OF MEMBERS TO OBTAIN LLC INFORMATION

During normal business hours and after reasonable notice, each Member shall be entitled for
any purpose reasonably related to the Members Membership:

A. To obtain, any information in the LLCs possession or control; and

B. To inspect at the Members expense, to copy any documents and other
media in the LLCs possession or control;

PROVIDED, that all information thus acquired by the Member shall be
subject to the provisions of Article 9 (relating to the confidentiality of certain
LLC information).
3.13 RIGHT OF MEMBERS TO BRING ACTIONS AGAINST, IN THE NAME OF OR ON
BEHALF OF THE LLC OR AGAINST OTHER MEMBERS

No Member in the Members capacity as a Member may bring an action in law or equity
against the LLC or against any other Member in the other Members capacity as a Member
in any court for any reason except to enforce an arbitration order under Article 18.
3.14 ARBITRATION
Any Member may assert in arbitration under Article 18 any claim that could be asserted in
any suit or action against, in the right of or in the name of the LLC.

ARTICLE 4
INTERIM ALLOCATIONS AND DISTRIBUTIONS TO MEMBERS;
GUARANTEED PAYMENTS, ETC.
4.1 INTERIM ALLOCATIONS OF LLC PROFITS AND LOSSES
A. The LLC may make interim allocations of its profits and losses among the
Members in proportion to their respective profit and loss interest in the LLC. Such
Complaint Exhibit 2
Page 10 of 43
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allocations shall be in accordance with Internal Revenue Code 704 (c) (1) (A) and the
regulations thereunder.

B. Unless otherwise agreed to by the Managers or if none by all of the
Members, the profits and losses of this Company and all distributions shall be allocated
among the Members on the basis of the ratio of the monetary value of the Member Capital
Account of each Member to the total value of all Member Capital Account in this Company.

4.2 ALLOCATIONS OF INTERIM DISTRIBUTIONS

The LLC shall allocate to the Members Interim Distributions on the same basis on which it
allocates its profits and losses.
4.3 DISTRIBUTIONS IN KIND
If this Agreement or applicable law requires the LLC to make an Interim Distribution to any
Member, the Member may not require the LLC to make this distribution except in the form
of cash. The LLC may not compel a Member to accept an Interim Distribution except in
the form of cash.
4.4 NO LLC DUTY TO MAKE DISTRIBUTIONS
A. The LLC shall have no duty to make Interim or other Distributions except as
expressly provided in this Agreement or as determined from time to time by the Members or
the Managers, if any.

B. All distributions to a Member of this Company shall be offset by any
amounts owing to this Company by such Member. No distributions shall be made which
render this Company insolvent.

C. The LLC shall set up and maintain reserves in the amount which the
Manager(s), if any, or if none, by the Members estimate to be necessary to cover anticipated
business expenses that are coming due and payable in the subsequent year. In addition, the
LLC may maintain a working capital reserve needed for normal repairs, replacements and
contingencies in such amounts as the Manager(s), if any, or if none, by the Members shall
from time to time determine.
4.5 TAX DISTRIBUTIONS
To the extent expressly provided in this Agreement, the LLC shall make Interim
Distributions to the Members to enable them to pay taxes on allocations to them of LLC
profits.
4.6 LIQUIDATING DISTRIBUTIONS
The LLC shall make distributions to Members in connection with the liquidation of their
LLC interests in accordance with Article 5. The LLC shall make distributions to
Members in connection with the liquidation of the LLC in accordance with Article 16.

Complaint Exhibit 2
Page 11 of 43
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4.7 UNLAWFUL DISTRIBUTIONS
The LLC shall make no Unlawful Distribution of its assets to any Member. A distribution is
an Unlawful Distribution:

A. If, immediately after the distribution, the aggregate value of the LLCs
liabilities would exceed the aggregate value of its assets; or

B. If, as a result of the distribution, the LLC would be unable to pay its
reasonably foreseeable obligations as they become due; or

C. If the distribution is unlawful under the LLC Act as in effect from time to
time.
4.8 LIABILITY FOR AUTHORIZING OR RECEIVING UNLAWFUL DISTRIBUTIONS
Members who vote to authorize Unlawful Distributions or who receive these distributions
shall be liable as provided in the LLC Act.
4.9 GUARANTEED PAYMENTS AND OTHER PAYMENTS TO MEMBERS FOR SERVICES,
LOANS, ETC.
A. Each Member shall receive from the LLC guaranteed payments and other
payments for services, for loans and for other benefits provided by the Member to the LLC
approved by the Members or the Managing Members, if any. No such payment shall affect
the right of the Member to allocations of LLC profits and losses or to allocations or
distributions of LLC Interim Distributions.
4.10 DRAWS
During the fiscal year of the LLC, the Members or Managers may approve Members to draw
on their shares of projected LLC profits for that year or against their capital.
4.11 REIMBURSEMENT OF EXPENSES

If any Member or Manager incurs a reasonable expense on behalf of the LLC and reasonably
documents this expense to the LLC, the LLC shall reimburse the Member for this expense
as promptly as reasonably possible after receiving this documentation.
4.12 MISCELLANEOUS INTERIM BENEFITS TO BE PROVIDED TO MEMBERS BY THE
LLC

In addition to the benefits described above, the LLC may provide interim benefits to its
Members. These benefits may include, for example, the retaining of Members as LLC
consultants and the sale, lease and license of LLC property to its Members.

Complaint Exhibit 2
Page 12 of 43
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ARTICLE 5
TRANSFERS AND PLEDGES OF MEMBERSHIP RIGHTS, ETC.
5.1 RESTRICTIONS ON RIGHT OF MEMBERS TO TRANSFER AND PLEDGE THEIR
MEMBERSHIP RIGHTS
A. Except as set forth in this Agreement, no Member shall have the
unconditional right to give, sell, assign, pledge, hypothecate, exchange or otherwise transfer
to another, all or any part of his Membership Interest in this Company to another. Such
Member must secure such consent by a unanimous vote in writing of all the Members
entitled to vote thereon, not including the Member seeking such right. Nothing herein shall
be deemed to prevent a Member from granting an assignee the rights to become a Member
upon condition that Sec. 604 of the New York Limited Liability Company Law is satisfied.

B. Transfers and pledges in breach of the terms of this Article 5 shall be void
and of no effect.
5.2 DEFINITION OF TRANSFER
For purposes of this Article 5, transfer shall include:

A. Transfers by sale;
B. Transfers by gift;
C. Transfers (whether by will, trust or otherwise) taking effect on the death of
the transferor; and
D. Involuntary transfers, including transfers by operation of law and pursuant to
divorce and bankruptcy decrees.
5.3 ADMISSIONS OF ADDITIONAL MEMBERS BY THE LLC

A. Additional Members may at any time hereafter be admitted to the LLC
hereby created upon the unanimous consent, in writing, of all of the Members. In such
event, such additional Member(s) when so admitted shall have all the rights of Member(s) as
herein specified for the Member and be subject to all his/her/its duties, liabilities, and
responsibilities. They shall be entitled to share in the manner herein provided in the profits
of the LLC thereafter earned in proportion to the amounts of their capital whether (i) it was
contributed by them to the LLC or (ii) it was given to them by a Member. Each such
Member shall sign this agreement or a statement to the effect that they agree to abide by this
agreement. A Member shall not become a managing Member unless such Member is
appointed a Manager pursuant to Article 12 hereof,

B. In the event of the death of a Member, then the deceaseds heir or heirs shall
be entitled to succeed only to the economic share and interest of the deceased Member. The
LLC may upon unanimous consent of the remaining Members, as soon as practicable,
provide a document by which the heir or heirs personally affirm and accept all the terms,
conditions and provisions of this Operating Agreement binding themselves to the same in
writing and select a designated representative of the deceased Member.
Complaint Exhibit 2
Page 13 of 43
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5.4 RIGHT OF LLC AND OTHER MEMBERS TO ACQUIRE CERTAIN MEMBERS LLC
INTERESTS
The LLC may require a Member to promptly sell all or any part of the Members LLC
interest to the LLC or to the other Members for its fair value and upon other reasonable
purchase terms if:

A. The Member is dissociated from the LLC for any reason;

B. The Member becomes bankrupt;

C. The Member becomes a party to a divorce proceeding and the other
Members determine reasonably and in good faith that it is likely that as a result of that
proceeding, all or any of the Members Membership rights will be awarded to the Members
spouse; or

D. An arbitrator orders such a sale under Article 18 on the ground that it is
fair and reasonable in the circumstances.

E. In the event of the death of a Member, then the deceaseds heir or heirs shall
be entitled to succeed only to the economic share and interest of the deceased Member. The
LLC may upon unanimous consent of the remaining Members, as soon as practicable,
provide a document by which the heir or heirs personally affirm and accept all the terms,
conditions and provisions of this Operating Agreement binding themselves to the same in
writing and select a designated representative of the deceased Member.

5.5 SALE OR TRANSFER OF SUBSTANTIALLY ALL OF LLCS ASSETS
The unanimous vote of the Members entitled to vote thereon shall be required to approve
the sale, exchange, lease, mortgage, pledge or other transfer or disposition of all or
substantially all of the assets of this Company.

5.6 ELECTION UNDER INTERNAL REVENUE CODE 754
Before any Member transfers any of the Members rights as a Member to any person, the
Members shall negotiate in good faith and shall agree whether to file an election under
Internal Revenue Code 754 to adjust the basis of LLC property in connection with that
transfer.

5.8 BUY-SELL ARRANGEMENTS

Except as expressly set forth in this Agreement:

A. The LLC and the Members shall have no duty to purchase all or any of a
Members Membership rights; and
B. The Member who desires to transfer his Membership Interest shall give
written notification of proposed transfer to each of the other Members or to the Manager, as
Complaint Exhibit 2
Page 14 of 43
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the case may be, of his or her intention to transfer his or her Membership Interest. Each
other Member shall have the right of first refusal to purchase all of such Membership
Interest upon such terms and conditions as were set forth in the notification of proposed
transfer. Nothing herein shall be deemed to prevent all of the remaining Members, if they
so desire, to accept the terms of the notification of proposed transfer, in writing, on behalf
of all of such remaining Members. The failure to respond to the Member seeking to transfer
his or her Membership Interest within 30 days shall result in the termination of such other
Members right of first refusal. Should such Member or Members desire to exercise their
right of first refusal on the terms set forth in the written notification of transfer, then the
time, place and date of closing as designated by the Members purchasing such Membership
Interest shall be within 90 days from the date of such written consent to exercise such right
of first refusal.

ARTICLE 6
MEMBER DISSOCIATIONS
6.1 DEFINITION OF MEMBER DISSOCIATION

The dissociation of a Member means the termination of the Members right to participate in
the LLCs business and internal affairs by voting on matters relating to the business and
internal affairs of the LLC, by acting as an agent for the LLC or otherwise.
6.2 EVENTS OF DISSOCIATION
A Member shall be dissociated if without the consent of all the other Members or the
Managing Member one of the following events occurs:

A. The Member dies (or, if the Member is an entity, it incurs a dissolution or
equivalent event);

B. The Member incurs a Total Disability (as defined in 6.6);

E. The Member becomes bankrupt;

F. The Member resigns in accordance with 6.9;

G. The Member transfers the Members entire LLC interest to another person;

H. The Member is expelled from Membership in the LLC in accordance with
6.10.

G. Does any act in contravention of this Agreement.

H. Does any act which would make it impossible to carry on the ordinary
business of the LLC.

I. Confesses judgment against the LLC.

Complaint Exhibit 2
Page 15 of 43
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J Possess LLC property, or assign his or her interest or rights in specific LLC
property, for other than a Partnership purpose.

6.3 LOSS OF VOTING RIGHTS, ETC., UPON DISSOCIATION

Except as otherwise expressly provided in this Agreement, a Member upon the Members
dissociation shall immediately lose any right of the Member to participate in the business and
affairs of the LLC by voting on Member matters, by acting as an agent for the LLC, by
initiating a dispute in the Members capacity as a Member, by having access to LLC
information in the Members capacity as a Member or by any other means.
6.4 NO DISTRIBUTIONS, ETC., TO DISSOCIATED MEMBERS
Except as otherwise provided in this Agreement, a Members dissociation shall not entitle
the Member to receive any distribution of LLC profits or other assets or to receive any
payment for the Members LLC interest.
6.5 DEFINITION OF TOTAL DISABILITY
A Member shall be deemed to have incurred a Total Disability within the meaning of 6.2
B. if, by reason of any physical or mental disability, the Member is unable to participate
significantly in the business and internal affairs of the LLC for 180 consecutive days.
6.6 DETERMINATION OF TOTAL DISABILITY
Whether a Member has incurred a Total Disability and the date on which the Member has
incurred a Total Disability shall be determined by the vote of other Members holding a
majority of Member votes (except the votes of the Member about whose disability they are
voting). All such determinations shall be subject to review in arbitration under 18.
6.7 DEFINITION AND EFFECTIVE DATE OF RESIGNATION
For purposes of this 6, the resignation of a Member means the Members voluntary
renunciation of the Members right to participate in the business and internal affairs of the
LLC. A Member shall be deemed to have resigned from the LLC within the meaning of this
6 on the effective date of the notice of resignation described in 6.9.
6.8 RIGHT OF MEMBERS TO RESIGN FROM LLC; NOTICE OF RESIGNATION
A Member may withdraw as a Member of this Company with the vote or written,
unanimous consent of the remaining Members. If such consent is not given, a Member may
without liability resign as a Member of the LLC by giving written notice of resignation to the
other Members provided such withdrawal does not breach this Operating Agreement, the
New York Limited Liability Company Law or any other contractual obligation between such
proposed withdrawing Member and this Company or its other Members. Should such
breach occur, then the withdrawing Member may be liable for damages as a result thereof.
The resignation shall be effective 60 days after all of the other Members have received the
notice.

Complaint Exhibit 2
Page 16 of 43
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6.9 MEMBER EXPULSIONS
A Member may be expelled from the LLC:

A. If the Member materially breaches this Agreement and fails to cure the
breach within a reasonable time after receiving notice of it;

B. If the Member engages in conduct that causes or is likely to cause a material
adverse impact on the reputation of the LLC or on its business; or

C. If the Member engages in fraudulent or illegal actions relating to the business
or internal affairs of the LLC.
6.10 MEMBER EXPULSIONS
A Member may be expelled from the LLC:

A. If the Member materially breaches this Agreement and fails to cure the
breach within a reasonable time after receiving notice of it;

B. If the Member engages in conduct that causes or is likely to cause a material
adverse impact on the reputation of the LLC or on its business; or

C. If the Member engages in fraudulent or illegal actions relating to the business
or internal affairs of the LLC.
6.11 VOTING REQUIREMENT FOR EXPELLING A MEMBER
A. LLC HAS AT LEAST THREE MEMBERS
If the LLC has at least three Members and one or more Members wish to expel a
Member, the Member may be expelled by the affirmative vote of other Members holding at
least two thirds of Member votes (excluding the votes of the Member sought to be
removed).
B. LLC HAS TWO MEMBERS
If the LLC has only two Members, either Member may petition an arbitrator to order
the expulsion of the other.
6.12 PURCHASE OF EXPELLED MEMBERS LLC INTEREST
A. If the LLC or the other Members exercise their right under 5 to
purchase the LLC interest of an expelled Member and if the LLC and the other Members
cannot agree with the expelled Member on the purchase price or on the other terms of this
purchase, these matters shall be decided by arbitration under 18.

B. In deciding any such arbitration, the arbitrator shall consider all relevant
factors, including the conduct of the expelled Member resulting in the expulsion.

Complaint Exhibit 2
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SECTION 7
IF THERE ARE MANAGERS
DUTY OF CARE; RELATED MATTERS
7.1 DUTY OF CARE GENERAL RULE

A. In participating in or handling any matter (an LLC matter) relating to the
business and internal affairs of the LLC, the Managers shall use their reasonable best efforts
to further the interests of the LLC;

PROVIDED, that the Managers shall be liable for violations of their duty of care as
Managers only as provided in 7.2.

B. The Manager shall perform his duties as a manger in good faith and with that
degree of care which a reasonable and prudent person in a like position would use under
similar circumstances.

1. The Manager shall not be required to manage this Company as his
sole business interest but may, without liability to this Company or its Members, be
involved in the management of other entities and activities which do not adversely
affect his capacity to exercise his obligations to this Company; nor shall this
Company or its Members have any right to participate in such other business interest
or in income or profits therefrom.

7.2 PERSONAL LIABILITY OF MANAGERS FOR FAILURE TO USE ORDINARY
PRUDENCE
The Managers shall be personally liable to the LLC for money damages and other relief if, in
participating in or handling any LLC matter as Managers:

A. They fail to exercise the care that an ordinarily prudent person would
exercise under similar circumstances; and

B. They are unable to rely on the defenses to liability set forth in sections 7.4
and 7.5.
7.3 DUTY TO OBTAIN INFORMATION

Before making any decision or taking any action in an LLC matter, the Managers, if any, or
of none then the Members shall use their best efforts to obtain all relevant information.

Complaint Exhibit 2
Page 18 of 43
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7.4 NO MANAGER LIABILITY IF A MANAGER RELIES ON LLC INFORMATION, ON
OTHER LLC MANAGERS, ETC.

No Manager as a Manager shall be personally liable to the LLC or to the Members for any
claim of violation of the Managers duties under this 7 to the extent that, with respect to
the matter in question, the Manager has acted in reasonable reliance on:
A. LLC records;

B, Other LLC Managers, employees or officers of the LLC;

1. Other persons whom, at the time of the action, the Manager
reasonably believed to be competent in the matter in question; or

2. Any provision of this Agreement.
7.5 NO MEMBER LIABILITY FOR ACTIONS TAKEN IN GOOD FAITH, ETC.
No Manager in the Managers capacity as a Manager shall be personally liable for a breach of
any duty of the Manager under this 7 if, with respect to the matter in question, the
Manager has acted:

A. In good faith;

B. In the reasonable belief that the action was in the best interest of the LLC;
and

C. With reasonable diligence.
7.6 WHO MAY CLAIM BREACH OF THIS; MEMBER VOTE NECESSARY TO MAKE CLAIM
Only the LLC may make a claim against a Manager for a breach of a duty of the Manager
under this 7. The LLC shall make no such claim except upon the affirmative vote of
Members holding a majority of Member votes (exclusive of the votes, if any, of the Manager
potentially subject to the claim).
7.7 STANDARD OF PROOF

Any claim of breach of this 7 shall be deemed to be proven if supported by a
preponderance of the evidence.
7.8 INDEMNIFICATION OF MANAGERS FOR CLAIMS UNDER THIS
A. If any person makes a claim against a Manager for a violation of a duty of the
Manager under this 7, the LLC shall indemnify the Managing Member and each
withdrawn Managing Member against any cost, expense (including legal or other expenses
reasonably incurred in investigation or defense), judgment or liability, joint or several,
incurred without gross negligence or bad faith on the part of such Managing Member or
withdrawn Managing Member in connection with any claim, action, suit or proceeding to
which such Managing Member or withdrawn Managing Member may be made a party or
otherwise involved or to which such Managing Member or withdrawn Managing Member
Complaint Exhibit 2
Page 19 of 43
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shall be threatened, arising out of or in connection with such Managing Member or
withdrawn Members activities or involvement with the LLC.

B. The LLC shall indemnify the Manager for reasonable expenses and for
damages or settlement amounts reasonable incurred by the Manager in respect of the claim if
disinterested Members holding a majority of Member votes (exclusive of the Member votes,
if any, of the Manager who is the subject of the claim) determine that in respect of the
matter in question:

1. The Manager has exercised the care that an ordinarily prudent person
would exercise under similar circumstances; or

The Manager is protected from liability under sections 7.4 or 7.5.
7.9 ADVANCEMENT OF ARBITRATION AND LITIGATION EXPENSES
The LLC shall advance arbitration and litigation expenses to a Manager for the defense of
claims against the Manager for breaches of the Members duty under this 7:

A. If disinterested Members holding a majority of Member votes (excluding the
Member votes, if any, of the Manager who is the subject of the claim) determine that in
respect of the relevant matter, it is probable that the Manager has exercised the care that an
ordinarily prudent person would exercise under similar circumstances or that the Manager is
protected from liability under 7.4 or 7.5; and

B. If the Manager promises to return all such advances to the LLC if the court,
arbitrator or other tribunal deciding the claim finds otherwise.
7.10 LIABILITY INSURANCE FOR THE LLC, MANAGERS OR OTHERS
During the course of the term for which this LLC is formed, the LLC shall carry liability
insurance and such other insurance, in such amounts as are deemed appropriate by the
Manager(s), if any, or if none, by the Members.

SECTION 8
DUTY OF LOYALTY; RELATED MATTERS

8.1 DUTY OF LOYALTY GENERAL RULE

In matters relating to the business and affairs of the LLC, Managers in their capacity as
Managers and Members shall act solely for the benefit of the LLC and not for their personal
benefit.
8.2 DUTY NOT TO COMPETE AGAINST THE LLC
In any geographical area where the LLC is engaged in business or has definite plans (as
evidenced by LLC documents) to engage in business, Managers shall not directly or
indirectly compete against the LLC while the Manager is a Manager and until the second
anniversary of the date on which the Manager ceases to be a Manager;

Complaint Exhibit 2
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PROVIDED, that the Manager may compete against the LLC with the advance
consent of disinterested Members holding a majority of Member votes (exclusive of
the Member votes, if any, of the Manager who wishes to compete against the LLC).
8.3 DUTIES IN DOING BUSINESS WITH LLC
A. No Manager shall engage directly or indirectly in any business arrangement
or transaction with the LLC on the Managers own behalf or on behalf of a disclosed or
undisclosed third party except:

1. After making full disclosure to the LLC; and

2. After receiving the advance consent of disinterested Members
holding a majority of Member votes (exclusive of the Member votes, if any, of the
Manager wishing to engage in business with the LLC).

B. The terms of any business engagement permitted under this 8.4 shall be
arms-length terms.
8.5 DUTIES WITH RESPECT TO LLC BUSINESS OPPORTUNITIES
A. If a Manager learns (whether in the course of LLC business or otherwise) of
a business opportunity potentially valuable to the LLC, the Manager shall promptly disclose
the opportunity to the LLC and shall not exploit the opportunity for the Managers personal
benefit unless:

1. Within 15 business days after receiving written notice of the
opportunity, the LLC rejects it; or

2. After accepting it, the LLC fails to exploit it with reasonable
promptness and diligence.

B. Whether the LLC shall accept the opportunity shall be decided in each case
by the affirmative vote of disinterested Members holding a majority of Member votes
(exclusive of the Member votes, if any, of the Manager who wishes to exploit the
opportunity).
8.4 DUTY TO AVOID IMPROPER PERSONAL BENEFITS

If any Manager directly or indirectly receives from any person a monetarily significant
benefit, including cash, in connection with the Managers activities as a Manager of the LLC,
the Manager shall promptly transfer this benefit to the LLC;
PROVIDED, that the Manager may retain the benefit if authorized to do so:

1. By this Agreement; or

2. By the advance consent of disinterested Members holding a majority
of Member votes (exclusive of the Member votes, if any, of the Manager in
question).
Complaint Exhibit 2
Page 21 of 43
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8.5 DUTIES OF GOOD FAITH AND FAIR DEALING
In all LLC matters, Managers in their capacity as Managers shall act in good faith and shall
deal fairly with the LLC and with the Members.
8.6 WHO MAY CLAIM BREACH OF THIS; MEMBER VOTE NECESSARY TO MAKE CLAIM
Only the LLC may make a claim against a Manager for a breach of the Managers duty under
this 8. The LLC shall make no such claim except upon the affirmative vote of Members
holding a majority of Member votes (exclusive of the Member votes, if any, of the Manager
potentially subject to the claim).
8.8 STANDARD OF PROOF

Any claim of breach of this 8 shall be deemed to be proven if supported by a
preponderance of the evidence.
8.9 INDEMNIFICATION OF MANAGERS FOR CLAIMS OF BREACH OF THIS
No Manager shall be entitled to indemnification for expenses or damages incurred by the
Member as a result of the Managers breach of any provision of this 8.
8.10 ADVANCEMENT OF LITIGATION EXPENSES
The LLC shall advance arbitration and litigation expenses to a Manager for the defense of
claims against the Manager for breaches of the Members duty under this 8:

A. If disinterested Members holding a majority of Member votes (excluding the
Member votes, if any, of the Manager who is the subject of the claim) determine that in
respect of the relevant matter, it is probable that the Manager has complied with the
provisions of this 8; and

B. If the Manager promises to return all such advances to the LLC if the court,
arbitrator or other tribunal deciding the claim directs this course of action.

SECTION 9
IF THERE ARE MANAGERS
DUTY OF OBEDIENCE

The Managers shall promptly comply with all reasonable instructions approved by Members
holding a majority of Member votes or, if there are two or Managers, by a majority of
Managers.
SECTION 10
DUTY OF CANDOR

The Managers and Members shall deal honestly with the LLC and, promptly after learning of
any information (including information about their own health and personal affairs) that is
material to the business and affairs of the LLC, they shall disclose this information to the
LLC to the other Managers (or, if there is only one Manager, to the Members).

Complaint Exhibit 2
Page 22 of 43
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SECTION 11
MEMBERS AND MANAGERS DUTY OF CONFIDENTIALITY
11.1 MEMBERS AND MANAGERS DUTY TO MAINTAIN CONFIDENTIALITY OF LLC
INFORMATION
The Members and Managers:

A. Shall maintain the confidentiality of Confidential Information (as defined in
9.2);

B. Except as required in conducting the business and internal affairs of the
LLC, shall not disclose Confidential Information to any third party;

C. Shall not make copies of documents and other media containing Confidential
Information except for the benefit of the LLC;

D. Shall use Confidential Information only for the benefit of the LLC; and

E. Promptly after ceasing to be Members and Managers (as the case may be),
shall return to the LLC all documents and other media containing Confidential Information.
11.2 DEFINITION OF CONFIDENTIAL INFORMATION
For purposes of this Agreement, Confidential Information means:

A. The terms of this Agreement;

PROVIDED, that a Member may disclose these terms on a confidential
basis to his or her professional advisers;

B. Information that the LLC maintains in confidence;

C. Information that the Member or Manager knows to be proprietary to the
LLC.

D. Financial information relating to the LLC and to the Members;

E. Information relating to LLC marketing and business plans and strategies;

F. Information concerning the design and manufacture of LLC products and
concerning methods of providing LLC services;
G. Information in LLC personnel files and similar files relating to LLC
Members and employees;

H. Information entrusted to the LLC in confidence by third parties;

I. Information reasonably designated by the Managers as Confidential
Information; and
Complaint Exhibit 2
Page 23 of 43
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J. Information disclosed by Managers under Sections 11 and 12.
11.3 EXCEPTIONS TO DUTY OF CONFIDENTIALITY
11.1 Confidential information shall not apply to the following:

A. Which the Member or Manager in question (the Recipient) already lawfully
possess at the time of its disclosure to the Member or Manager by the LLC or which the
Recipient lawfully obtains thereafter;

B. Information which is already in the public domain at the time of its
disclosure to the Recipient or which thereafter enters the public domain through no fault of
the Member;

C. The disclosure of which is required by final order of a court of competent
jurisdiction;

D. The disclosure of which is made on a confidential basis to an arbitrator in an
arbitration under 18; and

E. Which the LLC discloses without restriction to any person other than the
Recipient.
11.4 BINDING EFFECT; TERMINATION
This 11 shall bind each Recipient even after the Recipient ceases to be a Member or
Manager. Subject to any contrary arrangement with a third party, 11 shall terminate
upon the termination of the legal existence of the LLC.

SECTION 12
UNLESS OTHERWISE INDICATED THIS APPLIES ONLY IF THERE ARE
MANAGERS
QUALIFICATIONS, RESPONSIBILITIES, ETC.
12.1 MANAGER QUALIFICATIONS
The Managers shall be natural persons or other business entities and need not be Members
of the LLC. The Managers shall have such other qualifications as are determined from time
to time by the affirmative vote of Members holding a majority of Member votes.
12.2 MANAGER TITLES
In performing management functions for the LLC, Managers may use the title Manager or
such other title or titles (including, without limitation, the title President or Chief
Executive Officer) as the Members may determine from time to time by affirmative vote of
Members holding a majority of Member votes.

Complaint Exhibit 2
Page 24 of 43
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12.3 MANAGER RESPONSIBILITIES
If the management of this Company is vested in a Manager, then:

A. the Managers shall have general responsibility for managing the business and
internal affairs of the LLC. The Managers shall have any additional responsibilities that are
set forth in this Agreement or that the Members may determine from time to time by
affirmative vote of Members holding a majority of Member votes.
B. the Managers shall have the power and authority on behalf of this Company
to do all things as set forth in Sec. 202(a) 202(q) of the New York Limited Liability
Company Law.
C. no Member, by reason of being a Member, is an agent of this Company for
the purpose of its business unless authority has been delegated to such Member by the
Manager or some other provision of this Operating Agreement.
12.4 MANAGER VOTING

Each Manager shall have one vote on each matter on which the Managers may vote. If there
are more then three Managers then such matter shall be decided by vote of a majority of the
Managers, if there are two Managers then all matters shall be decided unanimously. The
Managers shall appoint a Manager make a written record of each such vote and to circulate
the record among the Members;

PROVIDED, that the failure of the Manager to make or circulate such a record shall not
affect the validity of any Manager vote.
12.5 METHOD OF APPOINTING MANAGERS AFTER INITIAL MANAGERS
A. If the Articles of Organization provide that the management of this
Company shall be vested in Managing Member(s) or mangers, then the management of this
company shall be so vested in accordance with the New York Limited Liability Company
Law, subject to any provision of the Articles of Organization or the Operating Agreement
and 419 of said New York Limited Liability Company Law. See Article 2.2 regarding Initial
Manager (if any) and his or her Successor(s). A Manager may, but need not be, a Member of
this Company.

B. Upon the occurrence of a vacancy in the office of Managing Member, the
Managing Member shall be the Successor named in this Agreement. If no Managing
successor is able or willing to assume said office then each Manager shall be elected by vote
or written consent of all the Members entitled to vote thereon.
12.6 MANAGERS TERMS OF OFFICE
The term of office of each Manager shall be indefinite, but shall terminate upon the earliest
of the date of the Managers (a) death, (b) resignation, (c) disability (as determined by vote of
Members holding a majority of votes) or (d) removal as a Manager.

Complaint Exhibit 2
Page 25 of 43
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12.7 MANAGER RESIGNATIONS
A. A Manager shall hold office until his earlier resignation or removal. Any
Manager may resign at any time by the giving of written notice thereof to this Company,
provided however there is no violation of any provision of the Operating Agreement or any
provision of a contractual agreement between this Company and the Manager.
B. A Manager may resign as a Manager upon giving 60 days written notice to
each Member. Except as otherwise provided in this Agreement, the Manager shall have no
liability to the LLC or to the other Members for any such resignation:

PROVIDED, that the resignation shall not absolve the Manager from any liabilities
arising before the resignation.

12.8 MANAGER REMOVALS
A. The Members may, without liability, remove a Manager at any time with or
without cause by a unanimous affirmative vote of all of the Members.

B. If a Manager is removed then the next Successor Manager, if any, shall
succeed to the office.

C. If there are no Managers or if any vacancy occurs in the number of Managers
said vacancy shall be filled by vote or written consent of all Members entitled to vote
thereon.

D. The removal or resignation of a Manager, who is a Member, does not affect
in any way such Members rights, duties, privileges and obligations as a Member nor does it
constitute a withdrawal as a Member.
12.9 NO MANAGER LIABILITY AS MANAGER FOR CLAIMS AGAINST LLC BY THIRD
PARTIES
No Manager as such shall have personal liability for a claim against the LLC by any third
party. Managers shall be personally liable for their personal misconduct as provided by this
Agreement and by applicable law.
12.10 MANAGERS EXCLUSIVE RIGHT TO BIND LLC, ETC.
If there are Managers then only the Managers shall have the following rights:
A. CONTRACTS

Each Manager shall have the right to bind the LLC in dealings with third parties;
B. BUSINESS DECISIONS

The Managers shall have the exclusive right to decide all LLC matters relating to the
business of the LLC except those that this Agreement expressly reserves to the Members.

Complaint Exhibit 2
Page 26 of 43
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C. CONDUCT OF BUSINESS AND AFFAIRS OF LLC

The Managers shall have the right to conduct the business and internal affairs of the
LLC
12.11 DUTY OF MANAGER TO INFORM MEMBERS
The Managers shall use reasonable efforts to inform the Members on a current basis
concerning the internal affairs of the LLC and the condition of its business.
12.12 MANAGER VALUATION OF CONTRIBUTIONS, ETC.
A. Whenever, after the formation of the LLC, the LLC admits a person as a new
Member of the LLC, the Manager (and not the Members):

1. Shall promptly determine in dollars a value for the contribution of
that person in exchange for the persons Membership or that there was no
contribution;

2. Shall record this determination in the records of the LLC; and

3. Shall promptly notify all Members concerning the determination.

B. Thereafter, in the absence of fraud, the determination shall be conclusive as
to the value of the contribution or as to whether there was a contribution.
12.13 MANAGER COMPENSATION

The salary of the Manager shall be fixed by the vote or written consent of at least the
majority in interest of all Members entitled to vote thereon. Such salary as Manager shall be
separate and distinct from any distributions made, should such Manager be a Member.
12.14 MANAGER INDEMNIFICATION
The Managers shall be entitled to indemnification, advancement of litigation expenses and
liability insurance as provided in 7.

SECTION 13
MEMBERS REPRESENTATIONS AND WARRANTIES
13.1 REPRESENTATIONS AND WARRANTIES BY INDIVIDUAL MEMBERS
Each Member represents and warrants in the Members capacity as a Member as follows:
A. Freedom of member to enter into agreement, etc.

The Member:

1. Is legally free to enter into this Agreement and to perform the
Members obligations under the Agreement in accordance with its terms; and

Complaint Exhibit 2
Page 27 of 43
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2. Is not prevented from doing so by order of any court or other
governmental authority, by any agreement with a third party (including an
employment agreement, non-competition agreement or nondisclosure agreement) or
by any other cause.
B. GOOD FAITH, DISCLOSURE, ETC., IN NEGOTIATING TERMS OF
AGREEMENT
In negotiating and entering into this Agreement, each Member has acted fairly and in
good faith and has disclosed to the other Members all information reasonably likely to be
relevant to them in determining whether to enter into it.
C. ACCESS TO LEGAL ADVICE, ETC.
Before accepting the terms of this Agreement, the Member has had every reasonable
opportunity to consider these terms and to review them with the Members personal
attorney.
D. FREE ACCEPTANCE OF TERMS, ETC.
The Member has accepted the terms of this Agreement knowingly and freely.

13.2 REPRESENTATIONS, ETC. BY CORPORATE MEMBER, IF ANY

In addition to the representations and warranties of an individual Member each Corporate
Member represents and warrants that:

A. It is duly formed, organized and existing under the laws of a particular state;
and

B. It has full corporate authority and all necessary authorization to enter into
this Agreement and to perform its duties hereunder in accordance with the terms of the
Agreement.
13.3 DUTY TO UPDATE
If, after a Member signs this Agreement, the Member discovers that any of the above
representations were erroneous when made or have become erroneous, the Member shall
immediately so advise the other Members.

SECTION 14
LLC RECORDS, BOOKS OF ACCOUNT, REPORTS TO MEMBERS, ETC.
14.1 RECORDS TO BE MAINTAINED BY LLC
The LLC shall maintain at its principal place of business:

A. A copy of its Articles and operating agreement and all amendments of these
documents;

B. Copies of all of its federal and state tax returns;

Complaint Exhibit 2
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C. A current list of the name and last known business, residence or mailing
address of each of its Members;

D. True and complete information concerning:

1. The amount of cash and a description and statement of the value of
any other property or services which each Member has contributed to the LLC or
which any Member has agreed to contribute to it;

2. Any return by the LLC to a Member of cash or other property
contributed by the Member; and

E. A record stating the date on which each Member became a Member (unless
this date is evident from the content of the Agreement).
14.2 BOOKS OF ACCOUNT
Unless otherwise directed by the Managers or Members the LLC shall maintain books of
account, concerning the business and affairs of the LLC that shall be:

A. Accurate;

B. Reasonably current; and

C. In compliance with financial and other standards normally applicable to the
records of business organizations generally similar to the LLC in size and business activities.

D. The Company shall elect to amortize the organizational expenses of this
Company and the start-up costs of this Company under Sec. 195 of the Internal Revenue
Code ratably over a period of sixty months as permitted by Sec. 709(b) of the Internal
Revenue Code. If a distribution as described in Sec. 734 of the Internal Revenue Code
occurs or if a sale or transfer of a Membership Interest described in Sec. 743 of the Internal
Revenue Code occurs, upon the written request of any Member, to elect to adjust the basis
of the property of the Company pursuant to Sec. 754 of the Internal Revenue Code.

E. The LLC shall make any other election permitted by law that the Manager or
Members may deem appropriate and in the best interest of the Members.
14.3 REPORTS TO MEMBERS, ETC.
A. Through the provision of written financial reports or through other
appropriate measures, the LLC shall advise the Members on a regular basis concerning the
financial and business condition of the LLC.

B. Each Member shall be deemed to have waived all objections to any
transaction or other facts about the operation of the LLC disclosed on any report to
Members or the income tax returns of the LLC unless such Member shall have notified the
Company in writing of any objections within thirty (30) days of the date on which such
document was mailed to the Member.
Complaint Exhibit 2
Page 29 of 43
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14.4 BANKING

All funds of the LLC shall be deposited in its name in such checking account or accounts as
shall be designated by the Members or the Managing Member(s). Each Managing Member
shall have the right to sign checks.

SECTION 15
TAX PLANNING AND COMPLIANCE
15.1 IMPORTANCE TO LLC OF TAX MANAGEMENT AND COMPLIANCE
The parties acknowledge the importance to the LLC and the Members of:

A. Competent tax planning for the LLC and for the Members as Members; and

B. Full compliance by the LLC and by the Members with federal and state tax
requirements applicable to the LLC and the Members in their capacity as such.
15.2 APPOINTMENT OF LLC TAX ADVISER
A. In connection with its formation and on a continuing basis thereafter, the
Members hereby appoint The Fusco Law Group, P.C. as the LLCs tax adviser. This firm
shall have expertise in all areas of tax practice relevant to the needs of the LLC and its
Members in their capacities as such and in particular in the field of federal partnership
taxation.

B. The Managers, if any, or if none the Members may change the LLCs tax
adviser from time to time.
15.3 COOPERATION WITH LLC TAX ADVISER
The parties shall cooperate with the LLCs tax adviser to the maximum reasonable extent to
ensure adequate LLC tax planning and compliance.
15.4 LLC TAX RETURNS
All necessary federal and state tax returns for the LLC shall be prepared and filed. Each
Member shall furnish any information in his or her possession that may be necessary and
pertinent to the preparation of such returns.
15.5 LLC PROVISION OF TAX INFORMATION TO MEMBERS
As soon as reasonably possible after the close of each of its taxable years, the LLC shall
provide each Member with federal and state K-1 forms.

15.6 LLC COMPUTATION AND RECORDING OF MEMBERS CONTRIBUTIONS,
CAPITAL ACCOUNTS AND ADJUSTED TAX BASES
A. The LLC shall compute on a current basis and in accordance with applicable
U.S. Treasury Department regulations the contributions and capital accounts of the
Members and their adjusted tax bases in their LLC interests.
Complaint Exhibit 2
Page 30 of 43
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B. Each Members Capital Account shall be increased by the value of each
Capital Contribution made by such Member, allocations to such Member of the net profits
and any other allocations to such Member of income pursuant to the Internal Revenue
Code. Each Member Capital Account will be decreased by the value of each distribution
made to the Member by this Company, allocations to such Member of net losses and other
allocations to such Member pursuant to the Internal Revenue Code. Upon sale or transfer
by a Member of his or her Membership Interest, such Members Member Capital Account
shall thereupon become the Member Capital Account of the new Member to whom such
Membership Interest was sold or transferred in accordance with Sec. 1.70-1 (b) (2) (iv) of the
Treasury Regulations.

C. The LLC shall maintain current and accurate records concerning Members
contributions, capital accounts and adjusted tax bases and, promptly after the request of any
Member, shall make these records available to the Member.

D. No Member shall be responsible or liable to any other Member for the
failure to maintain a positive balance in his or her Member Capital Account, nor is he
required to restore all or any part of a deficit balance in such Member Capital Account.
However, such Members Capital Account must be maintained so as to comply with the
provisions and requirements of Sec. 704(b) of the Internal Revenue Service Code.

E. Each Member shall have equal rights or obligations as the case may be,
whether for the return of Capital Contributions made to this Company or for Net Profits,
Net Losses or for any distribution set forth in law or in this Operating Agreement. However,
any loan or indebtedness owed to a Member by this Company shall have priority in payment
over other distributions.

F. Except as otherwise provided in this Agreement, no Member shall have the
right to receive any return of any Capital Contribution.

G. Any Member who receives a distribution from this Company based upon the
value of his or her Capital Contribution and such Member has no knowledge that such
distribution violated Sec. 508(a) of the New York Limited Liability Company Law, then and
in that event, such Member shall have no liability to this Company or to its creditors for
such distribution. However, if such Member knew or should have known that such
distribution was, at the time of such distribution, contrary to such statute, then, in that event,
such Member shall be liable to this Company for the amount of such distribution.

H. No Member shall receive from this Company any part or portion of his or
her Capital Contribution until all liabilities and debts of this Company have been paid and
there remains sufficient assets in this Company sufficient to pay them, without placing the
solvency of this Company in a reasonably disabling position. A statement from the
Companys accountant to this effect shall be placed in the Books and Records of this
Company. Capital contributions to the Partnership shall not bear interest.
Complaint Exhibit 2
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15.7 PLANNING OF INDIVIDUAL TRANSACTIONS
A. Before undertaking any major transaction involving the LLC or any Member
in the Members capacity as a Member:

1. The LLC and each affected Member shall consult with one or more
partnership tax experts concerning the tax implications of the transaction; and

2. The LLC and affected Members shall make any tax elections and
shall take any other actions necessary or appropriate in the circumstances to ensure
tax compliance and maximum lawful tax avoidance.

B. The issue of the fairness of the transaction to the LLC and to the Members
shall be subject to arbitration under 18.
15.8 TAX DISTRIBUTIONS
If any Member requires a distribution of all or any portion of the Members share of LLC
profits in order to pay the Members federal or other taxes on the Members share of these
profits for any taxable year, the LLC shall, to the extent that its financial condition
reasonably permits, make this distribution to the Member on a timely basis;

PROVIDED, that as a condition for the distribution, the LLC may, under
reasonable conditions of confidentiality, require the Member to disclose to the LLCs
tax adviser relevant information concerning the Members tax and financial affairs.
15.9 TAX MATTERS PARTNER
Jenni Farley, LLC shall be designated as tax matters partner of this Company pursuant
to Sec. 6231(a) of the Internal Revenue Code. Any Member or Manager so designated shall
take all actions as may be necessary to cause each other Member to become a notice
partner within the meaning of Sec. 6222 of the Internal Revenue Code.

SECTION 16
LLC DISSOLUTION, WINDING-UP AND LIQUIDATION; LIQUIDATION
DISTRIBUTIONS
16.1 DEFINITION OF LLC DISSOLUTION, ETC.
For purposes of this Agreement, the following terms shall have the following meanings:
A. DISSOLUTION
The dissolution of the LLC shall mean the cessation of its normal business activities
and the beginning of the process of winding up its business and internal affairs and of
liquidating it.
B. WINDING-UP
The winding-up of the LLC shall mean the process of concluding its existing
business activities and preparing for its liquidation.
Complaint Exhibit 2
Page 32 of 43
33
C. LIQUIDATION
The liquidation of the LLC shall mean the sale or other disposition of its assets and
the distribution of its assets (or the distribution of the proceeds of the sale or other
disposition of its assets) to its creditors and to the Members.
16.2 EVENTS CAUSING DISSOLUTION
The LLC shall be dissolved:

A. The latest date on which this Company is to dissolve, if any, as set forth in
the Articles of Organization, or by judicial decree pursuant to Sec. 702 of the New York
Limited Liability Company Law.

B. Upon the affirmative vote of all of the Members;

C. Upon the issuance of an order of dissolution by a court or by the Secretary
of State; or

D. Upon the issuance of an order of dissolution by an arbitrator under 18.

E. The bankruptcy, death, dissolution, expulsion, incapacity or withdrawal of
any Member or the occurrence of any other event that terminates the continued
Membership of any Member, unless within six months after such event, this Company is
continued either by vote or written consent of a majority in interest of all the remaining
Members.

F. Notwithstanding anything to the contrary herein contained, in no event shall
any party hereto institute, or cause to be instituted, any proceeding, or take any action or
cause any action to be taken, to procure or to seek the liquidation or dissolution of the LLC,
unless and until he has first offered his Membership interest for sale as provided herein, and
such offer has not been accepted, nor the purchase consummated pursuant to the terms and
condition of this Agreement.
16.3 EFFECTIVE DATE OF DISSOLUTION OF LLC BY VOTE OF MEMBERS
The dissolution of an LLC by vote of the Members shall be effective on the date specified in
that vote or, if the Members do not specify a date, then on the date of completion of the
vote.
16.4 DETERMINATION OF DATE FOR DELIVERY OF CERTIFICATE OF
CANCELLATION AND FOR EFFECTIVE DATE OF CERTIFICATE
A. The date on which the LLC shall deliver a certificate of cancellation to the
Secretary of State for filing and the effective date of this certificate shall be determined by
the affirmative vote of all of the Members.
B. Within ninety days following the dissolution and the commencement of
winding up the affairs of this Company, or at any other time there are no Members, Articles
of Dissolution shall be filed with the Secretary of State of New York. Upon such filing of
Articles of Dissolution by the Secretary of State of New York, the Articles of Organization
shall be deemed to be cancelled.
Complaint Exhibit 2
Page 33 of 43
34
16.5 CESSATION OF LLCS LEGAL EXISTENCE
Unless a court or administrative authority duly and finally determines otherwise, the LLC
shall cease to exist as a legal entity on the effective date set forth in the certificate of
cancellation.
16.6 DISSOLUTION BY ARBITRATOR
Upon petition by any Member, an arbitrator under 18 may only issue an order dissolving
the LLC on one or more of the following grounds:

A. The LLC has obtained its articles of organization through fraud;

B. The LLC has exceeded or abused the authority conferred upon it by law;

C. The LLC has conducted its business in a persistently fraudulent or illegal
manner;

D. The LLC has abused its power contrary to the public policy of this State;

E. There is a deadlock in LLC management which the Members are unable to
resolve and which is causing or which threatens to cause irreparable injury to the LLC or
which prevents it from conducting its business or affairs to its advantage;

F. The dissolution of the LLC is reasonable and fair in the circumstances.
16.7 EXCLUSION OF MANAGER FROM PARTICIPATION IN WIND-UP PROCESS, ETC.
Any Member may petition an arbitrator under 18 to exclude one or more Managers
from participating in the process of winding up and liquidating the LLC on the ground that,
because of past wrongful conduct by the Manager, the Managers participation would be
likely to affect that process adversely.
16.8 WINDING-UP OF LLC
A. After the LLC is dissolved, the person or persons responsible for winding it
up shall as expeditiously as reasonably possible:

1. Wind up its business and internal affairs; and

2. Cause its liquidation.

B. During the wind-up period, the LLC shall accept no new business except to
the extent necessary to dispose of existing inventory.
16.9 COMPLIANCE WITH THE LAWS OF THIS STATE APPLICABLE TO ENTITY
DISSOLUTIONS AND LIQUIDATION
The LLC shall make no distribution to Members or others in connection with its liquidation
until it has complied with all applicable laws and regulations of this State (including tax laws
and regulations) relating to its dissolution and liquidation.
Complaint Exhibit 2
Page 34 of 43
35
16.10 DISPOSITION OF KNOWN AND UNKNOWN CLAIMS AGAINST LLC
A. Promptly after the dissolution of the LLC, the LLC shall take all reasonable
measures under the laws of this State to dispose of (and, to the extent reasonable, to bar)
known and unknown claims against the LLC.

B. Upon dissolution of this Company, the Members or Managers may, in the
name of and on behalf of this Company, prosecute and defend suits, whether civil, criminal
or administrative
16.11 DISTRIBUTIONS UPON LLC LIQUIDATION
Upon completion of the LLCs winding-up but, if reasonably possible, on or before the date
of termination of the LLCs legal existence, the LLC shall (subject to any applicable
provisions of 704 (b) of the Internal Revenue Code and other applicable federal and state
law) distribute its assets as follows:

A. First, the LLC shall pay (or shall make adequate provision to pay) its
creditors including Members who are creditors, to the extent permitted by law, in
satisfaction of liabilities of this Company, whether by payment or by establishment of
adequate reserves, other than liabilities for distributions to Members under Sec. 507 or Sec.
509 of the New York Limited Liability Company Law.
B Second, the LLC shall distribute its assets to Members in satisfaction of its
liabilities for distributions to them under Sec. 4 and to former Members in satisfaction of
liabilities for distribution under Sec. 507 or Sec. 509 of the New York Limited Liability
Company Law.

C. Third, the LLC shall distribute its assets to Members for the return of their
contributions.

D. Fourth, the LLC shall distribute its assets to Members in accordance with
their right to share in distributions of its assets under 4.

E. A Member with a Negative Capital Account following the distribution of
liquidation proceeds shall restore and contribute to the Company the Members then
Negative Capital Account before the last to occur of (i) the end of the taxable year in which
the Company is liquidated, or (ii) ninety (90) days after the date of liquidation of the
Company, which amount shall be paid to creditors of the Company or, if the amount
contributed exceeds the amount due to creditors, shall be distributed to the Members with
Positive Capital Account balances.

F. If not otherwise provided by this Agreement and if permitted by applicable
law, upon dissolution, each Member shall receive a return of his or her Capital Contribution
solely from the assets of this Company. If, after payment or discharge of the debts and
liabilities of this Company, such assets are insufficient to return any Capital Contribution of
any Member, such Member shall have no recourse against any other Member.

Complaint Exhibit 2
Page 35 of 43
36
16.12 DUTY TO CONSULT TAX ADVISER IN CONNECTION WITH LLC DISSOLUTIONS,
ETC.

Before the Members begin the wind-up and liquidation of the LLC, the LLC and the
Members shall consult with their respective tax advisers and shall structure and implement
the liquidation in a manner that is as fair as possible to each Member from a tax viewpoint.

SECTION 17
ASSIGNMENT OF LLC INTERESTS

Except as otherwise provided in this Agreement:
17.1 DEFINITION OF ASSIGNMENT

For purposes of this Agreement, an assignment means a transfer by a Member of all or any
portion of the Members LLC interest to another person.
17.2 NO ASSIGNEE RIGHT TO PARTICIPATE IN THE MANAGEMENT OF THE LLC

A. No person receiving an Assignment shall, solely by reason of the
Assignment, have any right to participate in the business and affairs of the LLC by any
means, including participation by voting, by access to LLC information, or by initiating
lawsuits or arbitrations

B. An assignee of a Membership interest may not become a Member without
the vote or written consent of all of the Members, other than the Member who desires to
assign or proposes to assign such Membership interest.
17.3 NO ASSIGNEE LIABILITY FOR CERTAIN OBLIGATIONS OF ASSIGNOR

No assignee shall be liable for obligations of an assignor of which the assignee was unaware
and which the assignee could not ascertain from this Agreement.

17.4 CONTINUING LIABILITY OF ASSIGNOR FOR CERTAIN OBLIGATIONS

Notwithstanding an assignors making an Assignment, the assignor shall remain liable for the
assignors obligations to make contribution to the LLC and to return Unlawful Distributions
received by the assignor.
17.5 NO ASSIGNEE LIABILITY FOR LLC OBLIGATIONS

No assignee as such shall be liable for any obligations of the LLC solely by reason of the
Assignment.

Complaint Exhibit 2
Page 36 of 43
37

17.6 ASSIGNEE IS NOT A MEMBER

An assignee of a Membership interest may not become a Member without the vote or
written consent of all of the Members, other than the Member who desires to assign or
proposes to assign such Membership interest.

SECTION 18
TERM OF AGREEMENT; TERMINATION; SURVIVAL OF CERTAIN RIGHTS
AND DUTIES, ETC.
18.1 TERM
Subject to the provision of SECTIONS 18.2 through 18.4, the term of this Agreement
shall begin on the Effective Date (as defined in 1.1) and, unless earlier terminated by the
parties, shall terminate:

A. If the LLC is terminated by vote of all of the Members on the effective date
of the certificate of cancellation of the LLCs articles of organization;

B. If the LLC is terminated by decree of a duly authorized judicial or
administrative authority, on the date of termination of the LLCs existence as determined by
that authority; or,

C. If no clear date is established under 18.1 A. or B. and if the
Members can agree on no such date, by determination of an arbitrator under 19.
18.2 SURVIVAL OF ACCRUED RIGHTS, ETC.
Rights, duties and liabilities accrued by the parties under this Agreement before its
termination shall continue in full force and effect after its termination.
18.3 ARBITRATION OF MATTERS RELATING TO LLCS WINDING-UP, ETC.
Notwithstanding the termination of this Agreement, any party may, after that termination,
initiate arbitration under Article 19 to determine and enforce rights and duties of the party
relating to:

A. matter arising before and during the LLCs winding up;

B. The LLCs liquidation; and

C. matters arising after the cancellation of the LLCs Articles.

Complaint Exhibit 2
Page 37 of 43
38
SECTION 19
ARBITRATION OF LLC DISPUTES
19.1 MANDATORY ARBITRATION OF CERTAIN DISPUTED MATTERS
Any dispute between or among the parties relating to Arbitrable matters (as defined in
19.2) shall be exclusively and finally resolved by arbitration by a single arbitrator (the
Arbitrator) without recourse to any court.
19.2 DEFINITION OF ARBITRABLE MATTER
Arbitrable matters shall include only the following types of matters:

A. How to construe and enforce the provisions of this (including any matter
concerning the scope of these provisions);

B. Whether the purchase price or the other terms of purchase of a Members
LLC interest pursuant to the terms of this Agreement are fair to the LLC and to the
Members;

C. Any claim by a Member in the Members capacity as a Member against any
other Member in that other Members capacity as a Member;

D. Whether any action by the LLC or by the Members is (a) contrary to this
Agreement or (b) seriously unfair to any Member;

E. Whether the expulsion of a Member under 6.10 is fair;

F. Whether a vote by majority Members concerning the LLCs dissolution is fair
to minority Members; and

G. Any other matter that, in the Arbitrators view, is appropriate for decision
under this .
19.3 EXCLUSIONS FROM DEFINITION OF ARBITRABLE MATTER
Arbitrable matters shall not include:

A. Routine business matters of the LLC;

B. matters requiring urgent judicial relief; or

C. Matters involving the enforcement of orders under this 18.
19.4 RULES GOVERNING ARBITRATION
Except as otherwise provided in this agreement, any arbitration (Arbitration) under this
agreement shall be governed by the Rules of Commercial Arbitration of the American
Arbitration Association (AAA).
Complaint Exhibit 2
Page 38 of 43
39
19.5 NOTICE OF ARBITRATION
Any Member may initiate an Arbitration of any Arbitrable matter. The initiating Member
shall do so by providing written notice of the Arbitration to the other Members. The notice
shall bear a current date, shall state the name of the Initiating Member and shall briefly state
the matter to be arbitrated.
19.6 SELECTION OF ARBITRATOR
If, within 15 business days after all the parties entitle to notice of an Arbitration have
received that notice, the Members have not agreed among themselves as to the identity of
the Arbitrator or the site of the Arbitration, the LLC shall immediately refer these matters
for resolution by the AAA office located in the city nearest the office of the LLC. That
office may resolve these matters without liability and in its sole discretion.
19.7 NO APPEAL, ETC.
No Member shall appeal to any court an order of an Arbitrator under this 18. The LLC
or any Member may enter any such order in any court of competent jurisdiction.

119.8 ALLOCATIONS OF COSTS, FEES, ETC.
The Arbitrator may allocate among the Members the costs, fees and other expenses relating
to an Arbitration in any manner that the Arbitrator shall determine to be appropriate in his
or her absolute discretion;

PROVIDED, that if the Arbitrator determines that a party has initiated an
Arbitration without a reasonable basis for doing so, the Arbitrator shall assess against
that party the costs of the other parties relating to the Arbitration, including the
reasonable attorneys fees.
19.9 AWARDING OF LITIGATION COSTS TO PREVAILING PARTY
If, in a suit in law or equity, any party seeks judicial review of any issue arising in an
Arbitration under this agreement, an Arbitrator under this agreement may allocate to the
losing party in that suit all costs reasonably incurred by the prevailing party.

SECTION 20
GENERAL PROVISIONS
20.1 ENTIRE AGREEMENT

This agreement constitutes the entire understanding of the parties, and replaces all other
agreements among them, whether written or oral, concerning this subject matter whether or
not relied or acted upon. This Agreement shall not be altered or amended except by a
writing similarly executed. This agreement shall be binding not only on the Parties hereto but
also on their heirs, executors, administrators, successors, and assigns, and the Parties hereto
agree for themselves and their heirs, executors, administrators, successors, and assigns to
execute any instruments which may be necessary or proper to carry out the purposes and
intent of this agreement.
Complaint Exhibit 2
Page 39 of 43
40
20.2 AMENDMENTS

No amendment of this Agreement shall be valid unless set forth in a writing signed by all
parties.
20.3 INCORPORATION OF EXHIBITS

Any exhibits identified in the Agreement as exhibits to the Agreement are hereby
incorporated into the Agreement and made integral parts of it.
20.4 GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the domestic laws of
the State of New York.
20.5 FORUM FOR LITIGATION; ACCEPTANCE OF PERSONAL JURISDICTION

If any party sues another party in a suit under or relating to this Agreement, the party
bringing the suit shall do so in the courts of the State of New York. The parties hereby
irrevocably accept the personal jurisdiction of those courts in any such suit.
20.6 ASSIGNMENTS AND DELEGATIONS

No party shall assign any of its rights or delegate any of its duties under this Agreement to
any third party except with the consent of the other parties to the Agreement.
20.7 CAPTIONS

All captions in this Agreement are for convenience only and shall be deemed irrelevant in
construing any provision of the Agreement.
20.8 NOTICES

A. All notices under this Agreement shall be in writing sent by registered mail,
or certified mail, return receipt requested, addressed to all of the parties at their addresses as
the same is filed in the office of the LLC.

B. A party may change this address upon reasonable notice to the other parties
and filing same with the office of the LLC. Notices provided under this Agreement shall be
deemed to be received when actually received.

C. Any notice, demand or other communication required or permitted to be
given pursuant to this Agreement or under the New York Limited Liability Company Act
shall have been sufficiently given for all purposes, if given pursuant to the provisions of this
Agreement or as set forth in the New York Limited Liability Company Act, as the case may
be.

Complaint Exhibit 2
Page 40 of 43
41
20.9 MEANING AND CONSTRUCTION OF INCLUDING AND PERSON

The terms including and includes as used in this Agreement shall denote partial
definitions. The term person as used in this Agreement shall mean a natural person or an
entity as the context shall require.
20.10 NUMBER AND GENDER

As the context shall require:

A. The use of the singular in this Agreement shall denote the plural and vice
versa; and

B. The use of a particular gender shall be applicable to all genders.
20.11 WAIVERS

A. No delay of or omission by a Party in the exercise of any right, power or
remedy accruing to the party as a result of any breach or default by another Party under this
Agreement:

1. Shall impair any such right, power or remedy accruing to the Party;

2. Shall be construed as a waiver of or acquiescence by the Party in any
such breach or default or of any similar breach or default occurring later.

B. No waiver by a Party of any single breach or default under this Agreement
shall be construed as a waiver by the Party of any other breach or default occurring before or
after that waiver.
20.12 SEPARABILITY OF PROVISIONS

Each provision of this Agreement (a Provision) shall be deemed separable. If any (a)
Provision or (b) the application of any Provision to any person or circumstance shall be held
invalid or unenforceable in any jurisdiction, the Provision shall be ineffective:

A. Only in that jurisdiction;

B. Only to the extent that it has been expressly held to be invalid or
unenforceable in that jurisdiction; and

C. Without invalidating any other Provision of the Agreement or the application
of the Provision itself to persons or circumstances other than those to which it was held
invalid or unenforceable in the jurisdiction in question.

Complaint Exhibit 2
Page 41 of 43
42
20.13 COUNTERPARTS

Different Parties to this Agreement in separate counterparts may execute this Agreement in
any number of counterparts and each of these counterparts when so executed shall be
deemed to be an original and all such counterparts taken together shall constitute one and
the same agreement.

20.14 WORDS AND PHRASES

Words and phrases set forth within this Operating Agreement which relate to the business
of this limited liability company or the conduct of its affairs or the rights, powers,
preferences, limitations or responsibilities of its Members, Managers, employees, or agents,
as the case may be, or to any matter which this limited liability company is required or has
done under mandate of law or the fulfillment of this Operating Agreement, shall be defined
as it has been defined in 102 of the New York Limited Liability Company Law or in other
applicable statutes or rulings

20.15 VIOLATION OF AGREEMENT

A. Any Member who shall violate any of the terms, conditions and provisions of
this Agreement shall keep and save harmless the LLC and shall also indemnify the other
Members from and all claims, demands and actions of every kind of nature whatsoever
which may arise out of or by reason of such violation of any terms and conditions of this
Agreement.

B. The parties recognize that irreparable injury will result from a breach of any
Provision of this Agreement and that money damages will be inadequate to fully remedy the
injury. Accordingly, in the event of a breach or threatened breach of one or more of the
Provisions of this Agreement, any party who may be injured, in addition to any other
remedies that may be available to that Party, shall be entitled to one or more preliminary or
permanent orders (i) restraining and enjoining any act that would constitute a breach, or (ii)
compelling the performance of any obligation which, if not performed, would constitute a
breach.
C. In the event of any breach by any Member or Departing Member or any
Provisions of this Agreement which leads to a settlement, injunction, an award of damages
or other judgment against a Member or Departing Member, said Member or Departing
Member hereby agrees to pay all costs and expenses of every kind, including reasonable
attorneys' fees, incurred by the remaining Members and the LLC in connection with
obtaining such settlement, injunction, award of damages or other judgment.

20.16 Necessary Documents

Every Member, the legal representative of the estate of any deceased Member, and the LLC,
shall from time to time execute and deliver all necessary documents that may be reasonably
required for carrying out the provisions of this agreement.

Complaint Exhibit 2
Page 42 of 43
43
SIGNATURES AND DATES
IN WITNESS WHEREOF, the persons signing this Agreement below
conclusively evidence their agreement to the terms and conditions of this Agreement by so
signing this Agreement.

_______________________________
JENNI FARLEY,
Jenni Farley, LLC- Managing Member

_
Phigogam, LLC- Managing Member

STATE OF NEW YORK
COUNTY OF NASSAU , SS

On the day of March, in the year 2010 before me, the undersigned, personally appeared,
JENNI FARLEY in her capacity as the Managing Member of Jenni Farley,LLC
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is(are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s) or the persons upon behalf of
which the individual(s) acted executed the instrument.

_______________________________
Notary Public

STATE OF
COUNTY OF , SS

On the day of March, in the year 2010 before me, the undersigned, personally appeared,
WESLEY COX in her/his capacity as the Managing Member of Phigogam ,LLC
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is(are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s) or the persons upon behalf of
which the individual(s) acted executed the instrument.

_______________________________
Notary Public

Complaint Exhibit 2
Page 43 of 43
---------- Forwarded message ----------
From: Wesley Cox <wes@winstonmedia.com>
Date: Wed, Feb 3, 2010 at 4:45 PM
Subject: Tanning Lotion Sponsorship
To: TomL@jennifarley.com

I am an online entrepreneur and I manufacture and market tanning lotion.

We would like to do a line of Tanning Lotion with you.

Please let me know when we could set up a time to visit more about this.

Regards,

--
Wesley W. Cox
Winston Media
Creative Web Marketing
918.582.9898
http://www.winstonmedia.com

From: Tom Lippolis <toml@jennifarley.com>
Date: Wed, Feb 3, 2010 at 4:57 PM
Subject: Re: Tanning Lotion Sponsorship
To: Wesley Cox <wes@winstonmedia.com>

Call
Me anytime
516-351-0745

Sent from my iPhone
Complaint Exhibit 3
Page 1 of 4
Date: Wednesday, February 3, 2010
Subject: Tanning Lotion Sponsorship
To: Tom Lippolis <toml@jennifarley.com>

Tom,

I spoke with my partners about our conversation. They are all
enthusiastic about the prospects of working with you and Jenni to
launch this line of Tanning Lotion. We believe that we can start
shipping this product as early as May.

Please find our preliminary proposal attached along with a visual
reference of the proposed line.

We are ready to make this happen and look forward to working with you.

Regards,

Wesley W. Cox

Wesley W. Cox
Winston Media
918.582.9898

Complaint Exhibit 3
Page 2 of 4
On Feb 5, 2010, at 8:40 AM, Wesley Cox <wes@winstonmedia.com>
wrote:

Tom - let me know when you have availability to discuss the Jwoww
Tanning Lotion Line.

Or call my cell phone anytime: 918.269.3806

thanks,

Wesley W. Cox
Wesley W. Cox
Winston Media
918.582.9898

On Fri, Feb 5, 2010 at 7:44 AM, Tom Lippolis <toml@jennifarley.com>
wrote:
After 2:30 today I will call you

Sent from my iPhone

Date: Fri, Feb 5, 2010 at 10:52 PM

I called you 3 timed today

Sent from my iPhone

Complaint Exhibit 3
Page 3 of 4

On Feb 5, 2010, at 7:01 PM, Wesley Cox <wes@winstonmedia.com>
wrote:

Tom -

Right now you are kind of an international hub for communications and
deals - so I can appreciate how hectic things must be for you.

Its cool if you prefer to do business over the phone, but I also conduct a
large percentage of our business over email. As soon as we can get the
terms of this deal ironed out we are prepared to get this product to market
with swiftness.

Please let me know how we can facilitate this,

Regards,

Wesley
Wesley W. Cox
Winston Media
918.582.9898
Complaint Exhibit 3
Page 4 of 4
Wesley W. Cox
Phigogam Inc.
427 S. Boston Ave. Suite 509
Tulsa, OK 74103

February 3, 2010

Tom Lippolis
Jwoww
RE: Preliminary Licensing Proposal
Tom,
Thank you for taking the time to visit with me today on the phone. We are eager to develop a
private Tanning Lotion Line for Jwoww. Our experience in the Tanning Lotion Industry coupled
with her brand appeal could be a powerful tandem with tremendous opportunity. It is our goal to
seize this opportunity by bringing to market a Jwoww branded line of Tanning Lotion by May
2010.
Proposed Terms

1) JWoww enters into exclusive deal with Phigogam Distribution.
2) Phigogam enters into exclusive deal with Jwoww.
3) We reserve the right to enter into an agreement with one other male cast member from
Jersey Shore.
4) Phigogam will pay a 20% royalty fee of total gross sales of for the Jwoww line.
5) Jwowws line will be a featured line on our current Tanning Lotion distribution point:
TanTans.com
6) We will assume all costs to develop and manufacture the line.
7) We will provide a stand alone site to order the product directly to tanning salons &
distributors (discounted bulk pricing with a minimum case order)
This is a concept we have full confidence in and are prepared to make a significant capital
investment.

Complaint Exhibit 4
Page 1 of 2

PLEASE NOTE: These are proposed terms. Once we have your approval, we will draft a detailed
final contract, with a detailed accounting of the business partnership.

Proposed Line
We propose that the first run consist of a family of core Tanning Lotion products with a range of
price points:
1. Accelerator / 15oz / $25
2. Tingle / 15oz / $30
3. Bronzer / 15oz / $30
4. GTL 20X Black Bronzer / 15oz / $40
Review the attached PDF to see a preliminary mock up of what the line could look like.
Note that these are preliminary concepts and it is our intention to work closely with you on the
bottle selection, product design, contents and packaging. We offer full service design and
packaging services but look forward to working with Jenni for creative direction, as we
understand she is an accomplished designer.

Conclusion
If you find these proposed terms acceptable and would like to move forward with this
engagement, we will begin drafting the contracts immediately. Please respond with any proposed
amendments to this preliminary agreement. We look forward to working with you.

With Highest Regard,

Wesley W. Cox
Phigogam
Complaint Exhibit 4
Page 2 of 2
Date: Sat, Feb 6, 2010 at 3:06 PM

Not in agreement with the terms... We can talk later today or tomorrow but
%20 royalties, no ownership etc is not going to fly. I was thinking more
along the lines of a new company with split shares but we can talk.

Sent from my iPhone

Date: Mon, Feb 8, 2010 at 4:56 PM
Subject: Updated Terms Proposal
To: Tom Lippolis <TomL@jennifarley.com>

Tom -

I put together a organizational chart based on our last conversation.

The big picture for what we can do for Jenni extends beyond the Tanning
Lotion Market.

Let me know how the meeting went with you attorneys today.

Regards,

--
Wesley W. Cox
Winston Media
918.582.9898

Complaint Exhibit 5
Page 1 of 5
From: Rudy Fusco, Esq. <rfusco@fuscolawgroup.com>
Date: Thu, Feb 25, 2010 at 5:43 PM
Subject: JWoww
To: Wes@winstonmedia.com

Wes,

It was a pleasure talking with you; my contact numbers are below and
you can also reach me on my cell at 631-681-9400. I just talked to
Tom and he was fine with the possible names. He did have some
concerns about the addition of a cosmetics line as Jenni is about to
enter into negotiations with several cosmetic companies. I will try to
work out some details but I believe that she is going to have to have
final creative decision over what areas you expand into to protect her
possible affiliation with these other cosmetics companies. Let me
know what you think.

Rudy Fusco, Esq.
Fusco Law Group, P.C.
1267 East Main Street
Riverhead, NY 11970
631-591-3920(P)
631-591-3921 (F)

On Thu, Feb 25, 2010 at 6:59 PM, Wesley Cox
<wes@winstonmedia.com> wrote:
Rudy, Good visiting with you today as well. Let's just focus on the
Tanning Lotion aspect. I don't want to confuse matters. Look forward to
reviewing the agreement. Talk to you soon. Wesley

Complaint Exhibit 5
Page 2 of 5

From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Wednesday,
March 03, 2010 11:03 PM To: Rudy Fusco, Esq. Subject: Re: JWoww

Rudy -

Following up with you about our last conversation regarding the preliminary
operating agreement for the JWWOW Tanning Lotion line.

I haven't seen anything yet, how may I be of assistance in helping you get
it prepared. Just let me know . . .

Wesley

Complaint Exhibit 5
Page 3 of 5

On Mon, Mar 15, 2010 at 12:55 PM, Rudy Fusco,
Esq. <fuscolaw@optonline.net> wrote:
Wesley,

Attached please find a draft copy of the LLC operating agreement for JWOWW
Beauty, LLC. Let me know what you think and what changes you would like me to
present to Jenni. Call me with any questions.

Rudy Fusco, Esq.
Fusco Law Group, P.C.
1267 East Main Street
Riverhead, NY 11901
631-591-3920 (P)
631-591-3921 (F)
===========================================
===========================================
================
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication, unless expressly stated otherwise, was not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
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Complaint Exhibit 5
Page 4 of 5

Date: Mon, Mar 29, 2010 at 3:18 PM
Subject: Re: JWoww
To: "Rudy Fusco, Esq." <fuscolaw@optonline.net>, Tom Lippolis
<TomL@jennifarley.com>

Rudy,

Please find the executed JWOWW BEAUTY, LLC OPRERATING
AGREEMENT attached.

Please push forward with the formation of the LLC and advise us about
what else you need from us. When you are ready to file, let me know what
else you will need from our end with regards to additional paper work or
out of pocket fees.

Tom - we are going to start working on the formulas and the packaging
details. It is my goal to have test market samples within 60 days.

Please let me know if you need anything else from my end.

Regards,

Wesley
Complaint Exhibit 5
Page 5 of 5
Complaint Exhibit 6
Page 1 of 1

Date: Sun, Jul 11, 2010 at 7:56 PM
Subject: JWOWW Tanning Lotion Line - Bottle Design Options

Tom -

The Glam recipe that we have locked in is a "Black Bronzer."

Correspondingly we have zeroed in on a Black and Gold theme for the first bottle
design.

We have based the bottle design on a motif that respects the existing JWOWW
brand, while exploring an elegant, feminine and classy approach with the
graphics and design.

I have attached a font sheet with the fonts we have worked with. Additionally, you
will find 4 proposed bottle designs.

Once you have had a chance to look these over, please get back to me with
feedback and/or final selections.

Thanks,

--
Wesley W. Cox
Winston Media
918.582.9898

Complaint Exhibit 7
Page 1 of 6
Complaint Exhibit 7
Page 2 of 6
Complaint Exhibit 7
Page 3 of 6
Complaint Exhibit 7
Page 4 of 6
Complaint Exhibit 7
Page 5 of 6
Complaint Exhibit 7
Page 6 of 6
Complaint Exhibit 8
Page 1 of 2
VAOOOI775426
Service Request#: 1-613999141
Complaint Exhibit 8
Page 2 of 2
Certinc:ale;of Registration
This Certificate issued under the sealof the Copyright
Office in accordance with title 17, United States Code,
attests that registration has been made for the work
identified below. The information on this certificate has
.b e e ~ made a part of the Copyright Office records.
Complaint Exhibit 9
Page 1 of 2
Registration #: VAOOOl775424
Service Request #: 1-613999300
EdwardLes1ie White .
9301 Cedar Lake Ave.
Suite 200
Ok1ahomaCity,OK73114
Complaint Exhibit 9
Page 2 of 2
Type of Work: Visual Material
Page 1 of 1
Registration Number / Date:
VA0001772116 / 2011-05-19
Application Title: JWOWW BLACK BRONZER.
Title:
Description:
JWOWW BLACK BRONZER.
Electronic file (eService)
Copyright Claimant:
Wesley Cox, 1979-
Date of Creation: 2010
Date of Publication:
2010-07-11
Nation of First Publication:
United States
Authorship on Application:
Wesley Cox, 1979- Domicile: United States; Citizenship:
United States. Authorship: text, 2-D artwork.
Rights and Permissions:
Edward L White, Edward L. White, P.C., 9301 Cedar Lake
Ave., Suite 200, Oklahoma City, OK, 73134, United
States, (405) 810-8188, ed@edwhitelaw.com
Copyright Note:
Names:
Regarding title information: Text is (title) (name) only;
(titles) (names) not copyrightable. 37 CFR 202.1
Cox, Wesley, 1979--
http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi 7/29/2011
Complaint Exhibit 10
Page 1 of 1
, ,
Registration
Page 1 of 2
Registration #: VAOOOl775425
Service Request #: 1-613999403
Page 2 of 2
Date: Thu, Jul 15, 2010 at 12:23 PM
Subject: JWOWW TANNING

PSD FILE LET ME K NOW IF YOU NEED ANYTHING ELSE

jwowwexample.psd
12058K View Downloa
d
Page 1 of 2
Page 2 of 2

Date: Mon, Jul 26, 2010 at 11:07 AM
Subject: JWOWW Black Bronzer Bottle Design
To: paula.ryan@newsunshinellc.com
Cc: Tom Lippolis <TomL@jennifarley.com>

Paula,

Chris Schaeffer asked me to forward you the package design for a line of lotion
that we are looking to partner with Australian Gold on.

Please find the artwork attached.

Kind Regards,

--
Wesley W. Cox
Winston Media
918.582.9898

Page 1 of 5
Page 2 of 5
Page 3 of 5
>> ------------------------------
>> Date: Mon, 26 Jul 2010 14:22:49 -0500
>> Subject: Fwd: JWOWW Black Bronzer Bottle Design
>> From: wes@winstonmedia.com
>> To: prudnicki@hotmail.com; eb@ericbramlett.com
>>
>>
>> Had a teleconference today with Australian Gold and Tom Liappolis.
>>
>> Australian Gold really wants to do the line - they made it very clear that
>> they are willing to do what it takes to win our business.
>>
>> We discussed the initial interest that Hollywood Tan has shown. Tom
>> mentioned his contact named Mary Ellen who the people at Australian
gold
>> said they knew very well.
>>
>> We gave them permission to approach Hollywood Tan about their initial
>> order. Hollywood Tan wants to pay the manufacturer directly for their
first
>> order. It looks like we may not have to come our of pocket for anything
on
>> this deal.
>>
>> Season 2 starts Thursday night. JWOWW and cast are currently
shooting
>> season 3 as we speak.
>>
>> Things are looking pretty good . . .
>>
>> Wesley

Wesley W. Cox
Winston Media
918.582.9898

Page 4 of 5

From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Friday, July
30, 2010 3:22 PM To: Wesley Broyles

Subject: Fwd: JWOWW Black Bronzer Bottle Design

Please find the package design files for the JWOWW Black Bronzer
attached to this email.

The first attachment is a proof and the second is the source artwork.

Please let me know how I may be of assistance.

Wesley

Wesley W. Cox
Winston Media
918.582.9898

From: Wesley Broyles <wbroyles@australiangold.com>
Date: Mon, Aug 2, 2010 at 6:47 AM
Subject: RE: JWOWW Black Bronzer Bottle Design

Good morning. Can you please send in a hi resolution format? A
.eps file should be fine.

Thanks,

Wes
Page 5 of 5
On May 3, 2010, at 6:16 PM, Wesley Cox <wes@winstonmedia.com>
wrote:

Tom -

Everything with Rudy has gone smoothly. We are about to start setting
some meetings for this product development process.

When can we schedule a date to review the products together?

--
Wesley W. Cox
Winston Media
918.582.9898

On Mon, May 3, 2010 at 9:15 PM, Tom Lippolis <toml@jennifarley.com>

wrote:
Hi Wesley you let me know and we will set up a preliminary date.

Sent from my iPhone
Page 1 of 20
Date: Wed, May 5, 2010 at 11:39 AM
Subject: Re: Tanning Lotion Update
To: Tom Lippolis <toml@jennifarley.com>

Tom - We are coordinating with our manufacturer right now.

As soon as we have product samples and bottle proposals we will get with
you to set a time to meet and discuss.

Our goal is to have the test market batch completed in June and the final
product line ready for distribution by July 29th.

Talk to you soon,

Wesley
--
Wesley W. Cox
Winston Media
918.582.9898
Page 2 of 20
On Tue, May 11, 2010 at 8:18 AM, Lewis Henry
<lhenry@devotedcreations.com> wrote:
www.olgraphics.com/olprod_lew_images.zip

Lewis Henry
President
www.devotedcreations.com
(c) 813-380-6656
800-488-5524
(f) 813-855-9334

This message and any attachments are intended only for the use of
the addressee and may contain information that is privileged and
confidential. If the reader of the message is not the intended recipient
or an authorized representative of the intended recipient, you are
hereby notified that any dissemination of this communication is
strictly prohibited. If you have received this communication in error,
notify the sender immediately by return email and delete the message
and any attachments from your system.
Page 3 of 20
Date: Thu, May 13, 2010 at 1:16 PM
Subject: Re: FW: images I need put together...email them to me as soon
as you can....
To: Lewis Henry <lhenry@devotedcreations.com>

Lewis -

Thanks for sending us the information.

We are ready to take the next step.

How do we launch this process?

Wesley

--
Wesley W. Cox
Winston Media
918.582.9898
Page 4 of 20
From: Lewis Henry <lhenry@devotedcreations.com>
Date: Fri, May 14, 2010 at 8:55 AM
Subject: RE: FW: images I need put together...email them to me as soon
as you can....

Which bottle do you like best...or give me top 3 and then I can start pricing
accordingly as well for you...

Lewis Henry
President
www.devotedcreations.com
(c) 813-380-6656
800-488-5524
(f) 813-855-9334

This message and any attachments are intended only for the use of
the addressee and may contain information that is privileged and
confidential. If the reader of the message is not the intended recipient
or an authorized representative of the intended recipient, you are
hereby notified that any dissemination of this communication is
strictly prohibited. If you have received this communication in error,
notify the sender immediately by return email and delete the message
and any attachments from your system.
Page 5 of 20
From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Friday, June
04, 2010 1:31 PM To: Stacy Kaufman Subject: JWOWW

Stacy - Thanks for visiting with me today on the phone about the JWOWW
tanning lotion line. Here is a link to her website: http://jennifarley.com/ As
I mentioned on the phone, we are looking to have a test market batch of
this line ready for Season 2 of Jersey Shore which starts July
29th. Attached is the bottle design we have worked up. Lewis at Devoted
Creations has not been very responsive and we are no longer confident
that he is our best option for the production side. We encourage you to
push forward on this aggressively with us. We are committed to the
financing and marketing of this line and feel very confident that JWOWW's
popularity will result in very healthy sales volume. Please let me know
what else I can do to help you get this process started. Regards, --
Wesley W. Cox Winston Media Creative Web
Marketing 918.582.9898 http://www.winstonmedia.com

Page 6 of 20
On Fri, Jun 4, 2010 at 1:06 PM, Stacy Kaufman
<srk@performancebrands.com> wrote:
Wesley,

Thank you for the information.

This is a fairly quick and easy project for us. My only concern is
that we do not use the bottle that you submitted as a design. If
you go to our website you can see the bottles that we stock and
if you like one let me know and we can send you the art
template. As I briefly mentioned, doing a sleeve will take a little
bit longer than a label, but its possible. Your upfront cost and
minimums are greater for a sleeve as well.

Think about some other products that she would want to do like
a moisturizer, self tanner, etc.

Lets talk Monday.

Stacy Kaufman - President
Performance Brands, Inc.
905 Shotgun Road
Sunrise, FL 33326
(954)423-4161 office
(954)423-3011 fax

Date: Mon, 7 Jun 2010 19:50:46 -0500
To: Stacy Kaufman<srk@performancebrands.com>
Subject: Re: JWOWW

Stacy - We like the Playboy Line. We think the bottles, packaging and
everything about them will be perfect for JWOWW. Can you please let us
know how we can proceed with this process. We are ready to get
started. Please advise, Wesley Cox
Page 7 of 20
On Mon, Jun 7, 2010 at 8:08 PM, <srk@performancebrands.com> wrote:
I can send you out a design template tomorrow. Did you decide on what
products you want? Also do you have any fragrances in mind?
Sent via BlackBerry from T-Mobile

From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Monday, June
07, 2010 9:19 PM To: Stacy Kaufman Subject: Re: JWOWW

We want to start with one single product at first. A single standard option to
kick things off. Whether that is an accelerator or a bronzer or a tingler I
don't know. I would like to present some options to Jenni and let her decide
where she wants to start. We would welcome suggestions from you about
what would be the most logical initial product offering. Regarding the
fragrances - again we welcome suggestions. This will be something that
Jenni will ultimately decide so we will need to send the samples to Jenni
for her approval. We want to get this first product launched and then work
to fill out the entire line. As I may have mentioned we will be looking to you
for insider Industry expertise and suggestions. Just let us know what you
need from us and we will provide it promptly. Regards, Wesley

On Tue, Jun 8, 2010 at 9:08 AM, Stacy Kaufman
Wesley,

Please send me your complete company name and address
details. I need to send you a Standard NDA before we go any
further.

Thanks,

905 Shotgun Road
Sunrise, FL 33326
(954)423-4161 office
(954)423-3011 fax
Page 8 of 20
From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Tuesday,
June 08, 2010 1:33 PM

To: Stacy Kaufman Subject: Re: JWOWW

JWOWW Beauty LLC 1267 East Main Street Riverhead, NY 11901

On Tue, Jun 8, 2010 at 2:28 PM, Stacy Kaufman
Please sign and email back to me right way.

905 Shotgun Road
Sunrise, FL 33326
(954)423-4161 office
(954)423-3011 fax

From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Tuesday, June
08, 2010 3:35 PM

To: Stacy Kaufman
Subject: Re: JWOWW

Would you like me to update this agreement for JWOWW Beauty LLC -
right now it is written for "Earnhart"

Page 9 of 20
On Tue, Jun 8, 2010 at 2:36 PM, Stacy Kaufman
Corrected version!

905 Shotgun Road
Sunrise, FL 33326
(954)423-4161 office
(954)423-3011 fax

Date: Tue, Jun 8, 2010 at 2:54 PM
Subject: Re: JWOWW
To: Stacy Kaufman <srk@performancebrands.com>

Signed document attached.

Please let us know what is next.

Wesley

Page 10 of 20

Date: Wed, Jun 9, 2010 at 5:26 PM
Subject: JWOWW Tanning Lotion Update

Tom -

We have had some major shifts since our last update.

Our first manufacturer mysteriously stopped returning our messages and
straight dropped the ball. I am not sure what is going on there, but when he
went 2 weeks without returning my phone calls. He obviously did not
appreciate the opportunity he had been given to work with the JWOWW
brand. As soon as I realized that he was not taking us seriously I started
searching for a replacement.

Fortunately I found an even better option for the manufacturing. The new
company handles the Playboy line of tanning lotion which is currently the
hottest selling line of tanning lotion on the market today. Our new
manufacture is very eager to work with us and has been very responsive
thus far. He has recommended the playboy bottles for our JWOWW line
because of their popularity and Jenni's specific brand appeal.

So, since we have switched manufacturers we need to re-pick which bottle
we want for the first JWOWW product entry. Please check out the attached
bottles and tell me which one Jenni wants.

We are going to start with an Accelerator with Bronzers for the first
offering. Our new manufacturer is sending sample recipe packets to
Rudy's Fuscos offices. We need to you to get those samples to Jenni so
we know which recipe she prefers.

Sorry for the lags in communication and delays. I was shocked that our
first manufacture shaded out on us like that - he blew it, and I was tired of
waiting for him to keep up with us. What a fool to shade out on JWOWW
like that. His mistake! It was probably a blessing in disguise as I have been
VERY impressed with our new guy. I assure you I am doing everything
possible to make sure we have this line ready to launch by the start of
Page 11 of 20
Season 2.

Our new manufacturer has assured me that meeting that deadline won't be
a problem so everything is still looking very good.

Check out the new bottle options attached and please let me know which
one we want to roll with.

Regards,

--
Wesley W. Cox
Winston Media
918.582.9898

Page 12 of 20
Subject: JWOWW Lotion Line

Stacy -

I just updated Jenni's manager on our everything and he is very happy with
the Playboy bottle options.

Jenni likes the 3 bottles options attached to this email. It looks like they are
the same bottle. Is the package template you send represent these bottle
options? If not please send me the templates we need to proceed on the
package design.

Jenni requested that you send the lotion samples to the following address:

Tom Liapolis
131 Madison street Franklin square
NY NY 11010

We are ready to sign contracts and lock this deal in. July 29th and the start
of season 2 is just around the corner, so we want to do whatever we can to
make sure we have product ready to rock.

Thanks again for how well you are keeping up with us on this deal.

Let me know specifically what else you will need from our end to proceed.

Regards,

--
Wesley W. Cox
Winston Media
918.582.9898

Page 13 of 20
From: <srk@performancebrands.com>
Subject: Re: JWOWW Lotion Line

Yes. Samples sent to you today. Please forward.

Page 14 of 20
Subject: JWOWW Tanning Lotion

Stacy,

Just got off the phone with my contact at JWOWW.

Here are their choices for the Line:

Bottle:
Playboy (Glam & Hottie)

Lotion:

1. Glam
2. Untamed Heart
3. Blackberry Tini

We are ready to place this order with you and get this campaign started.

Here is the info I need:

1. Price per bottle for the 3 lotion recipes at 2500 initial order
2. Packaging templates examples.

Thanks,

--
Wesley W. Cox
Winston Media
918.582.9898

Page 15 of 20

Date: Thu, Jul 1, 2010 at 2:15 PM
Subject: Re: JWOWW Tanning Lotion

Now that we are zeroing in on the final details of this line, I want to make
sure that I am doing everything from my end to keep things moving along.

I know you are the captain of your ship and are terribly busy, so please tell
me if you want me to work with a VP, or somebody else in your company
as we drill down the details of this Lotion Line.

As I have told you our target launch date for this campaign is August 1st
2010.

Today we are officially 1 month out. Please tell me what Milestones we
need to hit to make sure that we are able to meet this Target.

Again, I won't be offended if you want me to work with somebody else in
your company to hammer this deal out.

Thanks,

Wesley

--
Wesley W. Cox
Winston Media
918.582.9898

Page 16 of 20
Date: Tue, Jul 13, 2010 at 3:37 PM
Subject: JWOWW Tanning Lotion Line - Bottle Design Options

1. 4 week production timeline
2. Ingredients being sent over tomorrow
3. Package files attached

Obviously we are not going to be able to ship products by July 29th.
However, once we lock in the package design we can start the marketing
and web commerce portion and be poised to start taking pre-orders.
Ideally we sell out within the first 2 weeks and are going back for the
second batch of 20,000 units by the time the first batch is ready for
distribution.

I will send you the ingredient list when I get it tomorrow.

Regards,

Wesley

--
Wesley W. Cox
Winston Media
918.582.9898

Page 17 of 20
Date: Tue, Jul 20, 2010 at 10:51 AM
Subject: JWOWW Beauty
To: "Rudy Fusco, Esq." <rfusco@fuscolawgroup.com>

Rudy,

We are about to contract with the manufacturer of the JWOWW Tanning
Lotion line. As we near kickoff I wanted to touch base with you on our
game plan. Specifically we have some legal issues that we need you to
help us address.

JWOWW Beauty LLC plans to launch an entire line of tanning and skin
care products.

Our top level brand is JWOWW. We are going to market with our first
product: "JWOWW Black Bronzer"

Once we have launched "JWOWW Black Bronzer" into the market we are
going to immediately begin planning for our second product-market entry.

I have spoken with many different manufacturers about the production of
this product and have narrowed it down to a company called "Performance
Brands" our of Florida.

Performance Brands is a large player in the Tanning world, involved in
many aspects of the business including distribution. Tom has been in
discussions with a national Tanning Lotion chain, Hollywood Tan. In their
discussions Hollywood seemed to think that they could negotiate directly
with our manufacturer on the price.

This has caused Tom some well placed concern.

What I propose is that we draft a basic agreement with the manufacturer of
the line. In this document we need to clearly outline that the only way to
get JWOWW tanning products is to go through JWOWW Beauty LLC.
Effectively we want to have complete control over the distribution channels
so that we have 100% control over the price and placement of the product.

I don't think this agreement needs to be exhaustive, but we need
Page 18 of 20
something that makes it clear to our manufacturers that we retain
"complete control" over the brand.

Let me know if you need any other information or details.

Thanks,

--
Wesley W. Cox
Winston Media
918.582.9898

From: Wesley Cox [mailto:wes@winstonmedia.com] Sent: Thursday, July
22, 2010 1:12 PM To: Stacy Kaufman Subject: JWOWW Bottle

Stacy, Jenni is not feeling the LA INK bottle. She was really set on the Ed
Hardy Bottle. What are our options? Thanks, -- Wesley W. Cox Winston
Media Creative Web
Marketing 918.582.9898 http://www.winstonmedia.com

Page 19 of 20
From: Stacy Kaufman <srk@performancebrands.com>
Date: Fri, Jul 23, 2010 at 11:59 AM
Subject: RE: JWOWW Bottle

Wesley,

I dont have any other options at this time unless she wants to go
with a soft tube like we do for our Pro Tan line.

905 Shotgun Road
Sunrise, FL 33326
(954)423-4161 office
(954)423-3011 fax

Page 20 of 20
Date: Fri, Jul 23, 2010 at 5:46 PM
Subject: Fwd: IMG00350-20100723-1336.jpg
Tom - here is the current proposed bottle from Performance Brands.
I look forward to hearing what Australian Gold has to say during our
Monday Teleconference.
Have a good weekend.
Wesley
From: <srk@performancebrands.com>
Date: Friday, July 23, 2010
Subject: IMG00350-20100723-1336.jpg
To: wes@winstonmedia.com
Wesley W. Cox
Winston Media
Page 1 of 4
918.582.9898
IMG00350-20100723-1336.j pg
74K
Page 2 of 4
Date: Mon, Jul 26, 2010 at 11 :07 AM
Subject: JWOWW Black Bronzer Bottle Design
To: paula.ryal}@newsunshinellc.com
Paula,
Chris Schaeffer asked me to forward you the package design for a line of
lotion that we are looking to partner with Australian Gold on.
Please find the artwork attached.
Kind Regards,
Wesley W. Cox
Winston Media
918.582.9898
http://www.yvinstonmedia.colJl
Page 3 of 4
918.582.9898
bttp://www.winstonmedia.com
2 attachments
JWQWW-BlackBronzer-Bottle.jpg
512K
JWQWW-BlackBronzer.jpg
645K
Page 4 of 4
Page 1 of 2
Page 2 of 2
From: Wesley Cox [mailto:wes@winstonmedia.com]
Sent: Friday, August 20, 2010 10:21 AM
To: Rudy Fusco, Esq.
Subject: JWOWW Beauty LLC
Page 1 of 2
Rudy,
I just got off the phone with our contacts at Australian
Gold. It sounds like all we are waiting on is a signature
from Jenni to finalize the deal with them. He stressed
that we needed the paperwork to them by Sept. 1st to
meet our target launch date of December 1st.
Have you heard from Tom recently' I have been
unable to get in touch with him since the news broke
about the big breakup. I am assuming that he is no
longer involved with the venture?
Please let me know if I can help you in any way to
keep the ball moving down the court.
Regards,
Wesley W. Cox
Winston Med ia
918.582.9898
http: //www.winstonmedia.com
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Page 11 of 11

z
January 21, 2011 | 7:22 AM ET

Score one for JWoww.
The surgically enhanced Jersey Shore beauty Jenni JWoww Farley has won the first legal round in her fight
against ex-boyfriend Tom Lippolis, preventing him from releasing a series of nude photos that he took of her.
Jenni is obviously very happy that the judge saw it her way, Farleys Long Island, NY-based attorney Rudy
JWoww's Lawyer: Blocked nude pix 'a lot more graphic'
than her ex admits
Jenni 'JWoww' Farley. (X17Online.com)
{ Murdered intern Chandra Levy gettin... Denise Richards' relationship with...
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Page 1 of 5 JWowws Lawyer: Blocked nude pix a lot more graphic than her ex admits Ent...
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z

Fusco tells FOX411 exclusively. Tom is out there right now, doing a lot of press, radio shows and the Twitter, the
Facebookall that fun stuff. I saw a post of his describing the pictures, and thats not the whole storytrust me.
The pictures are a lot more graphic than that. Theyre not what hes making them out to be.
PHOTOS: More pics of JWoww.
The pictures in question were allegedly taken when the reality star was under the influence of anesthesia, both
before and after she had liposuction and a second boob job.
Farleys argument was that since she was dazed from the effects of anesthesia, she was not able to consent to
Lippolis taking the photos. Lippolis claims that since Farely mused to him, pre-fame, about posing for Playboy, he
should be free to publish the pics.
Hes also trying to say that Jenni is just throwing this in there as a way deflect attention from the contractual
argument that theyre havingand thats not true at all, either, Fusco tells FOX411. If he remembers, we sent
him a letter back in September requesting these photos and avoiding any legal action, which he obviously
declined.
Lippolis described Farleys body in the series of snaps as being deformed with tons of celluite, telling
RadarOnline.com, There were two-inch scars on her nipples and after the surgery, they had stretched the skin
and removed the scars.
Charming.
PHOTOS: Playboys Real Gals of Jersey Shore.
That wasnt the last word Lippolis had on the scandal. After Judge Jeffrey S. Brown of New York State Supreme
Court in Nassau County sided with Farley preventing the release of the photos, Lippolis told RadarOnline.com, At
this point, the nude pictures should be the least of her worries, she has much bigger issues in her life that she
needs to deal with.
Farely broke up with Lippolis late last summer, which was documented on last nights episode of Jersey Shore.
After breaking in to the Long Island, NY home that she had shared with her ex, Farley discovered that her bed, a
watch and a hard drive was missing. The footage suggests that Farleys personal files were ransacked and her
PayPal account drained.
Theres a lot more to the story that Jenni has not released yet, Fusco tells FOX411. Were thinking about
releasing background information so that people can get a better picture of the crap that hes trying to do and
what these pictures truly represent.
Meaghan Murphy Tags
Entertainment, News & Gossip, TV, Jeffrey S. Brown, Jenni
"JWOWW" Farley, Nicole Snooki Polizzi, Rudy Fusco,
Tom Lippolis
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Page 2 of 5 JWowws Lawyer: Blocked nude pix a lot more graphic than her ex admits Ent...
7/26/2011 http://entertainment.blogs.foxnews.com/2011/01/21/jwowws-lawyer-blocked-nude-...
Page 2 of 2
Page 1 of 1

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Page 1 of 2
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Page 2 of 2

Complaint Phigogam v. JWOWW (W/ All 21 Exhibits)

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Complaint Phigogam v. JWOWW (W/ All 21 Exhibits)

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

---------- Forwarded message ----------

RE: Preliminary Licensing Proposal

---------- Forwarded message ----------

On Mon, May 3, 2010 at 9:15 PM, Tom Lippolis <toml@jennifarley.com>

For more information please call Sue Phemster, 1-800-633-0069

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