LIMITED LIABILITY COMPANY AGREEMENT
OF PRIME REFRACTIVE - KANSAS CITY, L.L.C.
Organized under the Delaware Limited Liability Company Act (the "Act").
ARTICLE I.
NAME AND LOCATION
Section 1.1. Name. The name of this limited liability company is Prime
Refractive - Kansas City, L.L.C. (the "Company").
Section 1.2. Members. The only members of the Company upon the
execution of this Limited Liability Company Agreement (this "Agreement") shall
be Vision Correction Centers of Kansas City, P.C., a Missouri professional
corporation ("VCC"), and Prime RVC, Inc., a Delaware corporation ("Prime"). For
purposes of this Agreement, the "Members" shall include such named members and
any new members admitted pursuant to the terms of this Agreement, but does not
include any person or entity who has ceased to be a member in the Company.
Section 1.3. Principal Offices. The principal office of the Company shall
be located at 0000 Xxxxxxx xx Xxxxx Xxx., Xxxxx X-000, Xxxxxx, Xxxxx 00000-0000
and or at such other locations as may be selected by the Members.
Section 1.4. Registered Agent and Address. The name of the registered agent
and the address of the registered office of the Company as set forth in the
Certificate of Formation of the Company are:
The Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Section 1.5. Other Offices. Other offices and other locations for the
transaction of business shall be located at such places as the Managers may from
time to time determine.
Section 1.6 Contribution Agreement. The Company was initially formed
with a single member, VCC, for the purpose of consummating the transactions
contemplated by that certain Contribution Agreement dated effective as of
September 1, 2000, by and among Prime Medical Services, Inc., a Delaware
corporation ("PMSI"), Prime, VCC, Xxxxxxx Xxxxx, M.D. ("Couch"), Kansas City
Laser Vision Correction Centers, L.L.C., a Missouri limited liability company
("KCL"), and the Company (the "Contribution Agreement"). The parties have
executed this Agreement concurrent with the consummation of the transactions
contemplated by the Contribution Agreement. This agreement supercedes and
replaces any prior membership agreement or other governing or organizational
document of the Company other than the Certificate of Formation.
ARTICLE II.
MEMBERSHIP
Section 2.1. Members' Interests. The "Membership Interest" of each Member
is set forth on Exhibit A.
Section 2.2. Admission to Membership. The admission of new Members
shall be only by the vote of the Managers pursuant to Section 8.9 hereof. If new
Members are admitted, this Agreement shall be amended to reflect each Member's
revised Membership Interest.
Section 2.3. Property Rights. No Member shall have any right, title, or
interest in any of the property or assets of the Company.
Section 2.4. Liability of Members. No Member of the Company shall be
personally liable for any debts, liabilities, or obligations of the Company,
including under a judgment decree, or order of court, except as expressly
provided otherwise in an agreement between the Member and the Company or another
party.
Section 2.5. Transferability of Membership. Except as provided below,
Membership Interests in the Company are transferable only with the unanimous
written consent of all Members. If such unanimous written consent is not
obtained when required, the transferee shall be entitled to receive only the
share of profits and the return of contributions and distributions of Available
Excess Earnings to which the transferor Member otherwise would be entitled.
Notwithstanding the foregoing, the following shall not be deemed to
violate any provision of this Agreement (each, a "Permitted Transfer"): (i) the
Membership Interests of any Member may be freely transferred, without consent,
to any entity that is then owned or controlled, directly or indirectly, by PMSI
(or its successor in interest), (ii) the Membership Interests of any Member may
be freely assigned, pledged or otherwise transferred, without consent, to secure
any debt, liability or obligation owed to Prime by the Company, any Member or
any entity affiliated with the Company, (iii) the Membership Interests of any
Member may be freely assigned, pledged or otherwise transferred, without
consent, in favor of the Lender(s) under, or by the Lender(s) as a result of the
enforcement of any security interest arising pursuant to, those certain Credit
Facilities (the "Credit Facilities") of PMSI and/or any of PMSI's subsidiaries,
(iv) the pledge by VCC of its right to receive distributions from the Company in
respect of his Membership Interest, (v) the Membership Interests of Prime and
VCC can be transferred pursuant to Section 4.10 of the Contribution Agreement,
(vi) the transfer by VCC, after the expiration of ten years following the
Closing Date (as defined in the Contribution Agreement), of its Membership
Interests to any person or entity upon obtaining the consent of Prime, not to be
unreasonably withheld, and (vii) the Membership Interests of VCC may be
transferred (A) to Couch or Couch's estate, any testamentary trust, or any heir,
(B) to a trust or trusts (a "Permitted Trust") for the benefit of Couch and/or
members of Couch's immediate family (including an entity owned by a Permitted
Trust) but only where Couch either controls the trust or retains during his
lifetime the exclusive ability to vote the Membership Interests (pursuant to a
written proxy or other instrument reasonably acceptable in form and substance to
Prime), (C) to an entity (a "Permitted Entity") that is wholly-owned, directly
or indirectly, by Couch and/or members of Couch's immediate family, but only
where Couch either controls the entity or retains during his lifetime the
exclusive ability to vote the Membership Interests (pursuant to a written proxy
or other instrument reasonably acceptable in form and substance to Prime), or
(D) from a Permitted Trust or Permitted Entity to Couch.
As an express condition to any transfer by any Member or any transferee
of any Member, the proposed transferee shall have agreed in writing, in form and
substance reasonably satisfactory to the non-transferring Members, that such
proposed transferee will be bound by all of the terms and provisions of this
Agreement, the Contribution Agreement (including Restrictive Covenants found in
Article IX thereto) and any other Transaction Document (as defined in the
Contribution Agreement) which by reasonable implication are applicable to the
Membership Interest being transferred and not solely the transferring Member as
a party to the Contribution Agreement.
Section 2.6. Withdrawal of Members. Without limiting a Member's ability
to complete a Permitted Transfer, a Member may not withdraw as a Member from the
Company except on the unanimous consent of the remaining Members. The terms of
the Member's withdrawal shall be determined by agreement between the remaining
Members and the withdrawing Member.
ARTICLE III.
MEMBERS' MEETINGS
Section 3.1. Time and Place of Meeting. All meetings of the Members
shall be held at such time and at such place within or without the State of
Delaware as shall be determined by the Managers.
Section 3.2. Annual Meetings. In the absence of an earlier meeting at
such time and place as the Managers shall specify, annual meetings of the
Members shall be held at the principal office of the Company on the date which
is thirty (30) days after the end of the Company's fiscal year if not a legal
holiday, and if a legal holiday, then on the next full business day following,
at 10:00 a.m., at which meeting the Members may transact such business as may
properly be brought before the meeting.
Section 3.3. Special Meetings. Special meetings of the Members may be
called at any time by any Member. Business transacted at special meetings shall
be confined to the purposes stated in the notice of the meeting.
Section 3.4. Notice. Written or printed notice stating the place, day
and hour of any Members' meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) days nor more than thirty (30) days before the date of the special
meeting, either personally or by mail, by or at the direction of the person
calling the meeting, to each Member entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered three (3) days after it is deposited
in the United States mail, postage prepaid, to the Member at such Member's
address as it appears on the records of the Company at the time of mailing.
Section 3.5. Quorum. Members present in person or represented by proxy,
holding more than fifty percent (50%) of the total votes which may be cast at
any meeting shall constitute a quorum at all meetings of the Members for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the Members, the Members entitled to vote, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. When any adjourned meeting is reconvened
and a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. Once a
quorum is constituted, the Members present or represented by proxy at a meeting
may continue to transact business until adjournment, notwithstanding the
subsequent withdrawal therefrom of such number of Members as to leave less than
a quorum.
Section 3.6. Voting. Members shall be required to vote in instances or
with respect to matters where member voting is required by applicable law or to
the extent expressly set forth in this Agreement. With respect to any act or
transaction that requires a vote by the Members under applicable law, the
affirmative vote or written consent of two of the three Managers shall be
required in order to approve the act or transaction, in each instance. Subject
to the foregoing, when a quorum is present at any meeting, the vote of the
Members, whether present or represented by proxy at such meeting, holding more
than fifty percent (50%) of the total votes which may be cast at any meeting
shall be the act of the Members, unless the vote of a different number is
required by the Act, the Certificate of Formation or this Limited Liability
Company Agreement. Each Member shall be entitled to one vote for each percentage
point represented by their Membership Interest. Fractional percentage point
interests shall be entitled to a corresponding fractional vote. The provisions
of this Section shall not interfere with the provisions of Section 8.9 relating
to acts or transactions requiring the written approval of two (2) or more
Managers, one of which must be a Manager designated by VCC.
Section 3.7. Proxy. Every proxy must be executed in writing by the
Member or by his duly authorized attorney-in-fact, and shall be filed with the
Secretary of the Company prior to or at the time of the meeting. No proxy shall
be valid after eleven (11) months from the date of its execution unless
otherwise provided therein. Each proxy shall be revocable unless expressly
provided therein to be irrevocable and unless otherwise made irrevocable by law.
Section 3.8. Action by Written Consent. Subject to the provisions of
Section 8.9, any action required or permitted to be taken at any meeting of the
Members may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the Members entitled to vote with
respect to the subject matter thereof, and such consent shall have the same
force and effect as a unanimous vote of Members.
Section 3.9. Meetings by Conference Telephone. Members may participate
in and hold meetings of Members by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV.
MEMBERSHIP CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions. Each Member has contributed to the
Company the assets set forth in Schedule A. Schedule A sets forth the fair
market value of the assets contributed to the Company by each Member, which
amount shall be credited to each Member's Capital Account as their initial
capital contribution. Capital Accounts shall be maintained in accordance with
Treasury Regulations 1.704-1(b) and -2 and shall be interpreted and applied in a
manner consistent therewith. The Managers shall have the power to amend this
Agreement as may be reasonably necessary to comply with such regulations. Except
for each Member's initial capital contribution made in connection with the
formation of the Company, and except as provided in the Contribution Agreement,
no capital contributions shall be required of any Member without the unanimous
approval of all the Members to raise additional capital, and only then
proportionately as to each Member.
Section 4.2. Deficit Capital Account Balances. Upon liquidation of the
Company, no Member with a deficit balance in his Capital Account shall have any
obligation to restore such deficit balance, or to make any contribution to the
capital of the Company.
Section 4.3. Tax Matters Partner. The Managers shall designate one
Manager by majority vote to act as the tax matters partner (the "TMP") of the
Company (as defined in the Code), and the TMP is hereby authorized and required
to represent the Company, or designate another person or firm to represent the
Company, (in each case, at the Company's expense) in connection with all
examinations of the Company's affairs by tax authorities, including resulting
administrative and judicial proceedings, and to expend Company funds for
professional services and costs associated therewith. The initial TMP shall be
Xxxxx Xxxxxx. The Members agree to cooperate with the TMP and its designee, if
any, and to do or refrain from doing any or all things reasonably required by
the TMP or its designee, if any, to conduct such proceedings. The Company will
reimburse the TMP and any such designee for all expenses incurred in connection
with its duties as TMP and any costs associated with any administrative or
judicial proceeding with respect to the tax liabilities of the Members.
ARTICLE V.
DISTRIBUTION TO MEMBERS
At the end of each calendar quarter, subject only to the qualifications
and limitations set forth below, the Company shall, unless provided otherwise in
accordance with Section 8.9(b) or Section 8.9(c), distribute its Available
Excess Earnings (as hereinafter defined) to its members, to be divided among
them in accordance with their Membership Interests as set forth on Exhibit A
hereto. As used herein, "Available Excess Earnings" shall mean and refer to all
cash and cash equivalents of the Company that would not be reasonably required
in order to (a) satisfy all accounts payable and payment obligations of the
Company that will become due in the ordinary course within thirty (30) days of
the date of determination (assuming no receipt of additional cash or cash
equivalents during such ninety (30) day period) or (b) establish adequate
reserves to satisfy liabilities or obligations of the Company that are foreseen
and can be reasonably estimated on the date of determination. Distributions in
kind shall be made on the basis of agreed value as determined by the Managers.
Notwithstanding the foregoing, the Company may not make a distribution to its
Members in respect of their Membership Interests to the extent that, immediately
after giving effect to the distribution, all liabilities of the Company, other
than liabilities to the Members with respect to their interests and liabilities
for which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the Company assets; except that the fair value
of property that is subject to liability for which recourse of creditors is
limited, shall be included in the Company assets only to the extent that the
fair value of the property exceeds that liability.
Furthermore, to the extent that the Company possesses the cash flow
necessary to pay its liabilities in the ordinary course consistent with past
practices, the Company agrees to make quarterly estimates of its taxable income
for the current tax year and also quarterly estimates of the tax liability of
each Member based on each Member's then current proportionate interest in the
Company and assuming that all Members pay income taxes on the Company's taxable
earnings at a rate equal to the highest effective federal individual tax rate in
effect from time to time. If the distributions of the Company's earnings to its
Members pursuant to the first paragraph of this Article do not, on a calendar
year basis, exceed the estimated tax liability of the Members for the current
quarter and all prior quarters in the current calendar year, then the Company
shall, if not prohibited by law, distribute to the Members the additional
amounts necessary to cause all distributions for the current calendar year to
equal or exceed the Members' estimated tax liabilities for the calendar year to
date; provided, however, that the provisions of this Section shall not under any
circumstances be construed to require that any Member contribute additional
amounts to the Company or that the Company incur any indebtedness.
ARTICLE VI.
ALLOCATION OF NET PROFITS AND LOSSES
For accounting and income tax purposes, all items of income, gain,
loss, deduction and credit of the Company for any fiscal year shall be allocated
between the Members in accordance with their respective Membership Interests as
set forth on Exhibit A hereto, except as may be otherwise required by the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder, in which case, the Members agree to restructure their
relationship in a manner that preserves their respective economic benefits
intended under the Contribution Agreement and other Transaction Documents.
ARTICLE VII.
DISSOLUTION AND WINDING UP
Section 7.1. Dissolution. Notwithstanding any provision of the Act, the
Company shall be dissolved only upon the first of the following to occur:
(a) Forty (40) years from the date of filing the Certificate of Formation
of the Company; or
(b) Written consent of all the then current Members to dissolution.
(c) The bankruptcy of a Member, unless there is at least one
remaining Member and such Member or, if more than one remaining Member,
all remaining Members agree to continue the Company and its business.
(d) The sale of all or substantially all of the assets of the Company.
Section 7.2. Winding Up. In the event of dissolution of the Company,
the Managers (excluding any Manager holding office pursuant to designation by a
Member subject to bankruptcy proceedings) shall wind up the Company's affairs as
soon as reasonably practicable. On the winding up of the Company, the Managers
shall pay and/or transfer the assets of the Company in the following order:
(a) In discharging liabilities (including loans from Members) and the
expenses of concluding the Company's affairs; and
(b) The balance, if any, shall be distributed to the Members
in accordance with the positive balances of the Members Capital
Accounts. Upon dissolution and distribution of the Company assets, such
distributed assets shall be deemed sold with the resulting net income
or net loss being allocated among the Members and credited or debited
to their respective Capital Accounts pursuant to Articles IV and VI.
ARTICLE VIII.
MANAGERS
Section 8.1. Selection of Managers. Management of the Company shall be
vested in the Managers. Initially, the Company shall have three (3) Managers,
being Xxxx Xxxxxx and Xxxxxx Xxxxxxxx (as the initial Manager designees of
Prime), and Xxxxxxx Xxxxx, M.D. (as the initial Manager designee of VCC).
Thereafter, for so long as there are three (3) Managers, (a) Prime shall be
entitled to designate two (2) of the Managers; and (b) VCC shall be entitled to
designate the remaining one (1) Manager. Notwithstanding the foregoing, a Member
shall not be entitled to designate any Manager unless its Membership Interest:
(y) has not (other than as allowed under Section 2.5 of this Agreement) been
transferred, repurchased, assigned, pledged, hypothecated or in any way
alienated; and (z) equals or exceeds thirty-five percent (35%) of all
outstanding Membership Interests (after including in such determination all
Membership Interests held by the Permitted Transferees of such Member) (the
"Required Percent"). Subject to Section 8.3 of this Agreement, the Members may,
by unanimous vote or written consent of all Members, from time to time, change
the number of Managers of the Company and remove or add Managers accordingly. A
Manager shall serve as a Manager until his or her resignation or removal
pursuant to Section 8.2 or 8.3 of this Article VIII. Managers need not be
residents of the State of Delaware or Members of the Company.
Section 8.2. Resignations. Each Manager shall have the right to resign
at any time upon written notice of such resignation to the Members. Unless
otherwise specified in such written notice, the resignation shall take effect
upon the receipt thereof, and acceptance of such resignation shall not be
necessary to make same effective. The Member who designated a resigning manager
shall be entitled to designate the successor thereto without any further action
by the Members or other Managers. If any action of the Members is required under
applicable law, the Members agree to take such action and any other action as
may be necessary from time to time to effectuate the provisions of this Section
8.2.
Section 8.3. Removal of Managers. Any Manager may be removed, for or
without cause, at any time, but only by the Member who designated such Manager,
upon the written notice to all Members. The Member who designated such removed
Manager shall be entitled to designate the successor without any further action
by the Members or other Managers. If any action of the Members is required under
applicable law, the Members agree to take such action and any other action as
may be necessary from time to time to effectuate the provisions of this Section
8.3.
Section 8.4. General Powers. Subject to the provisions of Section 8.9,
the business of the Company shall be managed by its Managers, which may, by the
vote or written consent in accordance with this Agreement, exercise any and all
powers of the Company and do any and all such lawful acts and things as are not
by the Act, the Certificate of Formation or this Limited Liability Company
Agreement directed or required to be exercised or done by the Members,
including, but not limited to, contracting for or incurring on behalf of the
Company debts, liabilities and other obligations, without the consent of any
other person, except as otherwise provided herein.
Section 8.5. Place of Meetings. The Managers of the Company may hold their
meetings, both regular and special, either within or without the State of
Delaware.
Section 8.6. Annual Meetings. The annual meeting of the Managers shall
be held without further notice immediately following the annual meeting of the
Members, and at the same place, unless by unanimous consent of the Managers that
such time or place shall be changed.
Section 8.7. Regular Meetings. Regular meetings of the Managers may be held
without written notice at such time and place as shall from time to time be
determined by the Managers.
Section 8.8. Special Meetings. Special meetings of the Managers may be
called by any Manager on seven (7) days notice to each Manager, with such notice
to be given personally, by mail or by telecopy.
Section 8.9. Quorum and Voting.
-----------------
(a) At all meetings of the Managers the presence of at least
two (2) Managers shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the affirmative vote of at
least a majority of the Managers present at any meeting at which there
is a quorum shall be the act of the Managers, except as may be
otherwise specifically provided by the Act, the Contribution Agreement,
the Certificate of Formation or this Agreement. If a quorum shall not
be present at any meeting of Managers, the Managers present there may
adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
(b) In addition to the other provision contained in this
Agreement requiring the unanimous vote of the Members or the consent of
VCC or VCC's designated Manager, as long as none of Couch, KCL and VCC
is in material breach of this Agreement, the Contribution Agreement or
any other Transaction Document (subject to any applicable right to
cure), the following acts or transactions by, or involving, the Company
shall require the prior written consent of two (2) or more Managers,
one of which must be the Manager designee of VCC; provided, however,
that no written consent of any party is required under this subsection
to take a particular action if (but only to the extent that) such
action is required to be taken pursuant to the express terms and
provisions of the Contribution Agreement or any Transaction Document,
provided further, that the provisions of this Section shall terminate
automatically VCC's Membership Interest dropping below the Required
Percent:
(i) Purchase by the Company of any interest in the Company, irrespective of
the source of such interest.
(ii) Disposition, sale, assignment or other transfer
by the Company of any interest it owns in the Company, except that such
interest may be extinguished without the approval required under this
Article.
(iii) Issuance of any interest in the Company to any party.
(iv) The Company's entering into a materially different line of business.
(v) Entering into, amending or modifying a
transaction or other action with any Manager, officer or Member, or any
employee, agent or affiliate thereof, including, without limitation,
any compensation arrangement or any arrangement for the reimbursement
of overhead or other similar expenses.
(vi) Taking any other action which, by the terms of
this Agreement or applicable law, requires the approval or consent of
not less than sixty-six percent (66%) of the Members.
(vii) Any amendment to the Company's Certificate of Formation or this
Agreement.
(viii) Mergers, consolidations or combinations of the
Company with another limited liability company or other entity.
(ix) Filing bankruptcy or seeking relief under any debtor relief law.
(x) Sale, lease or other transfer of all or
substantially all of the Company's assets, other than in the ordinary
course of the Company's business.
(xi) Waiving, refusing to enforce, amending, restating, superseding or
modifying any of the provisions of this Agreement.
(xii) Election or removal of the Manager, if any, designated by VCC
pursuant to this Article.
(c) Any of the above actions taken by the Company without the
necessary approval pursuant to Section 8.9(b) is void ab initio.
Section 8.10. Committees. The Managers may, by resolution
passed by sixty-six percent (66%) of the Managers, designate committees, each
committee to consist of two or more Managers (at least one of which must be a
Manager designee of Prime and one of which, must be a Manager designee of VCC),
which committees shall have such power and authority and shall perform such
functions as may be provided in such resolution. Such committee or committees
shall have such name or names as may be designated by the Managers and shall
keep regular minutes of their proceedings and report the same to the Managers
when required.
The foregoing paragraph notwithstanding, the Managers shall establish a
Medical Executive Committee, the size and composition of which shall be
established by the affirmative vote or written consent of two of the three
Managers. Members of the Medical Executive Committee must be licensed
physicians, but need not be Members, Managers, or officers of the Company. The
Medical Executive Committee shall meet at such time or times as it may, by
majority vote of its members, elect and may adopt procedures for the conduct of
its meetings. The Medical Executive Committee shall provide advice to the
Managers on decisions relating to equipment purchases, technological
obsolescence, quality assurance, credentialing, and such other matters as shall
be requested by the Managers. The majority of the members of the Medical
Executive Committee shall constitute a quorum for the transaction of its
business and the affirmative vote of the majority of the members of the Medical
Executive Committee shall constitute action validly taken by that body. Except
as expressly provided in the following sentence, the Medical Executive Committee
shall not have the authority to bind the Company with respect to any matter. In
order to ensure the quality of services provided by the Company, no physician or
optometrist shall be allowed to use the premises or equipment of the Company
unless the Medical Executive Committee has approved of the physician in writing,
in its sole discretion.
Section 8.11. Compensation of Managers. The Members, by unanimous
approval, shall have the authority to provide that any one or more of the
Managers shall be compensated, and may, by unanimous approval, fix any
compensation (which may include expenses) they elect to pay to any one or more
of the Managers.
Section 8.12. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Managers or of any committee
designated by the Managers may be taken without a meeting if written consent,
setting forth the action so taken, is signed by all the Managers or of such
committee, and such consent shall have the same force and effect as a unanimous
vote at a meeting.
Section 8.13. Meetings by Conference Telephone. Managers or members of
any committee designated by the Managers may participate in and hold a meeting
of the Managers or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 8.14. Liability of Managers. No Manager of the Company shall be
personally liable for any debts, liabilities, or obligations of the Company,
including under a judgment, decree, or order of the court.
Section 8.15. Specific Power of Managers. The Managers shall have the
authority to enter into and execute all documents in relation to the formation
of the Company including, but not limited to, issuance of the Certificate of
Formation and this Limited Liability Company Agreement.
ARTICLE IX.
NOTICES
Section 9.1. Form of Notice. Whenever under the provisions of the Act,
the Certificate of Formation or this Limited Liability Company Agreement notice
is required to be given to any Manager or Member, and no provision is made as to
how such notice shall be given, notice shall be given in writing and shall be
deemed received (a) when delivered personally or by courier service to the
relevant party at its address as set forth below or (b) if sent by mail, on the
third (3rd) day following the date when deposited in the United States mail,
certified or registered mail, postage prepaid, to the relevant party at its
address indicated below:
Prime: 0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx X-000
Xxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to: Xx. Xxxxxxx X. XxXxxx
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
VCC: Vision Correction Centers of Kansas City,P.C
0000 X.X. Xxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, M.D.
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx
Xxxxxxx Law Firm
0000 Xxxxxxxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Each party may change its address for purposes of this Section by
proper notice to the other parties.
Section 9.2. Waiver. Whenever any notice is required to be given to any
Manager or Member of the Company under the provision of the Act, the Certificate
of Formation or this Limited Liability Company Agreement, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether signed
before or after the time stated in such waiver, shall be deemed equivalent to
the giving of such notice.
ARTICLE X.
OFFICERS
Any Manager may also serve as an officer of the Company. The Managers
may designate one or more persons to serve as officers and may designate the
titles of all officers. The initial officers of the Company shall be: Xxx
Xxxxxxx, Chairman of the Board; Xxxx Xxxxxx, President; Xxxxxx Xxxxxxxx, Vice
President; Xxxxx Xxxxxx, Vice President, Secretary and Treasurer; and Xxxxxxx
Xxxxx, M.D., Vice President. The officers of the Company shall have powers
commensurate with the corporate powers ordinarily designated with respect to
such offices and as otherwise established by the Managers.
ARTICLE XI.
INDEMNITY
Section 11.1. Indemnification. The Company shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action, suit
or proceeding and any inquiry or investigation that could lead to such an
action, suit or proceeding (whether or not by or in the right of the Company),
solely by reason of the fact that such person is or was a member, manager,
officer, employee or agent of the Company or is or was serving at the request of
the Company as a director, manager, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another corporation, employee
benefit plan, other enterprise, or other entity, against all judgments,
penalties (including excise and similar taxes), fines, settlements and
reasonable expenses (including attorneys' fees and court costs) actually and
reasonably incurred by him in connection with such action, suit or proceeding to
the fullest extent permitted by any applicable law, and such indemnity shall
inure to the benefit of the heirs, executors and administrators of any such
person so indemnified pursuant to this Article XI. The right to indemnification
under this Article XI shall be a contract right and shall not be deemed
exclusive of any other right to which those seeking indemnification may be
entitled under any law, bylaw, agreement, vote of members or disinterested
managers or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office. Any repeal or amendment of
this Article XI by the Managers (pursuant to Section 8.9 hereof) or by changes
in applicable law shall, to the extent permitted by applicable law, be
prospective only, and shall not adversely affect the indemnification of any
person who may be indemnified at the time of such repeal or amendment.
Furthermore, subject only to a Manager's indemnification obligations (if any)
under the Contribution Agreement, and any applicable statutory limitations, the
Members hereby agree that the Company may not bring any action, suit or
proceeding against any Manager except for intentional misconduct by such
Manager.
Section 11.2. Indemnification Not Exclusive. The rights of
indemnification and reimbursement provided for in this Article XI shall not be
deemed exclusive of any other rights to which any such Manager, officer,
employee or agent may be entitled under the Certificate of Formation, this
Limited Liability Company Agreement, agreement or vote of Members, or as a
matter of law or otherwise.
Section 11.3. Other Indemnification Clauses. Notwithstanding the
foregoing, this Article XI shall not be construed to contradict the
indemnification provision of the Contribution Agreement. Notwithstanding
anything contained herein, this Article XI shall be ineffectual and shall not
permit or require indemnification for all, or any, losses, costs, liabilities,
claims or expenses arising, directly or indirectly, from any action or omission
permitting or requiring indemnification under the Contribution Agreement; and in
no event may any indemnity be allowed under this Agreement or pursuant to any
provision of the Act for an amount paid or payable pursuant to the
indemnification provisions of the Contribution Agreement.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Fiscal Year. The fiscal year of the Company shall be the
calendar year.
Section 12.2. Records. At the expense of the Company, the Managers shall
maintain records and accounts of all operations of the Company. At a minimum,
the Company shall keep at its principal place of business the following records:
(a) A current list of the full name, last known mailing address and
Membership Interest of each Member;
(b) A current list of the full name and business or residence address of
each Manager;
(c) A copy of the Certificate of Formation and Limited
Liability Company Agreement of the Company, and all amendments thereto,
together with executed copies of any powers of attorney pursuant to
which any of the foregoing were executed;
(d) Copies of the Company's federal, state and local income tax or
information returns and reports, if any, for the six most recent tax years; and
(e) Correct and complete books and records of account of the Company.
Section 12.3. Seal. The Company may by resolution of the Managers adopt
and have a seal, and said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced. Any officer of the
Company shall have authority to affix the seal to any document requiring it.
Section 12.4. Agents. Every Manager and Officer is an agent of the
Company for the purpose of the business. The act of a Manager or Officer,
including the execution in the name of the Company of any instrument for
carrying on in the usual way the business of the Company, binds the Company;
provided, however, if such act requires the approval of the Members of the
Managers, such approval has first been obtained.
Section 12.5. Checks. All checks, drafts and orders for the payment of
money, notes and other evidences of indebtedness issued in the name of the
Company shall be signed by such officer, officers, agent or agents of the
Company and in such manner as shall from time to time be determined by
resolution of the Managers. In the absence of such determination by the
Managers, such instruments shall be signed by the Treasurer or the Secretary and
countersigned by the President or a Vice President of the Company, if the
Company has such officers.
Section 12.6. Deposits. All funds of the Company shall be deposited from
time to time to the credit of the Company in such banks, trust companies or
other depositories as the Managers may select.
Section 12.7. Annual Statement. The Managers shall present at each annual
meeting a full and clear statement of the business and condition of the Company.
Section 12.8. Financial Statements. As soon as practicable after the
end of each fiscal year of the Company, a balance sheet as at the end of such
fiscal year, and a profit and loss statement for the period ended, shall be
distributed to the Members, along with such tax information (including all
information returns) as may be necessary for the preparation of each Member of
its federal, state and local income tax returns. The balance sheet and profit
and loss statement referred to in the previous sentence may be as shown on the
Company's federal income tax return.
Section 12.9. Binding Arbitration. Any controversy between the Members
regarding this Agreement or any other Transaction Document, any claims arising
out of any breach or alleged breach of this Agreement or any other Transaction
Document, and any claims arising out of the relationship between the Members
created hereunder, shall be submitted to binding arbitration by all Members
involved in accordance with the procedures for arbitration contained in the
Contribution Agreement.
Section 12.10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing any one counterpart.
ARTICLE XIII.
AMENDMENTS
Section 13.1. Amendments. Except to the extent expressly provided
otherwise herein, this Agreement may only be altered, amended or repealed and a
new limited liability company agreement may only be adopted only in accordance
with the provisions of Section 8.9 by the Members at any regular meeting of the
Members or at any special meeting of the Members called for that purpose, or by
execution of a written consent in accordance with the provisions of Section 3.8.
Section 13.2. When Limited Liability Company Agreement Silent. It is
expressly recognized that when the Limited Liability Company Agreement is silent
or in conflict with the requirements of the Act as to the manner of performing
any Company function, the provisions of the Act shall control.
Section 13.3. Integration with Contribution Agreement. To the extent of
any inconsistency between the provisions of the Contribution Agreement and this
Agreement, the terms and provisions of the Contribution Agreement shall control.
Accordingly, no Member or Manager shall be deemed to have breached any fiduciary
duty owed to any other Member or the Company as a result of investing in,
acquiring or developing any office location, business or operations that are
related or similar to, or in direct competition with, the Company's business if
such act or transaction is allowed or not prohibited by the provisions of
Article VIII of the Contribution Agreement, or the termination of such
provisions.
[Signature page follows]
S-1
SIGNATURE PAGE TO
LIMITED LIABILITY COMPANY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of September 1, 2000.
Vision Correction Centers of Kansas City, P.C.
Xxxxxxx Xxxxx, M.D., President
Prime RVC, Inc.
Xxxxxx Xxxxxxxx, Senior Vice President
A-1
EXHIBIT A
OWNERSHIP INTERESTS
Name Contribution Agreed Value Membership Interest
Prime Assets and $4,530,000 65%
other property
VCC Assets and $2,439,230 35%
other property
