EXHIBIT 10.2
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
ANGELLAN MEDICAL SYSTEMS, LLC
a Delaware Limited Liability Company
DATED DECEMBER 9, 1997
by and between
ANGEION CORPORATION
AND
ELA MEDICAL, INC.
Note: Portions of this exhibit marked with "X's" have been omitted
pursuant to a request for confidentiality under Rule 24b-2 of
the Securities Exchange Act of 1934, as amended. A copy of
this exhibit in its entirety has been filed separately with
the Securities and Exchange Commission.
TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................. 1
1.1 DEFINITIONS.............................................. 1
ARTICLE II Formation of Company..................................... 11
2.1 FORMATION................................................ 11
2.2 NAME..................................................... 11
2.3 PRINCIPAL PLACE OF BUSINESS.............................. 11
2.4 REGISTERED OFFICE AND REGISTRATION AGENT................. 11
2.5 TERM..................................................... 12
2.6 REQUIRED DOCUMENTS....................................... 12
ARTICLE III Nature of Business....................................... 12
3.1 PERMITTED BUSINESS....................................... 12
3.2 NO INDIVIDUAL AUTHORITY.................................. 13
3.3 NO RESPONSIBILITY FOR MEMBERS' COMMITMENTS............... 13
3.4 POWERS................................................... 13
ARTICLE IV Names and Addresses of Members........................... 13
ARTICLE V Rights and Duties of Directors and Officers.............. 13
5.1 THE BOARD................................................ 13
5.2 MEMBERSHIP OF THE BOARD.................................. 14
5.3 QUORUM................................................... 14
5.4 POWERS OF BOARD OF DIRECTORS............................. 14
5.5 MEETINGS................................................. 16
5.6 PARTICIPATION BY CONFERENCE TELEPHONE.................... 16
5.7 ACTION WITHOUT MEETINGS.................................. 16
5.8 LIABILITY OF DIRECTORS................................... 16
5.9 NO EXCLUSIVE DUTY........................................ 16
5.10 INDEMNIFICATION FOR ACTS OF EMPLOYEES AND OTHER AGENTS... 17
5.11 RESIGNATION.............................................. 17
5.12 REMOVAL.................................................. 17
5.13 VACANCIES................................................ 17
5.14 COMPENSATION OF DIRECTORS................................ 17
5.15 OFFICERS................................................. 17
5.16 STAFFING OF THE COMPANY.................................. 19
5.17 ANCILLARY AGREEMENTS..................................... 21
5.18 CONFLICTS OF INTEREST.................................... 21
ARTICLE VI Rights and Obligations of Members........................ 22
6.1 LIMITATION OF LIABILITY.................................. 22
6.2 RIGHTS AND DUTIES OF MEMBERS............................. 22
6.3 APPROVAL OF MAJOR MATTERS................................ 23
6.4 COMPANY BOOKS............................................ 23
6.5 PRIORITY AND RETURN OF CAPITAL........................... 23
6.6 LIABILITY OF A MEMBER TO THE COMPANY..................... 24
6.7 CONFLICTS OF INTEREST, CONTRACT WITH MEMBERS OR
AFFILIATES............................................. 24
ARTICLE VII Actions by Members....................................... 24
7.1 MEETINGS OF MEMBERS...................................... 24
7.2 PLACE OF MEETINGS........................................ 24
7.3 NOTICE OF MEETINGS....................................... 24
7.4 NO NOTICE REQUIRED....................................... 24
7.5 MEMBER APPROVAL.......................................... 25
7.6 ACTION BY MEMBERS WITHOUT A MEETING...................... 25
7.7 WAIVER OF NOTICE......................................... 25
7.8 PARTICIPATION BY CONFERENCE TELEPHONE.................... 25
ARTICLE VIII Contributions to the Company and Capital Accounts........ 25
8.1 INITIAL CAPITAL CONTRIBUTIONS............................ 25
8.2 ADDITIONAL CONTRIBUTIONS................................. 26
8.3 CAPITAL ACCOUNTS......................................... 26
8.4 WITHDRAWAL OR REDUCTION OF CONTRIBUTIONS TO CAPITAL...... 27
ARTICLE IX Allocations, Income Tax, Distributions,
Elections, and Reports................................... 28
9.1 ALLOCATIONS OF NET PROFITS AND NET LOSSES................ 28
9.2 SPECIAL ALLOCATIONS...................................... 29
9.3 DISTRIBUTIONS............................................ 31
9.4 LIMITATION UPON DISTRIBUTIONS............................ 31
9.5 ACCOUNTING PRINCIPLES.................................... 31
9.6 INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS.......... 31
9.7 LOANS TO COMPANY......................................... 32
9.8 RECORDS, AUDITS AND REPORTS.............................. 32
9.9 RETURNS AND OTHER ELECTIONS.............................. 32
9.10 TAX MATTERS PARTNER...................................... 32
ARTICLE X Operations; Product Purchases............................ 33
10.1 ANNUAL OPERATING BUDGETS................................. 33
10.2 SUPPLY AGREEMENTS........................................ 34
10.3 THIRD PARTY CLAIMS....................................... 34
ARTICLE XI Intellectual Property.................................... 35
11.1 GENERAL PRINCIPLES....................................... 35
11.2 MEMBER MARKS............................................. 35
11.3 COMPANY MARKS............................................ 36
11.4 PATENTS.................................................. 36
11.5 COPYRIGHTS............................................... 37
11.6 EXCLUSIVITY.............................................. 37
11.7 DEVELOPMENT REPORTS...................................... 38
11.8 REGULATORY MATTERS....................................... 38
ARTICLE XII Transferability.......................................... 38
ARTICLE XIII Representations and Warranties........................... 38
ARTICLE XIV Dissolution and Winding Up............................... 39
14.1 DISSOLUTION.............................................. 39
14.2 CHANGE OF CONTROL........................................ 40
14.3 LIMITATION ON WITHDRAWALS................................ 42
14.4 WINDING UP, LIQUIDATION AND DISTRIBUTION OF ASSETS....... 42
14.5 CERTIFICATE OF CANCELLATION.............................. 44
14.6 RETURN OF CONTRIBUTION NONRECOURSE TO OTHER MEMBERS...... 44
14.7 NO RESIDUAL VALUE........................................ 44
ARTICLE XV Dispute Resolution....................................... 44
15.1 GENERAL DISPUTE PRINCIPLES............................... 44
15.2 ARBITRATION OF OTHER DISPUTES............................ 45
15.3 PARTICIPATION IN THIRD PARTY PROCEEDINGS................. 47
ARTICLE XVI Confidentiality; Publicity; Non Solicitation............. 48
16.1 CONFIDENTIAL INFORMATION................................. 48
16.2 PUBLICITY................................................ 49
16.3 NON SOLICITATION......................................... 49
ARTICLE XVII Miscellaneous Provisions................................. 49
17.1 AFFILIATES............................................... 49
17.2 NO AGENCY................................................ 49
17.3 SURVIVAL................................................. 50
17.4 ENTIRE AGREEMENT......................................... 50
17.5 NOTICES.................................................. 50
17.6 BOOKS OF ACCOUNTS AND RECORDS............................ 51
17.7 GOVERNING LAW............................................ 51
17.8 WAIVER OF ACTION FOR PARTITION........................... 51
17.9 AMENDMENTS............................................... 52
17.10 FURTHER ASSURANCES....................................... 52
17.11 CONSTRUCTION............................................. 52
17.12 HEADINGS................................................. 52
17.13 WAIVERS.................................................. 52
17.14 RIGHTS AND REMEDIES CUMULATIVE........................... 52
17.15 SEVERABILITY............................................. 52
17.16 HEIRS, SUCCESSORS, AND ASSIGNS........................... 52
17.17 RIGHTS OF CREDITORS AND THIRD PARTIES UNDER LLC
AGREEMENT.............................................. 52
17.18 COUNTERPARTS............................................. 52
SCHEDULES
Schedule 1.1 Related Agreements
Schedule 10.3 Insurance
Schedule 13 No Conflicts
Schedule 15.2 AAA Rules
EXHIBITS
Exhibit A Initial Annual Budget and Three Year Strategic Plan
Exhibit B Form of Angeion Manufacturing and Supply Agreement
Exhibit C Form of ELA Manufacturing and Supply Agreement
Exhibit D Form of Intercompany Services Agreement
Exhibit E Initial Operating Budget
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
ANGELLAN MEDICAL SYSTEMS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
Angeion Corporation, a Minnesota corporation ("Angeion"), and ELA
Medical, Inc., a Delaware corporation ("ELA"), hereby agree as follows:
WHEREAS, Angeion and ELA intend to establish a joint venture in the
United States in the form of a limited liability company (the "Company") to
market and sell cardiac stimulation and related devices manufactured by ELA and
Angeion; and
WHEREAS, Angeion and ELA have agreed that it is in their mutual best
interests to form the Company and are interested in pursuing the business
opportunities presented by such collaboration.
NOW THEREFORE, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms used in this Limited
Liability Company Agreement, unless otherwise expressly provided herein, shall
have the following meanings.
(a) "ADVANCE FAILURE" shall have the meaning set forth in
Section 8.2 hereof.
(b) "AFFILIATE(S)" shall mean any corporation, association
or other entity which directly or indirectly controls, is controlled by or is
under common control with the Member in question, but only for so long as such
relationship exists. As used herein, the term "control" shall mean the ability
to direct the business of a company and shall be presumed in the case of
ownership, directly or indirectly, of shares of stock having at least fifty
percent (50%) of the voting power entitled to vote for the election of directors
in the case of a corporation, and at least fifty percent (50%) of the voting
power and interest in profits in the case of a business entity other than a
corporation, or only if less than fifty percent (50%) of the voting power and
interest in profits is permitted by Applicable Law, the maximum amount allowed
in the country in question (so long as the holder otherwise retains the ability
to direct the business of the entity). The Parties acknowledge and agree that
neither L'Oreal nor the Company shall be deemed to be included within the term
"Affiliate" for any purposes under this Agreement unless otherwise expressly
provided in this Agreement.
(c) "ANCILLARY AGREEMENTS" shall have the meaning set forth
in Section 5.17 hereof.
(d) "ANGEION SUPPLY AGREEMENT" shall mean that certain
Cardiac Stimulation
Device Manufacturing and Supply Agreement of even date between Angeion and the
Company.
(e) "APPLICABLE LAWS" shall mean all foreign, federal,
state and local laws, statutes, rules and regulations which have been enacted by
a Governmental Authority and are in force as of the date hereof or which are
enacted by a Governmental Authority and come into force during the term of this
Agreement, in each case to the extent that the same are applicable to the
performance by the Members of their respective obligations under this Agreement.
(f) "APPROVED BUDGET" shall have the meaning set forth in
Section 10.1(a) hereof.
(g) "BANKRUPTCY" shall mean with respect to either Member
(A) the entry by a court having jurisdiction in the premises of (i) a decree or
order for relief in respect of such Member in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging such Member a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of such Member under any
Applicable Law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of such Member or of any
substantial part of such Member's property, or ordering the winding up or
liquidation of the affairs of such Member and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect for
a period of 30 consecutive days or (B) the commencement by such Member of a
voluntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by such
Member to the entry of a decree or order for relief in respect of such Member in
an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by such Member of a petition or answer or consent seeking
reorganization or relief under any Applicable Law, or the consent by such Member
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Member or of any substantial part of such Member's property, or
the making by such Member of an assignment for the benefit of creditors, or the
admission by such Member in writing of its inability to pay its debts generally
as they become due, or the taking of corporate or other action by such Member in
furtherance of any such action or the calling of a meeting of creditors of the
Member or appointment of a committee of creditors or liquidating agents with
respect to such Member or its assets, or any offering of a composition of or
extension to creditors with respect to such Member or its assets, with or
without the consent or acquiescence of such Member.
(h) "BEST EFFORTS" shall be determined under New York law
and shall mean such efforts as are consistent with efforts made by businesses of
similar size and resources in a similar circumstance and context to achieve a
particular result in a timely manner, but shall not require a Member to take
actions that would be commercially unreasonable to such Member in the
circumstances.
(i) "BOARD" shall mean the Board of Directors of the
Company.
(j) "BOARD APPROVAL" and "APPROVED BY THE BOARD" shall have
the meanings set forth in Section 5.3.
(k) "CAPITAL ACCOUNT" as of any given date shall mean the
separate account for each Member established and maintained according to the
provisions of Section 8.3.
(l) "CAPITAL CONTRIBUTION" shall mean any contribution by a
Member to the capital of the Company, whether in the form of cash or property.
(m) "CAPITAL TRANSACTION" shall have the meaning set forth
in Section 9.1(d) below.
(n) "CARDIAC STIMULATION DEVICE" shall mean an implantable
medical device for electrically stimulating or shocking the heart which is
suitable for use by or with human patients. The term "Cardiac Stimulation
Device" includes, without limitation: cardiac pacemakers, antitachycardia
pacemakers, cardioverters and defibrillators, including combinations thereof
("such devices"), pulse generators and other waveform generators for such
devices; electronic and mechanical components, including without limitation
batteries and capacitors to the extent these components are used for or with
such devices; mechanisms for coupling such devices in a stimulating, shocking or
sensing relationship to the heart including without limitation leads,
electrodes, and sensors; and data dispensing, processing and gathering systems
for such devices, including without limitation programmers, pacing system
analyzers, defibrillation system analyzers, testers, encoders, decoders,
transmitters, receivers, and computer software- controlled systems, including
all related software; and internal, but not external, xxxxxx monitors used for
recording heart rhythms (even though such internal xxxxxx monitors do not
electrically stimulate the heart). The term "Cardiac Stimulation Device"
excludes, by way of example and not limitation, muscle stimulators, nerve
stimulators, bone growth stimulators, cardiomyoplasty stimulators and associated
devices, arrhythmia mapping devices, imaging technology, angioplasty devices,
catheter ablation systems, and temporary external pacemakers and defibrillators
and EKG monitors (other than pacing programmers) which are stand-alone,
non-ambulatory and not intended for transtelephonic monitoring.
(o) "CERTIFICATE OF FORMATION" shall mean the Certificate
of Formation of the Company as filed with the Secretary of State of the State of
Delaware, as the same may be amended from time to time.
(p) "CHANGE OF CONTROL" shall be deemed to have occurred in
either of the following circumstances:
(i) with respect to Angeion, if: (A) any "person", as
such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than Angeion, an Affiliate of Angeion, any trustee or other
fiduciary holding securities under any compensatory benefit plan of
Angeion or an Affiliate of Angeion, or any entity owned directly or
indirectly by the stockholders of Angeion in substantially the same
proportions as their ownership of stock of Angeion), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of 30% or more of Angeion's
then outstanding Voting Securities; (B) during any period of two (2)
consecutive years (not including any period prior to the date hereof),
individuals who at the beginning of such period constituted the board
of directors of Angeion, together with any new director (other than a
director designated by a person who has entered into an agreement with
Angeion to effect a transaction described in clause (A), (C), or (D) of
this paragraph whose election by the board of directors of Angeion or
nomination for election by Angeion stockholders was approved by a vote
of at least two-thirds of the directors then still in office who either
were directors at the beginning of the two-year period or whose
election or nomination for election was previously so approved), cease
for any reason to constitute at least a majority of the board of
directors of Angeion; (C) a merger or consolidation of Angeion with any
other corporation which is not an Affiliate of Angeion is consummated,
other than a merger that would result in the Voting Securities of
Angeion outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined
voting power of the Voting Securities of Angeion (or the comparable
voting securities of such surviving entity) outstanding immediately
after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of Angeion or
such Affiliate (or similar transaction) in which no person acquires
more than 30% of the combined voting power of Angeion's then
outstanding Voting Securities shall not constitute a "Change in
Control" of Angeion; or (D) an agreement for the sale or disposition by
Angeion of all or substantially all of Angeion's assets is consummated;
and
(ii) with respect to ELA, if any Person, other than
Synthelabo or an Affiliate of Synthelabo, acquires, directly or
indirectly, all or substantially all of the Cardiac Stimulation Device
business of Synthelabo, whether through a merger or the acquisition of
stock and/or assets, as such business is currently conducted through
ELA Medical, a French societe anonyme ("ELA Medical"), and various
other Affiliates of Synthelabo, including ELA, and as such business may
hereafter be conducted through such entities or other Affiliates of
Synthelabo.
(q) "CHANGE OF CONTROL WITHDRAWAL" shall have the meaning
set forth in Section 14.2.
(r) "COMPANY" shall mean Angellan Medical Systems, LLC, a
limited liability company formed under the laws of the State of Delaware.
(s) "COMPANY-INDEMNIFIED THIRD PARTY CLAIMS" shall have the
meaning set forth in Section 10.3(b) hereof.
(t) "COMPANY MINIMUM GAIN" has the meaning specified in
Treas. Reg. xx.xx. 1.704-2(b)(2) and (d) and such additional amount as shall be
treated as Company Minimum Gain pursuant to Treas. Reg. ss. 1.704-2(j)(1)(iii).
(u) "COMPANY NONRECOURSE DEDUCTIONS" shall consist of those
deductions and
in those amounts specified in Treas. Reg. xx.xx. 1.704-2(C).
(v) "COMPANY TRADEMARKS" shall have the meaning set forth
in Section 11.3 hereof.
(w) "CONFIDENTIAL INFORMATION" shall mean technical and
business information relating to a Member's Intellectual Property Rights, trade
secret processes or devices, techniques, data, formula, inventions (whether or
not patentable) or products, research and development (including research
subjects, methods and results), production, manufacturing and engineering
processes, computer software, costs, profit or margin information, pricing
policies, confidential market information, finances, customers, distribution,
sales, marketing, and production and future business plans and any other
information of a "confidential" nature, specifically including, without
limitation, any information that is identified orally or in writing by the
disclosing party to be confidential, or that the receiving party should
reasonably understand under the circumstances to be a trade secret of the
disclosing party or information of a similar nature that is not generally known
to the public.
(x) "CONTINUATION NOTICE" shall have the meaning set forth
in Section 14.2 hereof.
(y) "DEFAULTING MEMBER" shall have the meaning set forth in
Section 8.2 hereof.
(z) "DEFICIT CAPITAL ACCOUNT" shall mean, with respect to
either Member, the deficit balance, if any, in such Member's Capital Account as
of the end of any taxable year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amount which
such Member is obligated to restore under Treas. Reg.
ss.1.704-1(b)(2)(ii)(c), as well as any addition thereto pursuant to
the next to last sentences of Treas. Regs. ss.ss.1.704-2(g)(1) and
1.704-2(i)(5), after taking into account thereunder any changes during
such year in Company Minimum Gain (as determined in accordance with
Treas. Reg. ss.1.704-2(d)) and the Member Nonrecourse Debt Minimum
Gain; and
(ii) Debit to such Capital Account the items described
in Treas. Reg. ss.ss.1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Deficit Capital Account is intended to
comply with the provisions of Treas. Reg. ss.ss.1.704-1(b)(2)(ii)(d) and 1.704-2
and will be interpreted consistently with those provisions.
(aa) "DELAWARE ACT" shall mean the Delaware Limited
Liability Company Act, Title 6, ss.ss.18-101 to 18-1107, and all amendments
thereto.
(bb) "DEMAND FOR ARBITRATION" shall have the meaning set
forth in Section 15.2
(b).
(cc) "DIRECTOR" shall mean any of the members of the Board,
as appointed from time to time by the Members pursuant to the terms hereof.
(dd) "DISINTERESTED MEMBER" shall have the meaning set forth
in Section 5.18 hereof.
(ee) "DISPUTED BUDGET ITEM" shall have the meaning set forth
in Section 10.1(c) hereof.
(ff) "ELA SUPPLY AGREEMENT" shall mean that certain Cardiac
Stimulation Device Manufacturing and Supply Agreement of even date between ELA
and the Company.
(gg) "ELA TRADEMARKS" shall have the meaning set forth in
Section 11.2 hereof.
(hh) "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
(ii) "EXECUTIVE OFFICERS" shall have the meaning set forth
in Section 5.15(a) below.
(jj) "FAIR MARKET VALUE" shall have the meaning set forth in
Section 14.2(e) below.
(kk) "FISCAL YEAR" shall mean the Company's fiscal year,
which shall be the calendar year, or such other fiscal year as the Company may
be required to use under the IRC or the Treasury Regulations thereunder.
(ll "GOVERNMENTAL AUTHORITY" shall mean any nation or
government, any state, province or other political subdivision thereof or any
entity exercising executive, legislative, regulatory or administrative functions
of or pertaining to government.
(mm) "GROSS ASSET VALUE" means, with respect to any asset of
the Company, the asset's adjusted tax basis, except that:
(i) the initial Gross Asset Value of any asset
contributed by either Member to the Company shall be the fair market
value of such asset on the date of contribution;
(ii) the Gross Asset Values of all Company assets shall
be adjusted to equal their respective gross fair market values at such
times as the Members' Capital Accounts are adjusted pursuant to Section
8.3 hereof;
(iii) the Gross Asset Value of any Company asset
distributed to either
Member shall be the gross fair market value of such asset on the date
of distribution;
(iv) to the extent not otherwise reflected in the
Members' Capital Accounts, the Gross Asset Values of Company assets
shall be increased (or decreased) to appropriately reflect any
adjustments to the adjusted basis of such assets pursuant to IRC ss.
734(b) or IRC ss. 743(b); and
(v) if on the date of contribution of an asset or a
revaluation of an asset in accordance with (ii)-(iv) above, the
adjusted tax basis of such asset differs from its fair market value,
the Gross Asset Value of such asset shall thereafter be adjusted by
reference to the depreciation method described in Treas. Reg. ss.
1.704-1(b)(2)(iv)(g)(3).
(nn) "ICD" shall mean an implantable cardioverter
defibrillator.
(oo) "INITIAL CAPITAL CONTRIBUTION" shall have the meaning
set forth in Section 8.1(a) hereof.
(pp) "INITIAL TERM" shall have the meaning set forth in
Section 2.5 hereof.
(qq) "INTERESTED MEMBER" shall have the meaning set forth in
Section 5.18 hereof.
(rr) "INVOLUNTARY WITHDRAWAL" shall have the meaning set
forth in Section 14.1.
(ss) "INTELLECTUAL PROPERTY RIGHTS" shall mean any patent,
copyright, registered design, trademark or other industrial or intellectual
property right owned or otherwise enforceable pursuant to license or otherwise
by any Person, and applications for any of the foregoing.
(tt) "IRC" shall mean the Internal Revenue Code of 1986, as
amended, or corresponding provisions of subsequent superseding federal revenue
laws.
(uu) "LIQUIDATING MEMBER" shall have the meaning set forth
in Section 14.4 hereof.
(vv) "LLC AGREEMENT" or the "AGREEMENT" shall mean this
Limited Liability Company Operating Agreement, as amended from time to time.
(ww) "MATERIAL ADVERSE EFFECT" means any material adverse
effect on the assets, results of operations, properties, business or financial
condition of Angeion or ELA, as applicable, and its respective subsidiaries
taken as a whole.
(xx) "MEMBER" shall mean either Angeion or ELA, as
applicable, and "MEMBERS" shall mean Angeion and ELA.
(yy) "MEMBER APPROVAL" and "APPROVED BY THE MEMBERS" shall
have the meanings set forth in Article VII below.
(zz) "MEMBER-INDEMNIFIED PRODUCT LIABILITY CLAIMS" shall
have the meaning set forth in Section 10.3(a) hereof.
(aaa) "MEMBER NONRECOURSE DEBT" means any Company nonrecourse
liability for which either Member bears the economic risk of loss within the
meaning of Treas. Reg. ss. 1.704-2(b)(4).
(bbb) "MEMBER NONRECOURSE DEBT MINIMUM GAIN" has the meaning
specified in Treas. Reg. ss. 1.704-2(i)(3), and such additional amount as shall
be treated as Member Nonrecourse Debt Minimum Gain pursuant to Treas. Reg. ss.
1.704-2(j)(1)(iii).
(ccc) "MEMBER NONRECOURSE DEDUCTIONS" shall consist of those
deductions and in those amounts specified in Treas. Reg. xx.xx. 1.704-2(i)(2).
(ddd) "MEMBER TRADEMARKS" shall have the meaning set forth in
Section 11.2 hereof.
(eee) "MEMBERSHIP INTEREST" shall mean each Member's entire
interest in the Company, including such Member's share of the Company's Net
Profits, Net Losses and distributions of the Company's assets and the right to
participate in the management of the business and affairs of the Company
pursuant to this LLC Agreement and the Delaware Act.
(fff) "NET PROFITS" and "NET LOSSES" means, for any Fiscal
Year, the Company's taxable income or loss for such period, determined in
accordance with IRC ss. 703(a) (for this purpose, all items of income, gain,
loss or deduction required to be stated separately pursuant to IRC ss. 703(a)(1)
shall be included in taxable income or loss), with the following adjustments:
(i) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in computing
Net Profits or Net Losses shall be applied to increase such taxable
income or reduce such loss;
(ii) any expenditure of the Company described in IRC
ss. 705(a)(2)(B), or treated as such pursuant to Treas. Reg. ss.
1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing
Net Profits and Net Losses shall be applied to reduce such taxable
income or increase such loss;
(iii) gain or loss resulting from a taxable
disposition of any asset of the Company shall be computed by reference
to the Gross Asset Value of such asset as reduced by the special
depreciation calculations described in Treas. Reg. ss. 1.704-
1(b)(2)(iv)(g), notwithstanding that the adjusted tax basis of such
asset may differ from its Gross Asset Value;
(iv) in lieu of the depreciation, amortization, and
other cost recovery deductions taken into account in computing such
taxable income or loss for such Fiscal Year or period, there shall be
taken into account depreciation, amortization or other cost recovery
determined pursuant to the method described in Treas. Reg. ss. 1.704-
1(b)(2)(iv)(g)(3);
(v) if Gross Asset Values are adjusted pursuant to
Section 8.3, the net amount of such adjustment shall be treated as an
item of Net Profits or Net Losses, as the case may be; and
(vi) any items which are specially allocated pursuant
to Section 9.2(h) shall not be taken into account in computing Net
Profits or Net Losses.
(ggg) "NON-DEFAULTING MEMBER" shall have the meaning set
forth in Section 8.2 hereof.
(hhh) "NON-EXECUTIVE OFFICERS" shall have the meaning set
forth in Section 5.15(b) hereof.
(iii) "NON-RESIGNING MEMBER" shall have the meaning set forth
in Section 14.2 hereof.
(jjj) "NON-WITHDRAWING MEMBER" shall have the meaning set
forth in Section 14.1 hereof.
(kkk) "OTHER CARDIAC-RELATED DEVICES" shall mean any
cardiac-related devices other than Cardiac Stimulation Devices.
(lll) "PERCENTAGE INTEREST" shall mean, with respect to each
Member, the percentage interest set forth opposite such Member's name in Section
9.1.
(mmm) "PERMITTED WITHDRAWAL" shall have the meaning set forth
in Section 14.1(a) hereof.
(nnn) "PERSON" shall mean any individual, general
partnership, limited partnership, limited liability company, corporation, joint
venture, trust, business trust, cooperative or association, or any foreign trust
or foreign business organization or any Governmental Authority.
(ooo) "POTENTIAL TRANSFERRING EMPLOYEES" shall have the
meaning set forth in Section 5.16(b) hereof.
(ppp) "PPI ADJUSTMENT" shall have the meaning set forth in
Section 10.1(c) hereof.
(qqq) "PRODUCTS" shall mean any Cardiac Stimulation Devices
which are sold to
the Company by either of the Members pursuant to the Supply Agreements during
the term of this Agreement.
(rrr) "PROPOSED BUDGET" shall have the meaning set forth in
Section 10.1(a) hereof.
(sss) "PUBLISHED WORKS" shall have the meaning set forth in
Section 11.5 hereof.
(ttt) "RELATED AGREEMENTS" shall mean the agreements listed
on Schedule 1.1.
(uuu) "RENEWAL TERM" shall have the meaning set forth in
Section 2.5 hereof.
(vvv) "RESERVES" shall mean, for any fiscal period, funds set
aside or amounts allocated during such period to financial reserves for such
purposes as are Approved by the Board.
(www) "RESIGNATION NOTICE" shall have the meaning set forth
in Section 14.2 hereof.
(xxx) "RESIGNING MEMBER" shall have the meaning set forth in
Section 14.2 hereof.
(yyy) "SUPPLY AGREEMENTS" shall mean the Angeion Supply
Agreement and the ELA Supply Agreement.
(zzz) "THIRD PARTY CLAIMS" shall mean any and all claims,
lawsuits or actions asserted against the Company or its directors, officers and
agents arising out of or related to any Product or Technical Materials, (as
defined in the Supply Agreements) (including, without limitations, any data in
the Technical Materials that are properly included in the Promotional Materials
with a Member's prior written approval) related thereto that are manufactured or
supplied by either Member or its Affiliates under the Supply Agreements,
including, but not limited to, claims based on strict liability, tort,
negligence or breach of express or implied warranty and claims for special,
incidental, exemplary and consequential damages, in cases in which it is alleged
that personal injury (including but not limited to, emotional distress or
disturbance), direct financial loss, death or property damage was caused by a
defect in design, material or manufacture of any of the Products or the
Technical Materials (including, without limitation, any data in the Technical
Materials that are properly included in the Promotional Materials with a
Member's prior written approval) related thereto that are manufactured or
supplied by either Member or its Affiliates under the Supply Agreements
including any misrepresentation or failure to warn in the Technical Materials.
"Third Party Claims" shall also include all losses, liabilities, damages,
judgements, awards and costs (including reasonable attorneys' fees) arising out
of or relating to the claims described in the preceding sentence.
(aaaa) "TREASURY REGULATIONS" and "TREAS. REG." shall mean the
proposed, temporary or final regulations promulgated under the IRC in effect as
of the date of filing the
Certificate of Formation.
(bbbb) "TRANSFERRING EMPLOYEE" shall have the meaning set
forth in Section 5.16(b) below.
(cccc) "VOTING SECURITIES" shall mean any shares of any class
of Angeion's capital stock with voting rights generally to elect directors of
Angeion.
(dddd) "UNIT TRANSFER PRICE" shall have the meaning set forth
in Section 10.2 hereof.
(eeee) "WITHDRAWING MEMBER" shall have the meaning set forth
in Section 14.1 hereof.
Any reference in this Agreement to any Applicable Law shall be
construed as a reference to the Applicable Law (including any successor
provision) as amended, re-enacted or extended at the time in question.
ARTICLE II
FORMATION OF COMPANY
2.1 FORMATION. On October 3, 1997, the Members caused the Company
to be organized as a Delaware Limited Liability Company by executing and
delivering the Certificate of Formation to the Secretary of State of the State
of Delaware in accordance with and pursuant to the Delaware Act. The Company
shall be governed by and subject to the terms of this Agreement, which
supersedes the Limited Liability Company Operating Agreement of the Company
dated as of October 3, 1997.
2.2 NAME. The name of the Company is Angellan Medical Systems,
LLC.
2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Company shall be established by Board Approval. The Company may locate
its places of business and registered office at any other place or places as the
Board may from time to time deem advisable.
2.4 REGISTERED OFFICE AND REGISTRATION AGENT. The Company's
initial registered office shall be at the office of its registered agent at 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000- 1294, County of New Castle, and the
name of its initial registered agent at such address shall be Corporation
Service Company. The registered office and registered agent may be changed from
time to time by filing the address of the new registered office and/or the name
of the new registered agent with the Secretary of State of the State of Delaware
pursuant to the Delaware Act.
2.5 TERM. The term of the Company shall be seven (7) years
("Initial Term") from the date of filing of the Certificate of Formation with
the Secretary of State of the State of
Delaware and shall be automatically extended for an additional three (3) years
("Renewal Term") unless (i) either Member notifies the other Member in writing
at least one year prior to the end of the Initial Term that it does not wish to
extend the term of the Company beyond the Initial Term, or (ii) the Company is
earlier dissolved in accordance with either the provisions of the Delaware Act
(unless the continuation of the term of the Company notwithstanding such
dissolution is Approved by the Members) or this LLC Agreement. At least one (1)
year prior to the end of the Renewal Term, the Members shall discuss in good
faith any further extension of the term of the Company, provided that, if such
proposed extension is not Approved by the Members at least six (6) months prior
to the end of the Renewal Term, the Company shall terminate at the end of such
Renewal Term. The term of this Agreement shall be the same as the term of the
Company.
2.6 REQUIRED DOCUMENTS. The Members shall cause to be executed,
filed, recorded or amended, as necessary, any documents required or desirable to
be executed, filed, recorded or amended in connection with the formation,
operation, termination or dissolution of the Company pursuant to the laws of the
State of Delaware or any other jurisdiction in which the Company's business is
conducted. The Members shall execute and acknowledge such documents as may be
necessary or desirable, as determined by the Board in its reasonable discretion,
to otherwise give effect to the terms of this Agreement.
ARTICLE III
NATURE OF BUSINESS
3.1 PERMITTED BUSINESS. The business of the Company shall be the
following:
(a) to purchase and take delivery of the Products
pursuant to the Supply Agreements for sale in the
United States;
(b) to market and sell in the United States for its own
account the Products supplied to it pursuant to the
Supply Agreements;
(c) to provide after-sale support of the Products in the
United States; and
(d) to undertake such other activities as are necessary
or appropriate to effect the foregoing purposes, to
the extent Approved by the Members.
The Company will not engage in any other business without Member Approval.
3.2 NO INDIVIDUAL AUTHORITY. Except as otherwise expressly
provided in this Agreement, neither Member nor its Affiliates, acting alone,
will have any authority to act for, undertake or assume any obligations or
responsibility on behalf of, the other Member or the
Company.
3.3 NO RESPONSIBILITY FOR MEMBERS' COMMITMENTS. Unless Approved by
the Members, no liability, obligation or indebtedness incurred by either Member
or its Affiliates, whether prior to or after execution and delivery of this
Agreement, shall become the responsibility of the Company or the other Member or
its Affiliates.
3.4 POWERS. Subject to the provisions of this Agreement, the
Company shall possess and may exercise all the powers and privileges granted by
the Delaware Act or by any other law or by this LLC Agreement, together with any
powers incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business, purposes or
activities of the Company.
ARTICLE IV
NAMES AND ADDRESSES OF MEMBERS
The names and addresses of the Members are as follows:
Angeion Corporation
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
ELA Medical, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
ARTICLE V
RIGHTS AND DUTIES OF DIRECTORS AND OFFICERS
5.1 THE BOARD. The property, affairs and business of the Company
shall be managed by or under the direction of the Members. Except as otherwise
reserved to the Members hereunder, the Members hereby delegate all authority to
manage the property, affairs and business of the Company (i) to the Board and
(ii), except to the extent reserved to the Board, to the Chief Executive
Officer. The Board and the Chief Executive Officer will operate in accordance
with the procedures set forth in this Agreement. The Board shall also have the
right to delegate to the Chief Executive Officer and the other officers of the
Company such additional responsibilities, duties and powers as may be determined
from time to time by Board Approval.
5.2 MEMBERSHIP OF THE BOARD. The Board will consist of six (6)
Directors, three (3) of whom will be appointed by Angeion and three (3) of whom
will be appointed by ELA. Directors shall be natural persons. The Directors will
serve until their successors have been
appointed by their appointing Member. In the event of a vacancy on the Board,
however created, the vacancy will be filled by the Member that appointed the
vacating Director by notifying the other Member. The Chairperson of the Board
from the date of this Agreement through December 31, 1998 shall be Xxxxxxx X.
XxXxxxxx. Thereafter, Angeion will designate the Chairperson from among the
Directors for each even numbered Fiscal Year and ELA will designate the
Chairperson for each odd numbered Fiscal Year, commencing with the Fiscal Year
ending December 31, 1999. The Chairperson will have a term of one calendar year,
but can be reappointed in subsequent years. The Chairperson will preside at all
meetings of the Board, but will not take any action on behalf of the Company
without Board Approval and will not have a casting (i.e., controlling) vote in
any deadlock of the Board. The initial Board will consist of the following
persons:
Directors Appointed by Angeion: Xxxxxxx X. XxXxxxxx (Chairperson)
Xxxxx X. Xxxxxxxxxxxxxx
Xxxxxxx Xxxxxxx
Directors Appointed by ELA: Xxxxxxxx Xxxxx
Xxx Xxxxxxx
Xxxxxx Xxxxx
5.3 QUORUM. At all meetings of the Board, the presence of at least
four (4) Directors, two (2) appointed by Angeion and two (2) appointed by ELA,
will constitute a quorum for the transaction of business. Subject to the
presence of such necessary quorum in person or by telephonic participation
pursuant to Section 5.6, an absent Director may be represented at any meeting by
written proxy granted to one of the other Directors in attendance at such
meeting. The Members shall use Best Efforts to ensure that their respective
Board representatives attend all Board meetings or otherwise participate therein
either directly or through their proxies. A matter submitted to the Board for
its approval shall be deemed to have received "Board Approval," and to have been
"Approved by the Board," if:
(a) until such time as either of the following conditions is
satisfied, such matter shall have received the affirmative vote of a majority of
the directors present at a meeting with ELA's representatives having the casting
(i.e. controlling) vote in the case of deadlock;
(i) sales by the Company of Angeion's Products
in any calendar quarter xxxxx xx xxxxxx
xxxxxx xxxxxxx xxx of sales by the Company
of ELA's Products;
(ii) if condition (i) has not been satisfied
prior to xxx xxxxxxxx xxxxxxx xxxxxx xx
xxxxxxxx xx xxxx then sales by the Company
of Angeion's Products in such xxxxxxx xxxxxx
xxxxxxxx xx xxxx or any xxxxxxxxx thereafter
xxxxx xx xxxxxx xxx xxxxxxx xxx of sales by
the Company of ELA's Products; and
(b) at any time after either of the conditions set forth in
paragraph (a) above has been satisfied, such matter shall have received the
favorable vote of a majority of each
Member's Board representatives who are present at such meeting. 55.15.25.3
5.4 POWERS OF BOARD OF DIRECTORS. Except as reserved to the
Members or delegated to the Chief Executive Officer, the Members hereby grant
full power and authority to the Board to manage the property, affairs and
business of the Company. In the exercise of the power and authority so granted,
the following matters shall require Board Approval:
(a) the consideration and approval (or disapproval) of each
Proposed Budget submitted to the Board by the Chief Executive Officer pursuant
to Section 10.1, together with approval (or disapproval) of quarterly budgets
and three-year strategic plans (the initial annual budget and three-year
strategic plan, as agreed by the Parties, are attached as Exhibit A hereto);
(b) the acquisition of any property or assets having a value
of $1.0 million or more, unless provided for in an Approved Budget;
(c) the borrowing of any amounts in excess of $1.0 million,
unless provided for in an Approved Budget, the granting of any security
interests, liens or other encumbrances over the Company's assets to secure such
indebtedness and the authorization of any employees or agents of the Company to
incur such indebtedness or grant such liens on behalf of the Company;
(d) approval of the opening of corporate bank accounts for the
Company and the establishment of signature authority for the operation of such
accounts by the officers of the Company;
(e) the retention and payment of independent auditing firms to
perform services for the Company;
(f) the execution and delivery of all other agreements,
mortgages, deeds of trust, financing statements, bills of sale, leases,
instruments or documents with a value or concerning a transaction in excess of
$1.0 million on behalf of the Company;
(g) subject to Section 5.18, the filing, prosecution and
defense of any lawsuits, claims or proceedings in the Company's name;
(h) capital improvement expenditures or projects having a
value of $1.0 million or more, unless provided for in an Approved Budget;
(i) the appointment of the Chief Executive Officer and any
other Executive Officers of the Company (provided that such other Executive
Officers shall be initially nominated by the Chief Executive Officer for Board
Approval);
(j) the execution, amendment or modification of on behalf of
the Company of the Ancillary Agreements or any other agreement between the
Company and either Member or its Affiliates; and
(k) the addition or deletion of any matters requiring Board
Approval as set
forth above.
Without limiting the provisions of Section 5.15, the Chief
Executive Officer shall have authority to execute, implement and otherwise carry
out all matters which have been Approved by the Board pursuant to this Section
5.4 or have otherwise been delegated to the Chief Executive Officer. No Member
or Director shall have any individual power or authority to bind the Company in
the absence of Board Approval. Unless authorized to do so by this LLC Agreement
or by Board Approval, no attorney-in-fact, employee or other agent of the
Company shall have any power or authority to bind the Company in any way.
5.5 MEETINGS. Regular meetings of the Board will be held
periodically as Approved by the Board, at such times, on such dates and in such
places as the Board may designate, but no less often that four (4) times per
year. Unless otherwise Approved by the Board, meetings of the Board will be held
alternately in Minneapolis, Minnesota and Paris, France or in any other place
that may be Approved by the Board. The Chairperson or any Director may at any
time call a special meeting of the Board. Notice of any special meeting of the
Board may be given by personal delivery, by telephone or facsimile transmission
to each Director no later than ten (10) days prior to the day the meeting is to
be held and will state the date, place and time of the meeting, and the purpose
or purposes for which the meeting is called (provided that, unless objected to
by any Director representing either of the Members, such other business as may
be reasonably introduced by any Director shall be considered at any such
meeting). A notice of meeting will also be sent to the Chief Executive Officer
for all meetings unless any Director has requested that the Chief Executive
Officer not so attend. Notice of a meeting may be waived in writing by one or
more Directors before, during or after the meeting.
5.6 PARTICIPATION BY CONFERENCE TELEPHONE. The Directors may
participate in a Board meeting by means of telephone conference or similar means
of electronic communication provided that all persons participating in the
meeting can hear each other. Such telephonic or similar participation in a
meeting will constitute presence at such meeting.
5.7 ACTION WITHOUT MEETINGS. Any action required or permitted to
be taken at any meeting of the Board may be taken without a meeting, if a
written consent thereto is signed by all of the Directors eligible to vote
thereon and such written consent is filed with the minutes of the Board.
5.8 LIABILITY OF DIRECTORS. Each Member shall cause the Directors
appointed by it to carry out the functions delegated to them in accordance with
the terms of this Agreement and Applicable Law. No individual Director shall
have any personal liability to the Company or to the other Member or its
Affiliates for such Director's actions or omissions hereunder, provided that the
Member that appointed a Director shall be fully responsible to the Company
and the other Member and its Affiliates for, and shall indemnify and hold
harmless the Company and the other Member and its Affiliates from and against,
any and all actions or omissions of the Directors appointed by such Member
hereunder. Notwithstanding any provision of the Delaware Act, the Member that
appointed a Director shall indemnify such Director for all acts or omissions of
such Director and the Company shall not be obligated to indemnify any Director
in connection with any such matters.
5.9 NO EXCLUSIVE DUTY. The Directors shall not be required to
manage the Company as their sole and exclusive function and they may have other
business interests and may engage in other activities in addition to those
relating to the Company. Neither the Company nor any Member shall have any
right, by virtue of this LLC Agreement, to share or participate in such other
investments or activities of the Directors or to the income or proceeds derived
therefrom. The Directors shall incur no liability to the Company or to any of
the Members as a result of engaging in any other business or venture. Each
Director shall, however, disclose to the Board any conflict of interest that he
or she may have.
5.10 INDEMNIFICATION FOR ACTS OF EMPLOYEES AND OTHER AGENTS. To the
maximum extent permitted under Section 18-108 of the Delaware Act, the Company
shall indemnify and hold harmless its officers, employees and other agents who
are not Directors to the fullest extent permitted by law, provided that the
indemnification in any given situation is Approved by the Members.
5.11 RESIGNATION. Any Director may resign at any time by giving
written notice to each of the Members. The resignation of any Director shall
take effect upon receipt of that notice or at such later time as shall be
specified in the notice; and, unless otherwise specified in such notice, the
acceptance of the resignation shall not be necessary to make it effective.
5.12 REMOVAL. A Director may be removed at any time, with or
without cause, by the Member that appointed such Director. Such removal shall be
effective upon written notice of removal from the relevant Member to the
Director being removed, the other Member and the Chief Executive Officer.
5.13 VACANCIES. Any vacancy occurring for any reason in the number
of Directors of the Company may be filled only in accordance with Section 5.2.
5.14 COMPENSATION OF DIRECTORS. Unless otherwise Approved by the
Members, the Directors shall not receive any salary or other compensation from
the Company and the expenses of each Director, whether in connection with
attendance at any meetings of the Board or of the Members or otherwise, shall be
borne by the Member appointing such Director.
5.15 OFFICERS.
(a) Executive Officers. The executive officers of the Company
shall consist of the Chief Executive Officer and such other officers as may be
Approved by the Board as "executive officers" (the "Executive Officers") from
time to time. Each Executive Officer shall be appointed with Board Approval,
provided that all Executive Officers (other than the Chief Executive Officer)
shall be nominated by the Chief Executive Officer. Each Executive officer shall
be a natural person and shall hold his position until his replacement has been
selected by Board Approval or until his earlier death, resignation or other
removal. The same Executive Officer may hold two or more offices with the
Company, but may not be a Director.
(b) Non-Executive Officers. The Chief Executive Officer shall
have the right to nominate and appoint one or more non-executive officers
("Non-Executive Officers") of the Company with such duties, powers and
responsibilities as may be determined by the Chief Executive Officer in a manner
consistent with this Agreement. Subject to the foregoing, Board Approval shall
not be required for the appointment of any Non-Executive Officer of the Company.
Each Non-Executive Officer shall be a natural person and shall hold his position
until his replacement has been selected by the Chief Executive Officer or until
his earlier death, resignation or other removal. The same Non-Executive Officer
may hold two or more offices with the Company but may not be a Director.
(c) Resignation. Any officer may resign at any time by giving
written notice to the Board or the Chief Executive Officer, as applicable. Such
resignation shall be effective as of the giving of the notice or at such later
time, if any, as may be specified in the notice. Unless otherwise specified in
the notice, acceptance of an officer's resignation by the Board or the Chief
Executive Officer, as applicable, shall not be necessary to make it effective.
(d) Removal. The Board may remove any Executive Officer, at
any time, with or without cause and the Chief Executive Officer may remove any
Non-Executive Officer, at any time, with or without cause.
(e) Vacancies. Any vacancy in the position of any officer
occurring as the result of an officer's resignation, removal, death, disability
or any other reason whatsoever may be filled by the Board or the Chief Executive
Officer, as applicable. Each individual who has been selected to fill a vacancy
in an officer position shall hold his or her office until his or her successor
has been selected by the Board or the Chief Executive Officer, as applicable, or
until his earlier resignation, removal or other vacancy.
(f) Duties of Officers. (i) The Executive Officers shall
derive their duties, powers and authority pursuant to the terms of this LLC
Agreement and as may be Approved by the Board from time to time. Without
limiting the foregoing, the Chief Executive Officer shall be responsible for the
implementation of the policies and strategies Approved by the Board and, subject
to the oversight of the Board, shall conduct or supervise the day-to-day
business of the Company. The Chief Executive Officer shall be authorized to
implement and carry out (including making all necessary expenditures of Company
funds) each Approved Budget in accordance with its terms, including all monetary
limitations set forth therein, provided, however, that the Chief Executive
Officer shall be authorized to exceed budgeted items reflected
in each Approved Budget by the aggregate amount of $1.0 million during any
Fiscal Year. Except as may be, or has been, delegated to the Chief Executive
Officer or Approved by the Board, the Executive Officers shall not have
authority to take any action which is specifically reserved to the Board
pursuant to Section 5.4. The Chief Executive Officer will attend meetings of the
Board unless any Director objects to such attendance. The Chief Executive
Officer will not be entitled to vote at any meeting of the Board.
(ii) The Non-Executive Officers shall have such
duties, powers and authorities as may be delegated to them by the Chief
Executive Officer from time to time, provided that such delegation does not
exceed the duties, powers and authorities granted to the Executive Officers
under this LLC Agreement or by Board Approval and otherwise consistent with the
terms of this Agreement.
(g) Initial Officers. The current officers as of the date
hereof are:
Xxxxxx Xxxxx Chief Executive Officer
5.16 STAFFING OF THE COMPANY.
(a) General. The Chief Executive Officer shall have general
responsibility for meeting the staffing needs of the Company, within the
policies and budgets established by the Board, including all decisions as to
hiring and firing. Such responsibilities shall include responsibility for
employment decisions with respect to officers of the Company other than the
Chief Executive Officer, whose employment shall be sole the responsibility of
the Board. The Board, in consultation with the Chief Executive Officer, may (i)
establish, amend, modify or terminate any employee benefit plans and other
compensation arrangements for the benefit of the employees, consultants and
contractors of the Company, including, without limitation, incentive and bonus
plans, pension, profit sharing, retirement savings plans, health and other
employee insurance and welfare benefit plans, qualified retirement plans,
welfare benefits, health insurance benefits (medical, dental and vision),
disability, life and accident insurance, sickness benefits, vacation and other
employee benefit plans (collectively, "Benefit Plans") as the Board may deem
appropriate, or (ii) adopt and join for the employees of the Company such
similar plans as may be maintained by a Member.
(b) Offers of Employment. It is contemplated that a portion of
the initial staffing needs of the Company shall be satisfied from the transfer
to the Company of existing Member employees to be identified by Member Approval
("Potential Transferring Employees"). For a period of sixty (60) days after the
date hereof, the Chief Executive Officer or his designated representatives shall
be given the opportunity by each Member to interview all of the Potential
Transferring Employees and to offer employment on behalf of the Company to such
number of Potential Transferring Employees as may be determined by the Chief
Executive Officer. Offers to such Potential Transferring Employees shall provide
for employment commencing on such terms and conditions as the Chief Executive
Officer shall determine. The Chief Executive Officer will promptly notify each
Member of acceptance of any such offer by such Member's Potential Transferring
Employees (any such acceptance shall constitute the employee a "Transferring
Employee"). The Chief Executive Officer shall be responsible for
advising Transferring Employees of the terms and conditions of any offers and
for answering any questions relating thereto.
(c) Benefits. Upon commencement of employment, Transferring
Employees shall be eligible to participate in the Benefit Plans applicable to
such employee (subject to the terms and conditions of such plans) on the same
basis as all other employees of the Company.
(d) Severance Pay. Each Member shall be responsible for
severance pay and similar obligations, if any, that may become payable under
such Member's respective severance policies, as the same shall be established
from time to time, to any Potential Transferring Employee of such Member in
connection with the offers of employment contemplated hereby, whether or not
such individual becomes a Transferring Employee by accepting the Company's offer
of employment.
(e) Relocation Expenses. Each Member shall be responsible for
any relocation expenses that are offered to its respective Transferring
Employees who accept employment with the Company.
(f) Wages, Benefits, Etc. (i) Each Member shall be responsible
for timely payment as required by Applicable Law of all wages, salaries,
bonuses, if any, vacation benefits, and other compensation and benefits earned
or accrued by its respective Transferring Employees with respect to service
completed on or prior to such Transferring Employee's last date of employment by
such Member. Each Member shall be solely responsible for all liabilities and
obligations, whether or not contingent, arising under Applicable Law with
respect to the terms, conditions of employment, compliance with discrimination
and other employment laws, in respect of a Transferring Employee with respect to
the period ending with such Transferring Employee's last date of employment by a
Member.
(ii) To the extent of commitments that are made
to Transferring Employees in the Company's offers of employment, the Company
shall credit such Transferring Employees for their length of service with its
respective Member or any Affiliates of such Member for all purposes under any
Benefit Plans.
(iii) The Company shall be responsible for any
severance pay and similar obligations which may become payable to any
Transferring Employee who is terminated by the Company after the date employment
commences with the Company. Such payment shall be made pursuant to the Company's
severance policy, if any, as in effect from time to time and the Company shall
compute severance pay by giving all Transferring Employees full credit for all
years of service since their date of last hire with their respective Member.
(g) Payment of Claims. All medical, dental, vision, health,
sick pay, salary continuation and disability claims incurred by Transferring
Employees with respect to the period ending on or prior to the last date of
employment by their respective Member shall be determined under the provisions
of the Benefit Plans, and the Company shall not assume liability with respect to
such claims. All medical, dental, vision, health, sick pay, salary continuation
and disability claims incurred with respect to the period after the Transferring
Employee's employment commences with the Company shall be determined under the
provisions of the
Benefit Plans and neither Member shall assume liability with respect to such
claims (except for any claims in respect of a qualified beneficiary that may be
available under such Member's health plan by virtue of Section 4980B of the Code
with respect to any qualifying event that occurs before an employee becomes
employed by the Company), but only to the extent that such provision makes
continuation of such Member's health plan applicable to any Transferring
Employee after the last date of employment by such Member. For all medical,
dental, vision, health, sick pay, salary continuation and disability claims
incurred with respect to any period of time during which a Transferring Employee
is covered under the provisions of the Benefit Plans as well as the respective
Member's benefit plans, the Company's plans shall be primary.
(h) Secondment of Employees. A Member may allow certain
employees of such Member to commence performing services for the Company prior
to commencement of employment by the Company. Any such secondment of employees
to the Company by a Member shall be on terms and conditions to be agreed by the
Chief Executive Officer and such Member.
(i) Continuing Employees. Notwithstanding any terms of this
Section 5.16 to the contrary, no Transferring Employees shall be third party
beneficiaries of this Section 5.16 and the Company shall have the sole right to
enforce any terms of this Section 5.16 against the applicable Member (subject to
Section 5.18) and each Member shall have the sole right to enforce any terms of
this Section 5.16 against the Company.
5.17 ANCILLARY AGREEMENTS. Simultaneously with the execution of
this Agreement, the Company will enter into the following agreements
(collectively, the "Ancillary Agreements") with the contracting Member in the
forms annexed as exhibits hereto:
Agreement Contracting Member Exhibit
--------- ------------------ -------
Angeion Manufacturing and Supply Agreement Angeion B
ELA Manufacturing and Supply Agreement ELA C
Intercompany Services Agreement Angeion D
All services, products or facilities provided by the Members to the
Company, to the extent not expressly covered by this Agreement, shall be
provided on a commercial, arms-length basis, in each case subject to Board
Approval.
5.18 CONFLICTS OF INTEREST.
(a) It is acknowledged and agreed that potential conflicts of
interest may arise between the Company and each of the Members and their
Affiliates in connection with the performance and enforcement of the Ancillary
Agreements. Accordingly, if either Member (the "Disinterested Member") wishes to
cause the Company to take any action or to enforce any rights or remedies
against the other Member (the "Interested Member") or its Affiliates under
any of the Ancillary Agreements, or to forebear from taking any such action or
from asserting such rights or remedies), and such action (or forbearance) is not
Approved by the Board, the provisions of this Section 5.18 shall become
applicable. In such event, prior to invoking the rights granted to it under
subclause (b) of this Section 5.18, the Members shall promptly meet with the
Chief Executive Officer to seek to resolve their differences. If mutual
agreement is not reached through such discussions within 10 days, then such
disputes shall be referred by the Members to their respective chief executive
officers, who shall meet to negotiate in good faith the possible resolution
thereof.
(b) If mutual agreement by such chief executive officers is
still not reached within a further 10 days, then the matter shall then be
referred back to the Board for further action on behalf of the Company. In
connection with such further action, the Disinterested Member, acting through
its representatives on the Board, shall thereafter have the right to exercise a
casting (i.e., controlling) vote on all matters considered by the Board with
respect to such matter. For the avoidance of doubt, the purpose of such casting
vote is to enable the Disinterested Member to control all deliberations of the
Board in connection with such matter, including the right to take any such
action (or to forebear from taking such action). Without limiting the foregoing,
such Disinterested Member, acting through its representatives on the Board,
shall be authorized, in the name and on behalf of the Company, to assert any
claim of breach by the Interested Member or its Affiliates of their respective
obligations under any of the Ancillary Agreements between the Interested Member
and the Company or to defend any assertion by the Interested Member or its
Affiliates that the Company has breached its obligations under any of the
Ancillary Agreements between the Interested Member and the Company.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
6.1 LIMITATION OF LIABILITY. Each Member's liability shall be
limited as set forth in this LLC Agreement, the Delaware Act and other
applicable law. The Company shall observe all corporate formalities and shall
maintain books and records and bank accounts separate from each of its Members.
The failure of the Company to observe the formalities or requirements relating
to the exercise of its powers or management of its business or affairs under
this LLC Agreement or the Delaware Act shall not be grounds for imposing
personal liability on the Members or their Affiliates or the Directors or
officers of the Company for liabilities of the Company. Except as otherwise
provided by law, a Member and its Affiliates will not be personally liable for
any debts, liabilities or losses of the Company, whether arising in contract,
tort or otherwise, beyond the Member's Capital Contributions and beyond any
obligation of the Member under Article VIII to make Capital Contributions.
6.2 RIGHTS AND DUTIES OF MEMBERS.
(a) The rights, duties and obligations of the Members shall be as set
forth in this Agreement and neither Member or its Affiliates shall be liable to
the other Member or its Affiliates in connection with the formation, operation
or dissolution of the Company, except as
specifically provided by this Agreement. Without limiting the foregoing, the
parties specifically acknowledge and agree that neither Member shall have any
fiduciary duty to the other Member whether under the Delaware Act, whether
implied in law, or otherwise implied by the terms of this Agreement. Neither
Member nor its Affiliates shall assert in any litigation, controversy or
proceeding a position contrary to the foregoing or to the waivers and
limitations otherwise set forth in this Agreement. The Members intend that this
Section 6.2 shall be given the maximum effect permitted under applicable law,
including under Section 18-1101 of the Delaware Act.
(b) Notwithstanding the foregoing, the Agreement shall be without
prejudice to the rights, duties and obligations of the Members and their
Affiliates under the Ancillary Agreements and any other agreements between the
Members and their respective Affiliates.
6.3 APPROVAL OF MAJOR MATTERS. The following matters shall
require Member Approval:
(a) approval of the three year plan for the first three
Fiscal Years commencing January 1, 1998;
(b) the sale, exchange or other disposition of all, or
substantially all, of the Company's assets (other than in the ordinary course of
the Company's business), whether as part of a single transaction or a series of
transactions;
(c) entering into by the Company of any new line of
business not permitted under Section 3.1;
(d) calls for additional Capital Contributions pursuant
to Section 8.2;
(e) the adoption of any stock option, phantom stock; or
similar employee plan;
(f) the making of any distributions or the declaration of
any dividends to the Members pursuant to Section 9.3;
(g) any extension of the Initial Term or the Renewal Term
pursuant to Section 2.5;
(h) any modification of the provisions of Section 3.3;
(i) the lending of any amounts to the Company by the
Members pursuant to Section 9.7 (but not pursuant to Section 8.2(b)); and
(j) such other matters as may require Member Approval
under the terms of this Agreement.
6.4 COMPANY BOOKS. In accordance with Section 9.8, the Company
shall maintain and preserve (or cause to be maintained and preserved), during
the term of the Company and for
four (4) years thereafter, all accounts, books and other relevant Company
documents. Upon reasonable request, each Member shall have the right, during
ordinary business hours, to inspect and copy those Company documents at the
expense of the requesting Member.
6.5 PRIORITY AND RETURN OF CAPITAL. Except as may be expressly
provided in Article IX, neither Member shall have priority over the other Member
for the return of Capital Contributions or for Net Profits, Net Losses or
distributions; provided that this Section 6.5 shall not apply to loans (as
distinguished from Capital Contributions) which a Member has made to the
Company.
6.6 LIABILITY OF A MEMBER TO THE COMPANY. Notwithstanding Section
6.1:
(a) a Member that rightfully receives the return in whole
or in part of its "contribution" (as defined in section 18-101(3) of the
Delaware Act) to the Company is nevertheless liable to the Company to the extent
now or hereafter provided by the Delaware Act; and
(b) a Member who receives a distribution made by the
Company which is in violation of this LLC Agreement or Applicable Law shall be
liable to the Company for the full amount of such distribution.
6.7 CONFLICTS OF INTEREST, CONTRACT WITH MEMBERS OR AFFILIATES.
Except for the Ancillary Agreements, each Member and its respective Affiliates
shall disclose to the Board and the other Member all conflicts of interest that
such Member or Affiliate may have with the Company with respect to any specific
transaction, agreement or other relationship with the Company (and any interest
any of them may have in any entity doing business with the Company), to the
extent that the transaction, agreement or relationship is subject to Board
Approval or Member Approval.
ARTICLE VII
ACTIONS BY MEMBERS
7.1 MEETINGS OF MEMBERS. The Members shall meet from time to time
as and when may be mutually agreed by them; provided, however, that if any
action requiring Member Approval is proposed by the Board or by either Member,
the Members shall meet as expeditiously as possible to consider and act upon
such matter. The presence in person of each Member (acting through its duly
appointed representatives) shall constitute a quorum at any such meeting of the
Members.
7.2 PLACE OF MEETINGS. The location of any meeting of the Members
shall be determined by Member Approval. If no designation is made by Member
Approval, the place of meeting shall alternate between the principal executive
office of the Company and Paris, France.
7.3 NOTICE OF MEETINGS. Except as provided in Section 7.4, written
notice stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called shall be delivered to the other Member no fewer than ten (10)
nor more than fifty (50) days before the date of the meeting, either personally,
by facsimile, courier or by mail, by or at the direction of the Member(s) or
Director(s) calling the meeting.
7.4 NO NOTICE REQUIRED. If both of the Members shall meet at any
time and place, either within or outside of the State of Delaware, and consent
to the holding of a meeting at that time and place, the meeting shall be valid
without call or notice, and at the meeting lawful action may be taken; provided,
however, that in each such case the actions taken at such meeting are recorded
in a written consent prepared in accordance with Section 7.6 below.
7.5 MEMBER APPROVAL. It is acknowledged and agreed that each
Member shall have a 50% voting interest in the Company. Accordingly, a matter
submitted to the Members for their approval shall be deemed to have received
"Member Approval," and to have been "Approved by the Members", only if such
matter shall have received the affirmative vote of each Member (i.e., the
unanimous approval of both Members).
7.6 ACTION BY MEMBERS WITHOUT A MEETING. Any action that may be
taken at a meeting of Members may be taken without a meeting if the action is
evidenced by one or more written consents describing the action taken, signed by
each Member, and delivered to the Board for inclusion in the minutes or for
filing with the Company records. Any action taken under this section shall be
effective when each Member has signed the consent, unless the consent specifies
a different effective date.
7.7 WAIVER OF NOTICE. When any notice is required to be given to a
Member, a waiver of the notice in writing signed by the Member entitled to the
notice, whether before, at or after the time stated therein, shall be equivalent
to the giving of the notice.
7.8 PARTICIPATION BY CONFERENCE TELEPHONE. A Member may
participate in a meeting of the Members by means of a conference telephone or
similar communications equipment allowing representatives of each Member
participating in the meeting to hear each other at the same time. Participation
by such means shall constitute presence in person at a meeting.
ARTICLE VIII
CONTRIBUTIONS TO THE COMPANY
AND CAPITAL ACCOUNTS
8 8.1 INITIAL CAPITAL CONTRIBUTIONS.
(a) ELA and Angeion shall make an initial Capital Contribution
to the Company (the "Initial Capital Contribution") in the aggregate amount of
$12.0 million, with $6.0 million to be contributed by each. Such Initial Capital
Contributions shall be payable in cash in three (3) equal installments, to be
payable when determined by Board Approval. Interest shall not accrue or be
payable on any such subsequent installments. All such payments shall be credited
to the
Capital Accounts of the Members.
(b) Notwithstanding the foregoing, if Approved by the Board,
each Member may transfer and convey to the Company, in partial satisfaction of
its obligation to make its Initial Capital Contribution, personal property or
equipment necessary for the conduct of the Company's business. All such personal
property or equipment shall be contributed on an "as is," "where is" basis. The
fair market value of such property (determined by Board Approval) shall be
credited against the remaining cash portion of the Initial Capital Contribution
then payable by the contributing Member.
8.2 ADDITIONAL CONTRIBUTIONS.
(a) Each Member shall have the obligation to make such
appropriate further Capital Contributions (in addition to the Initial Capital
Contribution) as are necessary to finance (or to secure the financing of) the
Company, as and when Approved by the Members, in order to achieve the three-year
plan Approved by the Members pursuant to Section 6.3(a) for the three Fiscal
Years commencing January 1, 1998. During the remainder of the term of this
Agreement, the Members shall use their Best Efforts to contribute such further
appropriate Capital Contributions as are necessary to finance (or to secure the
financing of) the Company, as and when Approved by the Members in accordance
with Section 6.3(d). Upon Member Approval of any such further Capital
Contributions, each Member shall pay to the Company its Percentage Interest
thereof, such payments to be made in immediately available funds on the dates
specified therefor by the Board as Approved by the Members with respect to such
further Capital Contribution. None of the terms, covenants, obligations or
rights contained in this Section 8.2 is or shall be deemed to be for the benefit
of any Person other than the Members and the Company, and no such third Person
shall under any circumstances have any right to compel any actions or payments
by the Directors or the Members. Nothing herein shall be construed as
prohibiting the Members from agreeing to fund capital needs of the Company in
the form of loans from the Members.
(b) If a Member (the "Defaulting Member") fails to advance to
the Company all or any portion of any Capital Contribution which such Defaulting
Member is obligated to make under the provisions of this Article VIII (an
"Advance Failure"), the other Member, provided it shall have previously advanced
the portion of such capital contribution required to be made by it under the
provisions of this Article VIII (the "Non-Defaulting Member"), in addition to
any other remedies it may have hereunder or at law, shall have the right, but
not the obligation, within thirty (30) days after the date specified in this
Agreement or by the Board for the payment of such Capital Contribution, to
contribute or lend all, or any portion of, the Defaulting Member's Capital
Contribution to the Company. In such event, the Non-Defaulting Member may, at
its option, elect to treat the amount so advanced as a demand loan to the
Defaulting Member, such loan to bear interest at a rate equal to 12% per annum
based on a year of 360 days through the date such loan is repaid in full.
8.3 CAPITAL ACCOUNTS.
(a) The Company shall establish and maintain a separate
Capital Account for each Member. Each Member's Capital Account initially shall
be the amount of money and/or property initially contributed to capital pursuant
to Section 8.1.
(b) Each Member's Capital Account will be increased by (i) the
amount of any additional money contributed by such Member to the Company
pursuant to Section 8.2(a), (ii) the fair market value (which shall be agreed to
by the Members) of any property contributed by such Member to the Company (net
of liabilities secured by such contributed property that the Company is
considered to assume or take subject to under IRC ss. 752) and (iii) allocations
to such Member of Net Profits (or items thereof), and items of income and gain
specially allocated pursuant to Section 9.2 hereof (other than allocations
pursuant to Subsection (h) thereof).
(c) Each Member's Capital Account will be decreased by (i) the
amount of any money distributed to or on behalf of such Member by the Company,
(ii) the fair market value (which shall be agreed to by the Members) of any
property distributed to such Member by the Company (net of liabilities secured
by such distributed property that such Member is considered to assume or take
subject to under IRC ss. 752), and (iii) allocations to such Member of Net
Losses (or items thereof), and items of loss and deduction specially allocated
pursuant to Section 9.2 hereof (other than allocations pursuant to Subsection
(h) thereof).
(d) In the event of a permitted sale or exchange of a
Membership Interest in the Company pursuant to Article XII by a Member to an
Affiliate of such Member, the Capital Account of the transferor shall become the
Capital Account of the transferee to the extent it relates to the transferred
Membership Interest in accordance with Treas. Reg. ss. 1.704- 1(b)(2)(iv).
(e) For any taxable year in which the Company has an election
in effect under IRC ss. 754, the Capital Accounts shall be maintained in
accordance with Treas. Reg. ss. 1.704- 1(b)(2)(iv)(m).
(f) In the event of a distribution of Company assets (other
than a DE MINIMIS amount) in exchange for a Membership Interest of a continuing
Member or in liquidation of a Member's Interest, or the liquidation of the
Company, the Members' Capital Accounts shall be adjusted to reflect the
revaluation of Company assets on the books of the Company in accordance with
Treas. Reg. ss. 1.704-1(b)(2)(iv)(f) and shall be maintained in accordance with
Treas. Reg. ss. 1.704-1(b)(2)(iv)(g).
(g) Notwithstanding anything herein to the contrary, the
Members' Capital Accounts shall at all times be maintained in the manner
required by Treas. Reg. ss. 1.704- 1(b)(2)(iv), and any questions or ambiguities
arising hereunder shall be resolved by reference to such Regulations. Further,
such Regulations shall govern the maintenance of the Capital Accounts to the
extent this Agreement is silent as to the treatment of a particular item. In the
event Treas. Reg. ss. 1.704-1(b)(2)(iv) shall fail to provide guidance as to how
adjustments to the
Capital Accounts should be made to reflect particular adjustments to Company
capital on the books of the Company, such Capital Account adjustments shall be
made in a manner that is consistent with the underlying economic arrangement of
the Members, and is based, wherever practicable, on federal tax accounting
principles.
(h) Except as otherwise required in the Delaware Act (and
subject to Section 8.2), no Member shall have any liability to restore all or
any portion of a deficit balance in the Member's Capital Account.
8.4 WITHDRAWAL OR REDUCTION OF CONTRIBUTIONS TO CAPITAL. Neither
Member shall receive out of the Company's property any part of its Capital
Contributions until all liabilities of the Company, except liabilities to
Members on account of their Capital Contributions, have been paid or there
remains property of the Company sufficient to pay them. A Member, irrespective
of the nature of its Capital Contribution, shall only have the right to demand
and receive cash in return for its Capital Contributions.
ARTICLE IX
ALLOCATIONS, INCOME TAX, DISTRIBUTIONS,
ELECTIONS, AND REPORTS
9.1 ALLOCATIONS OF NET PROFITS AND NET LOSSES.
(a) Net Profits and Net Losses for each Fiscal Year will be
allocated to the Members in accordance with their respective Percentage
Interests. The Percentage Interests shall be as follows:
Member: Percentage Interest:
Angeion 50%
ELA 50%
(b) Except as otherwise provided in this Agreement, whenever a
proportionate part of the Company's Net Profits or Net Losses is allocated to a
Member, every item of income, gain, loss or deduction entering into the
computation of such Net Profits or Net Losses, or arising from the transactions
with respect to which such Net Profits or Net Losses were realized, shall be
credited or charged, as the case may be, to such Member in the same proportion.
(c) Items of tax credit shall be allocated to the Members in
proportion to their respective Percentage Interests, but not credited or charged
to their respective Capital Accounts, in accordance with Treas. Reg. ss.
1.704-1(b)(4)(ii).
(d) As between a Member who has transferred all or part of its
Interest in the Company in accordance with Article XII and such Member's
transferee, Net Profits and Net Losses and items thereof (other than those
attributable to a Capital Transaction (as defined
below)) for any year shall be apportioned on the basis of the number of days in
such year that each was the holder of such interest (making any adjustments
necessary to comply with the provisions of IRC ss. 706(d)(2)), without regard to
the results of the Company's operations during the period before and after the
date of such transfer; provided, however, that if both the transferor and
transferee approve and agree to pay the expenses of the Company in connection
therewith, a special closing of the Company's books shall be made as of the
effective date of such transfer and the apportionment of Net Profits and Net
Losses and items thereof shall be made on the basis of actual operating results.
Items attributable to a Capital Transaction shall be allocated to the transferee
or transferor, as the case may be, who was the Member on the date such Capital
Transaction occurred. For purposes hereof, the term "Capital Transaction" means,
with respect to any property of the Company: a financing or refinancing;
insurance recovery or condemnation award (other than for a temporary loss of
use); easement sale; sale, exchange or other disposition other than in the
ordinary course of business; or any other voluntary or involuntary disposition,
conversion or loss the proceeds of which, under normal tax accounting rules, are
considered to be capital in nature.
9.2 SPECIAL ALLOCATIONS. Except as otherwise provided, the
following overriding allocations shall be made prior to the allocations of Net
Profits and Net Losses provided for in Section 9.1 and shall be made in the
following order:
(a) Notwithstanding any other provision of this Article IX, if
there is a net decrease in Company Minimum Gain or in any Member Nonrecourse
Debt Minimum Gain during any Fiscal Year or other period, prior to any other
allocation pursuant hereto, each Member shall be specifically allocated items of
Company income and gain for such year (and, if necessary, subsequent years) in
an amount and manner required by Treas. Reg. xx.xx. 1.704-2(f) and 1.704-2(i)(4)
or any successor provisions. The items to be so allocated shall be determined in
accordance with Treas. Reg. ss. 1.704-2(j)(2) or any successor provision.
(b) Company Nonrecourse Deductions for any Fiscal Year or
other period shall be allocated to the Members in proportion to their respective
Percentage Interests.
(c) Member Nonrecourse Deductions for any Fiscal Year or other
period shall be allocated to the Member who made or guaranteed, or is otherwise
liable with respect to, the loan to which such Member Nonrecourse Deductions are
attributable in accordance with the principles of Treas. Reg. ss. 1.704-2(i) or
any successor provision.
(d) If in any Fiscal Year, any Member has a Deficit Capital
Account, whether resulting from an unexpected adjustment, allocation or
distribution described in Treas. Reg. ss. 1.704-1(b)(2)(ii)(d)(4), (5) or (6) or
otherwise, such Member shall be allocated items of Company income and gain
(consisting of a pro rata portion of each item of Company income, including
gross income, and gain for such Fiscal Year) sufficient to eliminate such
Deficit Capital Account as quickly as possible, to the extent required by such
Treasury Regulation. It is the intention of the parties that this allocation
provision constitute a "qualified income offset" within the meaning of Treas.
Reg. ss. 1.704-1(b)(2)(ii)(d).
(e) Any state, local or foreign taxes imposed on the Company
by reason of a
Member being a citizen, resident or national of such state, locality or foreign
jurisdiction, to the extent the same gives rise to an item of tax income or tax
loss, shall be specially allocated to such Member.
(f) The amount of any adjustment (a "Section 482 Adjustment")
to the Company's taxable income resulting from a redistribution, reapportionment
or reallocation of gross income, deductions, credits or allowances between the
Company and a Member (or an Affiliate of such Member) effected pursuant to IRC
ss. 482 with respect to any transaction between the Company and such Member (or
such Affiliate) shall be specially allocated in full to such Member as of the
end of the taxable period with respect to which such Section 482 Adjustment was
made. If such Section 482 Adjustment results in an increase in the Company's
taxable income, then (i) the Member that is required to receive the related
special allocation shall indemnify and hold harmless the other Member, on an
after-tax basis, from and against any net additional taxes and interest,
penalties, charges or additions to tax payable by such other Member as a result
of such Section 482 Adjustment and (ii) the amount of such Section 482
Adjustment that has been specially allocated to the first Member pursuant to
this Section 9.2(f) shall be deemed to have been distributed to such Member as
of the end of the taxable period with respect to which such Section 482
Adjustment was made. If such Section 482 Adjustment results in a decrease in the
Company's taxable income, then (iii) the Member that is entitled to receive the
related special allocation shall be deemed to have contributed the amount of
such Section 482 Adjustment to the capital of the Company as of the end of the
taxable period with respect to which such Section 482 Adjustment was made and
(iv) the other Member shall pay to the first Member the amount of any tax
savings realized by such other Member as a result of such Section 482
Adjustment. For purposes of this Section 9.2(f), whenever a payment is required
to be made on an after-tax basis, the amount of such payment shall be increased
to an amount that, after deduction of all taxes required to be paid in respect
of the receipt of such increased amount, shall be equal to the required payment
amount. All recapture income or tax credit recapture resulting from a sale or
disposition of Company property shall be allocated to the Member or Members who
received allocations of the deductions or credits giving rise to such recapture
income or tax credit recapture.
(g) The special allocations provided for in subsections (a),
(b), (c) and (d) of this Section 9.2 are intended to comply with certain
requirements of Treas. Reg. xx.xx. 1.704-1 and 1.704-2. To the extent that any
of such special allocations shall have been made, subsequent allocations of
income, gains and losses and items thereof ("curative allocations") shall be
made as soon as possible and in a manner so as to cause, to the extent possible
without violating the requirements of Treasury Regulations ss.ss.1.704-1 and
1.704-2, the Capital Account balances to be as nearly as possible in the same
proportions in which they would have been had such special allocations not
occurred. In making such curative allocations, due regard shall be given to the
character of the Net Profits and Net Losses and items thereof and items of
income and gain that were originally allocated pursuant to subsections (a), (b),
(c) and (d) of this Section 9.2 in order to put the Members as nearly as
possible in the relative economic positions in which they would have been had
such special allocations not occurred. Without limiting the generality of the
foregoing, if, in any Fiscal Year, the allocations required under subsection (a)
of this Section 9.2 would cause a distortion in the economic arrangement among
the Members and it is not expected that the Company will have sufficient other
income to correct that distortion, the Board may in
its discretion (and shall, if requested to do so by either Member) seek to have
the Internal Revenue service waive the minimum gain chargeback requirement in
accordance with Treas. Reg. ss. 1.704-2(f)(4).
(h) In accordance with IRC ss. 704(c) and the Treasury
Regulations thereunder, income, gain, loss, and deduction with respect to any
property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income
tax purposes and its initial Gross Asset Value. In the event that the Gross
Asset Value of any Company asset is adjusted pursuant to subclause (ii) of the
definition of Gross Asset Value herein and Subsection (d) of Section 8.3 hereof,
subsequent allocations of income, gain, loss and deduction with respect to such
asset shall take account of any variation between the adjusted basis of such
asset for federal income tax purposes and the Gross Asset Value in a manner
consistent with the requirements of Treas. Reg. ss. 1.704-3(a)(6) or the
corresponding provision of successor Treasury Regulations. Any elections or
other decisions relating to such allocations shall be made in a manner that
reasonably reflects the purpose and intention of this Agreement. Allocations
pursuant to this subsection (h) are solely for purposes of federal, state, and
local taxes and shall not affect, or in any way be taken into account in
computing, any Member's Capital Account or share of Net Profits, Net Losses,
other items, or distributions pursuant to any provision of this Agreement.
9.3 DISTRIBUTIONS. All distributions of cash or other property
shall be made to the Members pro rata in proportion to their respective
Percentage Interests on the record date of the distribution. Subject to Section
9.4, all distributions of cash and property shall be made at such time as
determined by Member Approval. The Company shall at all times be entitled to
withhold or make payments to any Governmental Authority with respect to (i) any
Federal, state, local or foreign tax liability of any Member arising as a result
of such Member's participation in the Company or (ii) imposed on the Company by
reason of a Member being a citizen, resident or national of a state, locality or
foreign jurisdiction. Each such amount so withheld or paid shall be deemed to be
a distribution for purposes of this Article IX or Article XIV, as the case may
be, to the extent such Member is then entitled to a distribution. To the extent
that the amount of such withholdings or payments made with respect to any Member
exceeds such amount, the excess shall be treated as a demand loan, bearing
interest at a rate equal to 12% per annum, from the date of such payment or
withholding until such excess is repaid to the Company, by (i) deduction from
any distributions subsequently payable to such Member pursuant to this Agreement
or (ii) earlier payment of such excess and interest by such Member to the
Company. Such excess and interest shall in any case be payable not less than
thirty (30) days after demand therefor by the Chief Executive Officer. The
withholdings and payments referred to in this Section 9.3 shall be made at the
maximum applicable statutory rate under the applicable tax law unless the Chief
Executive Officer shall have received an opinion of counsel or other evidence,
satisfactory to the Chief Executive Officer, to the effect that a lower rate is
applicable, or that no withholding or payment is required.
9.4 LIMITATION UPON DISTRIBUTIONS. The Members shall not approve
any distribution that would render the Company insolvent.
9.5 ACCOUNTING PRINCIPLES. The profits and losses of the Company
shall be determined in accordance with United States generally accepted
accounting principles applied on a consistent basis using the accrual method of
accounting. Each Member will report its share of each item of Company taxable
income and losses in a manner consistent with the Company's treatment of such
items for tax purposes.
9.6 INTEREST ON AND RETURN OF CAPITAL CONTRIBUTIONS. No Member
shall be entitled to interest on its Capital Contribution or to return of its
Capital Contribution, except as otherwise specifically provided for in this LLC
Agreement.
9.7 LOANS TO COMPANY. Nothing in this LLC Agreement shall prevent
any Member from making secured or unsecured loans to the Company, provided such
loan is Approved by the Members. If a Member or an Affiliate of a Member lends
any amounts to the Company, the loan shall be a debt of the Company to that
Member or Affiliate of that Member, not a Capital Contribution, and shall bear
interest and be repaid on terms Approved by the Members. In addition, any such
loans shall not be regarded as an increase in the lending Member's Capital
Account and shall not entitle that Member to any increased share of Company's
income, losses or distributions.
9.8 RECORDS, AUDITS AND REPORTS. At the expense of the Company,
the Board shall maintain records and accounts of all operations and expenditures
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 and last known business,
residence or mailing address of each Member and Director, both past and present;
(b) a copy of the Certificate of Formation of the Company and
all amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;
(c) copies of the Company's Federal, state and local income
tax returns and reports, if any, for the four most recent years;
(d) copies of the currently effective LLC Agreement, copies of
any writings permitted or required with respect to a Member's obligation to
contribute cash or property to the Company, and copies of any financial
statements of the Company for the three most recent years;
(e) minutes of every annual meeting, special meeting and
court-ordered meeting of (i) the Members and (ii) the Board; and
(f) any written consents obtained from the Members or the
Directors for actions taken by the Members or the Board, as applicable, without
a meeting.
9.9 RETURNS AND OTHER ELECTIONS. The Board shall cause the
preparation and timely filing of all tax returns required to be filed by the
Company pursuant to the IRC and all other tax returns deemed necessary and
required in each jurisdiction in which the Company does business.
Copies of such returns, or pertinent information from such returns, shall be
furnished to the Members within a reasonable time after the end of each Fiscal
Year. All elections permitted to be made by the Company under federal or state
laws shall be made by Board Approval.
9.10 TAX MATTERS PARTNER. Angeion is hereby designated as the
Member to serve as "tax matters partner" (as defined in Section 6231 of the IRC)
and, as such, is authorized and required to represent the Company in connection
with all examinations of the Company's affairs by tax authorities, including any
resulting judicial and administrative proceedings. Angeion shall provide ELA
with prompt written notice of all tax audits, litigation and other proceedings
and ELA shall be entitled to have a representative present at all such
proceedings or at any other meetings with tax authorities. No such proceeding or
matter shall be settled by Angeion without the prior written consent of ELA. In
its capacity as "tax matters partner," Angeion shall execute on behalf of the
Company all Federal, state and local income tax returns of the Company and
oversee the tax affairs of the Company in the overall best interests of the
Company. Angeion shall have the right to be reimbursed by the Company for any
reasonable out-of-pocket expenses incurred by it in the performance of its
duties as "tax matters partner."
ARTICLE X
OPERATIONS; PRODUCT PURCHASES
10.1 ANNUAL OPERATING BUDGETS.
(a) The Fiscal Year of the Company shall be the calendar year.
Not later than September 30 of each Fiscal Year (commencing on September 30,
1998), the Chief Executive Officer shall submit to the Board for its approval a
proposed operating budget (each a "Proposed Budget") for the subsequent Fiscal
Year. Each Proposed Budget shall include at least the following information for
the next succeeding Fiscal Year of the Company broken down on a quarterly basis:
(i) a projected profit and loss statement;
(ii) a projected balance sheet;
(iii) a projected cash flow statement;
(iv) projected capital expenditures; and
(v) provisions for contingencies.
Each Proposed Budget shall be subject to Board Approval (as so approved, an
"Approved Budget"). Exhibit E hereto sets forth the detailed operating budget
for the (i) balance of the current Fiscal Year (i.e., the Fiscal Year ending
December 31, 1997) and (ii) the first full Fiscal Year (i.e., the Fiscal Year
ending December 31, 1998).
(b) Following Board Approval of any Proposed Budget, the Chief
Executive Officer shall have authority, subject to the remaining provisions of
this Agreement, to implement each Approved Budget; provided, however, that
notwithstanding any such prior approval of an Approved Budget, the Chief
Executive Officer shall not have authority, without obtaining prior Board
Approval, to effect any capital expenditure set forth in such Approved Budget
which exceeds the amount of $1.0 million or any other matter with respect to
which the Board has specifically required the Chief Executive Officer to obtain
further Board Approval prior to entering into the transaction.
(c) If a Proposed Budget is not Approved by the Board, the
Member objecting to any aspect of such Proposed Budget shall identify the
specific line items or amounts to which it objects (a "Disputed Budget Item").
In the event of such non-approval, the Chief Executive Officer shall implement
the Proposed Budget for the Fiscal Year in question for all items which are not
Disputed Budget Items. With respect to all Disputed Budget Items (and all items
which are to be expended only if a Disputed Budget Item is expended), such
Disputed Budget Items shall be replaced by the corresponding items contained in
the Approved Budget for the preceding year (or the Proposed Budget for such
preceding year, if the same did not become an Approved Budget), in each case
modified by a PPI Adjustment. For purposes hereof, a "PPI Adjustment" shall
mean, with respect to any item, the amount of such item multiplied by a
fraction, the numerator of which shall be the last Producer Price Index
published on or before the first day of the Fiscal Year to which such Proposed
Budget applies and the denominator of which shall be the last Producer Price
Index published on or before the first day of the immediately preceding Fiscal
Year. The Producer Price Index shall mean the Producer Price Index published by
the Bureau of Labor Statistics of the United States Department of Labor, All
Cities U.S. Average. All Items (1982-1984 = 100), or any successor index
thereto, appropriately adjusted. If the Producer Price Index ceases to be
published, and there is no successor thereto, such other index as is Approved by
the Board, as appropriately adjusted, shall be substituted for the Producer
Price Index.
(d) From time to time, the Chief Executive Officer shall
submit to the Board an updated forecast of cash flows and such other financial
information as the Board may request.
10.2 SUPPLY AGREEMENTS. xx xx xxxxxxxxxxxx xxx xxxxxx xxxx xxx
xxxxxxxxxxxxx xx xxxx xxxxxxxx xxxxxxx xxxxx xxx xxxxxx xxxxxxxxxx xx xxxxx
xxxxx xxx xxxxxxx xx xxx xxxxxx xxxxxxxxxx xxxxx xx xxxx xx xxxxxxxxxx xxxx xxx
xxxxxxxxx xxxxxxxx x xxxx xxxxxxxx xxxxxx xxxxx xx xxxxxxxxxxx xxxxx xxx xxxxxx
xxxxxxxxxx xx xx xxxxxx xxxxx xx xxxxxxxxxx xxxx xxx xxxxxx xxxxxxx xxxxx
xxxxxxx xxx xx xxxx xxxxxxxr xxxxxx xxxxx xx xxxxx xx xxxxxx xxxxxxxx xx xxxxx
xxxxxxxxx xxxxxx xxx xx xxxxxxxx xxxx xxxxxxx xxxxxxxxx xxxxxxx xxx xxxx xxxxxx
xxxxx xxxxx x xxxxxx xxxxx xxxxxx xxxxxx xxx xxx xxxxxxx xx xxx xxxxx xx xxx xx
xxx xxx xx xxx xxxxxx xxxxx xxxxxx xxxxxx xxxxx xx xxx xxxx xx xxx xxxxxxxxx xxx
xxxx xxxxxxx xxxxxxxx.
10.3 THIRD PARTY CLAIMS.
(a) Subject to Section 10.3(b) below, it is acknowledged and
agreed that, as between the Members and their respective Affiliates, (i) ELA
shall be responsible for, and shall assume the defense of and indemnify and hold
harmless the Company, Angeion and Angeion's Affiliates from and against, all
Third Party Claims arising out of or related to any Products supplied to the
Company by ELA under the ELA Supply Agreement, and (ii) Angeion shall be
responsible for, and shall assume the defense of and indemnify and hold harmless
the Company, ELA and ELA's Affiliates from and against, all Third Party Claims
arising out of or related to any Products supplied to the Company by Angeion
under the Angeion Supply Agreement. The Third Party Claims described sub-clauses
(i) and (ii) of this Section 10.3(a) are referred to collectively as the
"Member-Indemnified Third Party Claims").
(b) Notwithstanding Section 10.3(a) above, it is further
acknowledged and agreed that, pursuant to the terms of the Supply Agreements,
the Company has agreed to indemnify ELA and Angeion, respectively, for certain
Third Party Claims which are directly caused by misuse, wilful misconduct or
negligent acts or negligent failures to act on the part of the Company
("Company-Indemnified Third Party Claims"), as further provided in the Supply
Agreements.
(c) If either Member receives information indicating that a
Company- Indemnified Third Party Claim or a Member-Indemnified Third Party Claim
exists or has been asserted, such Member shall immediately notify the other
Member and the Board in writing of such claim, together with reasonable
background information concerning the nature of such claim.
(d) The Members shall cooperate with each other, and shall
cause the Company to cooperate with each of them, in the investigation and
defense of any Member- Indemnified Third Party Claims or Company-Indemnified
Third Party Claims, as applicable. Each Member shall, when reasonably requested
by the other Member or the Company, provide records and information to the
Company and the other Member to assist the Company and such Member in the
investigation and defense of any such claims; provided, however, that the Member
and its Affiliates providing such assistance shall be reimbursed for the
reasonable out-of-pocket costs incurred in providing such assistance (i) by the
Company, in the case of Company-Indemnified Third Party Claims, or (ii) by ELA
or Angeion, as applicable, in the case of Member-Indemnified Third Party Claims.
(e) INSURANCE. The Company and each Member will maintain
insurance as set forth on Schedule 10.3(e).
ARTICLE XI
INTELLECTUAL PROPERTY
11.1 GENERAL PRINCIPLES. All Products (as that term is defined in
the Supply Agreements) manufactured and supplied to the Company under the Supply
Agreements are being manufactured for the Company and, unless Approved by the
Board, shall bear only the ELA Trademarks or the Company Trademarks.
11.2 MEMBER MARKS. The Company shall have no rights to use any
trademark, service xxxx, logo or tradename of a Member or its Affiliates (the
"Member Trademarks") without a prior written license agreement with such Member
or Affiliate covering the use of such Member Trademarks in a form to be mutually
agreed by the Members, pursuant to which the Company shall be granted a
royalty-free license to such Member Trademarks during the term of this
Agreement. As soon as reasonably practicable after the execution and delivery of
this Agreement, ELA and the Company will enter into a license agreement in a
form mutually acceptable to the Members pursuant to which ELA will license to
the Company, for the term of this Agreement, for certain Member Trademarks of
ELA and its Affiliates (the "ELA Trademarks") in connection with the Company's
sale and distribution of Products under the Supply Agreements. It is
acknowledged and agreed that ELA and its Affiliates will retain the right to use
all ELA Trademarks in connection with existing and future sales of Cardiac
Stimulation Devices in all territories outside the United States. The Company
shall not use any other Member Trademarks in connection with the business of the
Company except upon Board Approval. In the event of a dissolution of the Company
or termination of this Agreement, each of the aforesaid trademark licenses shall
automatically terminate and all rights in and to the Member Trademarks covered
thereby shall revert to the Member that owns such marks, and the other Member or
its Affiliates shall not have any right to use, and hereby covenants and agrees
not to use, such Member Trademarks for any use or activity. For the avoidance of
doubt, the Member that owns such Member Trademarks shall retain the full and
unrestricted right, notwithstanding such dissolution of the Company or
termination of this Agreement, to continue to use such marks in the United
States and elsewhere in the world, whether in connection with the manufacture,
sale and distribution of Cardiac Stimulation Devices that such Member is
entitled to undertake or otherwise, following any dissolution of the Company or
termination of this Agreement. Except as otherwise set forth in any Ancillary
Agreement, as required to identify a Member as a Member of the Company, or as
may be required by a Governmental Authority to identify the manufacturer of any
product, the Company shall have no right to use the name of a Member or its
Affiliates.
11.3 COMPANY MARKS. The Company may own by adoption or acquisition
trademarks, service marks, logos or tradenames, other than any then-existing or
then-proposed Member Trademarks, for use in connection with the business of the
Company (the "Company Trademarks") only upon Board Approval. In the event of a
dissolution of the Company or termination of this Agreement, all of the Company
Trademarks shall be abandoned and neither Member nor its Affiliates shall have
any right to use, and each hereby covenants and agrees not to use, such Company
Trademarks for any use or activity: provided, however, that in the event
of a Change of Control Withdrawal, the Non-Resigning Member may assign or
transfer any Company Trademarks to such Non-Resigning Member for any use or
activity.
11.4 PATENTS.
(a) Any and all patents and patent applications filed on
behalf of the Company with respect to any invention by an employee or contractor
of the Company which is required to be assigned to the Company shall be held by
the Company. The preparation and prosecution of any such patents and patent
applications shall be undertaken at the discretion of the Chief Executive
Officer by patent counsel designated by the Chief Executive Officer subject to
Board Approval, and the costs of such patents and patent applications shall be
borne by the Company.
(b) Upon any dissolution or termination of the Company:
(i) such Patents and patent applications shall
be assigned jointly to the Members;
(ii) each Member shall have the right as a joint
owner to exercise all rights with respect to
such patents and patent applications,
including, without limitation, the right to
make, use and sell, or authorize third
parties to make, use and sell, any products
derived from such patents and patent
applications;
(iii) licensees of the Members shall have the
right to grant further sublicenses;
(iv) Members and their licensees shall have the
right to take any action specified in (i)
above without any obligation to make any
payments to, provide an accounting to, or
obtain the consent of the other Member; and
(v) Each Member agrees and covenants to
cooperate reasonably with the other Member
with regard to any continuing prosecution of
such patents, to jointly share any fees and
costs of such patents and to consult with
the other Member concerning the enforcement
of such patents.
11.5 COPYRIGHTS. It is understood and agreed by the Members that
the Company may prepare materials in a fixed medium of expression regarding the
Products for dissemination to customers of the Company or the public (the
"Published Works"). The Company agrees to assign and does hereby assign its
copyright and all other right, title and interest in and to such Published Works
to the Member or its Affiliates who supplies the Product associated with such
Published Works, provided that the Company shall retain the right to freely
copy, publish and distribute such Published Works during the term of this
Agreement or with the express permission of such Member. In the event that a
Published Work is associated with Products of both Members or their Affiliates,
then the Members or their Affiliates shall jointly own such
copyright. The Company shall provide each Member with copies of any Published
Works associated with the Products of such Member and its Affiliates prior to
publication for approval and any such material not approved by such Member shall
not be used.
11.6 EXCLUSIVITY. During the term of this Agreement, each Member
and its Affiliates shall supply such Products (as it is obligated under its
Supply Agreement) exclusively to the Company for sale in the United States and
shall not sell any such Products in the United States for its own account or to
any Person except as contemplated by the Supply Agreements. Prior to entering
into any contract with any third party with regard to the manufacture, purchase,
sale or distribution in the United States of any Other Cardiac-Related Devices
or other than for research or clinical testing of such Other Cardiac-Related
Devices, each Member agrees to discuss in good faith with the other the
inclusion of such Other Cardiac-Related Devices under the relevant Supply
Agreements, subject to mutually agreeable terms. Nothing in this Section 11.6
shall create an obligation between the Members to agree to include Other
Cardiac-Related Devices in the relevant Supply Agreements and any obligation to
include Other Cardiac-Related Devices will arise only as and to the extent that
an agreement is reached between the relevant Member and the Company in writing.
11.7 DEVELOPMENT REPORTS. Subject to Article XVI, each Member shall
report at least annually to the Board regarding the product development
activities of the Member and its Affiliates related to the Products and Other
Cardiac-Related Devices to the extent necessary to assist the Board in preparing
its budgets, forecasts and strategic plans.
11.8 REGULATORY MATTERS. Each Member shall be responsible for
obtaining any and all authorizations, consents and approvals (including all
clinical testing) from all Governmental Authorities required for the marketing,
sale and distribution in the United States of the Products supplied by such
Member to the Company pursuant to the Supply Agreements, with ELA responsible
therefor under the ELA Supply Agreement and Angeion responsible therefor under
the Angeion Supply Agreement. All other authorizations, consents and approvals,
if any, required by the Company shall be obtained by the Company.
ARTICLE XII
TRANSFERABILITY
Subject to Section 17.1, without unanimous consent of the Members,
neither Member shall have the right to:
(a) sell, assign, pledge, exchange or otherwise transfer for
consideration, (collectively, "sell") all or any part of its Membership
Interests;
(b) gift, bequeath or otherwise transfer for no consideration
(whether or not by operation of law, except in the case of bankruptcy) all or
part of its Membership Interest; or
(c) resign or otherwise withdraw as a Member from the Company
prior to the dissolution and winding up of the Company, except as otherwise
provided in Section 15.4 hereof.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES
Each Member hereby represents and warrants to the other that as of the
date hereof:
(a) Each is a corporation duly organized and existing in good
standing under the laws of its respective jurisdiction of incorporation.
(b) Each has the requisite corporate power and authority to
execute, deliver, and perform its obligations in accordance with the terms of
this Agreement. This Agreement has been duly executed and delivered by it. The
Agreement constitutes a valid and binding obligation enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by equitable principles of general application.
(c) Except as set forth on Schedule 13, the execution,
delivery and performance of the Agreement and the consummation of the
transactions contemplated hereby do not (i) result in a violation of its
Articles of Incorporation or By-laws, as applicable or (ii) conflict with, or
constitute a default (or an event which with material notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, material
indenture or material instrument to which it is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree applicable to
it or by which any property or asset of such Member is bound or affected (except
in the case of subclause (ii) above, for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect). No action,
suit, dispute or proceeding is pending or, to the best knowledge of such Member,
threatened against such Member which, if adversely determined, would prevent
such Member from carrying out its obligations under this Agreement.
(d) Each shall have good and marketable title in and to any
personal property that may be contributed to the Company pursuant to Section 8.1
and that, effective upon such transfer, the Company shall acquire good and
marketable title to such property, free and clear of any liens, claims or other
encumbrances of any nature whatsoever. Except as set forth in this subsection
(d), neither Member makes any warranties express or implied with respect to any
such personal property or equipment contributed by a Member, including, without
limitation, any implied warranty of merchantability or fitness for a particular
purpose.
(e) Neither Member shall be deemed to have made any
representation or
warranty to the other Party except as expressly made in this Article XIII.
Without limiting the generality of the foregoing, and without prejudice to any
express representations and warranties made to either Member in this Article
XIII, neither Member makes any representation or warranty to the other with
regard to any issues related to Intellectual Property Rights, projections,
estimates or budgets or other matters previously delivered to or made available
to the other with respect to future revenues, expenses, expenditures or future
results of operations. Nothing in this Article XIII(d) shall limit any remedy
that may be available to a Member pursuant to Applicable Law.
ARTICLE XIV
DISSOLUTION AND WINDING UP
14.1 DISSOLUTION.
(a) The term of the Company shall end, and the Company shall
be dissolved, upon the occurrence of the following events (each a "Permitted
Withdrawal"):
(i) automatically upon expiration of the Initial
Term or the Renewal Term, as applicable, in
accordance with Section 2.5;
(ii) at any time upon Member Approval; or
(iii) by either Member, upon written notice to the
other Member, if the Products supplied by
the Member giving such notice under the
relevant Supply Agreement constitute less
than 10% of the Company's total sales of all
Products for any Fiscal Year, such written
notice to be provided to the other Member
within sixty (60) days of such Member's
receipt of financial statements for such
Fiscal Year.
(b) The term of the Company and this Agreement (subject to
Section 17.3) shall end, and the Company shall be dissolved, upon the election
of a Member (the "Non- Withdrawing Member") following the occurrence of either
of the following events (each an "Involuntary Withdrawal") with respect to the
other Member (the "Withdrawing Member"): (A) any Bankruptcy event involving the
Withdrawing Member or (B) any material breach of this Agreement or any of the
Ancillary Agreements by the Withdrawing Member, which material breach remains
uncured after written notice and a reasonable opportunity to cure (which shall
not exceed 90 days) such breach from the Non-Withdrawing Member.
14.2 CHANGE OF CONTROL.
(a) Without limiting Section 14.1 above, if a Change of
Control has occurred with respect to either Member, such Member (the "Resigning
Member") may unilaterally withdraw from the Company by giving written notice (a
"Resignation Notice") of such withdrawal to the other Member (the "Non-Resigning
Member") within forty-five (45) days of the occurrence of such Change of
Control.
(b) If a Resigning Member submits a Resignation Notice to the
Non-Resigning Member to withdraw from the Company (a "Change of Control
Withdrawal"):
(i) The Non-Resigning Member shall have the
right, by written notice to the Resigning
Member (the "Continuation Notice") within
thirty (30) days of its receipt of the
Resignation Notice, to elect to continue the
Company. In such event, the Non-Resigning
Member shall pay to the Resigning Member, at
a closing to be held within thirty (30) days
of the Continuation Notice, an amount in
cash equal to 80% of the Fair Market Value
of the Membership Interest of the Resigning
Member as of the date of such closing. Such
payment may be offset against any other
amounts, if any, that are otherwise payable
to the Resigning Member in connection with
its withdrawal from the Company, whether
upon dissolution of the Company or the
Resigning Member's withdrawal therefrom.
From and after the closing date of such
transfer of the Resigning Member's
Membership Interest, the Resigning Member
shall have no further interest in the
Company. This Agreement shall terminate on
the date of such closing for all purposes
hereunder, subject to Section 17.3 and the
continued obligations of the Resigning
Member under Section 14.2(b)(ii) below.
(ii) If the Non-Resigning Member elects to
continue the Company by submitting a
Continuation Notice as aforesaid, the
Resigning Member shall continue
manufacturing its then-current Products for
the Company, pursuant to the relevant Supply
Agreement, for the remainder of the Initial
Term, or the remainder of the Renewal Term
if such Renewal Term has already begun at
the time of the Continuation Notice.
(c) The Non-Resigning Member shall also have the right, by
written notice to the Resigning Member within thirty (30) days of its receipt of
the Resignation Notice, to cause the dissolution of the Company as a result of
the Change of Control Withdrawal effected by such notice; provided, however,
that if the Non-Resigning Member fails to deliver a Continuation Notice within
the aforesaid thirty (30) day period, it shall be deemed to have elected to
dissolve the Company pursuant to this Section 14.2(c). In such event, the
Resigning Member shall pay to the Non-Resigning Member, at a closing to be held
within thirty (30) days of such election or
deemed election (as applicable), an amount in cash equal to 120% of the Fair
Market Value of the Membership Interest of the Non-Resigning Member as of the
date of such election or deemed election (as applicable). Such amount may be
offset against any distributions from the Company in connection with the
dissolution of the Company due to the Resigning Member pursuant to Section 14.1.
(d) From and after any Change of Control Withdrawal, the
Resigning Member and its Affiliates shall refrain from soliciting employees of
the Non-Resigning Member, its Affiliates or the Company for a period of two (2)
years from the date of such Change of Control Withdrawal if the Company is
continued pursuant to Section 14.2(b) above. If the Company is liquidated
pursuant to Section 14.2(c) above, each Member and its Affiliates shall have the
right to solicit and make offers of employment to any individual who is or was
an employee of the Company as of the date of liquidation or within one (1) year
prior thereto; provided, that the maximum number of such former employees that
either Member shall have the right to employ (whether as employees, consultants
or otherwise and whether on a full- or part-time basis) during the period from
the date of liquidation until the second anniversary of such date shall be 50%
of such former employees.
(e) For purposes of this Section 14.2, the "Fair Market Value"
of a Membership Interest shall be agreed upon by the Members and shall be based
upon the goodwill, profits, sales and results of operations of the Company prior
to dissolution. Except as otherwise agreed by the Members, Fair Market Value of
the Company shall not be more than $10 million.
(f) If the Members are not able to reach agreement on the Fair
Market Value of a Membership Interest, they shall negotiate in good faith to
attempt to resolve their differences. If such negotiations shall fail to result
in an agreement within thirty (30) days, the Members shall each submit their
Fair Market Value proposals to the chief executive officers of the Members to
attempt to resolve their differences. If such chief executive officers shall
fail to reach agreement within fifteen (15) days, the Members shall submit their
final proposals to an independent third party decisionmaker who shall pick
whichever of the final proposals more closely adheres to the principles set
forth in Section 14.2(e). The third party decisionmaker shall be selected by
joint agreement of the two Members (or if they are unable to agree within ten
(10) days, then by the American Arbitration Association ("AAA"); provided,
however, that the AAA shall not administer the proceedings). The decision of
such third party shall be final and non-appealable. The Person selected to be
the third party decisionmaker shall have experience in the medical device
industry and in distribution and other relevant commercial matters in such
industry. Preference shall be given to the selection of an individual with
experience as an arbitrator, but the individual need not be a lawyer. The
Members shall each submit their final proposals to the independent decisionmaker
with supporting analyses and other information as they deem appropriate within
fifteen (15) days after selection of the decisionmaker. No Member shall have EX
PARTE communications with the decisionmaker during any time period immediately
relevant to the decisionmaker's actions in connection with this Agreement. Each
Member shall be entitled to rebut the presentation of the other and to submit a
final summary argument after review of the other Member's rebuttal, in each case
within fifteen (15) days after the final proposal submissions. Each of the
submissions of each Member (including their respective final proposals) will be
made concurrently to the independent decisionmaker and will be opened
simultaneously and provided to the other Member upon such opening.
14.3 LIMITATION ON WITHDRAWALS. Except as expressly provided in
Sections 14.1 and 14.2, neither Member shall voluntarily withdraw or take any
other action which causes the dissolution of the Company. In connection with any
Involuntary Withdrawal, the Withdrawing Member shall be liable to the Company or
the Non-Withdrawing Member for any damages arising out of or related to any such
Involuntary Withdrawal. Any such damages duly determined to be payable by the
Withdrawing Member may be offset against any distributions due to the
Withdrawing Member from the Company upon its dissolution or otherwise. Any
damages arising out of any Involuntary Withdrawal shall be monetary damages only
(and not specific performance).
14.4 WINDING UP, LIQUIDATION AND DISTRIBUTION OF ASSETS. Upon
dissolution of the Company, for any reason under Sections 14.1 and 14.2, an
accounting shall be made by the Company's independent accountants of the
accounts of the Company and of the Company's assets, liabilities and operations
from the date of the last previous accounting until the date of dissolution. In
connection with any Permitted Withdrawal, the Members, acting through their
representatives on the Board, shall jointly oversee and control the dissolution
of the Company and the winding up of its affairs under this Article XIV. In
connection with any Involuntary Withdrawal or any Change of Control Withdrawal,
the Non-Withdrawing Member or the Non- Resigning Member, as applicable (the
"Liquidating Member"), shall oversee and control any related dissolution of the
Company. Subject to Section 14.2(b)(ii), if the Company is dissolved and its
affairs are wound up, then all licenses and other rights granted by the Members
to the Company hereunder and under the Ancillary Agreements shall terminate and
all rights thereunder shall revert to the grantor thereof, and the provisions of
Article XI shall govern the post-liquidation use of any Company Trademarks,
Member Trademarks and other intellectual property rights. Further, the Board or
the Liquidating Member, as applicable, shall, subject to Sections 14.1 and 14.2:
(a) Except as set forth above, sell or otherwise liquidate all
of the Company's assets as promptly as practicable (except to the extent the
Board or Liquidating Member may determine to distribute any assets to the
Members in kind).
(b) Allocate any profit or loss resulting from such sales to
the Members' Capital Accounts in accordance with Article IX.
(c) Discharge all liabilities of the Company, including
liabilities to any Member who is a creditor, to the extent otherwise permitted
by law, other than liabilities to Members for distributions, and establish such
Reserves as may be reasonably necessary to provide for contingencies or
liabilities of the Company (for purposes of determining the Capital Accounts of
the Members, the amounts of such Reserves shall be deemed to be an expense of
the Company).
(d) Distribute the remaining assets in the following order:
(i) if any assets of the Company are to be
distributed in kind, the net
fair market value of those assets as of the
date of dissolution shall be determined by
independent appraisal or by agreement of the
Members; those assets shall be deemed to
have been sold as of the date of dissolution
for their fair market value, and the Capital
Accounts of the Members shall be adjusted
pursuant to the provisions of Article IX and
Section 8.3 of this LLC Agreement to reflect
such deemed sale; and
(ii) the positive balance (if any) of each
Member's Capital Account (as determined
after taking into account all Capital
Account adjustments for the Company's
taxable year during which the liquidation
occurs) shall be distributed to the Members,
either in cash or in kind, as determined by
Board Approval or by the Liquidating Member,
as applicable, with any assets distributed
in kind being valued for this purpose at
their fair market value as determined
pursuant to Section 8.3(c); any such
distributions to the Members in respect of
their Capital Accounts shall be made in
accordance with the time requirements set
forth in Treas. Xxx.xx.
1.704-1(b)(2)(ii)(b)(2).
(e) Notwithstanding anything to the contrary in this LLC
Agreement, upon a liquidation within the meaning of Treas. Reg. ss.
1.704-1(b)(2)(ii)(g), if either Member has a Deficit Capital Account (after
giving effect to all contributions, distributions, allocations, and other
Capital Account adjustments for all taxable years, including the year during
which such liquidation occurs), the Member shall have no obligation to make any
Capital Contribution, and the negative balance of the Member's Capital Account
shall not be considered a debt owed by the Member to the Company or to any other
Person for any purpose whatsoever.
(f) The Board or the Liquidating Member, as applicable, shall
comply with any requirements of Applicable Law pertaining to the winding up of
the affairs of the Company and the final distribution of its assets.
14.5 CERTIFICATE OF CANCELLATION. A certificate of cancellation
shall be filed in the office of the Secretary of State to cancel the Certificate
of Formation upon the dissolution and winding up of the Company.
14.6 RETURN OF CONTRIBUTION NONRECOURSE TO OTHER MEMBERS. Except as
provided by law or as expressly provided in this LLC Agreement, upon
dissolution, each Member shall look solely to the assets of the Company for the
return of its Capital Contributions or any loans owed to it by the Company. If
the assets of the Company remaining after the payment or discharge of the debts
and liabilities of the Company are insufficient to return the Capital
Contributions of either Member, neither Member shall have any recourse against
the other Member.
14.7 NO RESIDUAL VALUE. Subject to Section 14.2(e), upon
liquidation or termination of the Company, neither Member shall have any
obligation to make any payment to the other Member in respect of goodwill or
other residual value of any kind of the Company or its
property, business or assets.
ARTICLE XV
DISPUTE RESOLUTION
15.1 GENERAL DISPUTE PRINCIPLES.
(a) All disputes between or among the Members and/or
any of their Affiliates (including the Company) under this Agreement and the
Related Agreements shall be settled, if possible, through good faith
negotiations between the relevant parties.
(b) Disputes as to the specific matters referred to
in Section 14.2(f) shall be resolved as provided in such Section. All other
disputes under this Agreement and the Related Agreements shall be resolved as
provided in Section 15.2.
(c) Prior to resolving any dispute by means of
arbitration or by means of any suit, action or legal proceeding permitted under
Article 15.2, the relevant parties involved in such dispute shall refer such
dispute to their respective chief executive officers or equivalent, who shall
meet in person to negotiate in good faith the possible resolution thereof on at
least two occasions within 30 days before any such party commences arbitration
or such litigation (provided that if any such party fails or refuses to have a
representative attend such meetings within such thirty (30) day period, the
procedures of Section 15.2 shall be applicable after the conclusion of such
thirty (30) day period); and further provided, that (i) any legal proceedings
seeking interim equitable relief (including a temporary restraining order or
preliminary injunction) until such time as such interim equitable relief can be
addressed through arbitration; (ii) proceedings for provisional relief
contemplated by Section 15.2(i) below; and (iii) third party legal proceedings
under Section 15.1(d) below may be commenced immediately.
(d) If a Member or any of its Affiliates (including
the Company) is subject to a claim, demand, action or proceeding by a third
party and is permitted by law or arbitral rules to join another party to such
proceeding, this Article XV shall not prevent such joinder. This Article XV
shall also not prevent either Member or any such Affiliate from pursuing any
legal action against a third party.
15.2 ARBITRATION OF OTHER DISPUTES.
(a) In the event such good faith negotiations are
unsuccessful, either Member may, after 30 days written notice to the other,
submit any controversy or claim arising out of, relating to or in connection
with this Agreement, or the breach thereof, to arbitration administered by the
American Arbitration Association ("AAA") in accordance with its then existing
International Arbitration rules (except that Sections 29 and 31 of the
Commercial Arbitration Rules in effect on the date hereof, a copy of which is
attached hereto as Schedule 15.2, shall govern in the event of any conflict
therewith (collectively, "AAA Rules") and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof.
(b) To the extent this Section is deemed a separate
agreement, independent from this Agreement, Article XVII shall be incorporated
herein by reference. Either Member (the "Initiating Party") may commence an
arbitration by submitting a demand for arbitration ("Demand for Arbitration")
under the AAA Rules and by notice to the other Member (the "Respondent") in
accordance with Section 17.5. Such notice shall set forth in reasonable detail
the basic operative facts upon which the Initiating Party seeks relief and
specific reference to the clauses of this Agreement, the amount claimed, if any,
and any nonmonetary relief sought against the Respondent. After the Demand for
Arbitration, response and counterclaim, if any, and reply to counterclaim, if
any, have been submitted, either Member may propose additional issues for
resolution in the pending proceedings only if expressly so ordered by the
arbitrators.
(c) The place of arbitration shall be New York, New
York, and the award shall be deemed a U.S. award for purposes of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New
York Convention").
(d) The Members shall attempt, by agreement, to
nominate a sole arbitrator for confirmation by the AAA. If the Members fail so
to nominate a sole arbitrator within 30 days from the date when the Initiating
Party's Demand for Arbitration has been communicated to the Respondent, a board
of three arbitrators shall be appointed by the Parties jointly or, if the
Members cannot agree as to three arbitrators within 30 days after the
commencement of the arbitration proceeding, then one arbitrator shall be
appointed by each of the Initiating Party and the Respondent within 60 days
after the commencement of the arbitration proceeding and the third arbitrator
shall be appointed by mutual agreement of such two arbitrators. If such two
arbitrators shall fail to agree within 75 days after commencement of the
arbitration proceeding upon the appointment of the third arbitrator, the third
arbitrator shall be appointed by the AAA in accordance with the AAA Rules.
Notwithstanding the foregoing, if any Member shall fail to appoint an arbitrator
within the specified time period, such arbitrator and the third arbitrator shall
be appointed by the AAA in accordance with its then existing rules. For purposes
of this Section, the "commencement of the arbitration proceeding" shall be
deemed to be the date upon which the Demand for Arbitration has been delivered
to the Members in accordance with Section 17.5. Any award shall be rendered by a
majority of the arbitrators. A hearing on the matter in dispute shall commence
within 90 days following selection of the arbitrators, and the decision of the
arbitrators shall be rendered no later than 90 days after
commencement of such hearing.
(e) An award rendered in connection with an
arbitration pursuant to this Section shall be final and binding upon the
Members, and the Members agree and consent that the arbitral award shall be
conclusive proof of the validity of the determinations of the arbitrators set
forth in the award and any judgment upon such an award may be entered and
enforced in any court of competent jurisdiction.
(f) The Members agree that the award of the arbitral
tribunal will be the sole and exclusive remedy between them regarding any and
all claims and counterclaims between them with respect to the subject matter of
the arbitrated dispute. The Members hereby waive all IN PERSONAM jurisdictional
defenses in connection with any arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto (assuming that the terms and conditions
of this arbitration clause have been complied with).
(g) The Members hereby agree that for purposes of the
New York Convention, the relationship between the Members is commercial in
nature, and that any disputes between the Members related to this Agreement
shall be deemed commercial.
(h) The arbitrators shall issue a written explanation
of the reasons for the award and a full statement of the facts as found and the
rules of law applied in reaching their decision to both Members. The arbitrators
shall apportion to each Member all costs (including attorneys' and witness fees,
if any) incurred in conducting the arbitration in accordance with what the
arbitrators deem just and equitable under the circumstances. Any provisional
remedy which would be available to a court of law shall be available from the
arbitrators pending arbitration of the dispute. Either Member may make an
application to the arbitrators seeking injunctive or other interim relief, and
the arbitrators may take whatever interim measures they deem necessary in
respect of the subject matter of the dispute, including measures to maintain the
status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved. The arbitrator shall have the authority to
award any remedy or relief (except as ex parte relief) that a court of the State
of New York could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of the
arbitration process, but specifically excluding punitive damages.
(i) The Members may file an application in any proper
court for a provisional remedy in connection with an arbitrable controversy, but
only upon the ground that the award to which the application may be entitled may
be rendered ineffectual without provisional relief. The Members may also
commence legal action in lieu of any arbitration under this Section 15.2 in
connection with any third party litigation proceedings or for any matter
involving disputes related to Intellectual Property Rights.
(j) After the appointment of the arbitrators, the
parties to the arbitration shall have the right to take depositions, ask
interrogatories, obtain documentation and to obtain other discovery regarding
the subject matter of the arbitration, and, to that end to use and exercise all
the same rights, remedies, and procedures, and be subject to all of the same
duties, liabilities, and obligations in the arbitration with respect to the
subject matter thereof, as if the subject matter of the arbitration were pending
in a civil action before a United States District Court for the Southern
District of New York and such persons, documents or other requested material
were located in State of New York. The parties shall reach agreement with the
arbitrator on a streamlined and expedited discovery program in order to save
costs and avoid unnecessary delay in completing any arbitration and may present
to the arbitrator for a ruling any reasons for limiting such discovery in order
to save costs and avoid delay.
(k) For purposes of any suit, action, or legal
proceeding permitted under this Article XV, each Member (a) hereby irrevocably
submits itself to and consents to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York for the purposes of
any suit, action or legal proceeding in connection with this Agreement including
to enforce an arbitral resolution, settlement, order or award made pursuant to
this Agreement (including pursuant to the New York Convention, the U.S.
Arbitration Act, or otherwise), and (b) to the extent permitted by Applicable
Law, hereby waives, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or legal proceeding pending in such event,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or legal proceeding is brought in an inconvenient forum or
that the venue of the suit, action or legal proceeding is improper. Each Member
hereby agrees to the entry of an order to enforce any resolution, settlement,
order or award made pursuant to this Section by the United States District Court
for the Southern District of New York and in connection therewith hereby waives,
and agrees not to assert by way of motion, as a defense, or otherwise, any claim
that such resolution, settlement, order or award is inconsistent with or
violative of the laws or public policy of the laws of the State of New York or
any other jurisdiction.
(l) All claims arising under this Agreement and all
Related Agreements brought by the Member and/or their Affiliates (including the
Joint Venture) at substantially the same time shall be referred to a single
arbitration to the extent arbitrable under this Article XV.
15.3 PARTICIPATION IN THIRD PARTY PROCEEDINGS.
(a) To the extent that the Company shall have the
right to join in any arbitration or legal proceeding initiated by or against a
Member or its Affiliates with any third party, the Member not a party to such
proceeding, acting through its representatives on the Board, shall have the
right but not the obligation to exercise a casting (i.e. controlling) vote on
any decision of the Company relating to such proceeding and the designation of
representatives of the Company in any such proceeding. Nothing in this Section
shall be construed as giving the Member not a party to such proceeding or the
Company any right to direct or control the conduct or defense of any such
proceeding. In the event the Company elects not to join in such proceeding, the
Member a party to such proceeding shall provide such documents or other
information relating to such proceeding as the Company (with the non-party
Member having the casting vote) may reasonably request to the extent such
disclosure is not prohibited and would not otherwise cause a breach of the
duties or obligations of the Member a party to such proceeding and would not
violate any Applicable Laws.
ARTICLE XVI
CONFIDENTIALITY; PUBLICITY; NON SOLICITATION
16.1 CONFIDENTIAL INFORMATION.
(a) Each Member shall (and shall cause its
Affiliates, agents and representatives to), for the term of this Agreement and
for six (6) years after the expiration or termination of this Agreement for any
reason, (i) keep confidential, (ii) not disclose to others, (iii) use only for
the purposes provided for or permitted under this Agreement or the Related
Agreements and (iv) use Best Efforts, and at least the same degree of care (but
no less than a reasonable degree of care) as it uses to protect its own
Confidential Information of like importance, to prevent unauthorized use,
dissemination and disclosure of, all of the other Member's or its Affiliates'
Confidential Information, except as expressly provided for or permitted by this
Agreement. All Confidential Information shall, as between the Members and their
Affiliates remain the sole property of the disclosing party or the relevant
Affiliate. The receiving party and its Affiliates, agents and representatives
shall have no rights to the Confidential Information of the disclosing party and
its Affiliates, except provided in this Agreement. Nothing in this Section 16.1
shall prevent disclosure or use of information which is or becomes public
knowledge without the fault of the receiving party and its Affiliates, agents
and representatives or information already known to, or proven by written
evidence to have been independently derived by, the receiving party or its
Affiliates or received from a third party having the right to convey it.
Notwithstanding the foregoing, such Confidential Information may be (i)
disclosed to a Governmental Authority and to others to the extent such
disclosure may be required to be included in regulatory filings permitted under
the terms of this Agreement or required under Applicable Law; (ii) published by
the receiving party or its Affiliates, if and to the extent such publication has
been approved in writing by the disclosing party; or (iii) disclosed to the
extent required by Applicable Law or as ordered by a court or other regulatory
body having competent jurisdiction. In each of the foregoing cases, the
receiving Party will use its Best Efforts to limit the disclosure and maintain
confidentiality of such Confidential Information to the maximum extent
practicable and prior to making any such disclosure it shall use Best Efforts to
consult with the disclosing party regarding the scope of any protective order or
other confidentiality protections that may be available to limit the extent of
disclosure. Any disclosure of Confidential Information to any Affiliates, agents
or representatives of the receiving party shall be limited to a "need to know"
basis for purposes related to this Agreement; provided that (i) the receiving
party shall be responsible and liable to disclosing party for any breach of the
terms of this Section 16.1 by any Affiliate, agent or representative, and (ii)
disclosure by the receiving party to any agent or representative shall be made
pursuant to appropriate confidentiality agreements.
(b) The provisions of this Section 16.1 shall survive
and shall remain in full force and effect for six (6) years after the expiration
or termination or termination of this Agreement for any reason. After any
expiration or termination of this Agreement, upon written request, each Party
shall promptly discontinue the use of, and return within thirty (30) business
days all originals and copies of, any requested Confidential Information that
was disclosed by the other Party or is the property of the other Party and that
has been fixed in any tangible means of expression. For purposes of this Section
16.1 and 16.2, L'Oreal shall be deemed an Affiliate of ELA. The Members shall
cooperate with each other to ensure that the Company abides by the terms of this
Section 16.1 and 16.2 below.
16.2 PUBLICITY. Each Member agrees and shall cause its Affiliates
to not to issue any press release disclosing the terms of, or relating to, this
Agreement, without the prior written consent of the other Member or its
Affiliates; provided; however, that neither Member shall be prevented from
complying with any duty of disclosure it may have pursuant to Applicable Law.
Such disclosing party shall use its Best Efforts to consult with the other
Member regarding the issuance of any such press release, or with regard to any
public statement disclosing the terms of this Agreement and shall use its Best
Efforts to obtain confidential treatment for any Confidential Information where
such press release or other public statement is required to be made by
Applicable Law.
16.3 NON SOLICITATION. Subject to Section 14.2, during the term of
this Agreement and for two (2) years after termination or expiration hereof,
each Member shall refrain from soliciting the personnel of the other Member,
including, without limitation, research and development personnel.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
17.1 AFFILIATES. Any and all activities to be performed by any
Member hereunder may be performed by officers or employees of one or more
Affiliates of such Member provided that all actions taken by such persons on
behalf of such Member in connection with this Agreement will be the
responsibility of such Member who shall be liable to the other Member and the
Company therefor. Either Member may assign this Agreement to an Affiliate of
such Member, provided that such Affiliate is directly or indirectly 100% owned
by or 100% under common control with the assigning Member and the assigning
Member shall remain liable to the other Member for the performance of this
Agreement by such Affiliate.
17.2 NO AGENCY. Nothing contained in this Agreement will be deemed
to authorize or permit any Member to bind any other Member in any respect.
17.3 SURVIVAL. The provisions of Articles I, IX, XIV, XV, XVI and
XVII, and Sections 6.1 and 11.2 to 11.5 will survive any expiration or
termination of this Agreement or the dissolution of the Company.
17.4 ENTIRE AGREEMENT. This LLC Agreement, the Ancillary
Agreements, and the Investment and Master Strategic Relationship Agreement and
the "Related Agreements" referred to therein represent the entire agreement
among all the Members and the Company.
17.5 NOTICES. Any notice or other communication required or
permitted to be given by any provision of this LLC Agreement shall be in writing
and shall be effective (a) upon hand delivery or delivery by telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the third business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
If to Angeion:
Angeion Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Xxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to the ELA:
ELA Medical, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Chief Executive Officer
With a copies to:
Synthelabo
00 Xxxxxx Xxxxxxx
00000 Xx Xxxxxxx Xxxxxxxx
XXXXXX
Telephone: 33 (1) 45.37.56.67
Telecopier: 33 (1) 45.37.58.04
Attention: General Counsel
and
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Any party hereto may from time to time change its address for notices under this
Section 18.6 by giving at least 10 days' notice of such changed address to the
other party hereto.
17.6 BOOKS OF ACCOUNTS AND RECORDS. Proper and complete records and
books of account shall be kept or shall be caused to be kept by the Board in
which shall be entered fully and accurately all transactions and other matters
relating to the Company's business in the detail and completeness customary and
usual for business of the type engaged in by the Company. The books and records
shall be maintained as provided in Section 9.8. The books and records shall at
all times be maintained at the principal executive office of the Company and
shall be open to the reasonable inspection and examination of the Members or
their duly authorized representatives during normal business hours upon
reasonable notice.
17.7 GOVERNING LAW. This LLC Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
except that all matters relating to the internal governance of the Company shall
be governed exclusively by the terms of this LLC Agreement and by the laws of
the State of Delaware, and specifically the Delaware Act. To the maximum extent
permissible under applicable law, the terms of this Agreement shall prevail over
all contrary provisions of the Delaware Act and each Member irrevocably waives
and eliminates the application of all such provisions of the Delaware Act
including without limitation the entire application of Sections 18-1001,
18-1002, 18-1003, 18-1004, 18-210 and 18-604 of the Delaware Act. The Members
further shall not assert in any litigation, controversy or proceeding a position
contrary to the waivers and limitations set forth herein.
17.8 WAIVER OF ACTION FOR PARTITION. Each Member irrevocably waives
during the term of the Company any right that it may have to maintain any action
for partition with respect to the property of the Company.
17.9 AMENDMENTS. This LLC Agreement may not be amended except by
the unanimous written agreement of all of the Members.
17.10 FURTHER ASSURANCES. Each of the Members agrees to take all
reasonably necessary steps to do all such further acts and things as may be
necessary to carry out the purposes and intentions of this LLC Agreement.
17.11 CONSTRUCTION. Whenever the singular number is used in this LLC
Agreement and when required by the context, the same shall include the plural
and vice versa,
and the masculine gender shall include the feminine and neuter genders and vice
versa.
17.12 HEADINGS. The headings in this LLC Agreement are for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this LLC Agreement or any of its
provisions.
17.13 WAIVERS. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this LLC Agreement shall not prevent a subsequent act, that would
have originally constituted a violation, from having the effect of an original
violation.
17.14 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
provided by this LLC Agreement are cumulative and the use of any one right or
remedy by any party shall not preclude or waive the right to use any or all
other remedies. Said rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance or otherwise.
17.15 SEVERABILITY. If any provision of this LLC Agreement or its
application to any person or circumstance shall be invalid, illegal, or
unenforceable to any extent, the remainder of this LLC Agreement and its
application shall not be affected and shall be enforceable to the fullest extent
permitted by law.
17.16 HEIRS, SUCCESSORS, AND ASSIGNS. Each and all of the covenants,
terms, provisions, and agreements contained in this LLC Agreement shall be
binding upon and inure to the benefit of the parties hereto and, to the extent
permitted by this LLC Agreement, their respective permitted successors and
assigns.
17.17 RIGHTS OF CREDITORS AND THIRD PARTIES UNDER LLC AGREEMENT.
This LLC Agreement is entered into among the Company and the Members for the
exclusive benefit of the Company, its Members and their successors and
assignees. This LLC Agreement is expressly not intended for the benefit of any
creditor of the Company or any other Person, including, without limitation, any
employees of the Company or either Member. No such creditor or third party
shall have any rights under this LLC Agreement or any agreement between the
Company and any Member with respect to any Capital Contribution or otherwise.
17.18 COUNTERPARTS. This LLC Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this ____ day of ________________, 1997.
MEMBERS:
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Chief Executive Officer
ELA MEDICAL, INC.
By: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman of the Board
SCHEDULE 1.1 - RELATED AGREEMENTS
1. The Amended and Restated Investment and Master Strategic Relationship
Agreement between Synthelabo and Angeion dated as of October 9, 1997
(the "Investment Agreement").
2. The Warrants of Angeion issued or to be issued to Synthelabo pursuant
to the Investment Agreement.
3. The Manufacturing and Supply Agreement between Ela Medical and Angeion
dated December 9, 1997.
4. The Ancillary Agreements.
5. Any other agreements contemplated by this Agreement.
SCHEDULE 10.3(e) - INSURANCE
xxx xxxxxxx xxxx xxxxxxxx xxxxxxx xxxxxxxxx xxxxxxxxx xxxx x xxxxxxx xxxxxx xx
xx xxxxxxx xxx xxxxxxxxxx xx xxxxxxxx xx xxx xxxxxxxxx xxxx xx xxxx xxxx x xx
xxxxxxxx xxxxxxxxxx. xx xxxxxxxx xxxx xxxxxx xxxxx xxxxx xxx xxx xxxxxxx
xxxxxxxxx xxxxxxxxx xxxx x xxxxxxx xxxxxx xx xx xxxxxxx xxx xxxxxxxxxx xx
xxxxxxx xx xxx xxxxxxxxx xxxx xx xxxx xxxx xx xxxxxxxx xxxxxxxxxx. xx xxxxxxxx
xxxx xxxxxx xxx xxx xxxxxxx xxxxx xxxxx xxxxxxxxx xxx xxxxxxx xxxxxxx xxxx x
xxxxxxx xxxxxx xx x xxxxxxx xxx xxxxxxxxxx.
SCHEDULE 13 - NO CONFLICTS
ANGEION
(i) No exceptions, except as provided in sub-clause (ii) below.
(ii) Angeion makes no representation and warranty with respect to
xxxxxxxxxxxx xxxxxxxx xxxxxx or xxx xxxxxxxxxx xxxxxxxx xx xxxxxxxxxxxx xxxxxxxx
xxxxxx.
ELA
(i) No exceptions, except as provided in sub-clause (ii) below.
(ii) ELA makes no representation and warranty with respect to xxxxxxxxxxxx
xxxxxxxx xxxxxx or xxx xxxxxxxxxx xxxxxxxx xx xxxxxxxxxxxx xxxxxxxx xxxxxx.
SCHEDULE 15.2 - AAA RULES
29. ORDER OF PROCEEDINGS AND COMMUNICATION WITH ARBITRATOR
A hearing shall be opened by the filing of the oath of the arbitrator, where
required; by the recording of the date, time and place of the hearing, and the
presence of the arbitrator, the parties, and their representatives, if any, and
by the receipt by the arbitrator of the statement of the claim and the answering
statement, if any.
The arbitrator may, at the beginning of the hearing, ask for statements
clarifying the issues involved. In some cases, part or all of the above will
have been accomplished at the preliminary hearing conducted by the arbitrator
pursuant to Section 10.
The complaining party shall then present evidence to support its claim. The
defending party shall then present evidence supporting its defense. Witnesses
for each party shall submit to questions or other examination. The arbitrator
has the discretion to vary this procedure but shall afford a full and equal
opportunity to all parties for the presentation of any material and relevant
evidence.
Exhibits, when offered by either party, may be received in evidence by the
arbitrator.
The names and addresses of all witnesses and a description of the exhibits in
the order received shall be made a part of the record.
There shall be no direct communication between the parties and a neutral
arbitrator other than at oral hearing, unless the parties and the arbitrator
agree otherwise. Any other oral or written communication from the parties to the
neutral arbitrator shall be directed to the AAA for transmittal to the
arbitrator.
31. EVIDENCE
The parties may offer such evidence as is relevant and material to the dispute
and shall produce such evidence as the arbitrator may deem necessary to an
understanding and determination of the dispute. An arbitrator or other person
authorized by law to subpoena witnesses or documents may do so upon the request
of any party or independently.
The arbitrator shall be the judge of the relevance and materiality of the
evidence offered, and conformity to legal rules of evidence shall not be
necessary. All evidence shall be taken in the presence of all of the arbitrators
and all of the parties, except where any of the parties is absent in default or
has waived the right to be present.
EXHIBIT A
ANGELLAN MEDICAL SYSTEMS, LLC
THREE YEAR PROJECTIONS
XXXXXXXXXX
EXHIBIT B
FORM OF MANUFACTURING AND SUPPLY AGREEMENT - ANGEION
EXHIBIT C
FORM OF MANUFACTURING AND SUPPLY AGREEMENT - ELA
EXHIBIT D
INTERCOMPANY SERVICES AGREEMENT
THIS INTERCOMPANY SERVICES AGREEMENT ("Agreement"), is entered into on
December 9, 1997, by and between ANGEION CORPORATION, a Minnesota corporation
(along with its Affiliates (defined below), "Angeion") and ANGELLAN MEDICAL
SYSTEMS, LLC, a Delaware limited liability company ("Angellan").
R E C I T A L S:
A. Angeion and Synthelabo, a societe anonyme ("Synthelabo"), have
entered into that certain Amended and Restated Investment and Master Strategic
Relationship Agreement dated as of October 9, 1997 providing for an investment
in Angeion by Synthelabo and various other commercial arrangements between
Angeion and Affiliates of Synthelabo including the formation of Angellan of
which Angeion and ELA Medical, Inc., a Delaware corporation ("ELA"), are the
members.
B. Angellan will be engaged in the business of marketing and selling
certain products manufactured by Angeion and Affiliates of ELA and doing all
things necessary or related to these purposes as may be determined from time to
time by Angellan in accordance with the Limited Liability Company Operating
Agreement, dated December 9, 1997, by and between Angeion and ELA (the "Joint
Venture Agreement").
C. In connection with Angellan's formation, the parties desire to set
forth the terms and conditions under which Angellan may retain Angeion to
perform certain services (the "Services") on behalf of Angellan.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 AFFILIATE(S)
"Affiliates" shall mean any corporation, association or other entity
which directly or indirectly controls, is controlled by or is under common
control with the party in question, but only for so long as such relationship
exists. As used herein, the term "control" shall mean the ability to direct the
business of a company and shall be presumed in the case of ownership, directly
or indirectly, of shares of stock having at least fifty percent (50%) of the
voting power entitled to vote for the election of directors in the case of a
corporation, and at least fifty percent (50%) of the voting power and interest
in profits in the case of a business entity other than a corporation, or only if
less than fifty percent (50%) of the voting power and interest in profits is
permitted by Applicable Law, the maximum amount allowed in the country in
question (so long as the holder retains the ability to direct the business of
the entity). The parties acknowledge and
agree that no member of Angellan nor such member's Affiliates shall be deemed to
be included within the term "Affiliate" with respect to Angellan for any
purposes under this Agreement unless otherwise expressly provided in this
Agreement.
SECTION 1.02 APPLICABLE LAWS
"Applicable Laws" shall mean all foreign, federal, state and local
laws, statutes, rules and regulations which have been enacted by a Governmental
Authority and are in force as of the date hereof or which are enacted by a
Governmental Authority and come into force during the term of this Agreement, in
each case to the extent that the same are applicable to the performance by the
parties of their respective obligations under this Agreement.
SECTION 1.03 BEST EFFORTS
"Best Efforts" shall be determined under New York law and shall mean
such efforts as are consistent with efforts made by businesses of similar size
and resources in a similar circumstance and context to achieve a particular
result in a timely manner, but shall not require a party to take actions that
would be commercially unreasonable to such party in the circumstances.
SECTION 1.04 FORCE MAJEURE
"Force Majeure" shall mean, in relation to either party, any
circumstances beyond the reasonable control of that party, including, without
limitation, any fire, storm, flood, earthquake, explosion, accident, acts of the
public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine
restrictions, acts of God or acts of any Governmental Authority, labor disputes
that result in work stoppages, transportation embargoes or failure or delays of
transportation, or inability to secure materials necessary for the provision of
Services as a result of any of the foregoing. No acts of a Governmental
Authority resulting from any acts or omissions of Angeion or Angellan that are
in breach of this Agreement shall constitute an event of Force Majeure for the
breaching party.
SECTION 1.05 GOVERNMENTAL AUTHORITY
"Governmental Authority" shall mean any nation or government, any
state, province or other political subdivision thereof or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including the Federal Food and Drug Administration.
ARTICLE II.
PROVISION OF SERVICES
SECTION 2.01 TYPES OF SERVICES
Angellan hereby engages and retains Angeion as a preferred provider to
Angellan of the Services set forth below, upon the terms and conditions
hereinafter set forth:
(i) administrative and in-house legal services;
(ii) tax advice and services, including, without limitation,
assistance in the preparation of federal, state, local and foreign tax
returns;
(iii) accounting, payroll and bookkeeping advice and
services;
(iv) financial advice and services, including, without
limitation, assistance with respect to cash management, treasury and
risk management;
(v) human resources and personnel policies, including,
without limitation, wage and salary, administrative, employee relations
and administration of employee insurance plans, pension plans and other
employee benefits plans;
(vi) purchasing services, and assistance in the purchase or
leasing of equipment and supplies, including where possible and
acceptable to Angeion making available to Angellan volume purchase
discount arrangements and group rates for purchasing insurance and
other supplies and services;
(vii) facilities services, including mail, telephone, supply,
food service and employee services;
(viii) management information, supplemental data processing,
telecommunications, computer programming and other computer systems
services; and
such other services, advice and assistance as may be reasonably
requested by Angellan and agreed to by Angeion from time to time.
SECTION 2.02 PERFORMANCE
(a) All Services provided hereunder shall be diligently performed in a
professional manner by Angeion only at the request and under the general
direction of Angellan. Angeion shall not have any power to act independently on
behalf of Angellan in performing Services hereunder other than as specifically
authorized hereunder or as requested from time to time by Angellan. Neither
Angeion nor its employees, vendors, agents, Affiliates or suppliers shall be
deemed to be agents, representatives, employees or servants of Angellan, except
to the extent expressly provided pursuant to the authority granted under this
Agreement.
(b) The specified Services to be provided to Angellan by Angeion, and
the specified terms and conditions under which they shall be provided, shall be
set forth in separate annual schedules to this Agreement (each a "Schedule of
Services" the terms and conditions of which are expressly incorporated by
reference into this Agreement), which shall become effective only upon its
execution by Angeion (or an Affiliate of Angeion) and Angellan, in each case
subject to any approval as is necessary under the Joint Venture Agreement.
(c) Any Services provided to Angellan by Angeion may be performed by
Angeion or by such Affiliates thereof as Angellan may approve, provided that
Angeion shall be responsible for the performance of any Affiliate. If during the
course of performing the Services, Angeion is asked to perform additional
Services that are outside of the scope of those agreed to under the applicable
Schedule of Services then in effect, the parties shall separately agree in
writing, either by amending the existing Schedule of Services, or by entering
into an additional Schedule of Services, upon the terms by which such additional
Services are to be provided, including the Fee (as defined below) to be charged
by Angeion therefor.
(d) Angeion shall, in its sole discretion, determine which individuals
will render a particular Service, provided that those Services provided to
Angellan hereunder shall (except as otherwise agreed by Angellan) generally be
performed by those employees of Angeion who perform comparable services for
Angeion in the normal course of their employment.
SECTION 2.03 COMPENSATION; REIMBURSEMENTS
(a) Angellan shall pay to Angeion, with respect to the Services
performed by Angeion hereunder, a fee (the "Fee"), the exact amount of which
shall be agreed to by Angellan and Angeion and shall be set forth in each
Schedule of Services hereto. In addition to the Fee, Angeion shall be entitled
to reimbursement of the costs of goods or materials purchased on behalf of
Angellan and paid for by Angeion. The parties agree that each party will
negotiate the relevant Fee in good faith and use its Best Efforts to establish a
Fee which (i) reimburses Angeion for its applicable overhead in providing
Services to Angellan and (ii) is competitive with fees charged by third parties
in the relevant geographic marketplace.
(b) As a preferred provider, Angeion shall be entitled, at its option,
to submit a proposed Fee for any particular Schedule of Services for the next
calendar year and, unless Angellan can demonstrate that the proposed Fee is more
than ten percent (10%) above a fee which would be charged to Angellan by third
parties in the relevant geographic marketplace for similar services, Angellan
must negotiate to contract with Angeion for such Service.
(c) Subject to Section 2.03(b), if (i) Angellan does not retain Angeion
to perform particular Services, (ii) Angellan terminates a particular Schedule
of Services pursuant to Section 2.04(b), (iii) Angellan does not renew a
particular Schedule of Services pursuant to Section 2.04(c) or (iv) if Angeion
notifies Angellan that it will not continue to perform certain Services pursuant
to Section 2.04(c), Angellan shall be free to obtain such Services from a third
party.
SECTION 2.04 TERM AND TERMINATION
(a) This Agreement shall remain in effect until such time as neither
Angeion nor any of Angeion's Affiliates remain a party to the
Joint Venture Agreement, whereupon this Agreement shall terminate
and have no further force and effect except as set forth in
Section 4.15 hereto.
(b) Either party may terminate a Schedule of Services upon thirty (30)
days written notice to the other party of a material breach of a
Schedule of Services by the other party or its relevant Affiliates
if such other party fails to cure such material breach within the
thirty (30) days from the date of the written notice.
(c) Each Schedule of Services shall be automatically renewed for
additional one year terms, contingent upon the mutual agreement
of the parties on the Fee for each additional renewal term, such
mutual agreement to be reached at least ninety (90) days prior to
the expiration of a given term and subject to Section 2.03(b) and
(c) and provided that Angeion shall not be obligated to make
available any services to Angellan that Angeion does not perform
with respect to its own operations, or that Angeion deems are not
in Angeion's best interest to make available to Angellan;
provided further that Angeion shall be obligated to continue to
perform any Services specified in a fully-executed Schedule of
Services until such Schedule of Services expires or is
terminated.
SECTION 2.05 BOOKS AND RECORDS
Angeion shall keep, or cause to be kept, accurate books and records with
respect to the costs and expenses incurred in connection with the Services, and
Angellan and its auditors shall be permitted from time to time upon reasonable
notice to inspect the books and records with respect to such costs and expenses.
ARTICLE III.
STANDARD OF CARE
SECTION 3.01 STANDARD OF CARE
(a) For purposes of this Article III, "Angeion" shall be deemed to
include any of its Affiliates that provide Services pursuant to this Agreement.
(b) Nothing in this Agreement shall require Angeion to provide or
develop additional support or to render any Service which it does not
specifically agree to provide pursuant to the terms hereof, or to render any
Service in a manner or pursuant to methods different from that provided herein,
or in a Schedule of Services hereto.
(c) Angeion will use its Best Efforts to provide any and all Services
to be provided hereunder with the same degree of care as it provides the same
Services to its own operations,
but in no event in less than a commercially reasonable manner in accordance with
the customs of the industry.
(d) Subject to Section 3.01(c), Angeion shall not be liable to
Angellan or any other person for any loss, damage or expense which may result
therefrom or from Angeion's changing its manner of rendering the Services if
Angeion deems that such change is necessary or desirable in the conduct of its
own operations.
(e) Neither Angeion, nor its officers and employees shall be liable to
any third party, including governmental agencies, for any claims, damages or
expenses relating to the Services provided pursuant to this Agreement at the
express direction of Angellan and in compliance with this Agreement and any
Schedule of Services hereto, except where such claims, damages or expenses are
the result of the gross negligence or willful misconduct of Angeion or any
officer, director, employee or agent of Angeion.
(f) Neither Angeion nor its Affiliates, nor any of its or their
respective directors, officers, employees or agents shall have any liability to
Angellan and its Affiliates (including ELA and its Affiliates) for any special,
incidental or consequential damages, including but not limited to such damages
resulting from the loss of opportunity or loss of revenue or profit, in
connection with or arising out of this Agreement, any Schedule of Services
hereto or the Services provided hereunder.
(g) Neither Angellan nor its Affiliates (including ELA and its
Affiliates), nor any of its or their respective directors, officers, employees
or agents shall have any liability to Angeion for any special, incidental or
consequential damages, including but not limited to such damages resulting from
the loss of opportunity or loss of revenue or profit, in connection with or
arising out of this Agreement, any Schedule of Services hereto or the Services
provided hereunder.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01 ASSIGNMENTS
This Agreement shall be binding upon and inure to the benefit of the
successors in interest of the respective parties. Neither this Agreement nor any
interest hereunder shall be assignable by any party without the written consent
of the other party; provided, however, that a party may assign this Agreement or
any of its rights or obligations hereunder to any Affiliate or to any third
party with which it may merge or consolidate, or to which it may transfer all or
substantially all of its assets to which this Agreement relates, without
obtaining the consent of the other party, provided the assigning party remains
liable under this Agreement and that the third party assignee or surviving
entity assumes in writing all of the assigning party's obligations under this
Agreement. Any attempted assignment in contravention of this Section 4.1 shall
be void and of no effect.
SECTION 4.02 FEES AND EXPENSES
Each party shall be solely responsible for the payment of the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement.
SECTION 4.03 SEVERABILITY
If any provision of this Agreement is held by a court of competent
jurisdiction (including pursuant to enforcement of any arbitration award under
this Agreement) or panel of arbitrators to be invalid, unlawful or
unenforceable, it shall be modified, if possible, to the minimum extent
necessary to make it valid, lawful and enforceable or, if such modification is
not possible, it shall be stricken from this Agreement and the remaining
provisions of this Agreement shall continue in full force and effect; provided,
however, that if a provision is so stricken and is of a nature so as to
fundamentally alter the economic arrangements of this Agreement the party
adversely affected may terminate this Agreement by giving to the other party
sixty days written notice of termination.
SECTION 4.04 CONSENT TO JURISDICTION
For purposes of any suit, action, or legal proceeding permitted under
this Agreement, each party to this Agreement (a) hereby irrevocably submits
itself to and consents to the non-exclusive jurisdiction of the United States
District Court for the Southern District of New York for the purposes of any
such suit, action or legal proceeding in connection with this Agreement
including to enforce an arbitral resolution, settlement, order or award made
pursuant to this Agreement (including pursuant to the New York Convention, the
U.S. Arbitration Act, or otherwise), and (b) to the extent permitted by
Applicable Law, hereby waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action, or legal proceeding pending in
such event, any claim that it is not personally subject to the jurisdiction of
such court, that the suit, action or legal proceeding is brought in an
inconvenient forum or that the venue of the suit, action or legal proceeding is
improper. Each party to this Agreement hereby agrees to the entry of an order to
enforce any resolution, settlement, order or award made pursuant to this Section
by the United States District Court for the Southern District of New York and in
connection therewith hereby waives, and agrees not to assert by way of motion,
as a defense, or otherwise, any claim that such resolution, settlement, order or
award is inconsistent with or violative of the laws or public policy of the laws
of the State of New York or any other jurisdiction.
SECTION 4.05 DISPUTE RESOLUTION PROCEDURES
(a) All disputes between or among the parties and/or any of their
Affiliates under this Agreement shall be settled, if possible, through good
faith negotiations between the relevant parties. Prior to resolving any dispute
by means of arbitration or by means of any suit, action or legal proceeding
permitted under this Section 4.5, the relevant parties involved in such dispute
shall refer such dispute to their respective Chief Executive Officers or
equivalent, who shall meet
in person to negotiate in good faith the possible resolution thereof on at least
two occasions within 30 days before any such party commences arbitration or
other litigation permitted under this Agreement (provided, that if any such
party fails or refuses to have a representative attend such meetings within such
thirty (30) day period, the procedures of Section 4.5 shall be applicable after
the conclusion of such thirty (30) day period); and further provided that (i)
any legal proceedings seeking interim equitable relief (including a temporary
restraining order or preliminary injunction) until such time as such interim
equitable relief can be addressed through arbitration; (ii) proceedings for
provisional relief contemplated by Section 4.5 below; and (iii) third party
legal proceedings under Section 4.5(b) below may be commenced immediately.
(b) If a party or any of its Affiliates is subject to a claim, demand,
action or legal proceeding by a third party and is permitted by law or arbitral
rules to join another party to such proceeding, this Section 4.5 shall not
prevent such joinder. This Section shall also not prevent either party or any
such Affiliate from pursuing any legal action against a third party.
(c) In the event such good faith negotiations are unsuccessful, either
party may, after 30 days written notice to the other, submit any controversy or
claim arising out of, relating to or in connection with this Agreement, or the
breach thereof, to arbitration administered by the American Arbitration
Association ("AAA") in accordance with its then existing International
Arbitration rules except that Sections 29 and 31 of the Commercial Arbitration
Rules in effect on the date hereof shall govern in the event of any conflict
therewith (collectively, the "AAA Rules") and judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction there.
(d) To the extent this Section is deemed a separate agreement,
independent from this Agreement, the remaining provisions of Article IV shall be
incorporated herein by reference. Either party (the "Initiating Party") may
commence an arbitration by submitting a Demand for Arbitration under the AAA
Rules ("Demand for Arbitration") and by notice to the other party (the
"Respondent") in accordance with Section 4.7. Such notice shall set forth in
reasonable detail the basic operative facts upon which the Initiating Party
seeks relief and specific reference to the clauses of this Agreement, the amount
claimed, if any, and any nonmonetary relief sought against the Respondent. After
the Demand for Arbitration, response and counterclaim, if any, and reply to
counterclaim, if any, have been submitted, either party may propose additional
issues for resolution in the pending proceedings only if expressly so ordered by
the arbitrators.
(e) The place of arbitration shall be New York, New York, and the award
shall be deemed a U.S. award for purposes of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention").
(f) The parties shall attempt, by agreement, to nominate a sole
arbitrator for the confirmation by the AAA. If the parties fail so to nominate a
sole arbitrator within 30 days from the date when the Initiating Party's Demand
for Arbitration has been communicated to the Respondent, a board of three
arbitrators shall be appointed by the parties jointly or, if the parties cannot
agree as to three arbitrators within 30 days after the commencement of the
arbitration proceeding, then one arbitrator shall be appointed by each of the
Initiating Party and the
Respondent within 60 days after the commencement of the arbitration proceeding
and the third arbitrator shall be appointed by mutual agreement of such two
arbitrators. If such two arbitrators shall fail to agree within 75 days after
commencement of the arbitration proceeding upon the appointment of the third
arbitrator, the third arbitrator shall be appointed by the American Arbitration
Association in accordance with the AAA Rules. Notwithstanding the foregoing, if
any party shall fail to appoint an arbitrator within the specified time period,
such arbitrator and the third arbitrator shall be appointed by the AAA in
accordance with the AAA Rules. For purposes of this Section, the "commencement
of the arbitration proceeding" shall be deemed to be the date upon which the
Demand for Arbitration has been delivered to the parties in accordance with
Section 4.7. Any award shall be rendered by a majority of the arbitrators. A
hearing on the matter in dispute shall commence within 90 days following
selection of the arbitrators, and the decision of the arbitrators shall be
rendered no later than 90 days after commencement of such hearing.
(g) An award rendered in connection with an arbitration pursuant to
this Section shall be final and binding upon the parties and the parties agree
and consent that the arbitral award shall be conclusive proof of the validity of
the determinations of the arbitrations set forth in the award, and any judgment
upon such an award may be entered and enforced in any court of competent
jurisdiction.
(h) The parties agree that the award of the arbitral tribunal will be
the sole and exclusive remedy between them regarding any and all claims and
counterclaims between them with respect to the subject matter of the arbitrated
dispute. The parties hereby waive all in personam jurisdictional defenses in
connection with any arbitration hereunder or the enforcement of an order or
award rendered pursuant thereto (assuming that the terms and conditions of this
arbitration clause have been complied with).
(i) The parties hereby agree that for purposes of the New York
Convention, the relationship between the parties is commercial in nature, and
that any disputes between the parties related to this Agreement shall be deemed
commercial.
(j) The arbitrators shall issue a written explanation of the reasons
for the award and a full statement of the facts as found and the rules of law
applied in reaching their decision to both parties. The arbitrators shall
apportion to each party all costs (including attorneys' fees and witness fees,
if any) incurred in conducting the arbitration in accordance with what the
arbitrators deem just and equitable under the circumstances. Any provisional
remedy which would be available to a court of law shall be available from the
arbitrators pending arbitration of the dispute. Either party may make an
application to the arbitrators seeking injunctive or other interim relief, and
the arbitrators may take whatever interim measures they deem necessary in
respect of the subject matter of the dispute, including measures to maintain the
status quo until such time as the arbitration award is rendered or the
controversy is otherwise resolved. The arbitrator shall have the authority to
award any remedy or relief (except ex parte relief) that a court of the State of
New York could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the
imposition of sanctions for abuse or frustration of the arbitration process, but
specifically excluding punitive damages.
(k) The parties may file an application in any proper court for a
provisional remedy in connection with an arbitrable controversy, but only upon
the ground that the award to which the application may be entitled may be
rendered ineffectual without provisional relief.
(l) After the appointment of the arbitrators, the parties to the
arbitration shall have the right to take depositions, ask interrogatories,
obtain documentation and to obtain other discovery regarding the subject matter
of the arbitration, and, to that end, to use and exercise all the same rights,
remedies, and procedures, and be subject to all of the same duties, liabilities,
and obligations in the arbitration with respect to the subject matter thereof,
as if the subject matter of the arbitration were pending in a civil action
before the United States District Court for the Southern District of New York
and such persons, documents, or other requested material were located in the
State of New York. The parties shall reach agreement with the arbitrator on a
streamline and expedited discovery program in order to save costs and avoid
unnecessary delay in completing any arbitration and may present to the
arbitrator for a ruling any reasons for limiting such discovery in order to save
costs and avoid delay.
(m) All claims arising under this Agreement brought by the parties
and/or their Affiliates at substantially the same time shall be referred to a
single arbitration to the extent arbitrable under this Section 4.5.
SECTION 4.06 ENTIRE AGREEMENT; AMENDMENTS
This Agreement and the Schedules of Services hereto collectively
contain the entire understanding of the parties with respect to the matters
referred to hereby and, except as specifically set forth herein and therein,
neither Angeion nor Angellan makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be
amended or supplemented other than by a written instrument signed by the party
against whom enforcement of any such amendment or supplement is sought.
SECTION 4.07 NOTICES AND DELIVERIES
All notices, requests, demands, consents and other communications given
or required to be given under this Agreement and under the related documents
shall be in writing and delivered to the applicable party at the address
indicated below:
If to Angeion: Angeion Corporation
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. XxXxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx, LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Angellan: Angellan Medical Systems, LLC
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to: ELA Medical, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
ELA Medical
Centre d'Affaires la Boursidiere
92357 Le Plessis Xxxxxxxx
France
Attention: President
Tel: (33)(1)46.01.33.01
Fax: (33)(1)46.01.33.15
and
Synthelabo
00 Xxxxxx Xxxxxxx
00000 Xx Xxxxxxx Xxxxxxxx
XXXXXX
Attention: General Counsel
Tel: 33 (1) 45.37.56.67
Fax: 33 (1) 45.37.58.04
and
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties complying as to delivery with the terms
of this Section. Any notices shall be in writing, including telegraphic or
facsimile communication, and may be sent by registered or certified mail, return
receipt requested, postage prepaid, by fax or by overnight delivery service.
Notice shall be effective upon actual receipt thereof.
SECTION 4.08 NO WAIVER
No waiver by either party of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future hereof; or a waiver of any other provision, condition or
request hereof; nor shall any delay or omission of either party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
SECTION 4.09 HEADINGS
The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
SECTION 4.10 NO THIRD PARTY BENEFICIARIES
This Agreement is intended for the benefit of the parties and their
respective permitted successors and assigns and are not for the benefit of, nor
may any provision hereof be enforced by, any other person.
SECTION 4.11 GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York.
SECTION 4.12 RELATIONSHIP OF THE PARTIES
For all purposes of this Agreement, Angeion, Angellan, ELA and all of
their respective Affiliates shall be deemed to be independent entities and
anything in this Agreement to the contrary notwithstanding, nothing herein shall
be deemed to constitute Angeion, Angellan or ELA or any of their respective
Affiliates as partners, joint venturers, co-owners, an association or any entity
separate and apart from each party itself, nor shall this Agreement make any
party hereto an employee or agent, legal or otherwise, of the other parties for
any purposes whatsoever. None of the parties hereto or thereto is authorized to
make any statements or representations on behalf of the other parties or in any
way obligate the other parties, except as expressly authorized in writing by the
other parties. Anything in this Agreement to the contrary notwithstanding, no
party hereto shall assume nor shall be liable for any liabilities or obligations
of the other parties, whether past, present or future.
SECTION 4.13 CONFIDENTIALITY; PUBLICITY
(a) Each party shall (and shall cause its Affiliates, agents and
representatives to), for the term of this Agreement and for six (6) years after
the expiration or termination of this Agreement for any reason, (i) keep
confidential, (ii) not disclose to others, (iii) use only for the purposes
provided for or permitted under this Agreement, and (iv) use Best Efforts, and
at least the same degree of care (but no less than a reasonable degree of care)
as it uses to protect its own Confidential Information of like importance, to
prevent unauthorized use, dissemination and disclosure of, all of the other
party's and its Affiliates' Confidential Information, except as expressly
provided for or permitted by this Agreement. All Confidential Information shall,
as between the Parties and their Affiliates, remain the sole property of the
disclosing party or the relevant Affiliate. The receiving party and its
Affiliates, agents and representatives shall have no rights to the Confidential
Information of the disclosing party and its Affiliates, except as provided in
this Agreement. Nothing in this Section 4.13 shall prevent disclosure or use of
information which is or becomes public knowledge without the fault of the
receiving party and its Affiliates, agents and representatives or information
already known to, or proven by written evidence to have been independently
derived by, the receiving party or its Affiliates or received from a third party
having the right to convey it. Notwithstanding the foregoing, such Confidential
Information may be (i) disclosed to a Governmental Authority and to others to
the extent such disclosure may be required to be included in regulatory filings
permitted under the terms of this Agreement or required under Applicable Law;
(ii) published by the receiving party, if and to the extent such publication has
been approved in writing by the disclosing party or its Affiliates; or (iii)
disclosed to the extent required by Applicable Law or as ordered by a court or
other regulatory body having competent jurisdiction. In each of the foregoing
cases, the receiving party will use its Best Efforts to limit the disclosure and
maintain confidentiality of such Confidential Information to the maximum extent
practicable and prior to making any such
disclosure it shall use Best Efforts to consult with the disclosing party
regarding the scope of any protective order or other confidentiality protections
that may be available to limit the extent of disclosure. Any disclosure of
Confidential Information to any Affiliates, agents or representatives of the
receiving party shall be limited to a "need to know" basis for purposes related
to this Agreement; provided that (i) the receiving party shall be responsible
and liable to the disclosing party for any breach of the terms of this Section
4.13 by any Affiliate, agent or representative, and (ii) disclosure by the
receiving party to any agent or representative shall be made pursuant to
appropriate confidentiality agreements.
The provisions of this Section 4.13 shall survive and shall remain in
full force and effect for six (6) years after the expiration or termination of
this Agreement for any reason. For purposes of this Section 4.13, ELA and ELA's
Affiliates shall be deemed an Affiliate of Angellan.
(b) Each party agrees, and shall cause its Affiliates to, not to issue
any press release, disclosing the terms of, or relating to, this Agreement,
without the prior written consent of the other party; provided, however, that
neither party or its Affiliates shall be prevented from complying with any duty
of disclosure it may have pursuant to Applicable Law. Such disclosing party
shall use its Best Efforts to consult with the other party regarding the
issuance of any such press release, or with regard to any public statement
disclosing the terms of this Agreement or any Related Agreement and shall use
its Best Efforts to obtain confidential treatment for any Confidential
Information where such press release or other public statement is required to be
made by Applicable Law.
SECTION 4.14 NUMBER AND GENDER OF WORDS
Whenever the singular number is used herein, the same shall include the
plural where appropriate, and shall apply to all of such number, and to each of
them, jointly and severally, and words of any gender shall include each other
gender where appropriate.
SECTION 4.15 INTERPRETATION
When a reference is made in this Agreement to a Section or Schedule,
such reference shall be to a Section of or Schedule to this Agreement, unless
otherwise indicated. Any references to Applicable Laws or a subset thereof shall
be deemed to include any amendments or additions thereto from time to time or
any successor or similar Applicable Law.
SECTION 4.16 FURTHER ASSURANCES
Each party hereto agrees to take such further actions including the
execution of such further documents as may be necessary or desirable, or
reasonably requested by the other, in order to carry out the provisions of this
Agreement.
SECTION 4.17 FORCE MAJEURE
(a) Neither party shall be responsible or liable to the other
hereunder for the failure or delay in the performance of this Agreement due to
any event of Force Majeure. In the event of the applicability of this Section
4.17, the party failing or delaying performance shall use its Best Efforts to
eliminate, cure and overcome any of such causes and resume the performance of
its obligations. If any event of Force Majeure continues for more than 180 days,
either party shall have the right to terminate any Service which has been
interrupted by such event of Force Majeure upon written notice to the other
party delivered while such event of Force Majeure is continuing. For the
avoidance of doubt, in the event that any event of Force Majeure has occurred
and so long as it is continuing, excusing performance by one party of its
obligations hereunder, the other party shall also be excused from its
obligations hereunder to the extent its performance is dependent upon the
affected party's performance.
(b) Upon the occurrence of an event of Force Majeure, the party
failing or delaying performance shall promptly notify the other party, in
writing, setting forth the nature of the occurrence, its expected duration and
how such party's performance is affected. The failing or delaying party shall
resume performance of its obligations hereunder as soon as practicable after the
Force Majeure event ceases.
SECTION 4.18 COUNTERPARTS
This Agreement may be executed in two or more counterparts, all of which shall
be considered one and the same Agreement, and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that all Parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: President & C.E.O.
ANGELLAN MEDICAL SYSTEMS, LLC,
By its Members
ANGEION CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: President & C.E.O.
ELA MEDICAL, INC.
By /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman of the Board
EXHIBIT E
OPERATING BUDGET FOR THE BALANCE OF THE CURRENT FISCAL YEAR AND THE
FIRST FULL FISCAL YEAR OF THE COMPANY
TO BE AGREED BEFORE DECEMBER 31, 1997
/s/ Xxxxxxxxxxx Xxxxx & Xxxxxxxx
Securities and Exchange Act of 1934, as amended.
** Incorporated by reference to the original Form 10-Q filed by the Company on
December 15, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGEION CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Xxxxx X. Xxxxxx, Xx.
President and Chief Executive Officer
