MEMBERSHIP INTEREST
TRANSFER RESTRICTION AGREEMENT
This Membership Interest Transfer Restriction Agreement (this "Agreement")
is entered into effective as of the 1st day of March, 2000, by and among MBC
Holding Company, L.L.C., a Texas limited liability company (the "Company"),
Prime RVC, Inc., a Delaware corporation ("Prime"), Xxxx Xxxxxxx Xxxx, M.D.
("Xxxx"), Xxxxx X. Berkeley, M.D. ("Berkeley"), Xxxxxxx X. Xxxxxx, M.D.
("Xxxxxx"), and Xxxx X. Xxxxxxxxxx ("Xxxxxxxxxx"). Xxxx, Berkeley, Xxxxxx and
Xxxxxxxxxx, together with any subsequent Members in the Company who hereafter
execute this Agreement, are collectively referred to herein as the "Members".
R E C I T A L S:
WHEREAS, Xxxx, Berkeley, Xxxxxx and Xxxxxxxxxx own all the issued
and outstanding membership interests of the Company (all such membership
interests, together with any hereafter acquired, are hereinafter referred to as
the "Membership Interests"); and
WHEREAS, this Agreement is a "Transaction Document," as defined in
that certain Contribution Agreement (the "Contribution Agreement") dated
effective March 1, 2000, by and among Prime, Prime MBC, L.L.C., a Texas limited
liability company, the Company, Xxxx Berkeley Eye Center, P.A., a Texas
professional association, Xxxx, Berkeley, Xxxxxx and Xxxxxxxxxx.
WHEREAS, the Members, the Company and Prime desire to enter into
this Agreement to control the distribution of ownership interests in the Company
and to promote the harmonious management of the Company's affairs.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
PERMITTED TRANSFERS; RESTRICTIONS AGAINST TRANSFER
As used in this Agreement, "Permitted Transfers" shall mean any transfer of all
or any part of any Member's Membership Interest to (i) the members of the
immediate family of the Member or a trust or trusts for the benefit of members
of the immediate family of the Member, provided that after any such transfer the
Member retains the sole express right to vote, or direct the votes of, the
Membership Interest, (ii) any other Member, provided that after any transfer
pursuant to this subsection (ii) is consummated, Xxxx, Berkeley and Xxxxxx (or
trusts that hold Membership Interests as a result of Permitted Transfers
subsection (i) above) must collectively own in the aggregate at least fifty-one
percent (51%) of the total outstanding Membership Interests of the Company, or
(iii) Prime. Any Member transferring all or a portion of its Membership Interest
pursuant to a Permitted Transfer shall give written notice of the Permitted
Transfer (containing the same information as required for notice under Section
2.1.1) to Prime and the other Members fifteen (15) days prior to the effective
date of the Permitted Transfer. Except for a Permitted Transfer, or as otherwise
provided in this Agreement, a Member shall not transfer, assign, pledge,
hypothecate, or in any way alienate any Membership Interest, or any interest
therein, whether voluntarily or by operation of law, or by gift or otherwise,
without the prior written consent of the Company, the other Members and Prime,
which consent may be withheld in their sole and absolute discretion. Any
purported transfer in violation of any provision of this Agreement shall be void
and ineffectual, shall not operate to transfer any interest or title to the
purported transferee, and shall give the Company, the other Members and Prime
options to purchase such Membership Interest in the manner and on the conditions
hereinafter provided. As used in this Agreement, "Option Members" shall mean all
Members of the Company except the Member who, prior to the proposed transfer or
the incident resulting in the proposed transfer of all or a portion of a
Membership Interest, owned such interest.
ARTICLE II
OPTIONS
2.1 OPTION UPON VOLUNTARY TRANSFER.
2.1.1Notice of Intention to Transfer. If a Member intends to
voluntarily transfer any of its Membership Interest, other than pursuant to a
Permitted Transfer, to any person other than the Company, and does not obtain
the written consents required in ARTICLE I hereof, the Member shall give written
notice to the other Members and Prime stating (i) the intention to transfer a
Membership Interest, (ii) the amount of Membership Interest to be transferred,
(iii) the name, business and residence address of the proposed transferee, (iv)
the nature and amount of the consideration, and (v) the other terms of the
proposed sale.
2.1.2Option to Purchase. The Option Members shall have, and may
exercise within 30 days after receipt of the notice of intent to transfer, an
option to purchase all or any portion of the Membership Interest the
transferring Member intends to transfer, for the price and upon the other terms
stated in the notice of intent to transfer. If the Option Members fail, within
such 30-day period, to exercise their purchase option (by delivery of written
notice) with respect to the entire Membership Interest being transferred, the
Option Members shall be deemed to have elected not to exercise their purchase
option with respect to such unpurchased Membership Interest. Upon any notice of
non-exercise (or deemed non-exercise) by the Option Members, Prime shall have,
and may exercise within 30 days of receipt of notice of such non-exercise (or
deemed non-exercise), an option to purchase all of such remaining Membership
Interest upon the same terms and conditions.
2.1.3Death Before Closing. If a Member who proposed to transfer a
Membership Interest dies prior to the closing of the sale and purchase
contemplated by this Section 2.1, the Membership Interest of such deceased
Member shall be the subject of sale and purchase under Section 2.3.
2.1.4Allowable Consideration. All parties hereto acknowledge and
agree that it would be impractical to exercise an option to purchase arising
pursuant to this Section 2.1 whenever the proposed consideration to be received
by the transferring Member is other than cash or cash equivalents. Therefore,
the parties agree that no transfer shall be permitted and no option shall arise
pursuant to this Section 2.1 whenever the consideration to be received from the
proposed transferee is other than cash or cash equivalents.
2.2 OPTION UPON CERTAIN INVOLUNTARY TRANSFERS.
2 2.1Exercise Event and Notice. The filing of a voluntary or
involuntary petition of bankruptcy by or on behalf of a Member, an assignment by
a Member of any of its Membership Interest, or of any right or interest therein,
for the benefit of creditors, or the voluntary transfer, transfer by law or any
other transfer, of any Membership Interest, or of any right or interest therein
(other than transfers governed by ARTICLE I or Sections 2.1, 2.3 or 2.4 or
ARTICLE VII hereof), shall give the other Members and Prime the option to
purchase the Membership Interest of such bankrupt Member or such transferred
Membership Interest as provided herein. Upon the filing of a voluntary or
involuntary petition of bankruptcy by or on behalf of a Member or an assignment
by Member of any of its Membership Interest, or of any right or interest
therein, for the benefit of creditors, the Member or its personal representative
shall promptly give written notice of such occurrence to the other Members and
Prime. In the event of a transfer of Membership Interest, as described above,
the Member transferring such Membership Interest shall promptly give written
notice of such transfer to the other Members and Prime.
2.2.2Option to Purchase. The Option Members shall have, and may
exercise within 30 days after receipt of the notice of the applicable exercise
event, an option to purchase all or any portion of the Membership Interest the
bankrupt or transferring Member intends to transfer, for the price and upon the
other terms hereinafter provided. If the Option Members fail, within such 30-day
period, to exercise their purchase option (by delivery of written notice) with
respect to the entire Membership Interest being transferred, the Option Members
shall be deemed to have elected not to exercise their purchase option with
respect to such unpurchased Membership Interest. Upon any notice of non-exercise
(or deemed non-exercise) by the Option Members, Prime shall have, and may
exercise within 30 days of receipt of notice of such non-exercise (or deemed
non-exercise), an option to purchase all of such remaining Membership Interest
for the price and upon the other terms hereinafter provided.
2.3 PURCHASE AND SALE OF MEMBERSHIP INTEREST UPON DEATH.
2.3.1Notice of Death. Upon the death of the Member, the
representative of the estate of the deceased Member shall promptly give written
notice of the death to the other Members and Prime.
2.3.2Option to Purchase. The Option Members shall have, and may
exercise within 30 days after receipt of the notice of death, an option to
purchase all or any portion of the Membership Interest of the deceased Member,
for the price and upon the other terms hereinafter provided. If the Option
Members fail, within such 30-day period, to exercise their purchase option (by
delivery of written notice) with respect to the entirety of such Membership
Interest, the Option Members shall be deemed to have elected not to exercise
their purchase option with respect to such unpurchased Membership Interest. Upon
any notice of non-exercise (or deemed non-exercise) by the Option Members, Prime
shall have, and may exercise within 30 days of receipt of notice of such
non-exercise (or deemed non-exercise), an option to purchase all of such
remaining Membership Interest for the price and upon the other terms hereinafter
provided.
2.4 OPTION UPON DEATH OF A MEMBER'S SPOUSE, TERMINATION OF MARITAL RELATIONSHIP
OR PARTITION OF COMMUNITY PROPERTY.
2.4.1Death of Member's Spouse. Each Member and each Member's spouse
agree that in the event the spouse of a Member predeceases such Member and such
Member does not succeed by the spouse's last will and testament or by operation
of law to any interest (including, without limitation, a community property
interest) of the spouse in the Membership Interest, such Member shall have, and
may exercise within 60 days after the death of the spouse, an option to purchase
all or any portion of the spouse's interest for the price and upon the other
terms hereinafter provided. If the Member fails, within such 60-day period, to
exercise his purchase option (by delivery of written notice) with respect to the
entirety of such spouse's interest, that Member shall be deemed to have elected
not to exercise his purchase option with respect to such spouse's interest. Upon
any notice of non-exercise (or deemed non-exercise) by the Member, the Option
Members shall then have, and may exercise within 30 days after receipt of such
non-exercise (or deemed non-exercise), an option to purchase all or any portion
of the deceased spouse's interest, for the price and upon the other terms
hereinafter provided. If the Option Members fail, within such 30-day period, to
exercise their purchase option (by delivery of written notice) with respect to
the entirety of such deceased spouse's interest, the Option Members shall be
deemed to have elected not to exercise their purchase option with respect to
such unpurchased deceased spouse's interest. Upon any notice of non-exercise (or
deemed non-exercise) by the Option Members, Prime shall have, and may exercise
within 30 days of receipt of notice of such non-exercise (or deemed
non-exercise), an option to purchase all of such remaining portion of the
deceased spouse's interest for the price and upon the other terms hereinafter
provided.
2.4.2Termination of Marital Relationship or Partition of Community
Property. In the event a divorce, annulment or other proceeding for termination
of the marital relationship is filed by or against a Member, or upon the
initiation of any voluntary or involuntary attempt to partition the community
property estate between a Member and such Member's spouse for any reason, the
Member shall promptly give written notice to the other Members and Prime, of
such event. The Member shall have, and may exercise within 60 days of giving of
such notice, an option to purchase all or any portion of the departing spouse's
interest in such Membership Interest (including without limitation any community
property interest, for purposes of this Section), for the price and upon the
other terms hereinafter provided. If the Member fails, within such 60-day
period, to exercise his purchase option (by delivery of written notice) with
respect to the entirety of such spouse's interest, that Member shall be deemed
to have elected not to exercise his purchase option with respect to such
spouse's interest. Upon any notice of non-exercise (or deemed non-exercise) by
the Member, the Option Members shall then have, and may exercise within 30 days
after receipt of such non-exercise (or deemed non-exercise), an option to
purchase all or any portion of the departing spouse's interest, for the price
and upon the other terms hereinafter provided. If the Option Members fail,
within such 30-day period, to exercise their purchase option (by delivery of
written notice) with respect to the entirety of such departing spouse's
interest, the Option Members shall be deemed to have elected not to exercise
their purchase option with respect to such unpurchased departing spouse's
interest. Upon any notice of non-exercise (or deemed non-exercise) by the Option
Members, Prime shall have, and may exercise within 30 days of receipt of notice
of such non-exercise (or deemed non-exercise), an option to purchase all of such
remaining portion of the departing spouse's interest for the price and upon the
other terms hereinafter provided.
2.5 ALTERNATE NOTICES.
The failure of any person, whether a party to this Agreement or
otherwise, to give notice of the occurrence of an Exercise Event (as defined in
Section 4.3) as contemplated herein shall not operate to prevent the creation of
any option which would otherwise arise pursuant to this ARTICLE II. Any party to
this Agreement who has actual knowledge of the occurrence of an Exercise Event
may give the required written notice of the occurrence of an Exercise Event, and
upon the giving of such written notice the options shall be created and become
exercisable to the same extent as if such notice was given by the party
initially contemplated above. For instance, and purely by way of example, in the
event of the death of a Member, another Member having actual knowledge of the
Member's death may give the notice initially contemplated to be given by a
representative of the estate of the deceased Member pursuant to Section 2.3.1
above, whereupon the Option Members' option described in Section 2.3.2 would
arise and become exercisable to the same extent as if the notice had been given
by the representative of the estate of the deceased Member.
2.6 OPPORTUNITY TO CURE.
Before Prime may exercise any option to purchase a Membership Interest
pursuant to Sections 2.2, 2.3 or 2.4, Prime shall deliver written notice of its
intent to exercise its right ("Cure Notice") to the Option Members, who shall
have ten days from the date of receipt of such Cure Notice to exercise their
rights and purchase such Membership Interest, upon such terms as are otherwise
provided herein. If each of the Option Members do not exercise their rights
within ten days after receipt of the Cure Notice, then Prime may exercise its
options under this Article II.
ARTICLE III
EXERCISE OF OPTIONS; EFFECT OF NON-EXERCISE
3.1 MANNER OF EXERCISE OF OPTIONS.
All options granted in, or arising pursuant to, ARTICLE II shall be
exercised by a written notice to that effect delivered within the time provided
for the exercise of the option.
3.2 COMPLETE EXERCISE OF OPTIONS.
Notwithstanding anything herein to the contrary, the holders of
options granted in, or arising pursuant to, ARTICLE II must, either alone or in
the aggregate, exercise the options in such a manner as to purchase all of the
Membership Interest (or interest therein) subject to such options, and failure
to do so shall cause a forfeiture of the options.
3.3 MULTIPLE OPTION HOLDERS.
In cases where an option is held by more than one Option Member,
each purchasing Option Member shall be entitled to purchase his or her
proportionate share of the Membership Interest subject to the option. An Option
Member's proportionate share shall equal the total amount of Membership
Interests subject to the option multiplied by a fraction the numerator of which
is the amount of Membership Interests held by such Option Member and the
denominator of which shall be the amount of Membership Interests held by all
Option Members electing to exercise the option.
3.4 EFFECT OF NON-EXERCISE OF OPTIONS.
If the holders of options granted or arising pursuant to this
Agreement do not exercise their options, or such options are forfeited, as
provided herein, the person or persons acquiring the Membership Interests (or
interest therein) that were the subject of the options shall execute a
counterpart of this Agreement and become a party hereto and shall hold such
Membership Interests subject to all the terms and conditions provided herein,
and any transfer of such Membership Interests (or interest therein) shall only
be made in accordance with the terms and conditions provided herein. In the
event the person or persons acquiring the Membership Interests (or interest
therein) fail to execute a counterpart of this Agreement and become a party
hereto, such transfer shall be void and ineffectual, and shall not operate to
transfer any interest or title to the purported transferee and such Membership
Interests shall thereafter be subject to cancellation and extinguishment by the
Company, without consideration therefor. In addition, in the event of a
voluntary transfer subject to the provisions of Section 2.1, upon the lapse or
forfeiture of the options arising pursuant to that Section, the Member proposing
the transfer shall have the right to effectuate the transfer of Membership
Interests in accordance with the terms stated in the notice of intent to
transfer, and the transferee of such Membership Interests shall execute and
become a party to this Agreement and shall hold such Membership Interests
subject to all of its terms and conditions. Provided further, however, any such
transfer of Membership Interests shall be void and ineffectual, and shall not
operate to transfer any interest or title to the purported transferee, if (i)
the transfer is not upon the terms or is not to the transferee stated in the
notice of intent to transfer, or (ii) the transfer is not closed within 10 days
of receipt of written notice of the election not to exercise, or the forfeiture
of, all applicable options.
ARTICLE IV
PURCHASE PRICE
4.1 PURCHASE PRICE.
The purchase price of the Membership Interests to be purchased
pursuant to options granted, held or exercised pursuant to Sections 2.2, 2.3 and
2.4 hereof, shall be the amount calculated in accordance with Section 4.2
hereof.
4.2 CALCULATION OF PURCHASE PRICE.
When determined in accordance with this Section 4.2, the purchase
price for the Membership Interest or any portion thereof or spouse's interest
therein shall be equal to the Appraised Value of the Membership Interest as of
the Valuation Date (as defined in Section 4.3 hereof), reduced when necessary to
reflect the purchase of less than a one hundred percent (100%) interest in each
of the Membership Interests to be transferred (for example: reduced by one-half
when a spouse's interest is only an undivided one-half community property
interest in each of the Membership Interests of a Member spouse). For purposes
of this Agreement, the "Appraised Value" of a Membership Interest shall be (i)
based on the overall value of the Company as a going concern, expressed in a per
Membership Interest unit amount without consideration to whether the Membership
Interest, or interest therein, being transferred constitutes a controlling or
minority interest in the Company, and (ii) determined by a certified business
appraiser, selected by the Company, that is a member of either the American
Society of Appraisers or the Institute of Business Appraisers; but if a Member
or Prime disagrees with such determination that Member or Prime may, at its
expense, have another certified business appraiser that is a member of one or
both of the above named professional organizations determine the value, and if
the two appraisers cannot agree upon a value, they shall mutually select a third
certified business appraiser (that meets the above described membership
requirements) who shall, together with the first two appraisers, determine the
value of the Membership Interest by majority vote. The expense of such third
appraiser shall also be paid by the Member or Prime, as the case may be, who
disagrees with the value determination of the Company's original appraiser,
unless the appraised value ultimately determined is more than ten percent (10%)
greater than the value determined by the Company's original appraiser.
4.3 CERTAIN DEFINITIONS.
As used herein, the term "Valuation Date" shall mean and refer to
the end of the fiscal year of the Company immediately preceding the Exercise
Event, unless the purchasing party elects to use the alternate valuation date,
in which event the Valuation Date shall be the end of the month immediately
preceding the Exercise Event. As used herein, the term "Exercise Event" shall
mean and refer to the event or circumstance described in ARTICLE II of this
Agreement, as a result of which the Company, a Member, or Prime, as the case may
be in the first instance, becomes entitled to exercise a purchase option
hereunder.
ARTICLE V
PAYMENT OF THE PURCHASE PRICE
5.1 PAYMENT.
Except as otherwise provided in this Agreement, including Section
2.1, the purchase price for a Membership Interest to be purchased from a selling
party shall either: (i) be paid in cash; or (ii) at the option of the purchasing
party, up to seventy percent (70%) of the purchase price may be deferred with
the remainder paid in cash at the closing.
5.2 PROMISSORY NOTE.
If the purchasing party elects to defer part of the purchase price
by the execution and delivery of a promissory note, the deferred portion of the
price shall be evidenced by the promissory note of the purchasing party to the
order of the selling party payable in sixty (60) equal monthly installments of
principal and interest on or before the first day of each month beginning the
month next following the date of closing. The interest rate for such installment
promissory note shall be equal to the prime or base rate on corporate loans at
large U.S. money center commercial banks as published in the "Money Rates"
column of the Wall Street Journal on the date of exercise of the option to
purchase (or, if such option is not exercised on a date on which such rate is
published, the next following date on which such rate is published). In no event
shall the interest rate exceed the maximum legal interest rate then prevailing
for such obligations in the state of Texas. The note shall be secured by a first
lien security interest in the Membership Interest transferred and the purchasing
party shall deliver certificates evidencing the Membership Interest to the
selling party and take such further action as is reasonably necessary to perfect
the security interest.
ARTICLE VI
THE CLOSING
Unless otherwise agreed by the parties, the closing of the sale and
purchase of a Membership Interest shall take place at the principal offices of
the Company within sixty (60) days after the exercise of any option provided by
this Agreement. Each party hereto (including the spouses of the Members) shall
bear its own transaction costs, including legal and accounting fees, if any,
attributable to any transfer of a Membership Interest, or any interest therein,
pursuant to this Agreement. Upon the closing, the selling party shall deliver
its Membership Interest to the purchaser free and clear of all liens and
encumbrances, and shall deliver to the Company its resignation and that of all
of its nominees, if any, as officers and directors of the Company and any of the
Company's subsidiaries. The selling party shall deliver to the purchasing party
at closing, all appropriate documents of transfer, including without limitation
bills of sale, assignments or other instruments of conveyance. As a condition to
any closing of the sale and purchase of a Membership Interest (or any interest
therein) pursuant to this Agreement: (i) the selling party shall be indemnified
by the purchasing party (in a form reasonably satisfactory to the selling party)
for all the Company's liabilities, whether fixed or contingent, to lenders and
others, incurred prior to the closing of the transaction, (ii) the purchasing
party and/or the Company shall cause the release of any personal guaranties by
the selling party that the selling party may have granted to the Company's
lenders or other creditors or which may have otherwise been provided by the
selling party for the benefit of the Company, and (iii) if the selling party is
a creditor of the Company, the purchasing party shall unconditionally guarantee
the debt of the Company to the selling party and execute such documents and
instruments of guarantee as may be necessary in connection therewith.
Furthermore, and as a condition to closing, in the event the selling party owes
any amounts to the Company at the time of closing, such indebtedness shall be
paid in full by the selling party at or prior to the closing, or may be deducted
from and offset against the purchase price by the purchasing party, in the
purchasing party's sole discretion. In the event of a failure to close as a
result of the non-satisfaction of the conditions to closing set forth herein,
this Agreement shall remain in full force and effect and all Membership
Interests shall remain subject to the restrictions contained herein and, in
addition, the parties hereto shall be entitled to such other remedies as may be
available in the event the failure to close constitutes a breach hereof.
ARTICLE VII
LEGEND ON CERTIFICATES
All Membership Interests now or hereafter owned by the Members, or
their permitted transferees, shall be subject to the provisions of this
Agreement, and any certificates representing same shall bear the following
legend:
"THE MEMBERSHIP INTEREST REPRESENTED HEREBY AND THE SALE,
ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION THEREOF ARE
SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN A MEMBERSHIP INTEREST
TRANSFER RESTRICTION AGREEMENT AMONG THE COMPANY AND THE WITHIN
NAMED MEMBER, AND ANY AMENDMENT THERETO. THE AGREEMENT LIMITS THE
USE OF THIS MEMBERSHIP INTEREST AS COLLATERAL FOR ANY LOAN WHETHER
BY PLEDGE, HYPOTHECATION OR OTHERWISE. A COPY OF THE MEMBERSHIP
INTERES TRANSFER RESTRICTION AGREEMENT AND ALL APPLICABLE
AMENDMENTS THERETO WILL BE FURNISHED BY THE COMPANY TO THE HOLDER
HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE."
ARTICLE VIII
TERMINATION OF AGREEMENT
This Agreement and all restrictions on Membership Interest transfer
created hereby shall terminate on the occurrence of any of the following events:
(a) The bankruptcy or dissolution of the Company.
(b) The ownership by one person of all of the Membership Interests
of the Company which are then subject to this Agreement.
(c) The execution of a written instrument by the Company, all of
the Members who then own Membership Interests subject to this Agreement, and
Prime which terminates the same.
(d) The date twenty-one (21) years after the death of the last
survivor of all individuals who are parties to this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 REMEDIES FOR BREACH.
The Membership Interests are unique chattels, and each party to
this Agreement shall have the remedies which are available to him, her or it for
the violation of any of the terms of this Agreement, including, but not limited
to, the equitable remedy of specific performance.
9.2 BINDING EFFECT.
This Agreement is binding upon and inures to the benefit of the
Company, its successors and permitted assigns, to the Members and their
respective heirs, personal representatives, successors and permitted assigns,
and to Prime, its successors and permitted assigns. This Agreement may not be
assigned, in whole or in part, by any party hereto without the express written
consent of all parties hereto.
9.3 PRIOR AGREEMENTS.
This Agreement supersedes all prior written and oral agreements
between the parties regarding the subject matter hereof.
9.4 GOVERNING LAWS.
This Agreement is executed under, and in conformity with, the laws
of the State of Texas and shall be governed thereby. If any provision of this
Agreement shall be determined to be invalid or unenforceable or prohibited by
the laws of the State of Texas, this Agreement shall be considered divisible as
to such provisions and such provisions shall be inoperative and shall not be a
part of the consideration moving from any party to another party. The remaining
provisions shall be valid and binding upon the parties and be of like effect as
though such invalid, unenforceable or prohibited provisions were not included
herein.
9.5 AMENDMENT.
This Agreement may be amended in whole or in part only by the
written consent of all the parties. Such amendment shall be effective as of the
date then determined by the parties and shall supersede any provisions herein
contained which are in conflict.
9.6 CAPTIONS AND GENDER.
The captions and titles herein are for convenience only and are not
intended to include or conclusively define the subject matter of the text. All
pronouns and references thereto shall refer to the masculine, feminine, and
neuter genders, singular or plural, as the identification of the persons,
entities, and companies may require. The term "person" as used in this Agreement
shall include natural persons, companies, partnerships, trusts, estates and any
other form of entity.
9.7 NOTICES.
All notices required to be given hereunder shall be deemed to be
duly given by personally delivering such notice or by mailing it by certified
mail, to the Company, to the Members, and to Prime at the following addresses
(which may be changed by giving written notice of such change to all other
parties hereto):
To the Company: MBC Holding Company, L.L.C.
0000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To Xxxx: Xxxx Xxxxxxx Xxxx, M.D.
0000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To Berkeley: Xxxxx X. Berkeley, M.D.
0000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To Xxxxxx: Xxxxxxx X. Xxxxxx, M.D.
0000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To Xxxxxxxxxx: Xxxx X. Xxxxxxxxxx
0000 Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
To Prime: Prime RVC, Inc.
Attention: President
0000 Xxxxxxx xx
Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
9.8 BINDING EFFECT OF THIS AGREEMENT ON ADDITIONAL MEMBERSHIP INTEREST ACQUIRED
BY A MEMBER.
In the event a Member acquires, contracts to acquire, or receives
any Membership Interests of the Company which are not subject to this Agreement
at the time of acquisition, such additional Membership Interests of the Member
shall be automatically subject to this Agreement and any certificates
representing such Membership Interests shall bear the legend prescribed herein
and this Agreement shall be amended, if necessary, to reflect the acquisition of
such Membership Interests by the Member.
9.9 EXECUTION OF DOCUMENTS.
Whenever Membership Interests are to be purchased by the Company, a
Member, or Prime pursuant to this Agreement, the transferor shall do all things
and execute and deliver all documents and make all transfers as may be necessary
to consummate such purchase. In the event that the transferor refuses to abide
by the terms and conditions specified herein, the purchaser(s) may tender
payment for such Membership Interest by mailing payment to the transferor's
attention at the address of the Company's registered office on file at the
office of the Texas Secretary of State. After payment is tendered accordingly,
the Company shall be entitled to cancel such Membership Interest on its books,
and reissue such Membership Interest to the purchaser(s) or, if the purchaser is
the Company, the Company may hold such Membership Interest as treasury stock or
cancel such Membership Interest.
9.10 ACTIONS BY THE COMPANY.
Any decision by the Company to exercise any purchase option, give
any notice or otherwise enforce any provisions of this Agreement, shall be made
by a majority vote of Members who are not then in breach of this Agreement and
whose Membership Interests are not then the subject of any option or requirement
of notice of an Exercise Event.
[Signature pages follow]
S-2
SIGNATURE PAGE TO
MEMBERSHIP INTEREST
TRANSFER RESTRICTION AGREEMENT
EXECUTED as of the date first mentioned above.
COMPANY: MBC Holding Company, L.L.C.
By:
Printed Name:__________________
Title:
XXXX:
Xxxx Xxxxxxx Xxxx, M.D.
BERKELEY:
Xxxxx X. Berkeley, M.D.
XXXXXX:
Xxxxxxx X. Xxxxxx, M.D.
XXXXXXXXXX:
Xxxx X. Xxxxxxxxxx
PRIME: Prime RVC, Inc.
By:
Printed Name:
Title:
SPOUSAL CONSENTS
The undersigned spouse of Xxxx Xxxxxxx Xxxx, M.D. hereunto
subscribes her name in evidence of her agreement and consent to the disposition
made of any interest she may have, including any community property interests,
in the membership interest of MBC Holding Company, L.L.C., referred to in the
foregoing Agreement, and to all other provisions of such Agreement.
Signature:
Printed Name:
The undersigned spouse of Xxxxx X. Berkeley, M.D. hereunto
subscribes her name in evidence of her agreement and consent to the disposition
made of any interest she may have, including any community property interests,
in the membership interest of MBC Holding Company, L.L.C., referred to in the
foregoing Agreement, and to all other provisions of such Agreement.
Signature:
Printed Name:
The undersigned spouse of Xxxxxxx X. Xxxxxx, M.D. hereunto
subscribes her name in evidence of her agreement and consent to the disposition
made of any interest she may have, including any community property interests,
in the membership interest of MBC Holding Company, L.L.C., referred to in the
foregoing Agreement, and to all other provisions of such Agreement.
Signature:
Printed Name:
The undersigned spouse of Xxxx X. Xxxxxxxxxx hereunto subscribes
her name in evidence of her agreement and consent to the disposition made of any
interest she may have, including any community property interests, in the
membership interest of MBC Holding Company, L.L.C., referred to in the foregoing
Agreement, and to all other provisions of such Agreement.
Signature:
Printed Name:
