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 XX XXXXXXXX XXXXX........................................................................... 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 XXX 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 XXX 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.
(ab) "DEMAND FOR ARBITRATION" shall have the meaning set forth
in Section 15.2 (b).
(ac) "DIRECTOR" shall mean any of the members of the Board, as
appointed from time to time by the Members pursuant to the terms hereof.
(ad) "DISINTERESTED MEMBER" shall have the meaning set forth
in Section 5.18 hereof.
(ae) "DISPUTED BUDGET ITEM" shall have the meaning set forth
in Section 10.1(c) hereof.
(af) "ELA SUPPLY AGREEMENT" shall mean that certain Cardiac
Stimulation Device Manufacturing and Supply Agreement of even date between ELA
and the Company.
(ag) "ELA TRADEMARKS" shall have the meaning set forth in
Section 11.2 hereof.
(ah) "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
(ai) "EXECUTIVE OFFICERS" shall have the meaning set forth in
Section 5.15(a) below.
(aj) "FAIR MARKET VALUE" shall have the meaning set forth in
Section 14.2(e) below.
(ak) "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.
(al) "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.
(am) "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).
(an) "ICD" shall mean an implantable cardioverter
defibrillator.
(ao) "INITIAL CAPITAL CONTRIBUTION" shall have the meaning set
forth in Section 8.1(a) hereof.
(ap) "INITIAL TERM" shall have the meaning set forth in
Section 2.5 hereof.
(aq) "INTERESTED MEMBER" shall have the meaning set forth in
Section 5.18 hereof.
(ar) "INVOLUNTARY WITHDRAWAL" shall have the meaning set forth
in Section 14.1.
(as) "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.
(at) "IRC" shall mean the Internal Revenue Code of 1986, as
amended, or corresponding provisions of subsequent superseding federal revenue
laws.
(au) "LIQUIDATING MEMBER" shall have the meaning set forth in
Section 14.4 hereof.
(av) "LLC AGREEMENT" or the "AGREEMENT" shall mean this
Limited Liability Company Operating Agreement, as amended from time to time.
(aw) "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.
(ax) "MEMBER" shall mean either Angeion or ELA, as applicable,
and "MEMBERS" shall mean Angeion and ELA.
(ay) "MEMBER APPROVAL" and "APPROVED BY THE MEMBERS" shall
have the meanings set forth in Article VII below.
(az) "MEMBER-INDEMNIFIED PRODUCT LIABILITY CLAIMS" shall have
the meaning set forth in Section 10.3(a) hereof.
(ba) "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).
(bb) "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).
(bc) "MEMBER NONRECOURSE DEDUCTIONS" shall consist of those
deductions and in those amounts specified in Treas. Reg. xx.xx. 1.704-2(i)(2).
(bd) "MEMBER TRADEMARKS" shall have the meaning set forth in
Section 11.2 hereof.
(be) "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.
(bf) "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.
(bg) "NON-DEFAULTING MEMBER" shall have the meaning set forth
in Section 8.2 hereof.
(bh) "NON-EXECUTIVE OFFICERS" shall have the meaning set forth
in Section 5.15(b) hereof.
(bi) "NON-RESIGNING MEMBER" shall have the meaning set forth
in Section 14.2 hereof.
(bj) "NON-WITHDRAWING MEMBER" shall have the meaning set forth
in Section 14.1 hereof.
(bk) "OTHER CARDIAC-RELATED DEVICES" shall mean any
cardiac-related devices other than Cardiac Stimulation Devices.
(bl) "PERCENTAGE INTEREST" shall mean, with respect to each
Member, the percentage interest set forth opposite such Member's name in Section
9.1.
(bm) "PERMITTED WITHDRAWAL" shall have the meaning set forth
in Section 14.1(a) hereof.
(bn) "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.
(bo) "POTENTIAL TRANSFERRING EMPLOYEES" shall have the meaning
set forth in Section 5.16(b) hereof.
(bp) "PPI ADJUSTMENT" shall have the meaning set forth in
Section 10.1(c) hereof.
(bq) "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.
(br) "PROPOSED BUDGET" shall have the meaning set forth in
Section 10.1(a) hereof.
(bs) "PUBLISHED WORKS" shall have the meaning set forth in
Section 11.5 hereof.
(bt) "RELATED AGREEMENTS" shall mean the agreements listed on
Schedule 1.1.
(bu) "RENEWAL TERM" shall have the meaning set forth in
Section 2.5 hereof.
(bv) "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.
(bw) "RESIGNATION NOTICE" shall have the meaning set forth in
Section 14.2 hereof.
(bx) "RESIGNING MEMBER" shall have the meaning set forth in
Section 14.2 hereof.
(by) "SUPPLY AGREEMENTS" shall mean the Angeion Supply
Agreement and the ELA Supply Agreement.
(bz) "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.
(ca) "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.
(cb) "TRANSFERRING EMPLOYEE" shall have the meaning set forth
in Section 5.16(b) below.
(cc) "VOTING SECURITIES" shall mean any shares of any class of
Angeion's capital stock with voting rights generally to elect directors of
Angeion.
(cd) "UNIT TRANSFER PRICE" shall have the meaning set forth in
Section 10.2 hereof.
(ce) "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 00000-0000, 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 XXXX XX XXXXXX
XXXXXX XXXXXXX XXXXX 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 XXXX XXXX then sales by the Company
of Angeion's Products in such XXXXXXX XXXXXX
XXXXXXXX XXX XXXX or any XXXXXXX thereafter
XXXXX XX XXXXXX XXX XXXXXXX XXXXX 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.
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
8.1 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
$XXXX XXXXXXX, with $XXX XXXXXXX 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.
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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, XX (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 XX 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 XX 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 XX 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 XX Agreements,
the Company has agreed to indemnify ELA and Angeion, respectively, for certain
Third Party Claims which are directly caused by misuse, wilful XX 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 XX 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 XX 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 XX and
defense of any Member-Indemnified Third Party Claims or Company-Indemnified
Third Party Claims, as applicable. Each Member shall, when reasonably XX
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 XX 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 XX 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 XX
"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 XX
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 XX
Agreement. As soon as reasonably practicable after the execution and delivery of
this Agreement, ELA and the Company will enter into a license agreement XX 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 XX 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 XX Cardiac
Stimulation Devices in all territories outside the United States. The Company
shall not use any other Member Trademarks in connection with the XX 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 XX trademark
licenses shall automatically terminate and all rights in and to the Member
Trademarks covered thereby shall revert to the Member that owns such XX 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 XX use or
activity. For the avoidance of doubt, the Member that owns such Member
Trademarks shall retain the full and unrestricted right, notwithstanding XX 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 XX then-existing
or then-proposed Member Trademarks, for use in connection with the business of
the Company (the "Company Trademarks") only upon Board XX 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 XX 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: XX 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 XX 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 XX patent
applications shall be undertaken at the discretion of the Chief Executive
Officer by patent counsel designated by the Chief Executive Officer XX 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 XX applications,
including, without limitation, the right to
make, use and sell, or authorize third
parties to make, use XX 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 XXXX
XXXX XXX 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 XXX 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 XXXX XX XXX XXXX XXXXXX XXXXX XX XXX XXXXXXXXXX XXXXXXXX
XX XXX XXXXXXXXXXXXX XXXXXX 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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(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. Reg. ss.
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 XX XXXXXXXX XXXXXX XXXXXXX XX XXXXXXX XXXXXXXX XXXX XXXXXX XXXXXX
XXXXX XXXXX XXXX
ARTICLE XV
DISPUTE RESOLUTION
XV.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.
XVI.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 9th day of December, 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
