LIMITED LIABILITY COMPANY AGREEMENT
OF PRIME REFRACTIVE - St. Louis, L.L.C.
Organized under the Delaware Limited Liability Company Act (the "Act").
ARTICLE I.
NAME AND LOCATION
Section 1.1. Name. The name of this limited liability company is Prime
Refractive - St. Louis, L.L.C. (the "Company").
Section 1.2. Members. The only members of the Company upon the
execution of this Limited Liability Company Agreement (this "Agreement") shall
be Prime Refractive, L.L.C., a Delaware limited liability company ("Prime"),
Xxxx X. Xxxxx, M.D. and Xxxx Xxxxxxxxx, O.D. For purposes of this Agreement, the
"Members" shall include such named members and any new members admitted pursuant
to the terms of this Agreement, but does not include any person or entity who
has ceased to be a member in the Company.
Section 1.3. Principal Office. The principal office of the Company shall be
located in 0000 Xxxxxxx xx Xxxxx Xxx., Xxxxx X-000, Xxxxxx, Xxxxx 00000-0000, or
such other location as may be selected by the Members.
Section 1.4. Registered Agent and Address. The name of the registered agent
and the address of the registered office of the Company as set forth in the
Certificate of Formation of the Company are:
The Corporation Trust Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Section 1.5. Other Offices. Other offices and other facilities for the
transaction of business shall be located at such places as the Managers may from
time to time determine.
ARTICLE II.
MEMBERSHIP
Section 2.1. Members' Interests. As used herein, "Membership Interest"
shall refer to a percentage membership interest of the Company. The Membership
Interest of each Member is set forth on Exhibit A.
Section 2.2. Admission to Membership. The admission of new Members
shall be only by the vote of Members holding a majority of the Membership
Interests. If new members are admitted, this Agreement shall be amended to
reflect each Member's revised Membership Interest.
Section 2.3. Property Rights. No Member shall have any right, title, or
interest in any of the property or assets of the Company.
Section 2.4. Liability of Members. No Member of the Company shall be
personally liable for any debts, liabilities, or obligations of the Company,
including under a judgment decree, or order of court.
Section 2.5. Transferability of Membership. The Membership Interests
are transferable only with the unanimous written consent of Prime (or Prime's
permitted designee). If such unanimous written consent is not obtained when
required, the transferee shall be entitled to receive only the share of profits
or other compensation by way of income and the return of contributions to which
the transferor Member otherwise would be entitled.
Section 2.6. Resignation of Members. A Member may not withdraw from the
Company except on the written consent of Prime (or Prime's permitted designee).
The terms of the Member's withdrawal shall be determined by agreement between
the withdrawing Member and the remaining Members holding a majority of the
Membership Interests (excluding the Membership Interest of the withdrawing
Member).
ARTICLE III.
MEMBERS' MEETINGS
Section 3.1. Time and Place of Meeting. All meetings of the Members
shall be held at such time and at such place within or without the State of
Delaware as shall be determined by the Managers.
Section 3.2. Annual Meetings. In the absence of an earlier meeting at
such time and place as the Managers shall specify, annual meetings of the
Members shall be held at the principal office of the Company on the date which
is thirty (30) days after the end of the Company's fiscal year if not a legal
holiday, and if a legal holiday, then on the next full business day following,
at 10:00 a.m., at which meeting the Members may transact such business as may
properly be brought before the meeting.
Section 3.3. Special Meetings. Special meetings of the Members may be
called at any time by any Member. Business transacted at special meetings shall
be confined to the purposes stated in the notice of the meeting.
Section 3.4. Notice. Written or printed notice stating the place, day
and hour of any Members' meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) days nor more than thirty (30) days before the date of the special
meeting, either personally or by mail, by or at the direction of the person
calling the meeting, to each Member entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered three (3) days after it is deposited
in the United States mail, postage prepaid, to the Member at his address as it
appears on the records of the Company at the time of mailing.
Section 3.5. Quorum. Members present in person or represented by proxy,
holding more than fifty percent (50%) of the total votes which may be cast at
any meeting shall constitute a quorum at all meetings of the Members for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the Members, the Members entitled to vote, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. When any adjourned meeting is reconvened
and a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. Once a
quorum is constituted, the Members present or represented by proxy at a meeting
may continue to transact business until adjournment, notwithstanding the
subsequent withdrawal therefrom of such number of Members as to leave less than
a quorum.
Section 3.6. Voting. When a quorum is present at any meeting, the vote
of the Members, whether present or represented by proxy at such meeting, holding
more than fifty percent (50%) of the total votes which may be cast at any
meeting shall be the act of the Members, unless the vote of a different number
is required by the Act, the Certificate of Formation or this Limited Liability
Company Agreement. Each Member shall be entitled to one vote for each percentage
point represented by their Membership Interest. Fractional percentage point
interests shall be entitled to a corresponding fractional vote.
Section 3.7. Proxy. Every proxy must be executed in writing by the
Member or by his duly authorized attorney-in-fact, and shall be filed with the
Secretary of the Company prior to or at the time of the meeting. No proxy shall
be valid after eleven (11) months from the date of its execution unless
otherwise provided therein. Each proxy shall be revocable unless expressly
provided therein to be irrevocable and unless otherwise made irrevocable by law.
Section 3.8. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Members may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by Members having not less than the minimum votes that would be necessary
to authorize or take such action at a meeting at which all Membership Interests
were present and voted, and such consent shall have the same force and effect as
a unanimous vote of Members.
Section 3.9. Meetings by Conference Telephone. Members may participate
in and hold meetings of Members by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV.
MEMBERSHIP CAPITAL CONTRIBUTIONS
Except for each Member's initial capital contribution made in
connection with the formation of the Company, no capital contributions shall be
required of any Member without the approval of all the Members to raise
additional capital, and only then proportionately as to each Member.
ARTICLE V.
DISTRIBUTION TO MEMBERS
The Managers shall determine, in their sole discretion, the amount and
timing of all distributions from the Company. Distributions shall be divided
among the Members in accordance with their Membership Interests. Distributions
in kind shall be made on the basis of agreed value as determined by the Members.
In no event may the Company make a distribution to its Members if, immediately
after giving effect to the distribution, all liabilities of the Company, other
than liabilities to the Members with respect to their interests and liabilities
for which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the Company's assets; except that the fair
value of property that is subject to liability for which recourse of creditors
is limited, shall be included in the Company assets only to the extent that the
fair value of the property exceeds that liability. Except as contemplated in
this Article V, no distributions of cash or other assets of the Company shall be
made to the Members in their capacity as owners of the Company.
ARTICLE VI.
ALLOCATION OF NET PROFITS AND LOSSES FOR TAX PURPOSES
For accounting and income tax purposes, all items of income, gain,
loss, deduction, and credit of the Company for any taxable year shall be
allocated among the Members in accordance with their respective Membership
Interests, except as may be otherwise required by the Internal Revenue Code of
1986, as amended.
ARTICLE VII.
DISSOLUTION AND WINDING UP
Section 7.1. Dissolution. Notwithstanding any provision of the Act, the
Company shall be dissolved only upon the first of the following to occur:
(a) Forty (40) years from the date of filing the Certificate of Formation
of the Company;
(b) Written consent of all the then current Members to dissolution;
(c) The bankruptcy of a Member, unless there is at least one
remaining Member and such Member or, if more than one remaining Member,
all remaining Members agree to continue the Company and its business.
Section 7.2. Winding Up. Unless the Company is continued pursuant to
Section 7.1(c) of this Article VII., in the event of dissolution of the Company,
the Managers (excluding any Manager(s) holding office pursuant to designation by
a Member subject to bankruptcy proceedings) shall wind up the Company's affairs
as soon as reasonably practicable. On the winding up of the Company, the
Managers shall pay and/or transfer the assets of the Company in the following
order:
(a) In discharging liabilities (including loans from Members) and the
expenses of concluding the Company's affairs; and
(b) The balance, if any, shall be divided between the Members in accordance
with the Members' Membership Interests.
ARTICLE VIII.
MANAGERS
Section 8.1. Selection of Managers. Management of the Company shall be
vested in the Managers. Initially, the Company shall have five (5) Managers,
being Xxx Xxxxxxx, Xxx Xxxxxxx, M.D., and Xxxx Xxxxxx, Xxxxx X. Xxxxxxx, M.D.,
and Xxxx Xxxxxxxxx. Thereafter, the Managers shall be elected or removed
pursuant to the vote or written consent of Members holding a majority of the
Membership Interests. A Manager shall serve as a Manager until his or her
earlier resignation or removal pursuant to Section 8.2 or 8.3 of this Article
VIII. Managers need not be residents of the State of Delaware or Members of the
Company.
Section 8.2. Resignations. Each Manager shall have the right to resign
at any time upon written notice of such resignation to the Members. Unless
otherwise specified in such written notice, the resignation shall take effect
upon the receipt thereof, and acceptance of such resignation shall not be
necessary to make same effective. Members holding a majority of the Membership
Interests shall be entitled to designate the successor thereto.
Section 8.3. Removal of Managers. Any Manager may be removed, for or
without cause, at any time, but only by Members holding a majority of the
Membership Interests. Members holding a majority of the Membership Interests
shall be entitled to designate the successor thereto.
Section 8.4. General Powers. The business of the Company shall be
managed by its Managers, which may, by the vote or written consent in accordance
with this Agreement, exercise any and all powers of the Company and do any and
all such lawful acts and things as are not by the Act, the Certificate of
Formation or this Limited Liability Company Agreement directed or required to be
exercised or done by the Members, including, but not limited to, contracting for
or incurring on behalf of the Company debts, liabilities and other obligations,
without the consent of any other person, except as otherwise provided herein.
Section 8.5. Place of Meetings. The Managers of the Company may hold their
meetings, both regular and special, either within or without the State of
Delaware.
Section 8.6. Annual Meetings. The annual meeting of the Managers shall
be held without further notice immediately following the annual meeting of the
Members, and at the same place, unless by unanimous consent of the Managers that
such time or place shall be changed.
Section 8.7. Regular Meetings. Regular meetings of the Managers may be held
without notice at such time and place as shall from time to time be determined
by the Managers.
Section 8.8. Special Meetings. Special meetings of the Mangers may be
called by any Manager on seven (7) days notice to each Manager, with such notice
to be given personally, by mail or by telecopy, telegraph or mailgram.
Section 8.9. Quorum and Voting. At all meetings of the Managers the
presence of at least four (4) Managers shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the affirmative vote of
at least a majority of the Managers present at any meeting at which there is a
quorum shall be the act of the Managers, except as may be otherwise specifically
provided by the Act, the Certificate of Formation or this Agreement. If a quorum
shall not be present at any meeting of Managers, the Managers present there may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present.
Section 8.10. Committees. The Managers may, by resolution passed by
eighty percent (80%) of the Managers, designate committees, each committee to
consist of two or more Managers, which committees shall have such power and
authority and shall perform such functions as may be provided in such
resolution. Such committee or committees shall have such name or names as may be
designated by the Managers and shall keep regular minutes of their proceedings
and report the same to the Managers when required.
The foregoing paragraph notwithstanding, the Managers shall establish a
Medical Executive Committee, the size and composition of which shall be
established by resolution passed by the affirmative vote of not less than eighty
percent (80%) of the Managers. The Medical Executive Committee shall initially
consist of the following three (3) members: Xxxxx X. Xxxxxxx, M.D., Xxxx X.
Xxxxx, M.D. and Xxxx Xxxxxxxxx, O.D. Members of the Medical Executive Committee
must be licensed physicians or optometrists, but need not be Members, Managers,
or officers of the Company. The Medical Executive Committee shall meet at such
time or times as it may, by majority vote of its members, elect and may adopt
procedures for the conduct of its meetings. The Medical Executive Committee
shall have authority and control over the medical aspects of the Company's
business, and shall provide advice to the Managers on decisions relating to
equipment purchases, technological obsolescence, quality assurance,
credentialing, and such other matters as shall be requested by the Managers. The
Medical Executive Committee shall have the authority to bind the Company only
with respect to the medical aspects of the Company's business. Unless otherwise
established by a resolution adopted by at least a majority of the members of the
Medical Executive Committee, the majority of the members of the Medical
Executive Committee shall constitute a quorum of the transaction of its business
and the affirmative vote of the majority of the members of the Medical Executive
Committee shall constitute action validly taken by that body.
Section 8.11. Compensation of Managers. The Managers may be reimbursed
for reasonable actual expenses incurred in connection with the management of the
Company, but Managers shall not otherwise be compensated unless such
compensation is agreed upon in advance by all Members.
Section 8.12. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Managers or of any committee
designated by the Managers may be taken without a meeting if written consent,
setting forth the action so taken, is signed by all the Managers or of such
committee, and such consent shall have the same force and effect as a unanimous
vote at a meeting.
Section 8.13. Meetings by Conference Telephone. Managers or members of
any committee designated by the Managers may participate in and hold a meeting
of the Managers or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 8.14. Liability of Managers. No Manager of the Company shall be
personally liable for any debts, liabilities, or obligations of the Company,
including under a judgment, decree, or order of the court.
Section 8.15. Specific Power of Managers. The Managers shall have the
authority to enter into and execute all documents in relation to the formation
of the Company including, but not limited to, issuance of the Certificate of
Formation and this Limited Liability Company Agreement.
ARTICLE IX.
NOTICES
Section 9.1. Form of Notice. Whenever under the provisions of the Act,
the Certificate of Formation or this Limited Liability Company Agreement notice
is required to be given to any Manager or Member, and no provision is made as to
how such notice shall be given, notice shall not be construed to mean personal
notice only, but any such notice may also be given in writing, by mail, postage
prepaid, addressed to such Manager or Member at such address as appears on the
books of the Company, or by telecopy. Any notice required or permitted to be
given by mail shall be deemed to be given three (3) days after it is deposited,
postage prepaid, in the United States mail as aforesaid.
Section 9.2. Waiver. Whenever any notice is required to be given to any
Manager or Member of the Company under the provision of the Act, the Certificate
of Formation or this Limited Liability Company Agreement, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether signed
before or after the time stated in such waiver, shall be deemed equivalent to
the giving of such notice.
ARTICLE X.
OFFICERS
Any Manager may also serve as an officer of the Company. The Managers
may designate one or more persons who are not Managers of the Company to serve
as officers and may designate the titles of all officers. The initial officers
of the Company shall be: Xxx Xxxxxxx, Chairman of the Board; Xxxx Xxxxxx,
President; Xxxxxx Xxxxxxxx, Vice President, Secretary and Chief Financial
Officer; Xxxxx Xxxxxx, Vice President and Treasurer; and Xxxx Xxxxxxxxx, Vice
President. Unless otherwise provided in a resolution of the Members or Managers,
the officers of the Company shall have the powers designated with respect to
such offices under the Delaware Limited Liability Company Act, and any successor
statute, as amended from time-to-time.
ARTICLE XI.
INDEMNITY
Section 11.1. Indemnification. The Company shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action, suit
or proceeding and any inquiry or investigation that could lead to such an
action, suit or proceeding (whether or not by or in the right of the Company),
by reason of the fact that such person is or was a Manager, officer, employee or
agent of the Company or is or was serving at the request of the Company as a
director, manager, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another corporation, employee benefit plan,
other enterprise, or other entity, against all judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses (including
attorneys' fees and court costs) actually and reasonably incurred by him in
connection with such action, suit or proceeding to the fullest extent permitted
by any applicable law, and such indemnity shall inure to the benefit of the
heirs, executors and administrators of any such person so indemnified pursuant
to this Article XI. The right to indemnification under this Article XI shall be
a contract right and shall not be deemed exclusive of any other right to which
those seeking indemnification may be entitled under any law, bylaw, agreement,
vote of members or disinterested managers or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. Any repeal or amendment of this Article XI by the Members of the Company
or by changes in applicable law shall, to the extent permitted by applicable
law, be prospective only, and shall not adversely affect the indemnification of
any person who may be indemnified at the time of such repeal or amendment.
Section 11.2. Indemnification Not Exclusive. The rights of
indemnification and reimbursement provided for in this Article XI shall not be
deemed exclusive of any other rights to which any such Manager, officer,
employee or agent may be entitled under the Certificate of Formation, this
Limited Liability Company Agreement, agreement or vote of Members, or as a
matter of law or otherwise.
ARTICLE XII.
NO OVERHEAD ALLOCATIONS
No Member shall be entitled to allocate to the Company any costs or
expenses that are paid or incurred by any Member or its affiliates (excluding
the Company).
ARTICLE XIII.
MISCELLANEOUS
Section 13.1. Fiscal Year. The fiscal year of the Company shall be fixed by
resolution of the Managers.
Section 13.2. Records. At the expense of the Company, the Managers shall
maintain records and accounts of all operations of the Company. At a minimum,
the Company shall keep at its principal place of business the following records:
(a) A current list of the name and last known mailing address of each
Member;
(b) A current list of each Member's Membership Interest;
(c) A copy of the Certificate of Formation and Limited
Liability Company Agreement of the Company, and all amendments thereto,
together with executed copies of any powers of attorney;
(d) Copies of the Federal, state, and local income tax returns and reports
for the Company's six most recent tax years; and
(e) Correct and complete books and records of account of the Company.
Section 13.3. Seal. The Company may by resolution of the Managers adopt
and have a seal, and said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any manner reproduced. Any officer of the
Company shall have authority to affix the seal to any document requiring it.
Section 13.4. Agents. Every Manager and Officer is an agent of the Company
for the purpose of the business. The act of a Manager or Officer, including the
execution in the name of the Company of any instrument for carrying on in the
usual way the business of the Company, binds the Company.
Section 13.5. Checks. All checks, drafts and orders for the payment of
money, notes and other evidences of indebtedness issued in the name of the
Company shall be signed by such officer, officers, agent or agents of the
Company and in such manner as shall from time to time be determined by
resolution of the Managers. In the absence of such determination by the Mangers,
such instruments shall be signed by the Treasurer or the Secretary and
countersigned by the President or a Vice President of the Company, if the
Company has such officers.
Section 13.6. Deposits. All funds of the Company shall be deposited from
time to time to the credit of the Company in such banks, trust companies or
other depositories as the Managers may select.
Section 13.7. Annual Statement. The Managers shall present at each
annual meeting, and, when called for by vote of the Members, at any special
meeting of the Members, a full and clear statement of the business and condition
of the Company.
Section 13.8. Financial Statements. As soon as practicable after the
end of each fiscal year of the Company, a balance sheet as at the end of such
fiscal year, and a profit and loss statement for the period ended, shall be
distributed to the Members, along with such tax information (including all
information returns) as may be necessary for the preparation of each Member of
its Federal, state and local income tax returns. The balance sheet and profit
and loss statement referred to in the previous sentence may be as shown on the
Company's federal income tax return.
Section 13.9. Binding Arbitration. Any controversy between the parties
regarding this Agreement and any claims arising out of this Agreement or its
breach shall be submitted to arbitration by either party. The arbitration
proceedings shall be conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall
be conducted in Dallas, Texas and the arbitrator shall have the right to award
actual damages and attorney fees and costs, but shall not have the right to
award punitive, exemplary or consequential damages against either party.
ARTICLE XIV.
AMENDMENTS
Section 14.1. Amendments. This Agreement may be altered, amended or
repealed and a new limited liability company agreement may be adopted, only in
accordance with the provisions of Section 8.9, but otherwise at any regular
meeting or at any special meeting called for that purpose, or by execution of a
written consent in accordance with the provisions of Section 3.8.
Section 14.2. When Limited Liability Company Agreement Silent. It is
expressly recognized that when the Limited Liability Company Agreement is silent
or in conflict with the requirements of the Act as to the manner of performing
any Company function, the provisions of the Act shall control.
[Signature page follows]
S-1
SIGNATURE PAGE TO
LIMITED LIABILITY COMPANY AGREEMENT
OF PRIME REFRACTIVE - St. Louis, L.L.C.
IN WITNESS WHEREOF, the undersigned Members hereby adopt this Limited
Liability Company Agreement as the Limited Liability Company Agreement of the
Company, effective as of the 1st day of June, 2000.
Xxxx X. Xxxxx, M.D.
Xxxx Xxxxxxxxx, O.D.
Prime Refractive, L.L.C.
Xxxxxx Xxxxxxxx, Vice President
A-1
EXHIBIT A
OWNERSHIP INTERESTS
Name Ownership Percentage
Prime Refractive, L.L.C. 90%
Xxxx Xxxxxxxxx, O.D. 5%
