EXHIBIT 10.11
OPERATING AGREEMENT
FOR
MED ENCLOSURES, LLC
A NEVADA LIMITED LIABILITY COMPANY
This Operating Agreement (this "Agreement") is made as of November 5, 1999
by and between CPC OF AMERICA, INC., a Nevada corporation ("CPC"), and XXXX
XXXXX ENTERPRISES, INC., a Florida corporation (collectively referred to as the
"Members" or individually as a "Member").
A. The Members will cause to be filed the Articles of Organization (the
"Articles") for Med Enclosures, LLC (the "Company"), a limited liability company
under the laws of the State of Nevada, with the Nevada Secretary of State.
B. The Members desire to adopt and approve an operating agreement for the
Company under the Nevada Limited Liability Company Act (the "Act").
NOW, THEREFORE, the Members by this Agreement set forth the operating
agreement for the Company upon the terms and subject to the conditions of this
Agreement.
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 Name. The name of the Company shall be "Med Enclosures, LLC." The
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Company may conduct business under that name or any other name approved by the
Members.
1.2 Term. The term of the Company shall commence as of the date of the
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filing of the Certificate and, unless sooner terminated under Section 9.1, shall
terminate on December 31, 2023.
1.3 Office and Agent. The Company shall continuously maintain an office
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and registered agent in the State of Nevada as required by the Act. The
principal office of the Company shall be at 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000 or such location as the Members may determine. The
registered agent shall be as stated in the Articles or as otherwise determined
by the Members.
1.4 Business of the Company. The principal purpose of the Company is to
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manufacture, market and develop puncture closing devices and procedures for
arterial closures, including the patented procedure known as the "Xxxxx
Solution," as well as such other activities directly related to the foregoing
business as may be necessary, advisable or appropriate, in the reasonable
opinion of the Managing Member to further the foregoing business.
ARTICLE II
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions. Each Member shall make an initial contribution
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to the capital of the Company shown opposite the Member's name on Exhibit A
attached hereto. No Member shall be required to make any additional
contributions to the capital of the Company. Additional contributions to the
capital of the Company shall be made only with the unanimous consent of the
Members. If additional contributions to the capital of the Company are required
by such unanimous consent, the Members shall have the right, but shall not be
obligated, to make additional contributions to the Company's capital, if they
wish to do so, to preserve the level of their Membership Interests (as defined
in Section 2.2). Immediately following any such additional capital
contributions, the Membership Interests shall be adjusted by the Manager to
reflect the new relative proportions of the Capital Accounts (as defined in
Section 2.2) of the Members. Except as provided in this Agreement, no Member
may withdraw his or her capital contribution.
2.2 Capital Accounts. The Company shall establish an individual capital
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account ("Capital Account") for each Member. The Company shall determine and
maintain each Capital Account in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv). Each Member shall have a membership interest ("Membership
Interest") in the Company, which shall consist of a Member's entire interest in
the Company, including the Member's economic interest and the Member's right to
vote and participate in the management. A Member's Membership Interest shall be
determined by dividing the total dollar amount of the Member's Capital Account
by the total dollar amount of all Capital Accounts of all Members. Upon a valid
transfer of a Member's Membership Interest in accordance with Article VI, such
Member's Capital Account shall carry over to the new owner.
2.3 Other Classes of Interests. The Company is authorized to issue
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additional classes of Membership Interests upon such terms and conditions as the
Manager may from time to time determine.
2.4 No Interest. The Company shall not pay any interest on capital
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contributions.
ARTICLE III
MEMBERS
3.1 Admission of Additional Members. Additional Members may be admitted
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with the consent of the Members holding a majority of the Membership Interests,
provided that such terms shall not give the additional Member greater rights
than the existing Members have unless such rights are also extended to the
existing Members on the same terms as such rights are offered to the additional
Members. Additional Members will participate in the "Net Profits", "Net Losses"
(as such terms are defined in Section 5.1), and distributions of the Company on
such terms as are determined by the Members. Exhibit A shall be amended upon
the admission of an additional Member to set forth such Member's name and
capital contribution.
3.2 Withdrawals or Resignations. Any Member who is under an obligation to
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render services to the Company may withdraw or resign as a Member at any time
upon 90 days prior written notice to the Company, without prejudice to the
rights, if any, of the Company or the other Members under any contract to which
the withdrawing Member is a party. In the event of such withdrawal, such
Member's Membership Interest shall be terminated, such Member shall thereafter
only have the rights of a transferee as described in Section 6.3 and such
Membership
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Interest shall be subject to purchase and sale as provided in Section 7.2. No
other Member may withdraw, retire or resign from the Company
3.3 Payments to Members. Except as specified in this Agreement or
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pursuant to a transaction permitted by Section 4.9, no Member or person or
entity controlled by, controlling or under common control with the Member (each
such person or entity is defined as an "Affiliate"), is entitled to remuneration
for services rendered or goods provided to the Company. However, the Company
shall reimburse the Members and their Affiliates for organizational expenses
(including, without limitation, legal and accounting fees and costs) incurred to
form the Company, prepare the Articles and this Agreement and, as approved by
the Manager, for the reasonable and actual out-of-pocket expenses incurred on
behalf of the Company.
ARTICLE IV
MANAGEMENT AND CONTROL OF THE COMPANY
4.1 Management of the Company by the Manager.
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A. Exclusive Management by the Manager. The business, property and
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affairs of the Company shall be managed exclusively by the Manager. Except for
situations in which the approval of the Members is expressly required by the
Certificate or this Agreement, the Manager shall have full, complete and
exclusive authority, power, and discretion to manage and control the business,
property and affairs of the Company, to make all decisions regarding those
matters and to perform any and all other acts customary or incident to the
management of the Company's business, property and affairs.
B. Election of the Initial Manager. CPC is hereby designated as the
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initial Manager.
C. Agency Authority of the Manager. The Manager is authorized to
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endorse checks, drafts, and other evidences of indebtedness made payable to the
order of the Company and to sign contracts and obligations on behalf of the
Company.
4.2 Election of the Manager.
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A. Number, Term, and Qualifications. The Company shall have one
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Manager. Unless CPC (or any successor Manager) resigns or is removed, the
Manager shall hold office until a successor shall have been elected and
qualified. Subject to Section 4.5, the Manager shall be elected by the
affirmative vote or written consent of Members holding a majority of the
Membership Interests.
B. Resignation. The Manager may resign at any time by giving written
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notice to the Members without prejudice to the rights, if any, of the Company
under any contract to which the Manager is a party. The resignation of the
Manager 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 the notice,
the acceptance of the resignation shall not be necessary to make it effective.
The resignation of the Manager who is also a Member shall not affect the
Manager's rights as a Member and shall not constitute a withdrawal of a Member.
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C. Removal. The Manager may be removed at any time, with or
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without cause, by the affirmative vote of the Members holding a majority of the
Membership Interests at a meeting called expressly for that purpose, or by the
written consent of the Members holding a majority of the Membership Interests.
Any removal shall be without prejudice to the rights, if any, of the Manager
under any employment contract and, if the Manager is also a Member, shall not
affect the Manager's rights as a Member or constitute a withdrawal of a Member.
D. Vacancies. Any vacancy occurring for any reason in the
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position of Manager may be filled by the affirmative vote or written consent of
Members holding a majority of the Membership Interests.
4.3 Powers of the Manager. Without limiting the generality of Section
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4.1A, but subject to Section 4.4 and to the express limitations set forth
elsewhere in this Agreement, the Manager shall have all necessary powers to
manage and carry out the purposes, business, property, and affairs of the
Company, including, without limitation, the power to exercise on behalf and in
the name of the Company all of the powers described in Section 86-281 of the
Act.
4.4 Limitations on Power of the Manager. Notwithstanding any other
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provision of this Agreement, the Manager shall not have authority to cause the
Company to engage in the following transactions without first obtaining the
approval of the Members holding a majority of the Membership Interests.
(i) The sale, exchange or other disposition of all, or
substantially all, of the Company's assets occurring as part of a single
transaction or plan, or in multiple transactions over a twelve (12) month
period, except in the orderly liquidation and winding up of the business of the
Company upon its duly authorized dissolution.
(ii) The merger of the Company with another limited liability
company or corporation, general partnership, limited partnership or other
entity.
(iii) An alteration of the authorized businesses of the Company as
set forth in Section 1.4.
(iv) Any act which would make it impossible to carry on the ordinary
business of the Company.
(v) The confession of a judgment against the Company.
(vi) Any other transaction described in this Agreement as requiring
the approval, consent or vote of the Members holding a majority of the
Membership Interests.
4.5 Salaries. No Member or Manager may receive a salary unless the
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Members holding a majority of the membership Interests agree to such salary.
Otherwise, all payments or distributions shall be made to Members in accordance
with their Percentage Interests.
4.6 Member Approval. No annual or regular meetings of the Members are
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required to be held. However, if such meetings are held, such meetings shall be
noticed, held and conducted pursuant to the Act. In any instance in which the
approval of the Members is required under this Agreement, such approval may be
obtained in any manner permitted by the Act. Unless
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otherwise provided in this Agreement, approval of the Members shall mean the
approval of Members holding a majority of the Membership Interests.
4.7 Devotion of Time. Each Member shall devote whatever time or effort as
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he or she deems appropriate for the furtherance of the Company's business.
4.8 Competing Activities; Confidentiality.
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A. Competing Activities. Until the occurrence of a Dissolution
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Event (as defined in Section 7.1), neither the Members nor their Affiliates may
engage, participate or invest in any activity that might be in direct or
indirect competition with the Company, except as expressly provided herein.
Nothing in this Agreement shall in any way prevent or limit the Members
from engaging in any commercial activity following a Dissolution Event that
competes with the business of another Member or with the business of the
Company. Further, nothing in this Agreement shall in any way prevent or limit
Former Members (as defined in Section 7.1) from engaging in any commercial
activity that competes with the business of another Member or with the business
of the Company.
B. Confidentiality. Prior to a Dissolution Event, each Member
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agrees not to disclose or provide any Confidential Information to any third
party without the consent of the Manager and each Member agrees to take all
necessary measures to prevent any such disclosure by their respective officers,
directors, managers, employees, agents or representatives. For purposes of this
Agreement, the term "Confidential Information" shall refer to the terms of this
Agreement and all information which is directly or indirectly disclosed by one
Member to another during the negotiation or performance of this Agreement,
regardless of the form in which it is disclosed, relating in any way to any
Member's markets, customers, products, patents, inventions, proprietary
information, procedures, processes, methods, designs, strategies, know-how,
plans, assets, liabilities, costs, expenses, revenues, profits, organization,
officers, directors, employees, representatives, agents or business in general.
Any information which a party considers or treats as confidential or is
obligated to treat as confidential will be deemed Confidential Information.
4.9 Transactions between the Company and the Members. Notwithstanding
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that it may constitute a conflict of interest, the Members and their Affiliates
may engage in any transaction with the Company so long as such transaction is
not expressly prohibited by this Agreement and so long as the terms and
conditions of such transaction, on an overall basis, are fair and reasonable to
the Company and are at least as favorable to the Company as those that are
generally available from persons capable of similarly performing them or if
Members holding a majority of the Membership Interests having no interest in
such transaction (other than their interests as Members) approve the transaction
in writing after full disclosure.
ARTICLE V
ALLOCATIONS OF NET PROFITS AND NET LOSSES AND DISTRIBUTIONS
5.1 Definitions. When used in this Agreement, the following terms shall
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have the meanings set forth below:
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time, the provisions of succeeding law, and to the extent applicable,
the Treasury Regulations.
"Company Minimum Gain" shall have the meaning ascribed to the term
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"Partnership Minimum Gain" in the Treasury Regulations Section 1.704-2(d).
"Member Nonrecourse Debt" shall have the meaning ascribed to the term
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"Partner Nonrecourse Debt" in Treasury Regulations Section 1.704-2(b)(4).
"Member Nonrecourse Deduction" shall mean items of Company loss,
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deduction, or Code Section 705(a)(2)(B) expenditures which are attributable to
Member Nonrecourse Debt.
"Net Profit" and "Net Loss" shall mean the income, gain, loss,
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deductions, and credits of the Company in the aggregate or separately stated, as
appropriate, determined in accordance with the method of accounting at the close
of each fiscal year employed on the Company's information tax return filed for
federal income tax purposes.
"Nonrecourse Liability" shall have the meaning set forth in Treasury
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Regulations Section 1.752-1(a)(2).
"Treasury Regulations" shall mean the final or temporary regulations
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that have been issued by the U.S. Department of Treasury pursuant to its
authority under the Code, and any successor regulations.
5.2 Allocations of Net Profit and Net Loss.
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A. Net Loss. Net Loss shall be allocated to the Members in
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proportion to their Membership Interest. Notwithstanding the previous sentence,
loss allocations to a Member shall be made only to the extent that such loss
allocations will not create a deficit Capital Account balance for that Member in
excess of an amount, if any, equal to such Member's share of Company Minimum
Gain that would be realized on a foreclosure of the Company's property. Any loss
not allocated to a Member because of the foregoing provision shall be allocated
to the other Members (to the extent the other Members are not limited in respect
of the allocation of losses under this Section 5.2A). Any loss reallocated under
this Section 5.2A shall be taken into account in computing subsequent
allocations of income and losses pursuant to this Article V, so that the net
amount of any item so allocated and the income and losses allocated to each
Member pursuant to this Article V, to the extent possible, shall be equal to the
net amount that would have been allocated to each such Member pursuant to this
Article V if no reallocation of losses had occurred under this Section 5.2A.
Notwithstanding any other provision of this Agreement, Local Partner shall not
be responsible for funding any portion, proration or allocation of any operating
loss incurred by the Company beyond or exceeding its initial capital
contribution.
B. Net Profit. Net Profit shall be allocated to the Members in
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proportion to their Membership Interests.
5.3 Special Allocations. Notwithstanding Section 5.2.
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A. Minimum Gain Chargeback. If there is a net decrease in Company
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Minimum Gain during any fiscal year, each Member shall be specially allocated
items of
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Company income and gain for such fiscal year (and, if necessary, in subsequent
fiscal years) in an amount equal to the portion of such Member's share of the
net decrease in Company Minimum Gain that is allocable to the disposition of
Company property subject to a Nonrecourse Liability, which share of such net
decrease shall be determined in accordance with Treasury Regulations Section
1.704-2(g)(2). Allocations pursuant to this Section 5.3A shall be made in
proportion to the amounts required to be allocated to each Member under this
Section 5.3A. The items to be so allocated shall be determined in accordance
with Treasury Regulations Section 1.704-2(f). This Section 5.3A is intended to
comply with the minimum gain chargeback requirement contained in Treasury
Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
B. Chargeback of Minimum Gain Attributable to Member Nonrecourse
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Debt. If there is a net decrease in Company Minimum Gain attributable to a
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Member Nonrecourse Debt, during any fiscal year, each member who has a share of
the Company Minimum Gain attributable to such Member Nonrecourse Debt (which
share shall be determined in accordance with Treasury Regulations Section 1.704-
2(i)(5)) shall be specially allocated items of Company income and gain for such
fiscal year (and, if necessary, in subsequent fiscal years) in an amount equal
to that portion of such Member's share of the net decrease in Company Minimum
Gain attributable to such Member Nonrecourse Debt that is allocable to the
disposition of Company property subject to such Member Nonrecourse Debt (which
share of such net decrease shall be determined in accordance with Treasury
Regulations Section 1.704-2(i)(5)). Allocations pursuant to this Section 5.3B
shall be made in proportion to the amounts required to be allocated to each
Member under this Section 5.3B. The items to be so allocated shall be determined
in accordance with Treasury Regulations Section 1.704-2(i)(4). This Section 5.3B
is intended to comply with the minimum gain chargeback requirement contained in
Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
C. Nonrecourse Deductions. Any nonrecourse deductions (as defined
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in Treasury Regulations Section 1.704-2(b)(1) for any fiscal year or other
period shall be specifically allocated to the Members in proportion to their
Membership Interests.
D. Member Nonrecourse Deductions. Those items of Company loss,
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deduction, or Code Section 705(a)(2)(B) expenditures which are attributable to
Member Nonrecourse Debt for any fiscal year or other period shall be
specifically allocated to the Member who bears the economic risk of loss with
respect to the Member Nonrecourse Debt to which such items are attributable in
accordance with Treasury Regulations Section 1.704-2(i).
E. Qualified Income Offset. If a Member unexpectedly receives any
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adjustments, allocations, or distributions described in Treasury Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), or any other event creates a
deficit balance in such Member's Capital Account in excess of such Member's
share of Company Minimum Gain, items of Company income and gain shall be
specially allocated to such Member in an amount and manner sufficient to
eliminate such excess deficit balance as quickly as possible. Any special
allocations of items of income and gain pursuant to this Section 5.3E shall be
taken into account in computing subsequent allocations of income and gain
pursuant to this Article V so that the net amount of any item so allocated and
the income, gain, and losses allocated to each Member pursuant to this Section
5.3E to the extent possible, shall be equal to the net amount that would
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have been allocated to each such Member pursuant to the provisions of this
Article V if such unexpected adjustments, allocations, or distributions had not
occurred.
5.4 Code Section 704(c) Allocations. Notwithstanding any other provisions
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in this Article V, in accordance with Code Section 704(c) and the Treasury
Regulations promulgated 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 fair market value on the date of contribution.
Allocations pursuant to this Section 5.4 are solely for purposes of federal,
state and local taxes. As such, they shall not affect or in any way be taken
into account in computing a Member's Capital Account or share of profits,
losses, or other items of distributions pursuant to any provision of this
Agreement.
5.5 Distribution of Assets by the Company. Subject to applicable law and
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any limitations contained elsewhere in this Agreement, Members holding a
majority of the Membership Interests may elect from time to time to cause the
Company to make distributions. Distributions shall be first to the Members in
proportion to their unreturned capital contributions until each Member has
recovered his or her capital contributions, and then to the Members in
proportion to their Membership Interests.
ARTICLE VI
TRANSFER AND ASSIGNMENT OF INTERESTS
6.1 Transfer and Assignment of Interests. No Member shall be entitled to
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transfer, assign, convey, sell, encumber or in any way alienate all or any part
of his or her Membership Interest (collectively, "transfer") except with the
prior approval of the Manager, which approval may be given or withheld in the
manager's sole discretion.
6.2 Substitution of Members. A transferee of a Membership Interest shall
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have the right to become a substitute Member only if (i) consent of the
remaining Members is given in accordance with Section 6.1, (ii) such person
executes an instrument satisfactory to the remaining Members agreeing to all of
the provisions of this Agreement, and (iii) such person pays any reasonable
expenses in connection with his or her admission as a new Member. The admission
of a substitute Member shall not release the Member who assigned the Membership
Interest from any liability that such Member may have to the Company.
6.3 Transfers in Violation of this Agreement and Transfers of Partial
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Membership Interests. Upon a transfer in violation of this Article VI, the
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transferee shall have no right to vote or participate in the management of the
Company or to exercise any rights of a Member. Such transferee shall only be
entitled to receive the share of the Company's Net Profits, Net Losses and
distributions of the Company's assets to which the transferor would otherwise be
entitled. Notwithstanding the immediately preceding sentences, if, in the
determination of the remaining Member, a transfer in violation of this Article
VI would cause the termination of the Company under the Code, in the sole
discretion of the remaining Member, the transfer shall be null and void.
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6.4 Right to Purchase. If, as of November 5, 2000, the gross offering
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proceeds received by the Company from the private placement of its Membership
Interests is less than $4,000,000, then Xxxxx shall have the right to purchase
CPC's entire Membership Interest for the purchase price of $1.00 effective upon
60 days' prior written notice.
ARTICLE VII
CONSEQUENCES OF DISSOLUTION EVENTS AND
TERMINATION OF MEMBERSHIP INTEREST
7.1 Dissolution Event. Upon the occurrence of the death, withdrawal,
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resignation, retirement, insanity, bankruptcy or dissolution of any Member or
the termination of this Agreement pursuant to Section 1.2 ("Dissolution Event"),
the Company shall dissolve unless the remaining Members ("Remaining Members")
holding all of the remaining Membership Interests consent within ninety (90)
days of the Dissolution Event to the continuation of the business of the
Company. If the Remaining Members so consent, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is exercised, the
Members (or his or her legal representative) whose actions or conduct resulted
in the Dissolution Event ("Former Member") shall sell, the Former Member's
Membership Interest ("Former Member's Interest") as provided in this Article
VII.
7.2 Withdrawal. Notwithstanding Section 7.1, upon the withdrawal by a
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Member in accordance with Section 3.2 such Member shall be treated as a Former
Member, and, unless the Company dissolves as a result of such withdrawal, the
Company and/or the Remaining Members shall have the right to purchase, and if
such right is exercised, the Former Member shall sell, the Former Member's
Interest as provided in this Article VII.
7.3 Purchase Price. The purchase price for the Former's Member's Interest
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shall be the fair market value of the Former Member's Interest as determined by
an independent appraiser jointly selected by the Former Member and by the
Remaining Members. The Company and the Former Member shall each pay one-half of
the cost of the appraisal. Notwithstanding the foregoing, if the Dissolution
Event results from a breach of this Agreement by the Former Member, the purchase
price shall be reduced by an amount equal to the damages suffered by the Company
or the Remaining Members as a result of such breach.
7.4 Notice of Intent to Purchase. Within thirty (30) days after the fair
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market value of the Former Member's Interest has been determined in accordance
with Section 7.3, each Remaining Member shall notify the Members in writing of
his or her desire to purchase a portion of the Former Member's Interest. The
failure of any Remaining Member to submit a notice within the applicable period
shall constitute an election on the part of the Member not to purchase any of
the Former Member's Interest. Each Remaining Member so electing to purchase
shall be entitled to purchase a portion of the Former Member's Interest in the
same proportion that the Membership Interest of the Remaining Member bears to
the aggregate of the Membership Interests of all of the Remaining Members
electing to purchase the Former Member's Interest.
7.5 Election to Purchase Less Than All of the Former Member's Interest.
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If any Remaining Member elects to purchase none or less than all of his or her
pro rata share of the Former Member's Interest, then the Remaining Members may
elect to purchase more than their
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pro rata share. If the Remaining Members fail to purchase the entire interest of
the Former Member, the Company may purchase any remaining share of the Former
Member's Interest. Any purchase of a Former Member's Interest must be the entire
interest.
7.6 Payment of Purchase Price. The Company or the Remaining Members, as
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the case may be, shall pay at the closing one-fifth (1/5) of the purchase price
and the balance of the purchase price shall be paid in four equal annual
principal installments, plus accrued interest, and be payable each year on the
anniversary date of the closing. The unpaid principal balance shall accrue
interest at the current applicable federal rate as provided in the Code for the
month in which the initial payment is made, but the Company and the Remaining
Members shall have the right to prepay in full or in part at any time without
penalty. The obligation of each purchasing Remaining Member, and the Company,
as applicable, to pay its portion of the balance due shall be evidenced by a
separate promissory note executed by the respective purchasing Remaining Member
or the Company, as applicable. Each such promissory note shall be in an
original principal amount equal to the portion owed by the respective purchasing
Remaining Member and shall be secured by a pledge of that portion of the Former
Member's Interest purchased by such Remaining Member.
7.7 Closing of Purchase of Former Member's Interest. The closing for the
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sale of a Former Member's Interest pursuant to this Article VII shall be held at
10:00 a.m. at the principal office of Company no later than sixty (60) days
after the determination of the purchase price, except that if the closing date
falls on a Saturday, Sunday, or Federal legal holiday, then the closing shall be
held on the next succeeding business day. At the closing, the Former Member
shall deliver to the Company or the Remaining Members an instrument of transfer
(containing warranties of title and no encumbrances) conveying the Former
Member's Interest. The Former Member, the Company and the Remaining members
shall do all things and execute and deliver all papers as may be reasonably
necessary fully to consummate such sale and purchase in accordance with the
terms and provisions of this Agreement.
ARTICLE VIII
ACCOUNTING, RECORDS, REPORTING BY MEMBERS
8.1 Books and Records. The books and records of the Company shall be kept
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in accordance with generally accepted accounting principles, consistently
applied. The Company shall also obtain an audit (at the Company's expense) of
its annual financial statements by an independent certified public accountant.
The Company shall maintain at its principal office in Florida all of the
following:
A. A current list of the full name and last known business or
residence address of each Member, together with the capital contributions,
capital account and Membership Interest of each Member;
B. A copy of the Articles and any and all amendments thereto
together with executed copies of any powers of attorney pursuant to which the
Articles or any amendments thereto have been executed;
C. Copies of the Company's federal, state and local income tax or
information returns and reports, if any, for the six (6) most recent taxable
years;
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D. A copy of this Agreement and any and all amendments thereto
together with executed copies of any powers of attorney pursuant to which this
Agreement or any amendments thereto have been executed;
E. Copies of the financial statements of the Company, if any, for
the six (6) most recent fiscal years; and
F. The Company's books and records as they relate to the internal
affairs of the Company for at least the current and past four (4) fiscal years.
8.2 Reports. The Company shall cause to be filed, in accordance with the
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Act, all reports and documents required to be filed with any governmental
agency. The Company shall cause to be prepared at least annually information
concerning the Company's operations necessary for the completion of the Members'
federal and state income tax returns. The Company shall send or cause to be
sent to each member within ninety (90) days after the end of each taxable year
(i) such information as is necessary to complete the Members' federal and state
income tax or information returns and (ii) a copy of the Company's federal,
state, and local income tax or information returns for the year.
8.3 Bank Accounts. The Members shall maintain the funds of the Company in
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one or more separate bank accounts in the name of the Company, and shall not
permit the funds of the Company to be commingled in any fashion with the funds
of any other person. Any Member, acting alone, is authorized to endorse checks,
drafts, and other evidences of indebtedness made payable to the order of the
Company, but only for the purpose of deposit into the Company's accounts. All
checks, drafts, and other instruments obligating the Company to pay money shall
be signed by CPC (or any successor Manager), except as otherwise provided in
Section 4.1A above.
8.4 Tax Matters for the Company. CPC is designated as "Tax Matters
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Partner" (as defined in Code Section 6231), to represent the Company (at the
Company's expense) in connection with all examination of the Company's affairs
by tax authorities and to expend Company funds for professional services and
costs associated therewith.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1 Conditions of Dissolution. The Company shall dissolve upon the
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occurrence of any of the following events:
A. Upon the happening of any event of dissolution specified in the
Articles;
B. Upon the unanimous vote of Members;
C. The occurrence of a Dissolution Event and the failure of the
Remaining Members to consent in accordance with Section 7.1 to continue the
business of the Company within ninety (90) days after the occurrence of such
event; or
D. The sale of all or substantially all of the assets of the
Company.
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9.2 Winding Up. Upon the dissolution of the Company, the Company's assets
----------
shall be disposed of and its affairs wound up. The Company shall give written
notice of the commencement of the dissolution to all of its known creditors.
9.3 Order of Payment of Liabilities Upon Dissolution. After determining
------------------------------------------------
that all the known debts and liabilities of the Company have been paid or
adequately provided for, the remaining assets shall be distributed to the
Members in accordance with their positive Capital Account balances, after taking
into account income and loss allocations for the Company's taxable year during
which liquidation occurs; provided, however, that after distributions are made
which reduce the positive Capital Account balances of the Members to zero, all
additional distributions shall be made to the Members in accordance with their
Membership Interests.
9.4 Limitations on Payments Made in Dissolution. Except as otherwise
-------------------------------------------
specifically provided in this Agreement, each Member shall be entitled to look
only to the assets of the Company for the return of his or her positive Capital
Account balance and shall have no recourse for his or her Capital Contribution
and/or share of Net Profits against any other Member except as provided in
Article X.
9.5 Certificates. The Company shall file with the Nevada Secretary of
------------
State Articles of Dissolution upon the dissolution of the Company and a
Certificate of Cancellation upon the completion of the winding up of the
Company's affairs.
ARTICLE X
INDEMNIFICATION AND INSURANCE
10.1 Indemnification of Agents. The Company shall indemnify the Manager
-------------------------
and each Member and may 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 by reason of the fact that he or she is or was a Manager,
Member, officer, employee or other agent of the Company or that, being or having
been such a Manager, Member, officer, employee or agent, he or she is or was
serving at the request of the Company as a manager, director, officer, employee
or another agent of another limited liability company, corporation, partnership,
joint venture, trust or other enterprise (all such persons being referred to
hereinafter as an "agent"), to the fullest extent permitted by applicable law in
effect on the date hereof and to such greater extent as applicable law may
hereafter from time to time permit.
10.2 Insurance. The Company shall have the power to purchase and maintain
---------
insurance on behalf of any person who is or was an agent of the Company against
any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as an agent, whether or
not the Company would have the power to indemnify such person against such
liability under the provisions of Section 10.1 or under applicable law.
ARTICLE XI
MISCELLANEOUS
11.1 Counsel to the Company. Counsel to the Company ("Company Counsel")
----------------------
may also be counsel to any Member or any Affiliate of a Member. The Members may
execute on behalf of the Company and the Members any consent to the
representation of the Company that
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Company Counsel may request pursuant to the California and Nevada Rules of
Professional Conduct or similar rules in any other jurisdiction ("Rules"). Each
Member acknowledges that Company Counsel shall not represent any Member in the
absence of a clear and explicit agreement to such effect between the Member and
Company Counsel, and that in the absence of any such written agreement Company
Counsel shall owe no duties directly to a Member. Notwithstanding any adversity
that may develop, in the event any dispute or controversy arises between the
Members and the Company, then each Member agrees that Company Counsel may
represent either the Company or such Member in any such dispute or controversy
to the extent permitted by the Rules, and each Member hereby consents to such
representation; provided that if the Company Counsel represents a Member in such
dispute, such Member shall take all steps necessary or appropriate to allow the
Company to select and retain its own independent counsel for such dispute, which
counsel such Member shall not participate in selecting or retaining for the
Company.
11.2 Complete Agreement. This Agreement and the Articles constitute the
------------------
complete and exclusive statement of agreement among the Members with respect to
the subject matter herein and therein and replace and supersede all prior
written and oral agreements among the Members with respect to the subject matter
of this Agreement and the Articles. To the extent that any provision of the
Articles conflict with any provision of this Agreement, the Articles shall
control.
11.3 Binding Effect. Subject to the provisions of this Agreement relating
--------------
to transferability, this Agreement shall will be binding upon and inure to the
benefit of the Members and their respective successors and assigns.
11.4 Interpretation. All pronouns shall be deemed to refer to the
--------------
masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the interpretation of any
provision of this Agreement. Numbered or lettered articles, sections and
subsections herein contained refer to articles, sections and subsections of this
Agreement unless otherwise expressly stated. In the event any claim is made by
any Member relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular
Member or his or her counsel.
11.5 Jurisdiction. Each Member hereby consents to the exclusive
------------
jurisdiction of the state and federal courts sitting in Florida in any action on
a claim arising out of, under or in connection with this Agreement or the
transactions contemplated by this Agreement. Each Member further agrees that
personal jurisdiction over him or her may be effected by service of process by
registered or certified mail addresses as provided in Section 11.8 of this
Agreement, and that when so made shall be as if served upon him or her
personally within Florida.
11.6 Arbitration. Except as otherwise provided in this Agreement, any
-----------
controversy between the parties arising out of this Agreement shall be submitted
to the American Arbitration Association for arbitration in Florida. The costs
of the arbitration, including any American Arbitration Association
administration fee, the arbitrator's fee, and costs for the use of facilities
during the hearings, shall be borne equally by the parties to the arbitration.
Attorneys' fees may be awarded to the prevailing or most prevailing party at the
discretion of the arbitrator. The
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discovery rules of Florida shall apply to the arbitration. The arbitrator shall
not have any power to alter, amend, modify or change any of the terms of this
Agreement nor to grant any remedy which is either prohibited by the terms of
this Agreement or not available in a court of law sitting in Florida and
applying Florida substantive law.
11.7 Severability. If any provision of the Agreement or the application
------------
of such provision to any person or circumstance shall be held invalid, the
remainder of this Agreement or the application of such provision to persons or
circumstances other than those to which it is held invalid shall not be affected
thereby.
11.8 Notices. Any notice to be given or to be served upon the Company or
-------
any party hereto in connection with this Agreement must be in writing (which may
include facsimile) and shall be deemed to have been given and received when
delivered to the address specified by the party to receive the notice. Such
notices shall be given to a Member at the address specified in Exhibit A hereto.
Any party may, at any time by giving five (5) days prior written notice to the
other Members, designate any other address in substitution of the foregoing
address to which such notice shall be given.
11.9 Amendments. This Agreement may be amended only by a written
----------
instrument signed by all of the Members.
11.10 Multiple Counterparts. This Agreement may be executed in two or
---------------------
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
11.11 Attorneys' Fees. In the event that any dispute between the Company
---------------
and the Members or among the Members should result in litigation or arbitration,
the prevailing party in such dispute shall be entitled to recover from the other
party or parties all reasonable fees, costs and expenses of enforcing any right
of the prevailing party, including without limitation, reasonable attorneys'
fees and expenses, all of which shall be deemed to have accrued upon the
commencement of such action and shall be paid whether or not such action is
prosecuted to judgment. Any judgment or order entered in such action shall
contain a specific provision providing for the recovery of attorneys' fees and
costs incurred in enforcing such judgment and an award of prejudgment interest
from the date of the act or omission giving rise to the claim at the maximum
rate allowed by law. For the purposes of this Section: (a) attorneys' fees
shall include, without limitation, fees incurred in the following: (1)
postjudgment motions; (2) contempt proceedings; (3) garnishment, levy, and
debtor and third party examinations; (4) discovery; and (5) bankruptcy
litigation; and (b) prevailing party shall mean the party who is determined in
the proceeding to have prevailed or who prevails by dismissal, default or
otherwise.
11.12 Remedies Cumulative. The remedies under this Agreement are
-------------------
cumulative and shall not exclude any other remedies to which any person may be
lawfully entitled.
IN WITNESS WHEREOF, all of the Members of Med Enclosures, LLC, A Delaware
Limited Liability Company, have executed this Agreement, effective as of the
date written above.
CPC OF AMERICA, INC.,
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a Nevada corporation
By:__________________________________
Xxx X. Xxxxxxx, President
XXXX XXXXX ENTERPRISES, INC.,
a Florida Corporation
By:__________________________________
Xxxx Xxxxx, M.D., President
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EXHIBIT A
---------
CAPITAL CONTRIBUTION AND ADDRESS OF MEMBERS
AS OF
NOVEMBER 5, 1999
Member's Capital Membership
Member's Name Member's Address Contribution Interest
----------------------- ---------------------------------- --------------------------- ------------------
CPC of America, Inc. 0000 Xxxxxx Xxxxxx, Xxxxx 000 Secured Promissory Note 73.3%
Xxxxxxxx, Xxxxxxx 00000 in the original
principal amount of
$250,000
Xxxx Xxxxx 0000 X. Xxxxxxx Xxxxx All rights to the "Myers 26.7%
Enterprises, Inc. Xxxxxxxx, Xxxxxxx 00000 Solution" products and
procedures for arterial
closures, including U.S.
Patent Nos. 5,486,195
and 5,941,897
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