LIMITED LIABILITY COMPANY AGREEMENT OF NATIONSHEALTH SPECIALTY RX, LLC
Exhibit 10.1
A Delaware Limited Liability Company
This Limited Liability Company Agreement (this “Agreement”) of NationsHealth Specialty RX,
LLC, a Delaware limited liability company (the “Company”), is made and entered into as of August 3,
2005 (the “Effective Date”), by and between US Bioservices Corporation, a Delaware corporation (“US
Bio”), and NationsHealth, Inc., a Delaware corporation (“NationsHealth”).
Recitals
A. US Bio is a specialty pharmaceutical services company that provides highly specialized
pharmaceutical services to hospitals, physicians and patients.
B. NationsHealth is a provider of diabetes, respiratory and ostomy supplies reimbursable by
Medicare Part B, as well as a provider of prescription services and supplies to Medicare
beneficiaries in the United States.
C. US Bio and NationsHealth desire to establish the terms and conditions under which they will
develop, own and operate the Business (as such term is defined below);
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Members hereby agree as follows:
Article 1
Definitions
Definitions
1.1 Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Act” shall mean the Delaware Limited Liability Company Act, and any successor statute, as it
may be amended from time to time.
“Affiliate” shall mean, when used with reference to a specified Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, the specified Person. As used in this definition of Affiliate, the term
“control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership of voting
securities, by contract, or otherwise.
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSION.
“Board” shall mean the collective board of Managers as described in Section 8.1.
“Business” means a specialty pharmacy and oncology business that provides specialty
pharmaceuticals that *** and conditions that may be agreed to by the parties (collectively the
“Specialty Diseases”). In connection with the specified Specialty Diseases, the Business will,
among other specialty pharmacy and oncology activities, (i) dispense specialty biologics directly
to patients, their physicians, and possibly via retail alliance programs that may be established
with retail pharmacy chains, (ii) provide patients and physicians with the mail order dispensing of
specialty pharmacy and oncology products and other value-added clinical support and patient
education services related to specialty pharmacy and oncology, and (iii) provide manufacturers with
compliance services and data as well as other de-identified data on treatment trends and outcomes
in connection with specialty pharmacy and oncology.
“Capital Account” shall mean the capital account established for each Member and maintained in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv).
“Certificate” shall mean the Certificate of Formation of the Company.
“Confidential Information” shall mean all technical, financial, commercial, legal and other
information concerning the subject of this Agreement or the Business of the Company that is
disclosed by the Company or one Member or a Manager (the “Disclosing Party”) to another Member or a
Manager, as the case may be (the “Other Party”), except information that is:
(a) lawfully disclosed to the Other Party by a third Person who has no obligation of
confidentiality with respect to that disclosure; or
(b) becomes generally known to the public, other than by breach of the Other Party of its
obligations under this Agreement, the Purchase Agreement or the Employment Agreements; or
(c) required to be disclosed by any law or the rules and regulations of any governmental
agency or stock exchange applicable to the Other Party, provided that the Other Party will
use its best efforts to give the Disclosing Party 10 days’ prior notice of any disclosure under
this subsection (c).
“Controlling” shall mean, for the purpose of Section 14.6, possessing, directly or indirectly,
the power to direct or cause the direction of the management and policies of another person or
entity, whether through ownership of voting securities, by contract, or otherwise.
“Dispose”, “Disposed”, “Disposing” or “Disposition” shall mean a sale, assignment, transfer,
exchange, mortgage, pledge, grant of a security interest, or other disposition or encumbrance
(including, without limitation, by operation of law), or the acts thereof.
“Member” shall mean any Person executing this Agreement as of the date hereof as a member or
hereafter admitted to the Company as a member as provided in this Agreement, but does not include
any Person who has ceased to be a Member of the Company.
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSION.
-2-
“Membership Interest” means an undivided portion of all or a specified category of the rights,
duties, obligations, and ownership interests in the Company.
“Membership Percentage” shall mean, with respect to each Member, the fraction, expressed as a
percentage, the numerator of which is that Member’s Capital Account and the denominator of which is
the sum of the Capital Accounts of all the Members.
“Person” shall mean an individual, partnership, joint venture, limited partnership, limited
liability company, foreign limited liability company, trust, business trust, estate, corporation,
custodian, trustee, executor, administrator, nominee, association, cooperative, or entity in a
representative capacity.
“Supermajority” shall mean (a) with respect to Membership Interests, at least sixty-one
percent (61%) of Membership Interests, and (b) with respect to Managers, at least four (4)
Managers.
1.2 Construction. Whenever the context requires, the gender of all words used in this
Agreement includes the masculine, feminine, and neuter. All references to Articles and Sections
refer to articles and sections of this Agreement, and all references to Schedules are to Schedules
attached hereto, each of which is incorporated and made apart hereof for all purposes.
Article 2
Organization
Organization
2.1 Formation. The Company has been organized as a Delaware limited liability company
by the filing of the Certificate under and pursuant to the Act and the issuance of a certificate of
formation for the Company by the Secretary of State of Delaware.
2.2 Name. The name of the Company is NationsHealth Specialty Rx, LLC and all Company
business must be conducted in that name or such other names that comply with applicable law as the
Board may select from time to time.
2.3 Registered Office; Registered Agent, Principal Office in the United States; Other
Offices. The registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in the Certificate or
such other office (which need not be a place of business of the Company) as the Members may
designate from time to time in the manner provided by law. The registered agent of the Company in
the State of Delaware shall be the initial registered agent named in the Certificate or such other
Person or Persons as the Members may designate from time to time in the manner provided by law.
The principal office of the Company in the United States shall be at such place as the Members may
designate from time to time, which need not be in the State of Delaware, and the Company shall
maintain records there as required by the Act and shall keep the street address of such principal
office at the registered office of the Company in the State of Delaware. The Company may have such
other offices as the Members may designate from time to time.
2.4 Purpose. The purpose of the Company is (a) develop, own and operate the Business
and/or (b) to transact any lawful business which a limited liability company may conduct under the
Act.
-3-
2.5 Foreign Qualification. The Board shall have the authority to cause the Company to
do business in jurisdictions other than the State of Delaware only if (a) such jurisdiction has
enacted a limited liability company statute and the Board has caused the Company to be qualified
under such statute to do business as a foreign limited liability company or (b) the Board shall
have obtained an opinion of responsible counsel qualified to practice law in such jurisdiction in
which they desire to qualify the Company to the effect that under the laws of such jurisdiction the
Members will not be held liable (beyond their interests in the Company) for any debts or
obligations of the Company. To the extent the Board shall have determined to cause the Company to
qualify in a jurisdiction other than Delaware in accordance with the preceding sentence and prior
to the Company’s conducting business in any jurisdiction other than Delaware, the Board shall cause
the Company to comply with all requirements necessary to qualify the Company as a foreign limited
liability company in that jurisdiction. Each Manager or Member, if necessary, shall execute,
acknowledge, swear to, and deliver all certificates and other instruments conforming with this
Agreement that are necessary or appropriate to qualify, continue, and terminate the Company as a
foreign limited liability company in all such jurisdictions in which the Company may conduct
business.
2.6 Term. The existence of the Company commenced on the date the Secretary of State
of the State of Delaware issued a certificate of formation for the Company and shall continue in
existence, unless earlier terminated or dissolved upon the approval of a Supermajority of the
Members in accordance with this Agreement or applicable law.
2.7 No State-Law Partnership. The Members intend that the Company not be a
partnership (including, without limitation, a limited partnership) or joint venture, and that no
Member be a partner or joint venturer of any other Member (except as provided in Section 11.1), and
this Agreement may not be construed to suggest otherwise.
Article 3
Operations
Operations
3.1 Initial Contracts and Operations. As part of engaging in the Business, the
Company will provide specialty pharmaceutical and oncology-related products and services, and will
operate and/or provide all related ancillary services, including without limitation patient
education and disease management programs. While a Member of the Company, NationsHealth agrees
that the Company shall be the only NationsHealth Affiliate that distributes or provides specialty
pharmaceutical and/or oncology-related products and services. Within ninety (90) days after the
date of the execution of this Agreement by all the Members, the Company will enter into the
following written contracts:
(a) The Company will enter into a contract with NationsHealth, or its Affiliate, United States
Pharmaceutical Group, LLC (“USPG”), (the “Marketing Agreement”), under which USPG will perform
certain marketing services and functions for the Company and provide the Company with certain
information regarding potential customers of the Company,
-4-
including but not limited to sales leads, pre-screening and related intake matters, subject to
applicable law, including without limitation the Health Insurance Portability and Accountability
Act of 1996 . The Company shall pay NationsHealth or USPG its cost for the services to be provided
under the Marketing Agreement. The Members presently contemplate that the Company will establish
its own marketing department either through subcontracting with NationsHealth or USPG, or staffed
by employees of the Company.
(b) With US Bio. The Company will enter into an agreement with US Bio (the “Services
Agreement”), under which US Bio for a fee will provide certain specified management and fulfillment
services relating to the specialty pharmaceutical and oncology-related products and services to be
provided by the Company. Pursuant to the Services Agreement, US Bio shall exercise its reasonable
best efforts to allow the Company to purchase specialty pharmacy and oncology products from US
Bio’s Affiliates or any third party on the same terms and for the same prices at which US Bio
purchases such products from its Affiliates and third parties, including any and all discounts,
rebates or other reductions of any kind received by US Bio from its Affiliate or such third parties
to the extent permitted under applicable agreements (which may include additional creditworthiness
and channel distribution considerations); provided that such pricing shall not apply to a
particular product if, with respect to such product, there is a material shortage of such product
on a national level that affects the ability of a US Bio Affiliate or third party to fulfill orders
to US Bio and its other customers. Notwithstanding the foregoing, the Company may, in its sole
discretion, purchase specialty pharmacy and oncology products and services from any third party
and/or from Members or their Affiliates, subject only to the terms hereof.
3.2 Operating Build-Out and Budget. The Members will create and reach mutual
agreement on a build-out and operating budget for the Company ***, along with a schedule of
anticipated capital requirements. Each Member will initially contribute its pro rata share of the
capital to the Company in accordance with Section 5.2. The Budget will include the payment of
costs under the Marketing Agreement, the payment of fees under the Services Agreement, the opening
of the Company’s initial specialty pharmacy location(s), the hiring of any full-time employees of
the Company and such other matters as may be agreed to by the Members. Any required assets and
services provided or performed by a Member will be valued at their actual cost or a mutually agreed
upon value.
3.3 Pharmacy Locations. The Company, and to the extent necessary, the Members, shall
use their best efforts to obtain, as soon as practicable after the execution hereof, all licenses,
permits and certifications necessary for the Company to operate and xxxx as a specialty pharmacy,
including but not limited to, pharmacy licenses in all necessary states, Medicare supplier
number(s) and necessary Medicaid certifications and numbers. The Members presently contemplate
that the Company will open a specialty pharmacy facility in Addison, Texas, adjacent to the
existing US Bio facility located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx, 00000, and at
such time as the Board determines that the Company should own and operate a second such facility,
the Company will open such a facility in Weston, Florida.
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSION.
-5-
3.4 Competition. Notwithstanding anything in this Agreement to the contrary (except
as set forth in Section 14.8), in no event shall NationsHealth or any of its Affiliates (except for
the Company) engage in, during the period that NationsHealth is a Member of the Company, any
business that competes with the Business of the Company, nor shall NationsHealth take any action
that would assist any other Person, directly or indirectly, in any material way to engage in any
business that competes with the Business of the Company. Specifically included within this
restriction, NationsHealth, while it is a Member of the Company, (i) shall not directly market
and/or advertise any entity’s (other than the Company’s) specialty pharmacy and/or oncology
products and services that relate specifically to any of the Specialty Diseases; and (ii) shall not
directly market and/or advertise any entity’s (other than the Company’s) disease management
products or services that relate specifically to any of the Specialty Diseases; provided, however,
the Members acknowledge that NationsHealth shall be permitted to provide such functions and
services with respect to particular specialty pharmacy and oncology products to or for Persons
other than the Company if, after notice by NationsHealth to the Board, (i) the Company is unable to
provide such products or services within a reasonable period of time due to product unavailability
and (ii) such other entities are not Affiliates of NationsHealth. By executing this Agreement,
NationsHealth expressly agrees and acknowledges that US Bio is a specialty pharmaceutical services
company and, accordingly, is, and will continue to be, engaged in businesses that compete with the
Company. By executing this Agreement, US Bio expressly agrees and acknowledges: (i) that
NationsHealth is a provider of diabetes and respiratory supplies and products, and also disease
management services and products related to diabetes and respiratory diseases, and, accordingly,
NationsHealth is, and will continue to be, engaged in such businesses, regardless of whether they
are competitive with the Company, and such activities shall in no way be deemed to violate the
non-compete terms or any other terms of this Agreement; and (ii) that NationsHealth provides or
will provide marketing services to Medicare “Part D” sponsor(s) under the prescription drug benefit
programs, and that such marketing may include references or advertising related to such Part D
sponsor(s)’ specialty pharmacy products and services, oncology products and services, and/or
disease management products and services, and such marketing activities by NationsHealth shall in
no way be deemed to violate the non-compete terms or any other terms of this Agreement.
3.5 Competitive Acquisition Program. US Bio hereby agrees that if US Bio or any ABSG
Entity (as defined below) seeks to become a vendor under the Competitive Acquisition Program to be
established by the Center for Medicare and Medicaid Services (“CAP”) pursuant to Section 1847B of
the Social Security Act by submitting a “CAP Vendor Application and Bid Form,” then US Bio shall
immediately notify the Company and NationsHealth of same and upon the request of NationsHealth,
without the necessity of any approval of the Members or the Board, the Company shall seek to become
a vendor under the CAP by submitting a CAP Vendor Application and Bid Form. In such event, each of
the Members shall provide all information that is reasonably requested by the Company as part of
the CAP and shall support and assist the Company in its efforts to become a CAP vendor. For
example, if the CAP requires a CAP vendor to have multiple years of experience in the specialty
pharmacy business, then US Bio agrees that the Company shall identify and rely upon US Bio’s
experience, to the extent necessary and to the extent allowed under the CAP application process, in
order for the Company to meet CAP application and vendor requirements. The Company shall pay all
of its costs associated with the CAP, and the Members and their respective Affiliates shall not be
required to incur directly any costs or to assume directly any risks associated with the Company’s
-6-
participation in the CAP. For purposes of the foregoing, “ABSG Entity” means ASD Specialty
Healthcare, Inc. (doing business as AmerisourceBergen Specialty Group), US Bio and their respective
subsidiaries and operating units, including but not limited to Oncology Supply and Xxxxx Medical.
Article 4
Members
Members
4.1 Members. The names and respective Membership Interests of the Members of the
Company are set forth on the signature page of this Agreement. As of the date hereof, there are no
other Members of the Company and no other Person has any right to take part in the ownership or
management of the Company.
4.2 Representations and Warranties. Each Member hereby represents and warrants to the
Company and each other Member that (a) it is duly incorporated, validly existing and in good
standing under the laws of the state of its incorporation and is in good standing and duly
qualified to conduct business as a foreign corporation in every state of the United States in which
its ownership or lease of property or conduct of its business makes such qualification necessary,
except where the failure to be in good standing or so qualified would not have a material adverse
effect on such Member’s assets or business as a whole; (b) such Member has full corporate power and
authority to execute and agree to this Agreement and to perform its obligations hereunder and all
necessary actions by the board of directors, shareholders or other Persons necessary for the due
authorization, execution, delivery, and performance of this Agreement by that Member have been duly
taken; (c) such Member has duly executed and delivered this Agreement and this Agreement is
enforceable against such Member in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement
of creditors’ rights in general and subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and (d) such Member’s
authorization, execution, delivery, and performance of this Agreement will not (i) conflict with
the articles or certificate of incorporation or bylaws of such Member, (ii) conflict with, or
result in any violation of, or constitute a default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or acceleration of any obligation
or to loss of a benefit under, any contract, permit, order, judgment or decree to which such Member
is a party or by which their properties are bound, except for those conflicts, violations or
defaults that would not have a material adverse effect on such Member’s assets or business as a
whole or (iii) constitute a violation of any law or regulation applicable to such Member.
4.3 Information. In addition to the other rights specifically set forth in Section
12.2 and elsewhere in this Agreement, each Member is entitled to all information to which that
Member is entitled to have access pursuant to section 18-305 of the Act under the circumstances and
subject to the conditions therein stated.
-7-
Article 5
Capital of the Company; Membership Interests and Classes
Capital of the Company; Membership Interests and Classes
5.1 Membership Interests. There shall be one class of Membership Interests in the
Company. Subject to the terms of this Agreement, each Membership Interest shall be entitled to an
undivided portion of all of the other rights, duties, obligations, and ownership interests in the
Company.
5.2 Capital Contributions. On or within fifteen (15) days after the Effective Date,
the Members shall simultaneously contribute capital to the Company as follows:
(a) By NationsHealth. NationsHealth shall contribute $1,530,000 in cash by the wire
transfer of immediately available funds to the Company. Of that amount, $1,500,000 shall consist
of proceeds of the sale of NationsHealth common stock to US Bio, pursuant to the Stock Purchase
Agreement between NationsHealth and US Bio in substantially the form of the agreement attached
hereto as Exhibit A. NationsHealth shall make such contribution by directing the wire
transfer of such funds to the Company.
(b) By US Bio. US Bio shall contribute $1,470,000 in cash by the wire transfer of
immediately available funds to the Company.
(c) No Required Further Capital Contributions. No Member shall be obligated to make
any capital contribution other than the initial capital contribution made by such Member pursuant
to the foregoing provisions of this Section 5.2.
5.3 Return of Contributions; Interest. Except as set forth in Article 10 and Section
15.2, (a) a Member is not entitled to withdraw or receive a return of any part of its capital
contributions or to be paid interest in respect of either its capital account or its capital
contributions and (b) a capital contribution that is not repaid is not a liability of the Company
or of any Member. A Member is not required to contribute or to lend any cash or property to the
Company to enable the Company to return any Member’s capital contributions.
5.4 Advances by Members. Any Member that agrees to do so may advance all or part of
funds to or on behalf of the Company, provided that the advance (a) constitutes a loan from
the Member to the Company, (b) bears interest at a rate to be agreed upon by the Member and the
Company from the date of the advance until the date of payment, and (c) is approved by the Board.
Any such advance is not a capital contribution. In no event shall the Company guaranty or
otherwise become liable, directly or indirectly, for any of the obligations of any of its Members
under any circumstances.
5.5 Record of Contributions. The books and records of the Company shall include true
and correct information regarding the amount of cash and cash equivalents and designation and
statement of the value of any other property contributed by each Member to the Company.
5.6 Registered Owners. The Company shall be entitled to treat the Member that is the
registered owner of any Membership Interests on the books of the Company as the Person that owns
such Membership Interests and accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such Membership Interest on the part of any other Person,
-8-
regardless of whether it shall have actual or other notice thereof, except as otherwise
provided by law.
5.7 Withdrawal. A Member does not have the right or power to withdraw from the
Company as a member other than in connection with an assignment permitted hereunder;
provided, however, after the expiration of two (2) years from the date hereof,
either Member may elect to withdraw from the Company as a Member for any reason. Upon such
election by a Member, the remaining Member shall determine, in its sole discretion, whether to
dissolve the Company in accordance with Article 15 or continue the existence of the Company without
the other Member. The withdrawing Member shall not be entitled to a return of its existing capital
account at the time of the withdrawal and, unless otherwise agreed by the Members, shall not in any
way be entitled to any payment for its Membership Interest.
Article 6
Rights and Obligations of Members
Rights and Obligations of Members
6.1 Limitation of Members’ Responsibility, Liability. The Members shall not perform
any act on behalf of the Company, incur any expense, obligation or indebtedness of any nature on
behalf of the Company, or in any manner participate in the management of the Company or receive or
be credited with any amounts, except as specifically contemplated under this Agreement. The
Members shall not personally be liable for any amount in excess of their respective capital
contributions, and shall not be liable for any of the debts, obligations, liabilities, or losses of
the Company. In addition, each Member’s liability shall be limited as set forth in the Act.
Article 7
Meetings of Members
Meetings of Members
7.1 Place of Meetings. All meetings of the Members shall be held at the principal
place of business of the Company as provided in Section 2.3 or at such other place within or
outside of the State of Delaware as shall be specified or fixed in the notices or waivers of notice
calling the meeting; provided that any or all Members may participate in any such meeting
by means of conference telephone or similar communications equipment pursuant to Section 7.13.
7.2 Annual Meeting. An annual meeting of the Members, for the transaction of all
business as may properly come before the meeting, shall be held at such place, within or outside of
the State of Delaware, on such date and at such time as the Members shall fix and set forth in the
notice of the meeting.
7.3 Special Meetings. Special meetings of the Members for any proper purpose or
purposes may be called at any time by resolution of the Board or by Members holding at least forty
percent (40%) of Membership Interests. Members may call a meeting by delivering to the Board one
or more written requests signed by the Member(s) stating that the Member(s) wish to call a meeting
and indicating the specific purpose for which the meeting is to be held. If not otherwise stated
in the written request or fixed in accordance with the remaining provisions hereof, the record date
for determining Members entitled to call a special meeting is the date any Member first signs the
written request for a meeting. Only business within the purpose or
-9-
purposes described in the notice (or waiver thereof) required by this Agreement may be
conducted at a special meeting of the Members.
7.4 Notice and Waiver Thereof. Written or printed notice stating the place, day and
hour of the 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 10 days nor more than 60 days before the date
of the meeting, by or at the direction of the Board, to each Member entitled to vote at such
meeting in accordance with Section 18.2. Attendance of a Member at a meeting shall constitute a
waiver of notice of the meeting except where such Member attends for the express purpose of
objecting to the transaction of any business on the ground that the meeting is not lawfully called
or convened. Notice of a meeting may also be waived in writing. Attendance at a special meeting
is not a waiver of any right to object to the consideration of matters required to be included in
the notice of the special meeting but not so included, if the objection is expressly made at the
meeting.
7.5 Quorum. A quorum shall be present at a meeting of Members if the holders of at
least a Supermajority of Membership Interests are represented at the meeting in person or by proxy.
7.6 Voting.
(a) Voting and Voting Power. All Members shall be entitled to vote at meetings.
Members may vote either in person or by proxy at any meeting. With respect to any matter other
than a matter for which the affirmative vote of Members owning a specified percentage of Membership
Interests is required by the Act, the Certificate or this Agreement, the affirmative vote of a
majority of the Membership Interests present at a meeting at which a quorum shall be present shall
be the act of the Members.
(b) Change in Voting Percentages. No provisions of this Agreement requiring that any
action be taken only upon approval, vote, or action of the Members holding a specified percentage
of Membership Interests may be modified, amended or repealed unless such modification, amendment or
repeal is approved by Members holding at least such specified percentage of such interests.
7.7 Record Date. For the purpose of determining Members entitled to notice of, or to
vote at, any meeting of Members or any adjournment thereof, or entitled to receive a distribution,
or in order to make a determination of Members for any other proper purpose (other than determining
Members entitled to consent to action by Members proposed to be taken without a meeting of the
Members), the Board may provide that the records of the Company shall be closed for a stated period
but not to exceed in any event 30 days. If the records are closed for the purpose of determining
Members entitled to notice of, or to vote at, a meeting of the Members, such records shall be
closed 10 days immediately preceding such meeting. In lieu of closing the records, the Board may
fix in advance a date as the record date for any such determination of Members, such date in any
case to be not more than 30 days and, in case of a meeting of Members, not less than 10 days prior
to the date on which the particular action requiring such determination of Members is to be taken.
If the records are not closed and if no record date is fixed for the determination of Members
entitled to notice of, or to vote at, a meeting of Members,
-10-
or Members entitled to receive a distribution, the date on which the notice of the meeting is
mailed or the date on which the resolution of the Members declaring such distribution is adopted,
as the case may be, shall be the record date for such determination of Members. When a
determination of the Members entitled to vote at any meeting of Members has been made as provided
in this Section 7.7 such determination shall apply to any adjournment thereof except where the
determination has been made through the closing of the records and the stated period of closing has
expired. The record date for determining Members entitled to consent to action in writing without
a meeting shall be the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Company by delivery to its registered office, its
principal place of business, or the Board in accordance with the provisions of Section 18.2.
7.8 Voting Lists. The Board shall make, at least 10 days before each meeting of
Members, a complete list of the Members entitled to vote at such meeting, arranged in alphabetical
order, showing the address of and Membership Interests owned by each Member, which list for a
period of 10 days prior to such meeting shall be kept on file at the registered office or principal
place of business of the Company and shall be subject to inspection by any Member at any time
during usual business hours. Such list shall also be produced and kept open at the meeting and
shall be subject to inspection by any Member during the meeting. Failure to comply with these
requirements shall not affect the validity of any action taken at such meeting.
7.9 Adjournment. At least a Supermajority of Membership Interests present at the
meeting shall have the power to adjourn such meeting from time to time, without any notice other
than announcement of the time and place of the holding of the adjourned meeting. Upon the
resumption of such adjourned meeting, any business may be transacted that might have been
transacted at the meeting as originally called.
7.10 Proxies. A Member may vote either in person or by proxy executed in writing by
the Member. A telegram, telex, cablegram, or similar transmission by the Member, or a
photographic, photostatic, facsimile, or similar reproduction of a writing executed by such Member
shall be treated as an execution in writing for purposes of this Section 7.10. Proxies for use at
any meeting of Members or in connection with the taking of any action by written consent shall be
filed with the Members before or at the time of the meeting or execution of the written consent, as
the case may be. All proxies shall be received and taken charge of and all ballots shall be
received and canvassed by the Board, who shall decide all questions touching upon the qualification
of voters, the validity of the proxies, and the acceptance or rejection of votes, unless an
inspector or inspectors shall have been appointed by the Chairman of the Board, in which event such
inspector or inspectors shall decide all such questions. No proxy shall be valid after 11 months
from the date of its execution unless otherwise provided in the proxy. A proxy shall be revocable
unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled
with an interest. Should a proxy designate two or more Persons to act as proxies, unless that
instrument shall provide to the contrary, a majority of such Persons present at any meeting at
which their powers thereunder are to be exercised shall have and may exercise all the powers of
voting or giving consents thereby conferred, or if only one be present, then such powers may be
exercised by that one; or, if an even number attend and a majority do not agree on any particular
issue, the Company shall not be required to recognize such proxy with respect
-11-
to such issue if such proxy does not specify how the Membership Interests that are the subject
of such proxy are to be voted with respect to such issue.
7.11 Conduct of Meeting. The Board shall have full power and authority concerning the
manner of conducting any meeting of the Members, including, without limitation, the determination
of Persons entitled to vote pursuant to this Agreement, the existence of a quorum, the satisfaction
of the requirements of this Article 7. The conduct of voting, the validity and effectiveness of
any proxies, and the determination of any controversies, votes or challenges arising in connection
with or during the meeting or voting shall be determined by the Board. The Chairman of the Board
shall preside at, and the secretary shall prepare minutes of, each meeting of Members, and in the
absence of either such officer, his duties shall be performed by some person or persons selected by
the Board.
7.12 Action by Written Consent. Any action required or permitted to be taken at any
annual or special meeting of Members may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing setting forth the action so taken shall be
signed by the Members holding not less than the minimum Membership Interests that would be
necessary to take such action at a meeting at which the Members of all Membership Interests
entitled to vote on the action were present and voted. Every written consent shall bear the date
of signature of each Member who signs the consent. No written consent shall be effective to take
the action that is the subject to the consent unless, within 60 days after the date of the earliest
dated consent delivered to the Company in the manner required by this Section 7.12, a consent or
consents signed by the holder or holders of not less than the minimum Membership Interests that
would be necessary to take the action that is the subject of the consent are delivered to the
Company by delivery to its registered office, its principal place of business, or the Board.
Delivery to the Company’s principal place of business shall be addressed to the Board. A telegram,
telex, cablegram, or similar transmission by a Member, or a photographic, photostatic, facsimile,
or similar reproduction of a writing signed by a Member, shall be regarded as signed for purposes
of this Section 7.12. Prompt notice of the taking of any action by Members without a meeting by
less than unanimous written consent shall be given to those Members who did not consent in writing
to the action. If any action by the Members is taken by written consent, any certificate or
documents filed with the Secretary of State of Delaware as a result of the taking of the action
shall state, in lieu of any statement required by the Act concerning any vote of Members, that
written consent has been given in accordance with the provisions of this Agreement.
7.13 Telephone and Similar Meetings. Members and/or the Board may participate in and
hold a meeting by means of conference telephone or similar communications equipment by means of
which all Persons participating in the meeting can hear each other. Participation in such meeting
shall constitute attendance and 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.
7.14 Issues Requiring Supermajority Approval. Notwithstanding anything to the
contrary set forth in this Agreement, the Board may not cause the Company to do any of the
following without the affirmative vote of a Supermajority of Membership Interests:
-12-
(a) the acquisition by, or the merger or consolidation of the Company with or into, any other
Person;
(b) an initial public offering of the Company;
(c) the material alteration of the Business of the Company;
(d) the sale, transfer, assignment, consignment, lease, encumbrance or any other disposal of
all or substantially all of the Company’s business or property to any Person;
(e) the contribution of property, other than cash, to the Company and the value of such
property;
(f) the decision to replace or remove the independent auditors of the Company;
(g) (i) paying compensation (including bonuses) to, (ii) granting options to, (iii) selling,
transferring or disposing of any assets or properties of the Company to, (iv) entering into any
contract (other than the Marketing Agreement and the Services Agreement) with, or (v) giving any
other form of consideration (other than distributions made pursuant to this Agreement) to, any
Manager or Member (or an Affiliate of any Manager or Member) of the Company or any entity in which
a Manager or Member (or an Affiliate of such Manager or Member) owns a significant beneficial
interest;
(h) any redemption or other acquisition by the Company of any outstanding Membership Interests
of the Company;
(i) The admission of any new Members to the Company pursuant to Section 14.4; and
(j) The issuance by the Company of additional Membership Interests to existing Members.
In the event of a deadlock in the voting on the Supermajority matters set forth in this
Section 7.14, the Members agree to participate in non-binding mediation before a neutral mediator
within fifteen (15) days of the date that the deadlock occurs. The Company shall pay the cost of
the mediation. If the mediation does not result in an agreement among the Members, the deadlock
shall remain and the matter shall not be approved.
7.15 Member Liability. Notwithstanding anything to the contrary set forth in this
Agreement, the Board may not cause the Company to take any action that would expose the Members to
personal liability without the affirmative vote of all the Members.
Article 8
Managers
Managers
8.1 Management. The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed by, the collective
-13-
board (the “Board”) of its managers (the “Managers”). In addition to the powers and
authorities expressly conferred by this Agreement upon the Board, the Board may exercise all such
powers of the Company and do all such lawful acts and things as are not directed or required to be
exercised or done by the Members by the Act, the Certificate or this Agreement. Notwithstanding
anything to the contrary set forth in this Agreement, the Certificate or the Act, the affirmative
vote of a Supermajority of Managers shall be required for the Board to approve or take any action.
8.2 Number; Term. The number of Managers comprising the Board shall be five (5). The
affirmative vote of a majority of Membership Interests shall have the right to appoint Managers;
provided that:
(a) by executing this Agreement, Membership Interests is deemed to elect the Managers set
forth on Schedule I hereto; and
(b) for as long as US Bio owns forty percent (40%) of Membership Interests, US Bio shall be
entitled to appoint two (2) Managers to the Board.
Unless removed in accordance with the Agreement, each Manager shall hold office until such
Manager’s successor shall be elected and qualified.
8.3 Chairman. Xxxxx Xxxxxx shall be the initial Chairman of the Board and shall serve
for an initial term ending on December 31, 2005, subject to his removal by the affirmative vote of
a majority of the Board; provided that the Members shall agree on the future terms of the
office of the Chairman in a manner that permits a designee of each of the Members to occupy the
position on a rotating basis.
8.4 Removal; Vacancies. Any vacancy occurring by reason of the death, resignation,
removal or any other reason shall be filled in accordance with Section 8.2. A Manager appointed to
fill such vacancy shall be appointed for the unexpired term of the predecessor in office. A
Manager may be removed at any time, with or without cause, by the Member or Members that elected or
appointed such Manager.
8.5 Place of Meetings. All meetings of the Board or committees thereof may be held in
such place or places within or outside of the State of Delaware as the Board or such committee may
from time to time determine.
8.6 Regular Meetings. Regular meetings of the Board may be held without notice at
such times and places as may be determined from time to time by the Board.
8.7 Special Meetings; Notice. Any two Managers may call a special meeting of the
Board by providing written notice to the Chairman requesting such special meeting and specifically
setting forth the matters to be placed on the agenda for such meeting. The Chairman shall give
each Manager at least two (2) days’ written notice of the date and time of such special meeting.
Such notice shall be accompanied by an agenda prepared by the Chairman, which shall include the
matter requested by the Managers calling such special meeting and such supplemental information as
the Chairman deems necessary or as may be requested by the Managers calling the meeting. At such
special meeting, all items on the agenda shall be
-14-
considered by the Board unless the Board determines otherwise. Notwithstanding the foregoing,
other than the matter requested by the Managers calling such special meeting, neither the business
to be transacted at, nor any other purpose of, any special meeting of the Board need be specified
in the notice or waiver of notice of any special meeting.
8.8 Quorum and Voting. At all meetings of the Board, the presence of at least a
Supermajority of Managers shall be necessary and sufficient to constitute a quorum for the
transaction of business unless a greater number is required by law. If a quorum is not present at
a meeting, the Managers present at the meeting may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. The act of a
Supermajority of the Managers present at a meeting at which a quorum is in attendance shall be the
act of the Board, unless the act of a greater number is required by law, the Certificate, or this
Agreement. Any Managers having an interest in a contract or transaction under consideration, or
any Manager representing a Member with such an interest, shall be counted in determining the
presence of a quorum at a meeting of the Board. In the event of a deadlock in the voting on the
matters presented to the Managers, the Managers agree to participate in non-binding mediation
before a neutral mediator within fifteen (15) days of the date that the deadlock occurs. The
Company shall pay the cost of the mediation. If the mediation does not result in an agreement
among a Supermajority of the Managers, the deadlock shall remain and the matter shall not be
approved.
8.9 Procedure; Minutes. At meetings of the Board, business shall be transacted in
such order as the Board may determine from time to time. At each meeting of the Board, a Chairman
or, in his absence, a Person jointly appointed by the Board, shall preside at the meeting. Such
Person presiding at the meeting shall appoint a Person to act as secretary of the meeting. The
secretary of the meeting shall prepare minutes of the meeting that shall be delivered to the
secretary of the Company for placement in the minute books of the Company. All communications to
and from the Board shall be directed to the Chairman or shall come from or through the Chairman, as
the case may be, but such communication shall be copied to all Managers. In the absence of a
Chairman, all communication to and from the Board shall be sent to all Managers.
8.10 Presumption of Assent. A Manager of the Company who is present at any meeting of
the Board at which action on any matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as secretary of the meeting before the
adjournment thereof or shall forward any dissent by certified or registered mail to the secretary
of the Company immediately after the adjournment of the meeting. Such right to dissent shall not
apply to a Manager who voted in favor of such action.
8.11 Compensation. Managers, as such, shall not receive any form of compensation for
their services, provided that nothing contained in this Agreement shall preclude any
Manager from serving the Company in any other capacity and receiving compensation for service. The
Company shall bear the reasonable expenses incurred by the Managers in attending meetings of the
Board.
-15-
8.12 Action Without Meeting. Any action which may be taken, or which is required by
law, the Certificate, or this Agreement to be taken, at a meeting of the Board or any committee
thereof may be taken without a meeting if a consent in writing, setting forth the action so taken,
shall have been signed by a Supermajority of the Managers or committee members, as the case may be.
Such consent shall have the same force and effect, as of the date stated therein, as a
Supermajority vote of the Board or committee members, as the case may be, and may be stated as such
in any document or instrument filed with the Secretary of State of Delaware or in any certificate
or other document delivered to any person. The consent may be in one or more counterparts so long
as each Manager or committee member signs one of the counterparts. The signed consent shall be
delivered to the secretary of the Company for placement in the minute books of the Company. Prompt
notice of the taking of any action by Managers without a meeting by less than unanimous written
consent shall be given to those Managers who did not consent in writing to the action.
The designation of any committee and the delegation of authority to it shall not operate to
relieve the Managers of any responsibility imposed upon them by law.
Article 9
Officers and Other Agents
Officers and Other Agents
9.1 Number; Titles; Election; Term; Qualification. The officers of the Company shall
be a president, one or more vice presidents (and, in the case of each vice president, with such
descriptive title, if any, as the Board shall determine) and a secretary. The Company may also
have a Chairman or two Co-Chairmen of the Board, a chief executive officer, a chief operating
officer, a treasurer and one or more assistant treasurers, one or more assistant secretaries, and
such other officers and such agents as the Board may from time to time elect or appoint. The Board
shall elect a president, vice president, and secretary at its first meeting at which a quorum shall
be present after the annual meeting of the Board or whenever a vacancy exists. The Board then, or
from time to time, may also elect or appoint one or more other officers or agents as it shall deem
advisable. Each officer and agent shall hold office for the term for which he is elected or
appointed and until his successor has been elected or appointed and qualified. Any person may hold
any number of offices. No officer or agent need be a Member, a manager, a resident of the State of
Delaware, or a citizen of the United States, and an officer may be an officer or employee of a
Member while serving as an officer or employee of the Company.
9.2 Removal. Any officer or agent elected or appointed by the Board may be removed by
the Board whenever in their judgment the best interest of the Company will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create contract rights.
9.3 Vacancies. Any vacancy occurring in any office of the Company may be filled by
the Board.
9.4 Authority. Officers shall have such authority and perform such duties in the
management of the Company as are provided in this Agreement or as may be determined by resolution
of the Board not inconsistent with this Agreement.
-16-
9.5 Compensation. The compensation, if any, of officers and agents shall be fixed
from time to time by the Board.
9.6 Chairman of the Board. The Chairman or Co-Chairmen of the Board shall have such
powers and duties as set forth in this Agreement and as may otherwise be prescribed by the Members.
9.7 Chief Executive Officer. Unless and to the extent that such powers and duties are
expressly delegated to the Chairman by the Members, the Board may elect a chief executive officer
of the Company. The chief executive officer, subject to the supervision of the Board, shall have
general management and control of the Business and property of the Company in the ordinary course
of its business with all such powers with respect to such general management and control as may be
reasonably incident to such responsibilities, including, but not limited to, the power to employ,
discharge, or suspend employees and agents of the Company, to fix the compensation of employees and
agents, and to suspend, with or without cause, any officer of the Company pending final action by
the Board with respect to continued suspension, removal, or reinstatement of such officer. The
chief executive officer may, subject to any limitations that may be imposed by the Board, agree
upon and execute all division and transfer orders, bonds, contracts, and other obligations in the
name of the Company.
9.8 Chief Operating Officer, President and Vice Presidents. The chief operating
officer and the president shall have such powers and duties as may be prescribed by the Board or as
may be delegated from time to time by the chief executive officer. The president shall exercise
the powers of the chief executive officer during that officer’s absence or inability to act. Each
vice president shall have such powers and duties as may be prescribed by the Board or as may be
delegated from time to time by the chief executive officer and (in the order as designated by the
Board, or in the absence of such designation, as determined by the length of time each has held the
office of vice president continuously) shall exercise the powers of the president during that
officer’s absence or inability to act.
9.9 Treasurer. The treasurer shall have custody of the Company’s funds and
securities, shall keep full and accurate accounts of receipts and disbursements, and shall deposit
all moneys and valuable effects in the name and to the credit of the Company in such depository or
depositories as may be designated by the Board. The treasurer shall audit all payrolls and
vouchers of the Company, receive, audit, and consolidate all operating and financial statements of
the Company and its various departments, shall supervise the accounting and auditing practices of
the Company, and shall have charge of matters relating to taxation. Additionally, the treasurer
shall have the power to endorse for deposit, collection, or otherwise all checks, drafts, notes,
bills of exchange, and other commercial paper payable to the Company and to give proper receipts
and discharges for all payments to the Company. The treasurer shall perform such other duties as
may be prescribed by the Board or as may be delegated from time to time by the president.
9.10 Assistant Treasurers. Each assistant treasurer, if any, shall have such powers
and duties as may be prescribed by the Board or as may be delegated from time to time by the
president. The assistant treasurers (in the order as designated by the Board or, in the absence of
such designation, as determined by the length of time each has held the office of assistant
-17-
treasurer continuously) shall exercise the powers of the treasurer during that officers’
absence or inability to act.
9.11 Secretary. The secretary shall maintain minutes of all meetings of the Board, of
any committee, and of the Members or consents in lieu of such minutes in the Company’s minute
books, and shall cause notice of such meetings to be given when requested by any Person authorized
to call such meetings. The secretary may affix the seal of the Company to all contracts as
authorized by the Board or the president. The secretary shall have charge of the certificate
books, share transfer records, stock ledgers, and such other stock books and papers as the Board
may direct, all of which shall at all reasonable times be open to inspection by any Manager at the
office of the Company during business hours. The secretary shall perform such other duties as may
be prescribed by the Board or as may be delegated from time to time by the president.
9.12 Assistant Secretaries. Each assistant secretary, if any, shall have such powers
and duties as may be prescribed by the Board or as may be delegated from time to time by the
president. The assistant secretaries (in the order designated by the Board or, in the absence of
such designation, as determined by the length of time each has held the office of assistant
secretary continuously) shall exercise the powers of the secretary during that officer’s absence or
inability to act.
Article 10
Distributions
Distributions
10.1 Distributions. The Board of Managers from time to time may authorize the
distribution of cash or other property of the Company to the Members; provided, that
distributions of cash or other property of the Company shall be made only in amounts which exceed
any reserves (allocated among the Members in accordance with their respective distributive
interests in the cash or property to which such reserves relate) that the Board of Managers from
time to time determines are required to be retained to meet any accrued or foreseeable expenses,
expenditures, liabilities, or other obligations of the Company. All distributions of cash or other
property of the Company shall be made to Members in accordance with their Membership Percentages.
10.2 Tax Allocations. For United States federal income tax purposes, allocations of
items of income, gain, loss, deduction, expense and credit for each fiscal year of the Company
shall be made among the Members in proportion to their Membership Percentages, except as otherwise
required pursuant to Section 704(b) of the Internal Revenue Code of 1986, as amended (the “Code”),
and the regulations promulgated thereunder, and subject to the requirements of Section 704(c) of
the Code and the regulations promulgated thereunder. Notwithstanding anything to the contrary in
this Agreement, allocations shall be made as though this Agreement contained (and there is hereby
incorporated herein by reference) (i) a qualified income offset provision that complies with
Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and (ii) minimum gain chargeback and partner
minimum gain chargeback provisions which comply with the requirements of Treasury Regulation
Section 1.704-2. If any allocations cannot be made among the Members in proportion to their
Membership Percentages, to the extent necessary to fulfill the Members’ economic expectations,
subsequent allocations of the Company’s income, gain, loss,
-18-
deduction, expense and credit shall be made among the Members, to the extent allowable under
applicable law, so that the amount and character (on an aggregate basis) of the items allocated
reflect as nearly as possible the amount and character of the items that would have been allocated
among the Members if all prior allocations had in fact been made among the Members in proportion to
their Membership Percentages.
10.3 Winding Up and Dissolution. Upon the dissolution and winding up of the Company,
the assets of the Company shall be distributed in accordance with Section 15.2.
Article 11
Tax Matters
Tax Matters
11.1 Tax Returns. The Members intend for the Company to be treated as a partnership
for tax purposes. Unless otherwise approved by the Board, the Company shall arrange for the
preparation and timely filing by a public accounting firm selected by the Board of all returns of
Company income, gains, deductions, losses and other items necessary for federal, state and local
income tax purposes and shall use all reasonable efforts to furnish to the Members within 90 days
after the close of the taxable year the tax information reasonably required for federal, state and
local income tax reporting purposes, provided, however that (i) all decisions with
respect to the preparation of such Company returns shall be made by the Board and (ii) no Company
returns shall be filed without the prior approval of the Board. The classification, realization
and recognition of income, gain, losses, deductions and other items shall be on the cash or accrual
method of accounting for federal income tax purposes, as the Board shall determine, in accordance
with applicable law. The taxable year of the Company shall be the calendar year unless another
year is required by the Code.
11.2 Tax Elections. The Board shall determine whether to make available elections
under applicable tax laws.
11.3 Tax Matters Partner. The Members designate NationsHealth to be the “tax matters
partner” of the Company pursuant to section 6231(a)(7) of the Code (the “Tax Matters Partner”).
The Tax Matters Partner shall take such action as may be necessary to cause each other Member to
become a “notice partner” within the meaning of section 6223 of the Code. The Tax Matters Partner
shall inform each other Member of all significant matters that may come to its attention in its
capacity as “tax matters partner” by giving notice thereof on or before the 5th day
after becoming aware thereof and, within that time, shall forward to each other Member copies of
all significant written communications it may receive in that capacity.
Article 12
Books, Records, Reports and Bank Accounts
Books, Records, Reports and Bank Accounts
12.1 Maintenance of Books. The Company shall keep adequate books and records of
account and shall keep minutes of the proceedings of its Members and each committee thereof. The
books of account for the Company shall be maintained on an accrual basis in accordance with
generally accepted accounting principles and the terms of this Agreement.
-19-
12.2 Reports.
(a) Annual. On or before the 45th day following each fiscal year end, the Company
shall furnish to each Member a copy of the Company’s balance sheet as at the end of such fiscal
year, and statements of income and cash flows of the Company for such year, prepared in accordance
with generally accepted accounting principles consistently applied and setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable detail and
certified by the principal financial or accounting officer of the Company.
(b) Quarterly. On or before the 25th day following the end of each quarterly
accounting periods in each fiscal year, the Company shall furnish to each Member a copy of the
Company’s balance sheet as of the end of such quarterly period and statements of income and cash
flows for such period and for the current fiscal year to date, prepared in accordance with
generally accepted accounting principles consistently applied, subject to year-end adjustments, and
setting forth in comparative form the figures for the corresponding periods of the previous fiscal
year, all in reasonable detail and certified by the principal financial or accounting officer of
the Company.
12.3 Accounts. The Company shall establish and maintain one or more separate bank and
investment accounts and arrangements for Company funds in the Company name with financial
institutions and firms that the Board may determine from time to time. The Company shall not
commingle the Company’s funds with the funds of any Member or any other entity. Funds deposited in
the Company’s bank and investment accounts may be withdrawn only to be invested in furtherance of
the Company’s purpose, to pay Company debts or obligations or to be distributed to the Members
pursuant to this Agreement.
12.4 Records Required by Act; Right of Inspection.
(a) Records Required. During the term of the Company and for a period of four (4)
years thereafter, the Board, at the expense of the Company, shall maintain in the Company’s
principal office in the United States specified in Section 2.3 all records required to be kept
pursuant to the Act, including, without limitation, (i) a current list of the names, addresses and
Membership Interest held by each of the Members (including if any class or group of interests is
established under the Certificate or this Agreement, the names of the Members who are members of
each such class or group); (ii) copies of federal state and local information or income tax returns
for each of the Company’s six (6) most recent tax years; (iii) copies of this Agreement and the
Certificate, including all amendments or restatements; (iv) if such information is not otherwise
set forth in the Certificate or this Agreement, a written statement of (a) the amount of the cash
contribution and a description and statement of the agreed value of any other contribution made by
each Member, and the amount of the cash contribution and a description and statement of the agreed
value of any other contribution that the Member has agreed to make in the future as an additional
contribution; (b) the times at which any additional contribution is to be made or events requiring
contributions to be made; (c) events requiring the Company to be dissolved and its affairs wound
up; and (d) the date on which each Member became a Member of the Company; and (v) correct and
complete books and records of account of the Company.
-20-
(b) Right of Inspection. On written request stating the purpose, a Member may examine
and copy in person or by the Member’s authorized representative, at any reasonable time, for any
proper purpose, and at the requesting Member’s expense, records required to be maintained under the
Act and such other information regarding the Business, affairs and financial condition of the
Company as is just and reasonable for the requesting Member to examine and copy. Upon written
request by any Member made to the Board at the address of the Company’s principal office in the
United States specified in Section 2.3, the Company shall provide to the requesting Member or the
Member’s authorized representative without charge true copies of (i) this Agreement and the
Certificate and all amendments or restatements, and (ii) any of the tax returns of the Company
described above.
12.5 Fiscal Year. The Company’s fiscal year shall end on December 31 of each calendar
year.
12.6 Consolidation of Operations. The Members acknowledge that NationsHealth intends
to consolidate the operations of the Company in the financial statements of NationsHealth in
accordance with generally accepted accounting principles subject to appropriate offsets and
deductions to reflect the Membership Interests owned by US Bio.
Article 13
Indemnification By the Company
Indemnification By the Company
13.1 Right to Indemnification. Subject to the limitations and conditions as provided
in this Article 13, each Person who was or is made a party or is threatened to be made a party to
or is involved in any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative (hereinafter a “Proceeding”), or any appeal
in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by
reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or
was a Member or Manager of the Company or while a Member or Manager of the Company is or was
serving at the request of the Company as a member or manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan, or other enterprise, shall be indemnified by the Company to the fullest extent
permitted by the Act (as the same exists or may hereafter be amended, but in the case of any such
amendment, only to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to such amendment)
against judgments, penalties (including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including, without limitation, attorneys’ fees) actually
incurred by such Person in connection with such Proceeding, and indemnification under this Article
13 shall continue as to a Person who has ceased to serve in the capacity that initially entitled
such Person to indemnity hereunder. The rights granted pursuant to this Article 13 shall be deemed
contract rights, and no amendment, modification or repeal of this Article 13 shall have the effect
of limiting or denying any such rights with respect to actions taken or Proceedings arising prior
to any such amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Article 13 could involve indemnification for negligence or under
theories of strict liability.
-21-
13.2 Advance Payment. The right to indemnification conferred in this Article 13 shall
include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a
Person of the type entitled to be indemnified under Section 13.1 who was, is or is threatened to be
made a named defendant or respondent in a Proceeding in advance of the final disposition of the
Proceeding and without any determination as to the Person’s ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred by
any such Person in advance of the final disposition of a Proceeding, shall be made only upon
delivery to the Company of a written affirmation by such Member of his or her good faith belief
that he has met the standard of conduct necessary for indemnification under this Article 13 and a
written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified Person is not entitled to be indemnified under this
Article 13 or otherwise.
13.3 Indemnification of Officers, Employees, and Agents. The Company by adoption of a
resolution of the Members, may indemnify and advance expenses to an officer, employee or agent of
the Company to the same extent and subject to the same conditions under which it may indemnify and
advance expenses to Members under this Article 13 and, the Company may indemnify and advance
expenses to Persons who are not or were not Members, Managers, officers, employees, or agents of
the Company but who are or were serving at the request of the Company as a Member, director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar functionary of another
foreign or domestic limited liability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against any liability asserted
against him and incurred by him in such a capacity or arising out of his status as such a Person to
the same extent that it may indemnify and advance expenses to Members under this Article 13.
13.4 Appearance as a Witness. Notwithstanding any other provision of this Article 13,
the Company may pay or reimburse expenses incurred by a Member, Manager, officer or agent of the
Company in connection with his appearance as a witness or other participation in a Proceeding at a
time when he is not a named defendant or respondent in the Proceeding.
13.5 Non-exclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article 13 shall not be exclusive of any other right that a
Member or other Person indemnified pursuant to this Article 13 may have or hereafter acquire under
any law (common or statutory), provision of the Certificate or this Agreement, agreement, vote of
Members or disinterested Members or otherwise.
13.6 Member Notification. To the extent required by law, any indemnification of or
advance of expenses to a Member or other Person in accordance with this Article 13 shall be
reported in writing to the Members with or before the notice or waiver of notice of the next
Members’ meeting or with or before the next submission to Members of a consent to action without a
meeting and, in any case, within the 12-month period immediately following the date of the
indemnification or advance.
13.7 Savings Clause. If this Article 13 or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify
and hold harmless each Member or any other Person indemnified pursuant to this
-22-
Article 13 as to costs, charges and expenses (including attorneys’ fees), judgments, fines,
and amounts paid in settlement with respect to any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative to the full extent permitted by any applicable portion
of this Article 13 that shall not have been invalidated and to the fullest extent permitted by
applicable law.
Article 14
Restrictions on Transferability;
Admission of New or Substitute
Members; Put Option;
Right of First Refusal
Restrictions on Transferability;
Admission of New or Substitute
Members; Put Option;
Right of First Refusal
14.1 Generally. All Membership Interests at any time and from time to time
outstanding shall be held subject to the conditions and restrictions set forth in this Article 14,
which conditions and restrictions shall apply equally to the Members and their respective
transferees (except as otherwise expressly stated), and each Member by executing this Agreement or
by accepting any indicia of ownership therefor from the Company agrees with the Company and with
each other Member to such conditions and restrictions. Without limiting the generality of the
foregoing, the Company shall require as a condition to the transfer of record ownership of
Membership Interests that the transferee of such Membership Interests execute and deliver this
Agreement as evidence that such Membership Interests are held subject to the terms, conditions and
restrictions set forth herein.
14.2 Restriction on Transfer. Except for Dispositions by a Member to an Affiliate of
such Member or in accordance with this Agreement, no Membership Interests shall be Disposed of to
any Person; provided, however, that the foregoing shall not prohibit a Member from
pledging the Member’s Membership Interest as security or collateral in connection with obtaining
financing to purchase another Member’s Membership Interest.
14.3 Conditions of Effective Transfer. A purported Disposition of Membership
Interests by a Member (other than to an Affiliate of such Member, which is specifically permitted)
shall be valid as to the Company when the following conditions (any of which may be waived by all
of the Members other than the Members proposing the Disposition) have been met:
(a) the Supermajority of Membership Interests shall have approved the Disposition;
provided, however, to the extent a Disposition results from an Organic Change (as
defined below), approval of a Supermajority of Membership Interests shall not be required if
compliance with the procedures set forth in Section 14.6 occurs;
(b) the transferee has delivered to the Company a document including the transferee’s notice
address, its agreement to be bound by this Agreement, and its representation and warranty that the
representations and warranties in Section 4.2 are true and correct with respect to such transferee;
(c) the transferor has agreed to pay a reasonable fee to reimburse the Company for any
out-of-pocket cost incurred in connection with the admission of the transferee as a substituted
Member;
-23-
(d) the transferee has delivered a statement in form and substance reasonably satisfactory to
counsel designated by the Company making appropriate representations and warranties with respect to
the satisfaction of applicable federal and state securities laws; and
(e) the transferor has delivered to the Company an opinion of counsel in form and substance
reasonably satisfactory to counsel designated by the Company to the effect that neither the
Disposition nor any offering in connection therewith violates any provision of any federal or state
securities or comparable law.
14.4 Admission of Additional Members Through the Sale of Newly Issued Membership
Interests. Additional Persons may be admitted to the Company as Members, and Membership
Interests may be created and issued to those Persons by the Company, as opposed to the Disposition
of outstanding Membership Interests held by a Member, upon the affirmative vote of Members holding
a Supermajority of Membership Interests. The terms of admission or issuance posed to the Members
for a vote must specify (a) the identity of the proposed new Member or the Member, as applicable,
and (b) the number of Membership Interests to be issued to such new Member, the Membership
Interests that will be issued and outstanding after taking into account such additional issuances
and the amount of the commitment to be made for such Membership Interests. The terms of the
admission of a new Member may provide for the creation of different classes or groups of Members
having different rights, powers and duties. The Members shall reflect the creation of any new
class or group in an amendment to this Agreement, which amendment shall indicate the different
rights, powers and duties of such new class or group. Any admission of a new Member is effective
only after the new Member has executed and delivered to the Company a document including the new
Member’s notice address, its agreement to be bound by this Agreement and its representation and
warranty that the representations and warranties in Section 4.2 are true and correct with respect
to the new Member. The provisions of this Section 14.4 shall not apply to Dispositions of
Membership Interests.
14.5 Dispositions of any Interests in a Member. A Member that is not a natural person
may not cause or permit an interest, direct or indirect, in itself to be Disposed of such that,
after the Disposition, the Company would be considered to have terminated within the meaning of
section 708 of the Code.
14.6 Put Option and Right of First Refusal Upon An Organic Change. In the event a
Member (the “Transferor”) intends to effect or permit to occur a transaction, whether by sale,
lease, assignment, transfer or other conveyance of all or substantially all of the assets or stock
of the Transferor or any of its Affiliates, or by any consolidation, merger, share exchange or
similar transaction, or by reclassification or other change of any stock, or any recapitalization,
involving the Transferor or any of its Affiliates (an “Organic Change”), that would result in any
Person other than an Affiliate of Transferor (a “Transferee”) owning, managing or controlling,
directly or indirectly, the Transferor’s Membership Interest in the Company, the Transferor shall
provide written notice to the other Member, in a manner such that it is received by the other
Member at least forty-five (45) days prior to the Organic Change, that (i) describes the Organic
Change, (ii) identifies the Transferee, and (iii) notifies the other Member that the other Member
has the right to either (x) approve of the Organic Change, (y) sell the other Member’s entire
Membership
-24-
Interest in the Company (the “Put Option”), or (z) purchase (the “Purchase Option”) the
Transferor’s Membership Interest in the Company (the “Notice of Organic Change”). Within ten (10)
days of the receipt of the Notice of Organic Change (the “Response Period”), the other Member must
give the Transferor written notice stating that the other Member either approves of the Organic
Change or is planning to exercise its Put Option and/or Purchase Option, and proposing a price (or
prices) at which the other Member will sell its Membership Interest as part of the Organic Change
or purchase the Transferor’s Membership Interest in the Company.
(a) If the other Member does not provide timely written notice that it is exercising its Put
Option and/or Purchase Right, then the Transferor shall have the right for a period of one hundred
twenty (120) days following the Response Period to effect or permit the Organic Change on
substantially the same economic terms that were contained in the Notice of Organic Change.
(b) If the other Member provides timely written notice that it is exercising its Put Option
and/or Purchase Option, the Transferor shall accept one of the other Member’s proposed sale price
or purchase price, or reject both such proposed prices, by so notifying the other Member in writing
within five (5) days of its receipt. If the Transferor accepts the sale price or purchase price
proposed by the other Member, then the parties shall close on the sale of the other Member’s
Membership Interest or the purchase of the Transferor’s Membership Interest, as applicable,
simultaneous with, and subject to, the closing of the Organic Change. If the Transferor and the
other Member are unable to agree on the sale price for the other Member’s Membership Interest or
the purchase price for the Transferor’s Membership Interest, then a mutually agreed upon
third-party independent appraiser shall conclusively determine the fair market value of each such
Membership Interest. The Company shall pay the expense of the appraiser. Within five (5) days
after receipt of the appraisal, the other Member shall take one of the following actions:
(i) If the other Member had exercised its Put Option only, then the other Member may elect to
waive its Put Option right and revoke its exercise of the Put Option. If the other Member does not
timely revoke its exercise of the Put Option, then such Member shall close the sale of its
Membership Interest, at a sale price equal to the fair market value determined by the appraiser,
simultaneous with, and subject to, the closing of the Organic Change. If the other Member revokes
its exercise of the Put Option, then the Transferor shall have the right for a period of one
hundred twenty (120) days following the Response Period, or ninety (90) days after receipt of the
appraisal, whichever is longer, to effect or permit the Organic Change on terms not more favorable
to the Transferor than were contained in the Notice of Organic Change.
(ii) If the other Member had exercised its Purchase Option only, then the other Member may
elect to waive its Purchase Option right and revoke its exercise of the Purchase Option. If the
other Member does not timely revoke its exercise of the Purchase Option, then such Member shall
close the purchase of the Transferor’s Membership Interest, at a purchase price equal to the fair
market value determined by the appraiser, simultaneously with, and subject to, the closing of the
Organic Change. If the other Member revokes its exercise of the Purchase Option, then the
Transferor shall have the right for a period of one hundred twenty (120) days following the
Response Period, or ninety (90) days after receipt of the appraisal,
-25-
whichever is longer, to effect or permit the Organic Change on terms not more favorable to the
Transferee than were contained in the Notice of Organic Change.
(iii) If the other Member had exercised its Put Option and the Purchase Option, then the other
Member must elect to waive its Put Option right and/or its Purchase Option right and revoke its
exercise of the Put Option and/or the Purchase Option. If the other Member does not timely revoke
its exercise of the Put Option and does timely revoke its exercise of the Purchase Option, then
such Member shall close the sale of its Membership Interest, at a sale price equal to the fair
market value determined by the appraiser, simultaneous with, and subject to, the closing of the
Organic Change. If the other Member does not timely revoke its exercise of the Purchase Option and
does timely revoke its Put Option, then such Member shall close the purchase of the Transferor’s
Membership Interest, at a purchase price equal to the fair market value determined by the
appraiser, simultaneously with, and subject to, the closing of the Organic Change. If the other
Member revokes its exercise of the Put Option and the Purchase Option, or fails to take any action
within the five (5) day period after receipt of the appraisal as required herein, then the
Transferor shall have the right for a period of one hundred twenty (120) days following the
Response Period, or ninety (90) days after receipt of the appraisal, whichever is longer, to effect
or permit the Organic Change on substantially the same economic terms that were contained in the
Notice of Organic Change.
14.7 Organic Change of AmerisourceBergen Corporation, et al. Notwithstanding anything
to the contrary contained herein, nothing in this Agreement shall prevent AmerisourceBergen
Corporation, AmerisourceBergen Services Corporation and/or AmerisourceBergen Drug Corporation and
their successors and assigns (collectively, the “ABC Entities”) from effecting an Organic Change
and the provisions set forth in this Article 14 shall not apply to an Organic Change of any of the
ABC Entities.
14.8 Waiver of Non-Competition Clauses. Notwithstanding anything to the contrary
contained herein, the parties agree that if NationsHealth consummates an Organic Change as
described in Section 14.6 above, pursuant to and consistent with the terms of Section 14.6 above,
then following the consummation of such Organic Change, the non-competition provisions set forth in
Section 3.4 and in the second sentence of Section 3.1 shall be waived as to NationsHealth, its
Affiliates, and its successors and assigns, and such provisions shall no longer have any force or
effect as to NationsHealth, its Affiliates and its successors and assigns.
Article 15
Dissolution, Liquidation and Termination
Dissolution, Liquidation and Termination
15.1 Dissolution. The Company shall dissolve and its affairs shall be wound up only
upon the first to occur of the following:
(a) the written consent of at least a Supermajority of Membership Interests; and
(b) entry of a decree of judicial dissolution of the Company under section 18-802 of the Act.
-26-
15.2 Liquidation and Termination. On dissolution of the Company, the Members shall
appoint one or more Members as liquidator. The liquidator shall proceed diligently to wind up the
affairs of the Company and make final distributions as provided herein and in the Act. The costs
of liquidation shall be borne as a Company expense. Until final distribution, the liquidator shall
continue to operate the Company properties with all of the power and authority of the Board and the
Members. The steps to be accomplished by the liquidator are as follows:
(a) as promptly as possible after dissolution and again after final liquidation, the
liquidator shall cause a proper accounting to be made by a recognized firm of certified public
accountants of the Company’s assets, liabilities and operations through the last day of the
calendar month in which the dissolution occurs or the final liquidation is completed, as
applicable;
(b) the liquidator shall pay, satisfy, or discharge from Company funds all of the debts,
liabilities, and obligations of the Company (including, without limitation, all expenses incurred
in liquidation and any advances by a Member described in Section 5.7) or otherwise make adequate
provision for payment and discharge thereof (including, without limitation, the establishment of a
cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may
reasonably determine); and
(c) all remaining assets of the Company shall be distributed in accordance with the positive
Capital Account balances of the Members, after giving effect to the gain or loss resulting from the
liquidation of the Company, by the end of the taxable year in which the Company is liquidated (or,
if later, within 90 days after the date of such liquidation). All distributions in kind to the
Members shall be made subject to the liability of each distributee for costs, expenses, and
liabilities theretofore incurred or for which the Company has committed prior to the date of
termination and those costs, expenses, and liabilities shall be allocated to the distributee
pursuant to this Section 15.2. The distribution of cash and/or property to a Member in accordance
with the provisions of this Section 15.2 constitutes a complete return to the Member of its capital
contributions and a complete distribution to the Member of its Membership Interests and all the
Company’s property and constitutes an act to which all Members have consented. To the extent that
a Member returns funds to the Company, it has no claim against any other Member for those funds.
15.3 Deficit Capital Accounts. Notwithstanding anything to the contrary contained in
this Agreement, and notwithstanding any custom or rule of law to the contrary, to the extent that
the deficit, if any, in the capital account of any Member results from or is attributable to
deductions and losses of the Company (including non-cash items such as depreciation), or
distributions of money pursuant to this Agreement, upon dissolution of the Company such deficit
shall not be an asset of the Company and such Members shall not be obligated to contribute such
amount to the Company to bring the balance of such Member’s capital account to zero.
15.4 Certificate of Cancellation. On completion of the distribution of Company assets
as provided herein, the Company is terminated and the Members (or such other Person or Persons as
the Act may require or permit) shall file a Certificate of Cancellation with the Secretary of State
of Delaware, cancel any other filings made pursuant to Section 2.5 and take such other actions as
may be necessary to terminate the Company.
-27-
Article 16
Power of Attorney
Power of Attorney
16.1 Power. Each Member, and any assignee or transferee of such Member’s interest in
the Company, does irrevocably constitute and appoint the President of the Company as his true and
lawful attorney in fact and agent, to execute, acknowledge, swear to, deliver, record, and file, in
the Member’s or assignee’s name, place, and stead, all instruments, documents, and certificates
that may from time to time be required by the laws of the United States of America, the State of
Delaware, or any other jurisdictions the laws of which are applicable to the Company (1) to
effectuate, implement, and continue the valid existence of the Company as organized and operated in
accordance with the terms of this Agreement, including, without limitation, all certificates and
other instruments (including counterparts of this Agreement and amendments) that the president
deems appropriate to reflect any amendment, change, or modification of the Company in accordance
with the terms of this Agreement; (2) to reflect the dissolution and termination of the Company
pursuant to the terms of this Agreement; and (3) to comply with the fictitious or assumed name
statutes in effect in the State of Delaware and all other jurisdictions in which the Company
conducts or plans to conduct business. The agent and attorney in fact shall not, however, have the
right, power or authority to amend, extend the term, or modify this Agreement when acting in his
capacity as agent and attorney in fact. The power of attorney granted herein shall be deemed to be
coupled with an interest, shall be irrevocable, shall survive the death, dissolution, incompetency,
or legal disability of any Member and shall extend to the Members’ heirs, executors, successors,
and assigns; and may be exercised by said agent and attorney in fact for all (or any one) of them
or in other manner, including by facsimile signature, as the agent and attorney in fact may deem
appropriate. Notwithstanding the foregoing, nothing in this Article 16 shall enlarge the powers
granted to the president pursuant to the other terms of this Agreement, nor give him the power to
amend or supplement this Agreement without the written consent and joinder of each Member.
Article 17
Obligations of Confidentiality
Obligations of Confidentiality
17.1 Confidentiality. All Confidential Information acquired by the Members shall be
treated as confidential and each Member shall take or cause to be taken such reasonable precautions
as may be necessary to prevent the disclosure thereof to any unauthorized Person for a period
commencing on the date hereof and extending until the expiration of five (5) years after the
termination of the Company. Confidential Information may be furnished to Affiliates and to bona
fide prospective purchasers, lenders, prospective lenders, prospective participants with the
Company or consultants for evaluation purposes, provided that any Person (other than an
Affiliate) furnished with the information pursuant to this Section 15.1 agrees not to communicate
such information to any other Person or use it for its own benefit or in a manner adverse to the
interests of the Company or a Member. Nothing contained in this Section 15.1 shall prohibit any
Member or its Affiliates from disclosing Confidential Information that is required by judicial or
administrative process or otherwise required by law provided that prior to disclosure, the
disclosing party shall make reasonable efforts to give the non-disclosing parties notice prior to
the required disclosure. A Member shall not be liable for breach of this provision as a result of
the disclosure of any Confidential Information that has been disclosed to such Member by a third
Person who, to the best of such Member’s knowledge, has no obligation of confidentiality with
-28-
respect to that disclosure, or is otherwise generally available to the public for any reason
(other than such Member’s disclosure in violation of this Section 15.1).
17.2 Confidentiality Maintained by Other Persons. Each Member shall take all
reasonable steps to require its employees and consultants, and its Affiliates and their employees
and consultants, to be bound by the provisions of Section 15.1 in the same manner as the Member is
bound hereunder.
17.3 Use of Confidential Information. The Members shall make no use of any
Confidential Information disclosed to them or to the Company by another Member except for the
purposes of the Company. Any written material or tangible thing including or embodying any such
information is and remains the property of the disclosing Member and shall be returned to such
Member upon dissolution of the Company.
Article 18
General Provisions
General Provisions
18.1 Offset. Whenever the Company is to pay any sum to any Member, any amounts that
Member owes the Company may be deducted from that sum before payment.
18.2 Notices. Except as expressly set forth to the contrary in this Agreement, all
notices, requests, or consents provided for or permitted to be given under this Agreement must be
in writing and must be given either by depositing that writing in the United States mail, addressed
to the recipient, postage paid, and registered or certified with return receipt requested or by
delivering that writing to the recipient in person, by overnight delivery or courier, or by
facsimile transmission; and a notice, request, or consent given under this Agreement is effective
on receipt by the Person to receive it. All notices, requests, and consents to be sent to a Member
must be sent to or made at the address previously given by that Member to the Company or such other
address as that Member may specify by notice to the other Members. Any notice, request, or consent
must be given at the following addresses:
If to the Company:
|
In care of each of the Members as set forth below | |
If to NationsHealth:
|
NationsHealth, Inc. Attn: Chief Executive Officer 00000 XX 0xx Xxxxxx Xxxxx 000 Xxxxxxx, XX 00000 |
|
with a copy to:
|
Xxx X. Xxxxxxx, Esq. XxXxxxxxx Will & Xxxxx 000 Xxxxx Xxxxxxxx Xxxxxxxxx 00xx Xxxxx Xxxxx, XX 00000 |
-29-
If to US Bio:
|
US Bioservices Corporation Attn: President 000 Xxxxxxxxx Xxxxx Xxxxxx Xxxx, XX 00000 |
|
with copies to:
|
AmerisourceBergen Specialty Group Attn: Group Counsel 0000 Xxxxxxxx Xxxx Xxxxx 000 Xxxxxxx, XX 00000 |
|
and
|
AmerisourceBergen Corporation Attn: General Counsel 0000 Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000 |
Whenever any notice is required to be given by law, the Certificate or this Agreement, a written
waiver thereof, signed by the Person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
18.3 Entire Agreement. Each of the Members agrees that this Agreement, including the
other documents referred to herein, (i) constitutes the entire agreement and supersedes all prior
and contemporaneous agreements, understandings, negotiations and discussions, whether oral or
written, among the parties with respect to the subject matter of this Agreement, and (ii) is not
intended to confer any rights or remedies, or impose any obligations, on any person other than the
parties hereto. Each of the Members expressly agrees and acknowledges that, other than those
statements expressly set forth in this Agreement, it is not relying on any statement, whether oral
or written, of any person or entity with respect to its entry into this Agreement or to the
consummation of the transactions contemplated by this Agreement.
18.4 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of
any breach or default by any Person in the performance by that Person of its obligations with
respect to the Company is not a consent or waiver to or of any other breach or default in the
performance by that Person of the same or any other obligations of that Person with respect to the
Company. Failure on the part of a Person to complain of any act of any Person or to declare any
Person in default with respect to the Company, irrespective of how long that failure continues,
does not constitute a waiver by that Person of its rights with respect to that default until the
applicable statute of limitations period has run.
18.5 Amendment or Modification. This Agreement may be amended or modified from time
to time only by a written instrument executed by both Members.
18.6 Successors and Assigns. Except as otherwise specifically provided, this
Agreement shall be binding upon and inure to the benefit of the Members and their respective
successors and permitted assigns.
18.7 Governing Law. This Agreement is governed by and shall be construed in
accordance with the law of the State of Delaware, excluding any conflict of laws rule or principle
-30-
that might refer the governance or the construction of this Agreement to the law of another
jurisdiction. In the event of a direct conflict between the provisions of this Agreement and (a)
any provision of the Certificate, or (b) any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control.
18.8 Illegal or Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws, such provision shall be fully
severable. This Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Agreement, and the remaining provisions
of this Agreement shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu
of each such illegal, invalid, or unenforceable provision, there shall be added automatically, as a
part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
18.9 Further Assurances. In connection with this Agreement and the transactions
contemplated hereby, each Member shall execute and deliver any additional documents and instruments
and perform any additional acts that may be necessary or appropriate to effectuate and perform the
provisions of this Agreement and those transactions.
18.10 Waiver of Certain Rights. Each Member irrevocably waives any right it may have
to maintain any action for dissolution of the Company or for partition of the property of the
Company.
18.11 Indemnification. To the fullest extent permitted by law, each Member shall
indemnify the Company and each other Member, and shall hold them harmless from and against all
losses, costs, liabilities, damages, and expenses (including, without limitation, costs of suit and
attorney’s fees) they may incur on account of any breach by that Member of this Agreement.
18.12 Counterparts. This Agreement may be executed in any number of counterparts with
the same effect as if all signing parties had signed the same document. All counterparts shall be
construed together and constitute the same instrument.
18.13 Schedules. All schedules or other attachments to this Agreement shall be
incorporated into this Agreement as though fully set forth and recited herein.
[The remainder of this page is intentionally left blank.]
-31-
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the Effective
Date.
| US Bioservices Corporation | NationsHealth, Inc. | |
| Membership Interest: 49% | Membership Interest: 51% | |
| By: /s/ Xxxxxx X. Xxxxxx
|
By: /s/ Xxxxx X. Xxxxxx
|
|
| Name: Xxxxxx X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
|
|
| Title: President - ABSG
|
Title: CEO
|
Schedule I
|
Board of Managers | |
Exhibit A
|
Stock Purchase Agreement |
-32-
Schedule I
Board of Managers
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxxxx
-33-
Exhibit A
Stock Purchase Agreement
[Filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 24, 2005]
-34-
