LIMITED LIABILITY COMPANY AGREEMENT
OF PRIME/BDEC ACQUISITION, L.L.C.
Organized under the Delaware Limited Liability Company Act (the "Act").
ARTICLE I.
NAME AND LOCATION
Section 1.1. Name. The name of this limited liability company is Prime/BDEC
Acquisition, L.L.C. (the "Company"). ----
Section 1.2. Members. The only members of the Company upon the
execution of this Limited Liability Company Agreement (this "Agreement") shall
be Prime Medical Operating, Inc, a Delaware corporation ("Prime"), and Barnet
▇▇▇▇▇▇▇ Eye Center, P.L.L.C., an Arizona professional limited liability company
("BDEC"). For purposes of this Agreement, the "Members" shall include such named
members and any new members admitted pursuant to the terms of this Agreement,
but does not include any person or entity who has ceased to be a member in the
Company.
Section 1.3. Principal Office. The principal office of the Company shall be
located in ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or
such other location as may be selected by the Members. ----------------
Section 1.4. Registered Agent and Address. The name of the registered agent
and the address of the registered office of the Company as set forth in the
Certificate of Formation of the Company are: -----------------------------
The Corporation Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 1.5. Other Offices. Other offices and other facilities for the
transaction of business shall be located at such places as the Managers may from
time to time determine. -------------
Section 1.6 Contribution Agreement. The Company was initially formed
with a single member, BDEC, for the purpose of consummating the transactions
contemplated by that certain Contribution Agreement dated effective September 1,
1999, by and among Prime, Prime Medical Services, Inc., a Delaware corporation
("PMSI"), BDEC, the Company, Prime/BDR Acquisition, L.L.C., a Delaware limited
liability company, LASIK Investors, L.L.C., a Delaware limited liability
company, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the
"Contribution Agreement"). The parties have executed this Agreement upon
consummation of the transactions contemplated by the Contribution Agreement.
This agreement supercedes and replaces any prior membership agreement or other
governing or organizational document of the Company.
ARTICLE II.
MEMBERSHIP
Section 2.1. Members' Interests. The "Membership Interest" of each Member
is set forth on Exhibit A. ------------------ ---------
Section 2.2. Admission to Membership. The admission of new Members shall be
only by the vote of the Managers pursuant to Section 8.9 hereof. If new Members
are admitted, this Agreement shall be amended to reflect each Member's revised
Membership Interest. -----------------------
Section 2.3. Property Rights. No Member shall have any right, title, or
interest in any of the property or assets of the Company. ---------------
Section 2.4. Liability of Members. No Member of the Company shall be
personally liable for any debts, liabilities, or obligations of the Company,
including under a judgment decree, or order of court. --------------------
Section 2.5. Transferability of Membership. Except as provided below,
Membership Interests in the Company are transferable only with the unanimous
written consent of all Members. If such unanimous written consent is not
obtained when required, the transferee shall be entitled to receive only the
share of profits or other compensation by way of income and the return of
contributions to which the transferor Member otherwise would be entitled.
Notwithstanding the foregoing, (i) the Membership Interests of Prime may be
freely transferred, without consent, to any entity that is then owned or
controlled, directly or indirectly, by Prime Medical Services, Inc., a Delaware
corporation (or its successor in interest), (ii) the Membership Interests of any
Member may be freely assigned, pledged or otherwise transferred, without
consent, to secure any debt, liability or obligation owed to Prime by the
Company, any Member or any entity affiliated with the Company, (iii) the
Membership Interests of any Member may be freely assigned, pledged or otherwise
transferred, without consent, in favor of the Lender(s) under, or by the
Lender(s) as a result of the enforcement of any security interest arising
pursuant to, that certain Senior Credit Facility (the "Credit Facility") of
PMSI, and (iv) the pledge by BDEC (pursuant to Section 6.3 of the Contribution
Agreement) of its right to receive distributions from the Company in respect of
its Membership Interest shall not be deemed to violate any provision of this
Agreement.
Section 2.6. Resignation of Members. A Member may not withdraw from the
Company except on the unanimous consent of the remaining Members. The terms of
the Members withdrawal shall be determined by agreement between the remaining
Members and the withdrawing Member. ----------------------
ARTICLE III.
MEMBERS' MEETINGS
Section 3.1. Time and Place of Meeting. All meetings of the Members shall
be held at such time and at such place within or without the State of Delaware
as shall be determined by the Managers. -------------------------
Section 3.2. Annual Meetings. In the absence of an earlier meeting at such
time and place as the Managers shall specify, annual meetings of the Members
shall be held at the principal office of the Company on the date which is thirty
(30) days after the end of the Company's fiscal year if not a legal holiday, and
if a legal holiday, then on the next full business day following, at 10:00 a.m.,
at which meeting the Members may transact such business as may properly be
brought before --------------- the meeting.
Section 3.3. Special Meetings. Special meetings of the Members may be
called at any time by any Member. Business transacted at special meetings shall
be confined to the purposes stated in the notice of the meeting.
----------------
Section 3.4. Notice. Written or printed notice stating the place, day
and hour of any Members' meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) days nor more than thirty (30) days before the date of the special
meeting, either personally or by mail, by or at the direction of the person
calling the meeting, to each Member entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered three (3) days after it is deposited
in the United States mail, postage prepaid, to the Member at his address as it
appears on the records of the Company at the time of mailing.
Section 3.5. Quorum. Members present in person or represented by proxy,
holding more than fifty percent (50%) of the total votes which may be cast at
any meeting shall constitute a quorum at all meetings of the Members for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the Members, the Members entitled to vote, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. When any adjourned meeting is reconvened
and a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. Once a
quorum is constituted, the Members present or represented by proxy at a meeting
may continue to transact business until adjournment, notwithstanding the
subsequent withdrawal therefrom of such number of Members as to leave less than
a quorum.
Section 3.6. Voting. Members shall only be required to vote in
instances or with respect to matters where member voting is required by
applicable law or to the extent expressly contemplated in Section 8.1. With
respect to any act or transaction that requires a vote by the Members under
applicable law, the affirmative vote of not less than three (3) of the Managers
shall also be required in order to approve the act or transaction, in each
instance. Subject to the foregoing, when a quorum is present at any meeting, the
vote of the Members, whether present or represented by proxy at such meeting,
holding more than fifty percent (50%) of the total votes which may be cast at
any meeting shall be the act of the Members, unless the vote of a different
number is required by the Act, the Certificate of Formation or this Limited
Liability Company Agreement. Each Member shall be entitled to one vote for each
percentage point represented by their Membership Interest. Fractional percentage
point interests shall be entitled to a corresponding fractional vote. The
provisions of this Section shall not interfere with the provisions of Section
8.9 relating to acts or transactions requiring the written approval of three (3)
or more Managers. Each Member acknowledges and agrees that, in the event of any
exercise of the Repurchase Option, as defined in the Contribution Agreement,
each Member will vote its entire Membership Interest in favor of transferring
the Company's assets pursuant to the Repurchase Option.
Section 3.7. Proxy. Every proxy must be executed in writing by the Member
or by his duly authorized attorney-in-fact, and shall be filed with the
Secretary of the Company prior to or at the time of the meeting. No proxy shall
be valid after eleven (11) months from the date of its execution unless
otherwise provided therein. Each proxy shall be revocable unless expressly
provided therein to be irrevocable and unless otherwise made irrevocable by law.
-----
Section 3.8. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Members may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the Members entitled to vote with respect to the subject matter thereof, and
such consent shall have the same force and effect as a unanimous vote of
Members. -------------------------
Section 3.9. Meetings by Conference Telephone. Members may participate in
and hold meetings of Members by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the
-------------------------------- meeting is not lawfully called or convened.
ARTICLE IV.
MEMBERSHIP CAPITAL CONTRIBUTIONS
Except for each Member's initial capital contribution made in
connection with the formation of the Company, no capital contributions shall be
required of any Member without the approval of all the Members to raise
additional capital, and only then proportionately as to each Member.
ARTICLE V.
DISTRIBUTION TO MEMBERS
At the end of each calendar quarter, subject only to the qualifications
and limitations set forth below, the Company shall distribute its available
excess earnings to its members, to be divided among them in accordance with
their Membership Interests. Distributions in kind shall be made on the basis of
agreed value as determined by the Members. Notwithstanding the foregoing, the
Company may not make a distribution to its Members to the extent that,
immediately after giving effect to the distribution, all liabilities of the
Company, other than liabilities to the Members with respect to their interests
and liabilities for which the recourse of creditors is limited to specified
property of the Company, exceed the fair value of the Company assets; except
that the fair value of property that is subject to liability for which recourse
of creditors is limited, shall be included in the Company assets only to the
extent that the fair value of the property exceeds that liability.
ARTICLE VI.
ALLOCATION OF NET PROFITS AND LOSSES FOR TAX PURPOSES
For accounting and income tax purposes, all items of income, gain,
loss, deduction, and credit of the Company for any taxable year shall be
allocated among the Members in accordance with their respective Membership
Interests, except as may be otherwise required by the Internal Revenue Code of
1986, as amended.
ARTICLE VII.
DISSOLUTION AND WINDING UP
Section 7.1. Dissolution. Notwithstanding any provision of the Act, the
Company shall be dissolved only upon the first of the following to occur:
-----------
(a) Forty (40) years from the date of filing the Certificate of
Formation of the Company;
(b) Written consent of all the then current Members to dissolution;
(c) The bankruptcy of a Member, unless there is at least one remaining
Member and such Member or, if more than one remaining Member, all remaining
Members agree to continue the Company and its business. Section 7.2.
Winding Up. Unless the Company is continued pursuant to Section 7.1(c) of
this Article VII., in the event of dissolution of the Company, the Managers
(excluding any Manager(s) holding office pursuant to designation by a
Member subject to bankruptcy proceedings) shall wind up the Company's
affairs as soon as reasonably practicable. On the winding up of the
Company, the Managers shall pay and/or transfer the assets of the Company
in the following order: ----------
(a) In discharging liabilities (including loans from Members) and the
expenses of concluding the Company's affairs; and
(b) The balance, if any, shall be divided between the Members
in accordance with the Members' Membership Interests.
ARTICLE VIII.
MANAGERS
Section 8.1. Selection of Managers. Management of the Company shall be
vested in the Managers. Initially, the Company shall have four (4) Managers,
being ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, M.D., (as the initial Manager designees of
Prime), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., (as the initial
Manager designees of BDEC). Thereafter, for so long as there are four (4)
Managers, (a) Prime shall be entitled to designate two (2) of the Managers; and
(b) BDEC shall be entitled to designate the remaining two (2) of the Managers.
Notwithstanding the foregoing, a Member shall not be entitled to designate any
Manager unless its Membership Interest: (x) has not (other than as allowed under
Section 2.5 of this Agreement) been transferred, repurchased, assigned, pledged,
hypothecated or in any way alienated; and (y) equals or exceeds forty percent
(40%) of the aggregate Membership Interests. The Members may, by unanimous vote
of all Members, from time to time, change the number of Managers of the Company
and remove or add Managers accordingly. A Manager shall serve as a Manager until
their resignation or removal pursuant to Section 8.2 or 8.3 of this Article
VIII. Managers need not be residents of the State of Delaware or Members of the
Company.
Section 8.2. Resignations. Each Manager shall have the right to resign
at any time upon written notice of such resignation to the Members. Unless
otherwise specified in such written notice, the resignation shall take
effect upon the receipt thereof, and acceptance of such resignation shall
not be necessary to make same effective. The Member who designated a
resigning manager shall be entitled to designate the successor thereto and
all Members agree to take such action as may be ------------ necessary to
cause the election of all such successor Managers.
Section 8.3. Removal of Managers. Any Manager may be removed, for or
without cause, at any time, but only by the Member who designated such
Manager, upon the written notice to all Members. The Member who designated
such removed Manager shall be entitled to designate the successor thereto
and all Members agree to take such action as may be necessary to cause the
election of all such successor Managers. -------------------
Section 8.4. General Powers. The business of the Company shall be
managed by its Managers, which may, by the vote or written consent in accordance
with this Agreement, exercise any and all powers of the Company and do any and
all such lawful acts and things as are not by the Act, the Certificate of
Formation or this Limited Liability Company Agreement directed or required to be
exercised or done by the Members, including, but not limited to, contracting for
or incurring on behalf of the Company debts, liabilities and other obligations,
without the consent of any other person, except as otherwise provided herein.
Section 8.5. Place of Meetings. The Managers of the Company may hold
their meetings, both regular and special, either within or without the
State of Delaware. -----------------
Section 8.6. Annual Meetings. The annual meeting of the Managers shall
be held without further notice immediately following the annual meeting of
the Members, and at the same place, unless by unanimous consent of the
Managers that such time or place shall be changed. ---------------
Section 8.7. Regular Meetings. Regular meetings of the Managers may be
held without notice at such time and place as shall from time to time be
determined by the Managers. ----------------
Section 8.8. Special Meetings. Special meetings of the Mangers may be
called by any Manager on seven (7) days notice to each Manager, with such
notice to be given personally, by mail or by telecopy, telegraph or
mailgram. ----------------
Section 8.9. Quorum and Voting. At all meetings of the Managers the
presence of at least three (3) Managers shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the affirmative vote of
at least a majority of the Managers present at any meeting at which there is a
quorum shall be the act of the Managers, except as may be otherwise specifically
provided by the Act, the Contribution Agreement, the Certificate of Formation or
this Agreement. If a quorum shall not be present at any meeting of Managers, the
Managers present there may adjourn the meeting from time to time without notice
other than announcement at the meeting, until a quorum shall be present.
Notwithstanding any other Member or Manager voting or quorum provisions
contained in this Agreement, the following acts or transactions by, or
involving, the Company shall require the prior written approval of three (3)
Managers (unless and to the extent a particular act or transaction is expressly
required of the Company pursuant to the terms and provisions of the Contribution
Agreement or any Transaction Document):
(a) Any amendment to the Company's Certificate of Formation or this
Agreement.
(b) Mergers, consolidations or combinations of the Company with
another limited liability company or other entity.
(c) Purchase by the Company of any interest in the Company,
irrespective of the source of such interest.
(d) Disposition, sale, assignment or other transfer by the Company of
any interest it owns in the Company, except that such interest may be
extinguished without the approval required under this Article.
(e) Issuance of any interest in the Company to any party.
(f) Dissolving, liquidating, or filing bankruptcy or seeking
relief under any debtor relief law.
(g) Election or removal of officers, and establishing or
changing the compensation for Managers, officers or other employees.
(h) Not making any cash distributions to its Members that are required
by this Agreement to be made, or making any distributions to its Members of
cash or property that are prohibited under this Agreement.
(i) Sale, lease or other transfer of all or substantially all of the
Company's assets, or any assets other than in the ordinary course of the
Company's business.
(j) Initiating or settling any litigation or regulatory
proceeding, or confessing any judgment.
(k) Hiring or changing the Company's accountants or legal
counsel.
(l) Opening or closing bank or other depository accounts, and
establishing or changing the signature withdrawal authority with respect to any
such accounts.
(m) Borrowing or incurring any indebtedness, other than open accounts
payable to unaffiliated third parties, or granting any collateral or
security (by way of guaranty or otherwise) for any indebtedness or
obligation.
(n) Engaging in any act or transaction not in the ordinary
course of the Company's business.
(o) Purchasing or leasing assets or property, or entering into any
contract or obligation, which obligates the Company to pay in excess of
$10,000 in the aggregate in one or any series of installments.
(p) Doing any business other than the conduct of the Business (as
defined in the Contribution Agreement) or causing a change in the nature of
the business or the legal name of the Company.
(q) Entering into a transaction or other action with any
Manager, officer or Member.
(r) Waiving, refusing to enforce, amending, restating, superseding or
modifying any of the provisions of this Agreement or any Transaction
Document, including, without limitation, the Collocation Agreement.
(s) Taking any other action which, by the terms of this Agreement,
requires the approval or consent of not less than seventy-five percent
(75%) of the Members.
(t) Except as expressly set forth in the Collocation Agreement or
Section 9.12 of the Contribution Agreement, allocating to the Company any
costs or expenses that are paid or incurred by any Member or its affiliates
(excluding the Company), or paid by the Company but reimbursable by any
Member or its affiliates (excluding the Company), in each instance.
(u) With respect to the business and operations of Newco II conducted
or to be conducted at or near the location of ▇▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, waiving, amending, supplementing or modifying any of the
professional fees, facility fees or fee allocations by Newco II, to the
extent such amounts or allocations were utilized in preparing the pro forma
financial statements of Newco II attached to the Collocation Agreement.
(v) With respect to the business and operations of Newco II conducted
or to be conducted at any other future office or business locations
(including without limitation, the office located at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇), adopting any professional fees, facility fees or fee
allocations.
Any of the above stated actions taken by the Company without the
necessary manager approval is void ab initio.
Section 8.10. Committees. The Managers may, by resolution passed by
eighty percent (80%) of the Managers, designate committees, each committee to
consist of two or more Managers (at least one of which must be a Manager
designee of Prime and one of which must be a Manager designee of BDEC), which
committees shall have such power and authority and shall perform such functions
as may be provided in such resolution. Such committee or committees shall have
such name or names as may be designated by the Managers and shall keep regular
minutes of their proceedings and report the same to the Managers when required.
Section 8.11. Compensation of Managers. The Members, by unanimous
approval, shall have the authority to provide that any one or more of the
Managers shall not be compensated, and may, by unanimous approval, fix any
compensation (which may include expenses) they elect to pay to any one or
more of the Managers. ------------------------
Section 8.12. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Managers or of any committee
designated by the Managers may be taken without a meeting if written
consent, setting forth the action so taken, is signed by all the Managers
or of such committee, and such consent shall have the same force and effect
as a unanimous vote at a meeting. -------------------------
Section 8.13. Meetings by Conference Telephone. Managers or members of
any committee designated by the Managers may participate in and hold a meeting
of the Managers or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Section 8.14. Liability of Managers. No Manager of the Company shall
be personally liable for any debts, liabilities, or obligations of the
Company, including under a judgment, decree, or order of the court.
---------------------
Section 8.15. Specific Power of Managers. The Managers shall have the
authority to enter into and execute all documents in relation to the
formation of the Company including, but not limited to, issuance of the
Certificate of Formation and this Limited Liability Company Agreement.
--------------------------
ARTICLE IX.
NOTICES
Section 9.1. Form of Notice. Whenever under the provisions of the Act,
the Certificate of Formation or this Limited Liability Company Agreement notice
is required to be given to any Manager or Member, and no provision is made as to
how such notice shall be given, notice shall not be construed to mean personal
notice only, but any such notice may also be given in writing, by mail, postage
prepaid, addressed to such Manager or Member at such address as appears on the
books of the Company, or by telecopy, telegraph or mailgram. Any notice required
or permitted to be given by mail shall be deemed to be given three (3) days
after it is deposited, postage prepaid, in the United States mail as aforesaid.
Section 9.2. Waiver. Whenever any notice is required to be given to
any Manager or Member of the Company under the provision of the Act, the
Certificate of Formation or this Limited Liability Company Agreement, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether signed before or after the time stated in such waiver,
shall be deemed equivalent to the giving of such notice. ------
ARTICLE X.
OFFICERS
Any Manager may also serve as an officer of the Company. The Managers
may designate one or more persons who are not Managers of the Company to serve
as officers and may designate the titles of all officers. The initial officers
of the Company shall be: ▇▇▇ ▇▇▇▇▇▇▇, Chairman of the Board; ▇▇▇ ▇▇▇▇▇▇▇, M.D.,
President; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President, Secretary and Chief Financial
Officer; and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President. Unless otherwise provided in a
resolution of the Members or Managers the officers of the Company shall have the
powers designated with respect to such offices under the Delaware Limited
Liability Company Act, and any successor statute, as amended from time-to-time.
ARTICLE XI.
INDEMNITY
Section 11.1. Indemnification. The Company shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such an action, suit
or proceeding and any inquiry or investigation that could lead to such an
action, suit or proceeding (whether or not by or in the right of the Company),
by reason of the fact that such person is or was a manager, officer, employee or
agent of the Company or is or was serving at the request of the Company as a
director, manager, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another corporation, employee benefit plan,
other enterprise, or other entity, against all judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses (including
attorneys' fees and court costs) actually and reasonably incurred by him in
connection with such action, suit or proceeding to the fullest extent permitted
by any applicable law, and such indemnity shall inure to the benefit of the
heirs, executors and administrators of any such person so indemnified pursuant
to this Article XI. The right to indemnification under this Article XI shall be
a contract right and shall not be deemed exclusive of any other right to which
those seeking indemnification may be entitled under any law, bylaw, agreement,
vote of members or disinterested managers or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. Any repeal or amendment of this Article XI by the Managers (pursuant to
Section 8.9 hereof) or by changes in applicable law shall, to the extent
permitted by applicable law, be prospective only, and shall not adversely affect
the indemnification of any person who may be indemnified at the time of such
repeal or amendment.
Section 11.2. Indemnification Not Exclusive. The rights of
indemnification and reimbursement provided for in this Article XI shall not
be deemed exclusive of any other rights to which any such Manager, officer,
employee or agent may be entitled under the Certificate of Formation, this
Limited Liability Company Agreement, agreement or vote of Members, or as a
matter of law or otherwise. -----------------------------
Section 11.3. Other Indemnification Clauses. Notwithstanding the
foregoing, this Article XI shall not be construed to contradict the
indemnification provision of the Contribution Agreement. Notwithstanding
anything contained herein, this Article XI shall be ineffectual and shall not
permit or require indemnification for all, or any, losses, costs, liabilities,
claims or expenses arising, directly or indirectly, from any action or omission
permitting or requiring indemnification under the Contribution Agreement; and in
no event may any indemnity be allowed under this Agreement or pursuant to any
provision of the Act for an amount paid or payable pursuant to the
indemnification provisions of the Contribution Agreement.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Fiscal Year. The fiscal year of the Company shall be
fixed by resolution of the Managers. -----------
Section 12.2. Records. At the expense of the Company, the Managers
shall maintain records and accounts of all operations of the Company. At a
minimum, the Company shall keep at its principal place of business the
following records: -------
(a) A current list of the name and last known mailing address of each
Member;
(b) A current list of each Member's Membership Interest;
(c) A copy of the Certificate of Formation and Limited Liability
Company Agreement of the Company, and all amendments thereto, together with
executed copies of any powers of attorney;
(d) Copies of the Federal, state, and local income tax returns
and reports for the Company's six most recent tax years; and
(e) Correct and complete books and records of account of the
Company.
Section 12.3. Seal. The Company may by resolution of the Managers
adopt and have a seal, and said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any manner reproduced.
Any officer of the Company shall have authority to affix the seal to any
document requiring it. ----
Section 12.4. Agents. Every Manager and Officer is an agent of the
Company for the purpose of the business. The act of a Manager or Officer,
including the execution in the name of the Company of any instrument for
carrying on in the usual way the business of the Company, binds the
Company. ------
Section 12.5. Checks. All checks, drafts and orders for the payment of
money, notes and other evidences of indebtedness issued in the name of the
Company shall be signed by such officer, officers, agent or agents of the
Company and in such manner as shall from time to time be determined by
resolution of the Managers. In the absence of such determination by the Mangers,
such instruments shall be signed by the Treasurer or the Secretary and
countersigned by the President or a Vice President of the Company, if the
Company has such officers.
Section 12.6. Deposits. All funds of the Company shall be deposited
from time to time to the credit of the Company in such banks, trust
companies or other depositories as the Managers may select. --------
Section 12.7. Annual Statement. The Managers shall present at each
annual meeting a full and clear statement of the business and condition of
the Company. ----------------
Section 12.8. Financial Statements. As soon as practicable after the
end of each fiscal year of the Company, a balance sheet as at the end of such
fiscal year, and a profit and loss statement for the period ended, shall be
distributed to the Members, along with such tax information (including all
information returns) as may be necessary for the preparation of each Member of
its Federal, state and local income tax returns. The balance sheet and profit
and loss statement referred to in the previous sentence may be as shown on the
Company's federal income tax return.
Section 12.9. Binding Arbitration. Any controversy between the parties
regarding this Agreement and any claims arising out of this Agreement or
its breach shall be submitted to arbitration by either party. The
arbitration proceedings shall be conducted by a single arbitrator pursuant
to the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall be conducted in Dallas, Texas and the
arbitrator shall have the right to award actual damages and
------------------- attorney fees and costs, but shall not have the right
to award punitive, exemplary or consequential damages against either party.
ARTICLE XIII.
AMENDMENTS
Section 13.1. Amendments. This Agreement may be altered, amended or
repealed and a new limited liability company agreement may be adopted, only
in accordance with the provisions of Section 8.9, but otherwise at any
regular meeting or at any special meeting called for that purpose, or by
execution of a written consent in accordance with the provisions of Section
3.8. ----------
Section 13.2. When Limited Liability Company Agreement Silent. It is
expressly recognized that when the Limited Liability Company Agreement is
silent or in conflict with the requirements of the Act as to the manner of
performing any Company function, the provisions of the Act shall control.
-----------------------------------------------
[Signature page follows]
SIGNATURE PAGE TO
LIMITED LIABILITY COMPANY AGREEMENT
IN WITNESS WHEREOF, the undersigned Members hereby adopt this Limited
Liability Company Agreement as the Limited Liability Company Agreement of the
Company, effective as of the 1st day of September, 1999.
Barnet ▇▇▇▇▇▇▇ Eye Center, P.L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D., manager
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., manager
Prime Medical Operating, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
EXHIBIT A
OWNERSHIP INTERESTS
Name Ownership Percentage
Prime 60%
BDEC 40%