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EXHIBIT 3.4
REGULATIONS OF
KCI PROPERTIES LIMITED
Organized under the Texas Limited Liability Company Act
ARTICLE I
Name and Location
Section 1.1. Name. The name of this limited liability company is KCI
Properties Limited (the "Company").
Section 1.2. Principal Office. The principal office of the Company
shall be located in the City of San Antonio, County of Bexar, State of Texas.
Section 1.3. The address of the registered office of the Company is:
3440 East Houston Street
San Antonio, Texas 78219
Section 1.4. The name and address of the registered agent of the
Company, as set forth in the Articles of Organization of the Company, shall be:
Robert A. Wehrmeyer, Jr.
3440 East Houston Street
San Antonio, Texas 78219
Section 1.5. Other Offices. Other offices and other facilities for the
transaction of business shall be located at such places as the Managers may from
time to time determine.
ARTICLE II
MEMBERSHIP
Section 2.1. Members' Interests. The sole members of the Company are
Kinetic Concepts, Inc. and KCI Therapeutic Services, Inc., which own 90% and 10%
of the "Percentage Interest" of the Company, respectively.
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Section 2.2. Admission to Membership. The admission of new Members
shall be only by the unanimous vote of the Members. If new members are admitted,
the Regulations shall be amended to reflect each Member's revised Percentage
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. Membership in the Company
is transferable only with the unanimous written consent of all Members. If such
unanimous written consent is not obtained, the transferee shall be entitled to
receive only the share of profits or other compensation by way of income and the
return of contributions to which the transferor Member otherwise would be
entitled.
Section 2.6. Resignation of Member. A Member may not withdraw from the
Company except on the unanimous consent of the remaining Members. The terms of a
Member's 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
Texas 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 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) nor more than sixty
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(60) days before the date of the 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 when
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 a majority of the total votes which may be cast at any meeting shall
constitute a quorum at all meetings of the Members for the transaction of
business. If, however, such quorum shall not be present or represented at any
meeting of the Members, the Members entitled to vote, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. When any adjourned meeting is reconvened and a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. Once a quorum is
constituted, the Members present or represented by proxy at a meeting may
continue to transact business until adjournment, notwithstanding the subsequent
withdrawal therefrom of such number of Members as to leave less than a quorum.
Section 3.6. Voting. When a quorum is present at any meeting, the vote
of the Members, whether present or represented by proxy at such meeting, holding
a majority of the total votes which may be cast at any meeting shall be the act
of the Members, unless the vote of a different percentage is required by the
Texas Limited Liability Company Act (the "Act"), the Articles of Organization or
these Regulations. Each Member shall be entitled to one vote for each percentage
point represented by their Percentage Interest. Fractional percentage interests
shall be entitled to a corresponding fractional vote.
Section 3.7. Proxy. Every proxy must be executed in writing by the
Member or by his duly authorized attorney-in-fact, and shall be filed with the
Secretary of the Company prior to or at the time of the meeting. No proxy shall
be valid after eleven (11) months from the date of its execution unless
otherwise provided therein. Each proxy shall be revocable unless expressly
provided therein to be irrevocable and unless otherwise made irrevocable by law.
Section 3.8. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Members may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by 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
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the transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV
MEMBERSHIP CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions. The initial capital contribution of
each Member shall be set forth on Exhibit A attached hereto.
Section 4.2. Additional Contributions. No additional capital
contributions shall be required of any Member.
Section 4.3. Loans from Members. Upon the approval of the Managers, any
Member may (but shall not be obligated to) advance funds in the form of a loan
to the Company.
ARTICLE V
DISTRIBUTION TO MEMBERS
The Managers shall determine, in their sole discretion, the amount and
timing of all distributions from the Company. Distributions shall be divided
among the Members in accordance with their Percentage 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,
the liabilities of the Company, other than liabilities to 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 Percentage
Interests, except as may be otherwise required by Section 704(c) of the Internal
Revenue Code of 1986, as amended.
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ARTICLE VII
DISSOLUTION AND WINDING UP
Section 7.1. Dissolution. The Company shall be dissolved upon the first
of the following to occur:
(a) Thirty (30) years from the date of filing the Articles of
Organization of the Company;
(b) Written consent of all Members to dissolution;
(c) The bankruptcy, retirement, resignation, expulsion or
dissolution of a Member, unless there is at least one remaining Member
and such Member or Members unanimously agree to continue the Company
and its business.
Section 7.2. Winding Up. Unless the Company is continued pursuant to
Section 1(c) of this Article VII, in the event of dissolution of the Company,
the Managers 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;
(b) The balance, if any, shall be divided between the Members
in accordance with the Members' Percentage Interests.
ARTICLE VIII
MANAGERS
Section 8.1. Selection of Managers. The Managers of the Company shall
be appointed by the Members. Each Manager shall serve as a Manager until removed
pursuant to Section 2 or 3 of this Article VIII. Managers need not be residents
of the State of Texas.
Section 8.2. Resignations. Each Manager shall have the right to resign
at any time upon written notice of such resignation to the President or
Secretary of the Company. Unless otherwise specified in such written notice, the
resignation shall be effective upon the receipt by the Company.
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Section 8.3. Removal of Manager. Any Manager may be removed, for or
without cause, though his term may not have expired, by the vote of a majority
of the Percentage Interests of the Members at a special meeting called for that
purpose.
Section 8.4. General Powers. The business of the Company shall be
managed by its Managers, which may exercise any and all powers of the Company
and do any and all such lawful acts and things as are not reserved under the
Act, the Articles of Organization or by these Regulations directly to the
Members.
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
Texas.
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 such time or place shall be changed by
unanimous consent of the Managers.
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 Managers may be
called by any Manager on two (2) days notice to each Manager, with such notice
to be given personally, by mail or by telex, telegraph or mailgram.
Section 8.9. Quorum and Voting. At all meetings of the Managers the
presence of at least a majority of the number of 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 Articles of Organization or
these Regulations. If a quorum shall not be present at any meeting of Managers,
the Managers present may adjourn the meeting from time to time without notice
other than announcement at the meeting, until a quorum shall be present.
Section 8.10. Committees. The Managers may, by resolution passed by a
majority of the Managers, designate committees, each of which shall consist of
one or more Managers and 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 shall have the
authority to fix the compensation of Managers and to provide for the
reimbursement of reasonable expenses incurred by the Managers on behalf of the
Company.
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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 a written consent,
setting forth the action so taken, is signed by all the Managers or of such
committee. 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. 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 court.
ARTICLE IX
NOTICES
Section 9.1. Form of Notice. Whenever under the provisions of the Act,
the Articles of Organization or these Regulations 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. Any such notice
may 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 telex,
telegraph or mailgram. Any notice required or permitted to be given by mail
shall be deemed to be given at the time the same 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 provisions of the Act, the Articles
of Organization or these Regulations, 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.
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ARTICLE X
OFFICERS
Section 10.1. In General. The officers of the Corporation shall be
elected by the Managers and shall be a Chairman, a President, a Secretary and a
Treasurer. The Managers may also elect Vice Presidents, one or more Assistant
Secretaries and one or more Assistant Treasurers, all of whom shall also be
officers. Two or more offices may be held by the same person. Managers may be
officers.
Section 10.2. Election. The Managers at their first meeting after each
annual meeting of the Members shall elect a Chairman, a President, a Secretary
and a Treasurer and may appoint such other officers and agents as it shall deem
necessary, and may determine the salaries of all officers and agents from time
to time. The officers shall hold office until their successors are duly elected
and qualified. Any officer elected or appointed by the Managers may be removed,
for or without cause, at any time by a majority vote of the Managers. Election
or appointment of an officer or agent shall not of itself create contract
rights.
Section 10.3. Chairman. The Chairman of the Managers, if there be a
Chairman, shall preside at all meetings of the Members and the Managers shall
have such other powers as may from time to time be assigned by the Managers.
Section 10.4. President. The President shall be the chief executive
officer of the Company, shall have authority and responsibility for the general
and active management of the business of the Company and shall see that all
orders and resolutions of the Managers are carried into effect. Subject to the
prior approval of the Managers, the President shall execute all contracts,
mortgages, conveyances or other legal instruments in the name of and on behalf
of the Company, but this provision shall not prohibit the delegation of such
powers by the Managers to some other officer, agent or attorney-in-fact of the
Company.
Section 10.5. Vice Presidents. The Vice President or, if there be more
than one, the Vice Presidents in the order of their seniority or in any other
order determined by the Managers, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
shall generally assist the President and perform such other duties as the
Managers shall prescribe.
Section 10.6. Secretary. The Secretary shall attend all sessions of the
Managers and all meetings of the Members and shall record all votes and the
minutes of all such proceedings in a book to be kept for that purpose, and shall
perform like duties for any other committees of the Managers when required. The
Secretary shall give, or cause to be given, notice of all meetings of the
Members and special meetings of the Managers, and shall perform such other
duties as may be prescribed by the Managers or President, under whose
supervision he shall be.
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Section 10.7. Assistant Secretaries. Any Assistant Secretary shall, in
the absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as may be prescribed
by the Managers or the President.
Section 10.8. Treasurer. The Treasurer shall have the custody of all
corporate funds and securities, shall keep full and accurate accounts of
receipts and disbursements of the Company, and shall deposit all moneys and
other valuable effects in the name of and to the credit of the Company in such
depositories as may be designated by the Managers. The Treasurer shall disburse
the funds of the Company as may be ordered by the Managers, taking proper
vouchers for such disbursements, shall render to the President and Managers, at
the regular meetings of the Managers or whenever they may otherwise require, an
account of all his transactions as Treasurer and of the financial condition of
the Company, and shall perform such other duties as may be prescribed by the
Managers or the President.
Section 10.9. Assistant Treasurers. Any Assistant Treasurer shall, in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as may be prescribed
by the Managers or the President.
ARTICLE XI
INDEMNITY
Section 11.1. Indemnification. The Company shall indemnify its
Managers, officers, employees, agents and others as fully as, and to the same
extent a corporation may indemnify its directors, officers, employees and agents
under the Texas Business Corporation Act, now in effect or hereafter amended.
The Company shall have the power to purchase and maintain liability insurance
coverage for those persons as, and to the fullest extent, permitted by the Act,
as presently in effect and as may be hereafter amended.
Section 11.2. Indemnification Not Exclusive. The rights of
indemnification and reimbursement provided for in Section 1 of 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 Articles of Organization,
any Regulations, agreement or vote of Members, or as a matter of law or
otherwise.
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ARTICLE XII
MISCELLANEOUS
Section 12.1. Fiscal Year. The fiscal year of the Company shall end on
December 31st.
Section 12.2. Records. 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 Percentage Interest;
(c) A copy of the Articles of Organization and Regulations 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; and
(f) Minute books which accurately reflect the meetings of the
Members and Managers.
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. Checks. All checks, drafts or orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Company shall be signed by such officer or 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
Managers, such instruments shall be signed by the Treasurer or the Secretary and
countersigned by the President or a Vice President of the Company.
Section 12.5. 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.
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Section 12.6. Annual Statement. The Managers shall present at each
annual meeting, and, when called for by vote of the Members, at any special
meeting of the Members, a full and clear statement of the business and condition
of the Company.
Section 12.7. 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.
ARTICLE XIII
AMENDMENTS
Section 13.1. Amendments. These Regulations may be altered, amended or
repealed and new Regulations may be adopted by the vote of a majority of the
Percentage Interests of the Members, at any regular meeting or at any special
meeting called for that purpose.
Section 13.2. When Regulations Silent. It is expressly recognized that
when the Regulations are silent as to the manner of performing any Company
function, the provisions of the Act shall control.
CERTIFICATE
I, Robert A. Wehrmeyer, Jr., do hereby certify that I am the duly
elected and acting Secretary of KCI Properties Limited (the "Company") and that
the above and foregoing Regulations were adopted as the Regulations of the
Company by Action of the Managers of the Company dated December 30, 1991.
/s/ Robert A. Wehrmeyer, Jr.
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Robert A. Wehrmeyer, Jr., Secretary
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EXHIBIT A
Initial Capital Percentage
Member Contribution Interest
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Kinetic Concepts, Inc. _ 90%
KCI Therapeutic Services, Inc. _______ 10%