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EXHIBIT 10.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
VALLEY HEALTH SYSTEM LLC
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TABLE OF CONTENTS
Page
ARTICLE 1
CERTAIN DEFINITIONS......................................................................................1
1.1 Certain Definitions.............................................................................1
ARTICLE 2
INTERESTS IN AND CAPITAL OF THE COMPANY..................................................................7
2.1 Units; Percentage Shares........................................................................7
2.2 Initial Capital Contributions...................................................................7
2.3 Assessments.....................................................................................8
2.4 Return of Capital...............................................................................8
2.5 Limited Liability of Members, Assignees and Directors...........................................8
2.6 Options and Other Rights to Purchase Units......................................................8
2.7 Restoration of Deficit Capital Account..........................................................8
2.8 Restrictions on Sale or Exchange................................................................9
ARTICLE 3
ALLOCATIONS AND DISTRIBUTIONS............................................................................9
3.1 Allocation of Profits...........................................................................9
3.2 Allocation of Losses............................................................................9
3.3 Special Allocations.............................................................................9
3.4 Curative Allocations...........................................................................12
3.5 Other Allocations Rules........................................................................12
3.6 Tax Allocations: Code Section 704(c)...........................................................13
3.7 Allocations with Respect to Transferred Interests..............................................13
3.8 Allocation Definitions.........................................................................13
3.9 Distributions..................................................................................14
ARTICLE 4
MANAGEMENT OF THE COMPANY'S AFFAIRS;
BOARD OF DIRECTORS......................................................................................15
4.1 General Powers of the Board of Directors.......................................................15
4.2 Composition of Board of Directors..............................................................16
4.3 Regular Meetings...............................................................................16
4.4 Special Meetings...............................................................................16
4.5 Notice of Special Meetings.....................................................................16
4.6 Quorum of Directors............................................................................17
4.7 Manner of Acting; Super-Majority Vote..........................................................17
4.8 Informal Action by Board of Directors..........................................................18
4.9 Participation by Electronic Means or Proxy.....................................................18
4.10 Resignation....................................................................................18
4.11 Removal........................................................................................18
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4.12 No Committees..................................................................................18
4.13 Presumption of Assent..........................................................................18
4.14 Duty of Loyalty; Conflicts of Interest.........................................................18
4.15 Liability and Indemnity of the Directors and Officers..........................................18
4.16 Related Party Transactions.....................................................................19
4.17 Related Party Agreements.......................................................................20
ARTICLE 5
OFFICERS................................................................................................20
5.1 Appointment and Term of Office.................................................................20
5.2 Removal........................................................................................20
ARTICLE 6
MEMBERS.................................................................................................20
6.1 Admission of New Members.......................................................................20
6.2 Meetings.......................................................................................21
6.3 Quorum.........................................................................................21
6.4 Manner of Acting...............................................................................21
6.5 Proxies........................................................................................21
6.6 Voting by Certain Members......................................................................21
6.7 Action by Members Without a Meeting............................................................22
6.8 Voting by Ballot...............................................................................22
6.9 Waiver of Notice...............................................................................22
6.10 Resignation or Withdrawal......................................................................22
ARTICLE 7
TRANSFERS OF MEMBERSHIP INTERESTS BY MEMBERS............................................................22
7.1 Transfers......................................................................................22
7.2 Effect of Permitted Transfer...................................................................22
7.3 Prohibited Transfers...........................................................................23
7.4 Involuntary Withdrawal.........................................................................23
7.5 Exceptions to Restrictions.....................................................................23
7.6 Loss of Voting Rights..........................................................................24
7.7 Tax Treatment of Acquisitions of Interests by Company..........................................24
ARTICLE 8
PURCHASE RIGHTS AND OPTIONS.............................................................................24
8.1 Purchase Right.................................................................................24
8.2 Purchase Option................................................................................25
8.3 Tag Along/Co-Sale Rights on Transfers by a Member..............................................26
8.4 Put Right......................................................................................26
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ARTICLE 9
DISSOLUTION AND LIQUIDATION OF THE COMPANY..............................................................29
9.1 Liquidating Events.............................................................................29
9.2 Method of Liquidation..........................................................................30
9.3 Reasonable Time for Liquidation................................................................31
9.4 Distribution to Liquidating Trust..............................................................31
9.5 Date of Termination............................................................................31
9.6 Certificate of Cancellation....................................................................31
ARTICLE 10
COMPANY FUNDS AND ACCOUNTING............................................................................31
10.1 Books of Account; Records and Information......................................................31
10.2 Period and Method of Accounting................................................................32
10.3 Reports........................................................................................32
10.4 Tax Elections..................................................................................32
10.5 Tax Matters Manager............................................................................32
ARTICLE 11
NONCOMPETE..............................................................................................32
11.1 Business Activities of Members.................................................................32
11.2 Covenant Not to Compete........................................................................33
11.3 Enforcement....................................................................................34
11.4 Reasonableness................................................................................34
ARTICLE 12
GENERAL.................................................................................................34
12.1 Filings........................................................................................34
12.2 Status of Company for Tax Purposes.............................................................34
12.3 Waiver of Action for Partition.................................................................34
12.4 Nonrecourse Loans..............................................................................35
12.5 Notice.........................................................................................35
12.6 Binding Effect.................................................................................35
12.7 Construction...................................................................................35
12.8 Survival of Provisions.........................................................................35
12.9 Integrated Agreement...........................................................................36
12.10 Governing Law..................................................................................36
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LIMITED LIABILITY COMPANY AGREEMENT
OF
VALLEY HEALTH SYSTEM LLC
This Limited Liability Company Agreement ("AGREEMENT") of VALLEY HEALTH
SYSTEM LLC (the "COMPANY") is made and entered into effective as of 12:01 AM
Pacific Time, February 1, 1998 (the "EFFECTIVE DATE"), by and among VALLEY
HOSPITAL MEDICAL CENTER, INC., a Nevada corporation ("VHMC"), and NC-DSH, INC.,
a Nevada corporation ("NC-DSH") (each of the foregoing, and each additional
Person admitted as a member of the Company, shall be referred to individually as
a "MEMBER" and collectively as "MEMBERS").
A. The Company was formed as a Delaware limited liability company under
the Delaware Limited Liability Company Act (6 Delaware Code Section
18-101, et seq., as it may be amended or succeeded from time to time
(the "ACT")) by filing a Certificate of Formation with the Office of
the Delaware Secretary of State on January 16, 1998.
B. Newco Q LLC, a wholly owned subsidiary of NC-DSH, merged with and into
the Company effective at the Effective Date (the "MERGER").
C. The Members desire to enter into this Agreement to replace the previous
limited liability company agreement of the Company and to set forth the
provisions governing the management and conduct of the business of the
Company and the rights and obligations of the Members.
The Members, in consideration of the foregoing premises and their
mutual covenants and agreements set forth herein, agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the following
capitalized terms shall have the meanings set forth below (certain other
definitions may be found in Section 3.8 or elsewhere in this Agreement):
1.1.1 Affiliate shall mean, when used with reference to a
specified Person: (i) any Person that, directly or indirectly, through
one or more intermediaries or by contractual agreement, controls or is
controlled by or is under common control with the specified Person;
(ii) any Person that is an officer of, partner in, or director of, or
trustee of, or serves in a similar capacity with respect to the
specified Person or of which the specified Person is an officer,
partner, director, or trustee, or with respect to which the specified
Person serves in a similar capacity; (iii) any Person
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that, directly or indirectly, is the beneficial owner of ten percent
(10%) or more of any class of the outstanding voting securities of, or
otherwise has a substantial beneficial interest in, the specified
Person, or of which the specified Person is, directly or indirectly,
the owner of 10% or more of any class of voting securities of, or in
which the specified Person has a substantial beneficial interest; and
(iv) any spouse, brothers, sisters, ancestors and descendants of 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 the ownership of voting securities, by
contract, or otherwise, and the term "voting securities" includes,
without limitation, partnership interests and limited liability company
interests.
1.1.2 Bankruptcy or Bankrupt shall mean, with respect to any
Person, the adjudication of bankruptcy, declaration of insolvency, or
the assignment for the benefit of creditors of or by such Person, the
subjection of part or all of the property of such Person to the control
and direction of a receiver, which receivership is not dismissed within
ninety (90) days of such receiver's appointment, or the filing by such
Person or the involuntary filing against such Person of a petition for
relief under any federal or other bankruptcy or insolvency law or for
an arrangement with creditors which is not dismissed within ninety (90)
days.
1.1.3 Business shall mean any lawful activity engaged in by
the Company related to, and in furtherance of, the ownership, operation
and management of the Hospitals and related health care services
businesses. The Company's principal executive office shall be located
at 620 Shadow Lane, Las Vegas, Nevada 89106
1.1.4 Capital Account shall mean, with respect to any Member,
the Capital Account maintained for such Member in accordance with the
following provisions:
1.1.4.1 To each Member's Capital Account there shall
be credited such Member's Capital Contributions, the Member's
distributive share of Profits and any items in the nature of
income or gain that are specifically allocated to such Member
pursuant to Section 3.3 or 3.4 hereof, and the amount of any
Company liabilities assumed by such Member or which are
secured by any Company Property distributed to such Person.
1.1.4.2 To each Member's Capital Account there shall
be debited the amount of cash and the Gross Asset Value of any
Company Property distributed to such Member pursuant to any
provision of this Agreement, the Member's distributive share
of Losses and any items in the nature of expenses or losses
that are specially allocated to such Member pursuant to
Section 3.3 or 3.4 hereof, and the amount of any liabilities
of such Member assumed by the Company or which are secured by
any property contributed by such Member to the Company.
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1.1.4.3 In the event any Interest is transferred in
accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred Interest; provided,
however, that no transfer of an Interest shall, in and of
itself, relieve the transferor of any obligation to the
Company, including, but not limited to, any such transferor's
obligation to contribute to the capital of the Company.
1.1.4.4 In determining the amount of any liability
for purposes of Subsections 1.1.4.1 and 1.1.4.2 hereof, there
shall be taken into account Code Section 752(c) and any other
applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of the Agreement relating to
the maintenance of Capital Accounts are intended to comply with Regulations
Section 1.704-1(b), and shall be interpreted and applied in a manner consistent
with these Regulations. In the event the Board of Directors determines that it
is prudent to modify the manner in which the Capital Accounts, or any debits or
credits thereto (including, without limitation, debits or credits relating to
liabilities that are secured by contributed or distributed property, or that are
assumed by the Company or the Members), are computed in order to comply with
such Regulations, the Board of Directors may make such modification if approved
in writing by VHMC and NC-DSH.
1.1.5 Capital Contribution shall mean, with respect to any
Member, the amount of money and the initial Gross Asset Value of any
property (other than money) contributed at any time to the Company with
respect to such Member's Interest in the Company.
1.1.6 Code shall mean the Internal Revenue Code of 1986, as
amended from time to time.
1.1.7 Company Property shall mean any and all interests and
rights of any type or nature in all real and personal property,
tangible and intangible, owned or acquired by the Company, including,
without limitation, the Hospitals and all assets used in connection
with the Hospitals that are owned, leased or operated by the Company.
1.1.8 Depreciation shall mean for each fiscal year or other
shorter period, an amount equal to the depreciation, amortization or
other cost recovery deduction allowable with respect to an asset for
such year or other period, except that if the Gross Asset Value of an
asset differs from its adjusted basis for federal income tax purposes
at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value
as the federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that if the federal
income tax depreciation, amortization, or other cost
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recovery deduction for such year is zero, Depreciation shall be
determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the Board of Directors and approved in
writing by VHMC and NC-DSH.
1.1.9 Distributable Cash shall be defined for the applicable
period of time as (i) the sum of (a) all cash receipts from all sources
from the operations of the Company during such period, excluding the
proceeds of indebtedness of the Company or from the issuance of
additional Interests for cash, and (b) any reduction in Reserves
established by the Board of Directors in prior periods as set forth
below, less (ii) the sum of (aa) all cash disbursements of the Company
during such period of time, including without limitation, disbursements
by the Company on behalf of or amounts withheld with respect to,
Members of the Company in the capacity of Members but only if such
withheld amounts are pursuant to Subsection 3.9.3 hereof, if any, debt
service (including the payment of principal, premium and interest),
capital expenditures and redemptions of Interests in the Company
pursuant to Section 736 of the Code, and (bb) any Reserves. "RESERVES"
shall mean the sum of: (a) thirty (30) days operating cash computed by
multiplying thirty (30) times the average daily actual cash
disbursements for the previous three (3) months excluding cash
disbursements for capital expenditures and (b) one and one-quarter
percent (1.25%) of budgeted net revenues for the fiscal year.
Notwithstanding anything in this Agreement to the contrary, the Company
shall not make any distributions that would render it insolvent in
violation of Act. Nothing contained herein nor distributions hereunder
are intended nor shall be construed or applied to violate the fraud and
abuse prohibitions under the Medicare and Medicaid programs.
1.1.10 Gross Asset Value shall mean, with respect to any
asset, the asset's adjusted basis for federal income tax purposes,
except as follows:
1.1.10.1 The initial Gross Asset Value of any asset
(other than cash) contributed by a Member to the Company shall
be the gross fair market value of such asset as determined by
the Members and the Company, provided that the initial Gross
Asset Value of the assets contributed by VHMC pursuant to
Section 2.2 hereof shall be Two Hundred Sixty-Three Million
Six Hundred Thirty-Six Thousand Three Hundred Sixty-Four and
No/100 Dollars ($263,636,364.00) plus the working capital
contributed to the Company by VHMC pursuant to the
Contribution Agreement and the initial Gross Asset Value of
the assets contributed by NC-DSH pursuant to Section 2.2 shall
be One Hundred Million and No/100 Dollars ($100,000,000.00)
plus the working capital contributed to the Company by NC-DSH
pursuant to the Contribution Agreement;
1.1.10.2 The Gross Asset Values of all Company assets
shall be adjusted to equal their respective gross fair market
values, as reasonably determined by the Board of Directors, as
of the following times: (a) the
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acquisition of an additional Interest by any new or existing
Member in exchange for more than a de minimis Capital
Contribution; (b) the distribution by the Company to a Member
of more than a de minimis amount of Company Property as
consideration for an Interest; and (c) the liquidation of the
Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g); provided, however, that the adjustments
pursuant to clauses (a) and (b) above shall be made only if
the Board of Directors reasonably determines that such
adjustments are necessary or appropriate to reflect the
relative economic rights of the Members in the Company;
1.1.10.3 The Gross Asset Value of any Company asset
distributed to any Member shall be the gross fair market value
of such asset on the date of distribution as determined by the
distributee and the Board of Directors; and
1.1.10.4 The Gross Asset Values of Company assets
shall be increased (or decreased) to reflect any adjustments
to the adjusted basis of such assets pursuant to Code Section
734(b) or Code Section 743(b), but only to the extent that
such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)
and Section 3.5 hereof; provided, however, that Gross Asset
Values shall not be adjusted pursuant to this Subsection
1.1.10.4 to the extent the Board of Directors determines that
an adjustment pursuant to Subsection 1.1.10.2 is necessary or
appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this Subsection
1.1.10.4.
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to Subsections 1.1.10.1, 1.1.10.2, or 1.1.10.4 such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits
and Losses.
1.1.11 Hospitals shall mean all the assets and properties the
Company acquired from VHMC and its Affiliates pursuant to the
Contribution Agreement and all the assets and properties the Company
acquired pursuant to the Merger, together with additions thereto and
reduced by dispositions since such acquisition.
1.1.12 Interest shall mean a Member's entire ownership
interest in the Company at any particular time, including its
Percentage Share and the rights and obligations of such Member provided
herein or in the Act.
1.1.13 Liquidating Event shall mean any of the events listed
in Section 9.1 requiring the dissolution, winding up and liquidation of
the Company and its assets.
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1.1.14 Person shall mean any individual, corporation,
partnership, limited liability company, professional association,
company, trust, estate or other entity.
1.1.15 Profits and Losses shall mean, for each fiscal year or
other shorter period, an amount equal to the Company's taxable income
or loss for such year or period, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code Section
703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
1.1.15.1 Any income of the Company that is exempt
from federal income tax and not otherwise taken into account
in computing Profits and Losses pursuant to this Subsection
1.1.15 shall be added to such taxable income or loss;
1.1.15.2 Any expenditures of the Company described in
Code Section 705(a)(2)(B) or treated as Code Section
705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses pursuant to this Subsection 1.1.16
shall be subtracted from such taxable income or loss;
1.1.15.3 In the event the Gross Asset Value of any
Company asset is adjusted pursuant to Subsection 1.1.15.3 or
1.1.15.4 hereof, the amount of such adjustment shall be taken
into account as gain or loss from the disposition of such
asset for purposes of computing Profits or Losses;
1.1.15.4 Gain or loss resulting from any disposition
of Company Property with respect to which gain or loss is
recognized for federal income tax purposes shall be computed
by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value; and
1.1.15.5 In lieu of the depreciation, amortization,
and other cost recovery deductions taken into account in
computing such taxable income or loss, there shall be taken
into account Depreciation for such fiscal year or other
shorter period, computed in accordance with Subsection 1.1.15
hereof.
1.1.15.6 To the extent an adjustment to the adjusted
tax basis of any Company asset pursuant to Code Section 734(b)
or Code Section 743(b) is required pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as a result of a distribution
other than in liquidation of a Member's Interest, the amount
of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the
adjustment decreases the basis of the
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asset) from the disposition of the asset and shall be taken
into account for purposes of computing Profits or Losses; and
1.1.15.7 Notwithstanding any other provisions of this
Subsection 1.1.15, any items which are specially allocated
pursuant to Section 3.3 or Section 3.4 hereof shall not be
taken into account in computing Profits or Losses.
1.1.16 Contribution Agreement shall mean that Contribution
Agreement by and between VHMC and NC-DSH dated on or about January 30,
1998 pursuant to which the Company shall acquire the Hospitals.
1.1.17 Regulations shall mean those regulations promulgated by
the United States Treasury Department under the Code, as such
regulations may be amended at any time and from time to time (including
corresponding provisions of succeeding regulations).
ARTICLE 2
INTERESTS IN AND CAPITAL OF THE COMPANY
2.1 Units; Percentage Shares. Each Member's Interest in the Company
shall be denominated in "UNITS", or fractions thereof. Each Unit represents a
Capital Contribution of cash or assets with an initial Gross Asset Value of One
Hundred Thousand Dollars ($100,000.00). A Member's "PERCENTAGE SHARE" in the
Company shall be obtained by converting to a percentage the fraction having as
its numerator the number of Units held by such Member and having as its
denominator the aggregate number of Units held by all Members at the time. The
initial Units and Percentage Share of each Member shall be set forth opposite
such Member's name on Exhibit 2.1 attached hereto. Thereafter, such Percentage
Share shall be adjusted from time to time in accordance with this Agreement. All
such adjustments shall be reflected on Exhibit 2.1 hereto, which shall be
revised as a result thereof through the execution of a revised Exhibit 2.1 by
the Company's Chief Executive Officer and each of VHMC and NC-DSH. In case of
any conflict between two Exhibits 2.1, the exhibit having the latest date shall
be conclusive and binding for all purposes, absent manifest error.
2.2 Initial Capital Contributions. The Initial Capital Contribution of
VHMC shall be the Hospitals contributed pursuant to the Contribution Agreement.
The Initial Capital Contribution of NC-DSH shall be the Hospitals contributed
pursuant to the Merger. A Member shall be liable only to make the initial
Capital Contribution described herein. Except as provided in the Act or Section
2.3, after such Member's initial Capital Contribution shall be fully paid, such
Member shall not be required to make any further Capital Contributions or to
lend any funds to the Company.
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2.3 Assessments. The Board of Directors is empowered to request
additional Capital Contributions from the Members in such amounts and at such
times as determined in its reasonable judgment but only for purposes of capital
improvements to the Hospitals and capital projects for expansion of the
Business. Such assessments shall be made pro rata based on each Member's
Percentage Share so as to maintain the Members' respective Percentage Shares.
Each Member shall have the right to determine if they wish to comply with an
assessment. The capital accounts of all Members who pay the assessment shall be
adjusted pursuant to Section 1.1.4 and, if not all Members comply with the
assessment, Members who pay the assessment shall receive a proportional increase
in their number of Units and Percentage Share based on the then current fair
market value of a Unit. In the event NC-DSH declines to comply with a capital
assessment and objects to the value at which additional Interests are issued or
the adjustments made to the Members' Capital Accounts, Units or Percentage
Shares, NC-DSH and VHMC shall comply with the dispute resolution provisions of
Section 4.16, provided however, that NC-DSH shall pay the cost of any
arbitration engaged in under Section 4.16 brought pursuant to this Section 2.3
and provided further that, in the event the arbitrator determines that an
appraisal is required and selects the appraiser and controls the appraisal
process, NC-DSH shall pay the cost and expenses of such appraisal. If either
NC-DSH or VHMC retain an appraiser, the cost of such appraisal shall be borne by
NC-DSH or VHMC respectively.
2.4 Return of Capital. Except as provided in Articles 3 and 9, no
Member or assignee shall have the right to demand or receive a return of all or
any part of such Member's initial or additional contributions to the capital of
the Company, or to receive any specific property of the Company. No Member (or
assignee) shall be entitled to any interest on such Member's Capital Account.
2.5 Limited Liability of Members, Assignees and Directors. Except as
provided in this Section 2.5, no Member, assignee or Director shall be
personally liable for the acts, debts, liabilities, or other obligations of the
Company, whether arising in contract, tort or otherwise, or for the acts or
omissions of any other Member, assignee or Director, employee or agent of the
Company. Except as otherwise provided herein, each Member, Director and assignee
shall be liable only to make the Capital Contributions that it has agreed to
make and for such Person's own acts and conduct.
2.6 Options and Other Rights to Purchase Units. The Board of Directors
shall not have the right to grant, sell or issue additional Units, options or
other rights, including convertible securities (collectively "UNIT
EQUIVALENTS"), for the purchase of Units to any Person without the written
consent of each of VHMC and NC-DSH.
2.7 Restoration of Deficit Capital Account. In the event a Member,
following a Liquidating Event, has a deficit in its Capital Account as a result
of a distribution previously made pursuant to this Agreement, then such Member
shall be obligated to pay to the Company an amount equal to such deficit. Any
Member required to so contribute shall contribute the amount of such deficit
within 30 days of a request for such payment from the
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Board of Directors. No Member shall have any liability for restoration of any
other Member's negative Capital Account balance.
2.8 Restrictions on Sale or Exchange. The Interests have not been
registered under the Securities Act of 1933, as amended, but were issued
pursuant to an exemption from such registration. Notwithstanding any provisions
to the contrary in this Agreement, except for transactions governed by Section
7.5, no reoffers, reoffers for sale, resale or transfer of the Interests may be
made except pursuant to an exemption from such registration under the Securities
Act of 1933 and applicable state law evidenced by an opinion of counsel in form
and by counsel reasonably satisfactory to the Board of Directors, VHMC and
NC-DSH.
ARTICLE 3
ALLOCATIONS AND DISTRIBUTIONS
3.1 Allocation of Profits. After giving effect to the special
allocations set forth in Sections 3.3 and 3.4 hereof, Profits for any fiscal
year or other shorter period shall be allocated among Members in accordance with
their respective Percentage Shares.
3.2 Allocation of Losses. After giving effect to the special
allocations set forth in Sections 3.3 and 3.4 hereof, Losses for any fiscal year
or other shorter period shall be allocated among Members in accordance with
their respective Percentage Shares.
3.2.1 The Losses allocated pursuant to Section 3.2 hereof
shall not exceed the maximum amount of Losses that can be so allocated
without causing any Member to have an Adjusted Capital Account Deficit
at the end of any fiscal year. In the event some but not all of the
Members would have Adjusted Capital Account Deficits as a consequence
of an allocation of Losses pursuant to Section 3.2, the limitation set
forth in this Subsection 3.2.1 shall be applied on a Member by Member
basis so as to allocate the maximum permissible Loss to each Member
under Section 1.704-1(b)(2)(ii)(d) of the Regulations. All Losses in
excess of the limitation set forth in this Subsection 3.2.1 shall be
allocated among the Members in accordance with their respective
Percentage Shares.
3.3 Special Allocations. The following special allocations shall be
made in the following order (the definition of capitalized terms used in this
Article 3, not previously defined herein, are set forth in Section 3.8):
3.3.1 Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(f) of the Regulations, notwithstanding any other
provision of this Article 3, if there is a net decrease in Company
Minimum Gain during any Company fiscal year or other shorter period,
each Member shall be specially allocated items of Company income and
gain for such year or other shorter period (and, if necessary,
subsequent years) in an amount equal to such Member's share of the net
decrease
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in Company Minimum Gain, determined in accordance with Regulations
Section 1.704-2(g). Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(f)(6) and
1.704-2(j)(2) of the Regulations. This Subsection 3.3.1 is intended to
comply with the minimum gain chargeback requirement in Section
1.704-2(f) of the Regulations and shall be interpreted consistently
therewith.
3.3.2 Member Minimum Gain Chargeback. Except as otherwise
provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding
any other provision of this Article 3 except Subsection 3.3.1, if there
is a net decrease in Member Nonrecourse Debt Minimum Gain attributable
to a Member Nonrecourse Debt during any Company fiscal year or other
shorter period, each Member who has a share of the Member Nonrecourse
Debt Minimum Gain attributable to such Member Nonrecourse Debt,
determined in accordance with Section 1.704-2(i)(5) of the Regulations,
shall be specially allocated items of Company income and gain for such
year or other shorter period (and, if necessary, subsequent years) in
an amount equal to such Member's share of the net decrease in Member
Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse
Debt, determined in accordance with Regulations Section 1.704-2(i)(4).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2)
of the Regulations. This Subsection 3.3.2 is intended to comply with
the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the
Regulations and shall be interpreted consistently therewith.
3.3.3 Qualified Income Offset. In the event any Member
unexpectedly receives any adjustments, allocations, or distributions
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of income
and gain shall be specially allocated to each such Member in an amount
and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Member as
quickly as possible, provided that an allocation pursuant to this
Subsection 3.3.3 shall be made if and only to the extent that such
Member would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article 3 have been tentatively made
as if this Subsection 3.3.3 were not in the Agreement.
3.3.4 Gross Income Allocation. In the event any Member has a
deficit Capital Account at the end of any Company fiscal year or other
shorter period that is in excess of the sum of (i) the amount such
Member is obligated to restore, and (ii) the amount such Member is
deemed to be obligated to restore pursuant to the penultimate sentences
of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such
Member shall be specially allocated items of Company income and gain in
the amount of such excess as quickly as possible, provided that an
allocation
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pursuant to this Subsection 3.3.4 shall be made if and only to the
extent that such Member would have a deficit Capital Account in excess
of such sum after all other allocations provided for in this Article 3
have been tentatively made as if Subsection 3.3.3 hereof and this
Subsection 3.3.4 were not in the Agreement.
3.3.5 Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year or other shorter period shall be specially allocated among
the Members, in accordance with their respective Percentage Shares.
3.3.6 Member Nonrecourse Deductions. Any Member Nonrecourse
Deductions for any fiscal year or other shorter period shall be
specially allocated to the Member who bears the economic risk of loss
with respect to the Member Nonrecourse Debt to which such Member
Nonrecourse Deductions are attributable in accordance with Regulations
Section 1.704-2(i)(1).
3.3.7 Code Section 754 Adjustments. To the extent an
adjustment to the adjusted tax basis of any Company asset pursuant to
Code Section 734(b) or Code Section 743(b) is required, pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining
Capital Accounts as the result of a distribution to a Member in
complete liquidation of his or her Interest, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis), and such gain or loss shall be
specially allocated to the Members in accordance with their interests
in the Company in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Members to whom such
distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies. No Code Section 754 election shall be
made without the consent of each of VHMC and NC-DSH.
3.3.8 Allocations Relating to Taxable Issuance of Company
Units. Any income, gain, loss or deduction realized as a direct or
indirect result of the issuance of Units by the Company to a Member
(the "ISSUANCE ITEMS") shall be allocated among the Members so that, to
the extent possible, the net amount of such Issuance Items, together
with all other allocations under this Agreement to each Member shall be
equal to the net amount that would have been allocated to each such
Member if the Issuance Items had not been realized.
3.3.9 Imputed Interest. To the extent the Company has taxable
interest income with respect to any promissory note pursuant to Section
483 or Sections 1271 through 1288 of the Code:
3.3.9.1 Such interest income shall be specially
allocated to the Member to whom such promissory note relates;
and
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3.3.9.2 The amount of such interest income shall be
excluded from the Capital Contributions credited to such
Member's Capital Account in connection with payments of
principal with respect to such promissory note.
3.4 Curative Allocations. The allocations set forth in Subsections
3.2.1, 3.3.1, 3.3.2, 3.3.3, 3.3.4, 3.3.5, 3.3.6 and 3.3.7 hereof (the
"REGULATORY ALLOCATIONS") are intended to comply with certain requirements of
the Regulations. It is the intent of the Members that, to the extent possible,
all Regulatory Allocations shall be offset either with other Regulatory
Allocations or with special allocations of other items of Company income, gain,
loss, or deduction pursuant to this Section 3.4. Therefore, notwithstanding any
other provision of this Article 3 (other than the Regulatory Allocations), the
Board of Directors shall make such offsetting special allocations of Company
income, gain, loss, or deduction in whatever manner it determines appropriate so
that, after such offsetting allocations are made, each Member's Capital Account
balance is, to the extent possible, equal to the Capital Account balance such
Member would have had if the Regulatory Allocations were not part of this
Agreement and all Company items were allocated pursuant to Sections 3.1, 3.2,
3.3.8, 3.3.9, and 3.5. In exercising its discretion under this Section 3.4, the
Board of Directors shall take into account future Regulatory Allocations under
Subsections 3.3.1 and 3.3.2 that, although not yet made, are likely to offset
other Regulatory Allocations previously made under Subsections 3.3.5 and 3.3.6.
3.5 Other Allocations Rules.
3.5.1 Basis for Determining Profits or Losses. For purposes of
determining the Profits, Losses, or any other items allocable to any
period, Profits, Losses, and any such other items shall be determined
on a daily, monthly, or other basis, as determined by the Board of
Directors on a consistent basis using any permissible method under Code
Section 706 and the Regulations thereunder.
3.5.2 Distributions of Cash treated as proceeds from
Nonrecourse Liability or Member Nonrecourse Debt. To the extent
permitted by Sections 1.704-2(h)(3) of the Regulations, the Board of
Directors shall endeavor to treat distributions of cash as having been
made from the proceeds of a Nonrecourse Liability or a Member
Nonrecourse Debt only to the extent that such distributions would cause
or increase an Adjusted Capital Account Deficit for any Member.
3.5.3 Allocations of Items Not Otherwise Allocated. Except as
otherwise provided in this Agreement, all items of Company income,
gain, credit, loss, deduction, and any other allocations not otherwise
provided for shall be divided among the Members in the same proportions
as they share Profits or Losses, as the case may be, for such fiscal
year or other shorter period.
3.5.4 Allocations Binding. The Members are aware of the income
tax consequences of the allocations made by this Article 3 and hereby
agree to be bound by the provisions of this Article 3 in reporting
their respective shares of
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Company income and loss for income tax purposes. The Members further
intend that pursuant to Regulations Section 1.704-1(b)(3), the Members'
respective interests in the Company are equal to their respective
Percentage Shares for purposes of complying with Section 704(b) of the
Code.
3.6 Tax Allocations: Code Section 704(c). In accordance with Code
Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction
with respect to any property contributed to the capital of the Company shall,
solely for tax purposes, be allocated among the Members so as to take account of
any variation between the adjusted basis of such property to the Company for
federal income tax purposes and its initial Gross Asset Value. In applying Code
Section 704(c) and the regulations thereunder, VHMC and NC-DSH will jointly
determine the allocation method or methods that will, to the extent allowable,
allocate items governed under Code Section 704(c) so as to provide the
contributing member with the tax depreciation and amortization it would have had
notwithstanding formation of the Company.
3.7 Allocations with Respect to Transferred Interests.
3.7.1 General Rule. If any Member's Interest is transferred,
or is increased or decreased by reason of the admission of a new
Member, or otherwise, during any fiscal year or other shorter period of
the Company, Profits or Losses and any other item of income, gain,
loss, deduction or credit of the Company for such fiscal year or other
shorter period shall be allocated among the Members in accordance with
their varying respective Percentage Shares which they had from time to
time during such fiscal year or other shorter period in accordance with
Code Section 706(d).
3.7.2 Accounting Convention. For convenience in accounting,
the Company may, to the extent permitted by law, treat a transfer of an
Interest, or an increase or decrease of a Member's Percentage Share,
that occurs at any time during a month (commencing with the month
including the date of this Agreement) as having been consummated on the
first day of that month, regardless of when during that month, the
transfer, increase or decrease actually occurs, or adopt such other
convention as the Board of Directors may lawfully select.
3.7.3 Sale or Other Disposition of All Assets. Notwithstanding
anything in Section 3.6 to the contrary, gain or loss of the Company
realized in connection with the sale or other disposition of all or
substantially all Company Property and/or the liquidation of the
Company shall be allocated only to Members who own Interests as of the
date such transaction occurs.
3.8 Allocation Definitions.
3.8.1 Adjusted Capital Account Deficit shall mean with respect
to any Member, the deficit balance, if any, in such Member's Capital
Account as of the end
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of the relevant fiscal year or other shorter period, after giving
effect to the following adjustments:
3.8.1.1 Credit to such Capital Account any amounts
which such Member is obligated to restore or is deemed to be
obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
3.8.1.2 Debit to such Capital Account the items
described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of
the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d)
of the Regulations and shall be interpreted consistently therewith.
3.8.2 Nonrecourse Deductions has the meaning set forth in
Section 1.704-2(b)(1) of the Regulations.
3.8.3 Nonrecourse Liability has the meaning set forth in
Section 1.704-2(b)(3) of the Regulations.
3.8.4 Member Nonrecourse Debt has the meaning set forth in
Section 1.704-2(b)(4) of the Regulations for "Partner Nonrecourse Debt"
after substituting therein the word "Member" in place of the word
"Partner".
3.8.5 Member Nonrecourse Debt Minimum Gain means an amount,
with respect to each Member Nonrecourse Debt, equal to the Company
Minimum Gain that would result if such Member Nonrecourse Debt were
treated as a Nonrecourse Liability, determined in accordance with
Section 1.704-2(i)(3) of the Regulations.
3.8.6 Member Nonrecourse Deductions has the meaning set forth
in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations for
"Partner Nonrecourse Deductions" after substituting therein the word
"Member" in place of the word "Partner".
3.8.7 Company Minimum Gain has the meaning set forth in
Regulations Sections 1.704-2(b)(2) and 1.704-2(d) for "Partnership
Minimum Gain" after substituting therein the word "Company" in place of
the word "Partnership".
3.9 Distributions.
3.9.1 Distributions of Distributable Cash. The Board of
Directors shall make distributions on a quarterly basis of
Distributable Cash or other property to the Members (or assignees) in
accordance with their respective Percentage Shares.
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3.9.2 Restrictions on Use of Distributions. Nothing contained
herein is intended nor shall be construed or applied to violate the
fraud and abuse prohibitions under the Medicare and Medicaid programs.
3.9.3 Amounts Withheld. All amounts withheld pursuant to the
Code or any provision of any state or local tax law with respect to any
payment of taxes of Members or distribution to the Members shall be
treated as amounts distributed to the Members pursuant to this Section
3.9 for all purposes under this Agreement.
3.9.4 Distributions in Kind. No Member shall have the right to
demand or receive distributions of property other than cash.
Distributions in kind of Company property, in liquidation or otherwise,
shall be made only with the written consent of the Board of Directors,
VHMC and NC-DSH and only at a value agreed to in writing by the Board
of Directors, VHMC and NC-DSH. Prior to any such distribution in kind,
the difference between such agreed value and the book value of such
property shall be credited or charged, as the case may be, to the
Members' (and assignees') Capital Accounts in proportion to their
Percentage Shares, except as may otherwise be required under Code
Section 704(c). Upon the distribution of such property, such agreed
value shall be charged to the Capital Accounts of the Members (or
assignees) receiving such distribution.
ARTICLE 4
MANAGEMENT OF THE COMPANY'S AFFAIRS;
BOARD OF DIRECTORS
4.1 General Powers of the Board of Directors. The business and affairs
of the Company shall be managed by its "BOARD OF DIRECTORS" (herein so called)
and the persons serving on the Board of Directors (the "DIRECTORS"), who shall
serve in the capacity of "Managers" as defined in the Act. The Board of
Directors shall direct, manage and control the Company's business to the best of
its ability and shall have full and complete authority, power, and discretion to
make any and all decisions and do any and all things which the Board of
Directors deems necessary or desirable for that purpose, subject to the rights
and responsibilities of the Members including provisions of this Agreement
requiring the approval of VHMC and/or NC-DSH prior to the taking of certain
actions . Unless expressly authorized by the Board of Directors, no Member shall
have any authority to bind or obligate the Company; provided that the acts of
VHMC and NC-DSH on behalf of the Company taken for purposes of forming the
Company prior to the adoption of this Agreement are hereby ratified in full.
Certain aspects of the Company's day to day operations shall be managed by UHS
of Delaware, Inc., a Delaware Corporation, pursuant to the Management Agreement
described in Section 4.16, subject at all times to the provisions of this
Agreement requiring the approval of VHMC and/or NC-DSH prior to the taking of
certain actions.
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4.2 Composition of Board of Directors. The Board of Directors shall be
comprised of five (5) Directors, consisting of three (3) Directors appointed by
VHMC and two (2) Directors appointed by NC-DSH. No other Member shall have any
appointees. Each Director shall be an employee of a Member or an employee of a
person controlling, controlled by or under common control with such Member.
After initial appointments to the Board of Directors are made, the failure to
timely appoint or select Directors shall not affect the validity of actions
taken by those who are serving and such unfilled positions shall not be counted
in determining a quorum. The Board of Directors shall annually elect one (1) of
the Directors to serve as "CHAIRMAN." The Chairman shall preside over all
meetings of the Board of Directors (and any meetings of the Members) and shall
have such other duties and responsibilities as the Board of Directors may from
time to time designate. No Director shall receive any compensation from the
Company for service on the Board of Directors.
4.3 Regular Meetings. The Board of Directors may provide, by
resolution, the time and place for the holding of regular meetings without other
notice than such resolution. Notwithstanding the foregoing, the Board of
Directors shall meet no less than once per calendar quarter. Pursuant to Section
4.9, such meetings need not be held in person.
4.4 Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board of Directors, who shall
fix any place as the place for holding such special meeting.
4.5 Notice of Special Meetings. Written notice of any special meeting
of the Board of Directors setting forth the matters to be discussed at the
special meeting shall be given by the Chairman of the Board of Directors as
follows:
4.5.1 By mail to each Director at his or her business address
at least five (5) business days prior to the meeting; or
4.5.2 By personal delivery, telegram or telecopy at least
seventy-two (72) hours prior to the meeting to the business address of
each Director, or in the event such notice is given on a Saturday,
Sunday or holiday, to the residence address of each Director. If
mailed, such notice shall be deemed to be delivered when deposited in
the United States mail, so addressed, with postage thereon prepaid. If
notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. If
notice is delivered by telecopy, such notice shall be deemed to be
delivered when a confirmation of receipt of the telecopy is printed by
the sending telecopier.
4.5.3 Any Director may waive notice of any meeting. The
attendance of a Director at any meeting shall constitute a waiver of
notice of such meeting, except where a Director attends a meeting for
the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
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4.5.4 When any notice is required to be given to a Director, a
waiver thereof in writing signed by such Director, whether before, at
or after the time stated therein, shall constitute the giving of such
notice.
4.6 Quorum of Directors. A majority of the of Directors provided in
Section 4.2 hereof shall constitute a quorum for the transaction of business of
the Board of Directors so long as at least one Director appointed by each of
VHMC and NC-DSH is present, but if less than such majority is represented at a
meeting, a majority of the Board of Directors represented may adjourn the
meeting from time to time without further notice.
4.7 Manner of Acting; Super-Majority Vote. Each Director shall have one
(1) vote with respect to any matter put to a vote of the Board of Directors. Any
Director may act in person or by proxy. The act of all Directors voting at a
meeting at which a quorum is represented shall be deemed the act of a
"SUPER-MAJORITY" of the Board of Directors. The act of the majority of the
Directors represented at a meeting at which a quorum is represented shall be
deemed the act of the Board of Directors, except that each of the following
actions shall require the vote of a Super-Majority of the Board of Directors:
4.7.1 Changing the Business of the Company.
4.7.2 Amending this Agreement or the Certificate of Formation.
4.7.3 Approving the selection of or any change in the location
of the Company's principal office if outside the city of Las Vegas,
Nevada.
4.7.4 Except as specifically provided in Section 7.5, and as
set forth in Article 8, the Transfer by a Member of the whole or any
portion of its Interest.
4.7.5 Except as specifically provided in Section 7.5, and as
set forth in Article 8, approving the admission of any Person as a new
Member.
4.7.6 Issuing additional Units or Unit Equivalents other than
to VHMC and/or NC-DSH in exchange for additional Capital Contributions
pursuant to Section 2.3.
4.7.7 Approving the dissolution and liquidation of the
Company.
4.7.8 Incurring any debt or interest bearing obligations other
than: (i) trade payables and other short-term liabilities and leases in
the ordinary course of business and (ii) debt incurred pursuant to the
Revolving Credit and Cash Management Agreement described on Exhibit
4.16.
4.7.9 Electing not to make a quarterly distribution of
Distributable Cash pursuant to Section 3.9.
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4.7.10 Selling, in any twelve (12) month period, in excess of
$5,000,000 of the Company's assets or engaging in any merger,
partnership, joint venture or other business combination or transaction
of a similar nature with a value in excess of $5,000,000 in any twelve
(12) month period.
4.8 Informal Action by Board of Directors. The Board of Directors may
act without meeting by written consents describing the action taken and signed,
via facsimile or otherwise, by all Directors. Action taken under this Section
4.8 is effective when all Directors have signed the consent, unless the consent
specifies a different effective date.
4.9 Participation by Electronic Means or Proxy. Any Director may
participate in a meeting of the Board of Directors by communications equipment
by which all persons participating in the meeting can hear each other at the
same time, or by written proxy. Such participation shall constitute presence in
person at the meeting.
4.10 Resignation. Any Director of the Company may resign at any time by
giving written notice to the Chairman of the Board of Directors. The resignation
of any Director shall take effect upon receipt of notice thereof or at such
later time as shall be specified in such notice; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Vacancies created by the resignation of one or more Directors shall
be filled as provided in Section 4.2 hereof.
4.11 Removal. Each Member shall have the unilateral right to remove any
Director appointed by such Member. Vacancies created by the removal of one or
more Directors shall be filled as provided in Section 4.2 hereof.
4.12 No Committees. The Board of Directors shall have no committees.
4.13 Presumption of Assent. A Director of the Company who is present at
a meeting of the Board of Directors or committee thereof, at which action on any
matter is taken, shall be presumed to have assented to the action taken unless
such Director objects at the beginning of such meeting to the holding of the
meeting or to the transacting of business at the meeting, unless his or her
dissent is entered in the minutes of the meeting, or unless he shall file a
written dissent to such action with the presiding officer of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to the
Company immediately after the adjournment of the meeting. Such right to dissent
shall not apply to a Director who voted in favor of such action.
4.14 Duty of Loyalty; Conflicts of Interest. The Board of Directors of
the Company shall perform its duties and each Director shall perform his or her
duties, in good faith, in a manner he or she reasonably believes to be in the
best interests of the Company.
4.15 Liability and Indemnity of the Directors and Officers. Directors
and Officers shall be indemnified by the Company with respect to their service
as Directors and Officers
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to the fullest extent permitted by Delaware law during their term as such and
thereafter, with respect to the period during which they served as such.
4.15.1 Notwithstanding any provisions of this Agreement or
applicable Delaware law to the contrary, neither a Director nor an
Officer shall be personally liable to the Company or to the Members for
monetary damages for breach of fiduciary duty, except with respect to
(1) any breach of the duty of loyalty; (2) acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law; or (3) any transactions from which the Director or
Officer derived an improper personal benefit.
4.15.2 Notwithstanding any provisions of this Agreement or
applicable Delaware law to the contrary, neither a Director nor an
Officer shall be liable to the Company or to any Member for any action
taken or omitted to be taken by such Director or Officer, provided that
such Director or Officer acted in good faith and in a manner he
reasonably believed to be in the best interests of the Company and such
action or omission does not involve the gross negligence, willful
misconduct or fraud of such Director or Officer.
4.16 Related Party Transactions. The Company shall not enter into or
modify transactions with any Members, Affiliates, Affiliates of Members or other
Persons in which the Company or its Affiliates have an ownership or investment
interest or that have an Interest in the Company except for transactions
evidenced by written agreements that are at arm's-length and fair market value
and otherwise on terms and conditions that are intrinsically fair and reasonable
to the Company within its market area. If the Company enters into or makes a
material modification to a Material Interested Agreement (as defined below), the
Company shall provide written notice of the Material Interested Agreement
(including a brief summary of its key terms) and a true and complete copy of the
Material Interested Agreement to NC-DSH. A Material Interested Agreement is one
that involves expenditures of or revenue to the Company of greater than One
Hundred Thousand Dollars ($100,000.00) in any twelve (12) month period or an
agreement that, when combined with all other agreements to which the first
sentence of this Section 4.16 applies, involve, in the aggregate, expenditures
or revenue to the Company of greater than Three Hundred Thousand Dollars
($300,000.00) in any twelve (12) month period. In the event that NC-DSH objects
to a Material Interested Agreement on the grounds that such Material Interested
Agreement fails to satisfy the requirements of the first sentence of this
Section 4.16 and there is a dispute involving this Section 4.16, VHMC and NC-DSH
shall initiate arbitration proceedings with respect to the dispute. Such
arbitration proceedings shall be conducted in the state of Nevada in accordance
with the rules and procedures of the American Arbitration Association, provided
that VHMC shall bear the burden of demonstrating that the Material Interested
Agreement meets the requirements of the first sentence of this Section 4.16. Any
such arbitration shall be binding upon the parties to the fullest extent
permitted by law. VHMC and NC-DSH shall each pay one-half of the costs of such
arbitration. The Company is authorized to enter into those agreements set forth
on Exhibit 4.16 attached hereto. Except for fees paid pursuant to the agreements
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described on Exhibit 4.16 or agreements permitted pursuant to this Section 4.16,
no Member or Affiliate thereof shall be entitled to any salary or other
compensation from the Company and the compensation for each Member shall be
limited to Distributable Cash distributed to the Members pursuant to Section
3.9.
4.17 Related Party Agreements. In the event that the Company is party
to an agreement with a Member or an Affiliate of a Member, or a Member or an
Affiliate of a Member has an interest in such agreement (such Member being an
"INTERESTED MEMBER"), decisions with respect to the enforcement of the Company's
rights and obligations with respect to breaches, defaults and waivers under such
agreement shall be made by VHMC if NC-DSH is the Interested Member and by NC-DSH
if VHMC is the Interested Member. The Company and Interested Member shall
provide VHMC or NC-DSH, as appropriate, with written notice of each issue
requiring decision and the facts and information necessary and appropriate for
VHMC or NC-DSH, as appropriate, to exercise its rights under this Section 4.17.
ARTICLE 5
OFFICERS
5.1 Appointment and Term of Office. The "OFFICERS" of the Company
shall from time to time be appointed by the Board of Directors and shall have
such duties and responsibilities as are established by the Board of Directors.
Such Officers shall include, without limitation, a Chief Executive Officer
("CEO"), Secretary, and such other Officers as may be appointed from time to
time by the Board of Directors. Each Officer shall hold office until his or her
successor shall have been duly appointed and shall have qualified or until his
or her death or until he or she shall resign or shall have been removed. A
vacancy in any office may be filled as if the person had never been occupied.
5.2 Removal. Any Officer may be removed at any time by the Board of
Directors, but such removal shall be without prejudice to the contract rights,
if any, of the Officer so removed. Election or appointment of an Officer shall
not of itself create contract rights.
ARTICLE 6
MEMBERS
6.1 Admission of New Members. A Person may be admitted as a new Member
only upon compliance with the following conditions: (i) except for Persons
acquiring an Interest pursuant to Section 7.5 or Article 8, VHMC and NC-DSH
shall each have consented in writing to the admission of such Person as a
Member, (ii) the Person shall have executed and delivered such documents as
requested by the Board of Directors as may be necessary or appropriate to
evidence the Person's consent to be bound by the terms and conditions of this
Agreement; (iv) the Person shall have contributed to the capital of the Company
as required by the Board of Directors, VHMC and NC-DSH; and (v) the
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Person shall have paid or caused to be paid all costs related to such
membership, including legal fees and expenses incurred by the Company
6.2 Meetings. Meetings of the Members shall be held at such time, date
and place and upon such notice as is reasonably determined by the Board of
Directors but no less often than once per calendar year.
6.3 Quorum. Members holding more than fifty percent (50%) of the
Percentage Share of all Members entitled to vote shall constitute a quorum at
any meeting of Members provided that, regardless of the Percentage Share
represented, VHMC and NC-DSH must be present at such meeting for a quorum to be
constituted. In the absence of a quorum at any such meeting, a majority of the
Members so represented may adjourn the meeting from time to time for a period
not to exceed thirty (30) days without further notice. However, if the
adjournment is for more than thirty (30) days, a notice of the adjourned meeting
shall be given to each Member of record entitled to vote at the meeting. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed.
6.4 Manner of Acting. If a quorum is present, the affirmative vote of
the Members owning a majority of all Percentage Shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
Members; provided, however, that if the Members are acting upon any of the items
that are the subject to Section 4.7 hereof or otherwise require the approval of
VHMC and NC-DSH, the affirmative vote of each of VHMC and NC-DSH shall be the
required to constitute the act of the Members.
6.5 Proxies. At all meetings of Members, a Member may vote in person or
by proxy executed in writing by the Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the Company before or at the
time of the meeting.
6.6 Voting by Certain Members.
6.6.1 Units owned in the name of a corporation may be voted by
such officer, agent or proxy as the Bylaws of such corporation may
prescribe, or, in the absence of such provision, as the board of
directors of such corporation may determine.
6.6.2 Units owned in the name of a receiver may be voted by
such receiver and Units held by or under the control of a receiver may
be voted by such receiver either in person or by proxy, but no receiver
shall be entitled to vote Units without a transfer thereof into the
receiver's name.
6.6.3 A Member whose Units are pledged shall be entitled to
vote such Units until the Units have been transferred into the name of
the pledgee, and thereafter the pledgee shall be entitled to vote the
Units so transferred.
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6.7 Action by Members Without a Meeting. The Members may act without
meeting by written consents describing the action taken and signed by all
Members. Action taken under this Section 6.7 is effective when all Members
entitled to vote have signed the consent, unless the consent specifies a
different effective date.
6.8 Voting by Ballot. Voting on any question or in any election may be
by voice vote unless the Board of Directors or at least one (1) Member shall
demand that voting be by ballot.
6.9 Waiver of Notice. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice. The attendance of a Member at any
meeting shall constitute a waiver of notice, waiver of objection to defective
notice of such meeting, and a waiver of objection to the consideration of a
particular matter at the meeting unless the Member, at the beginning of the
meeting, objects to the holding of the meeting, the transaction of business at
the meeting, or the consideration of a particular matter at the time it is
presented at the meeting.
6.10 Resignation or Withdrawal. No Member shall have the right to
resign or withdraw from the Company, or to assign its Interest prior to the
dissolution and winding up of the Company, except as expressly contemplated by
this Agreement.
ARTICLE 7
TRANSFERS OF MEMBERSHIP INTERESTS BY MEMBERS
7.1 Transfers. Except as specifically provided in Section 7.5 or
Article 8, each Member covenants and agrees that it will not directly or
indirectly, by operation of law or otherwise, sell, assign, transfer, alienate,
mortgage, pledge or otherwise dispose of or encumber (each a "TRANSFER") all or
any part of such Member's Units in the Company to any Person, including the
Company. A Transfer shall be deemed to include any merger, share exchange, stock
transfer, transfer of partnership interest or other transfer of the ownership,
equity or control of any Member or any Person owning or holding, directly or
indirectly through its Affiliates, an interest in a Member.
7.2 Effect of Permitted Transfer. In the event a Member Transfers all
or any part of its Units in the Company pursuant to this Agreement, the Company
shall continue and the transferee of such Units shall be admitted to the Company
as a Member subject to the same obligations, with the same Units and Percentage
Share in the Company, and with the same rights in and to the capital, profits,
losses and distributions of the Company as the transferring Member had with
respect to the Units so Transferred; provided, however, that the transferee
shall be subject to all of the terms and conditions of this Agreement and shall
promptly execute and deliver such documents as requested by the Board of
Directors and as may be necessary or appropriate, in the opinion of counsel for
the Company, to evidence the transferee's consent to be bound by such terms and
conditions; and provided,
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further, that if such Transfer is a pledge or other encumbrance of Units in the
Company, then such transferee shall not become a substituted Member and shall
only be an assignee.
7.3 Prohibited Transfers. Any attempted Transfer by a Member of all or
any part of its Units in the Company in violation of the terms of this Agreement
shall be null and void and of no force or effect and: (i) if a third party offer
has been made, then it shall be treated as an offer to sell the Interest of such
Member as provided in Section 8.1 and 8.3, or (ii) otherwise, it shall be
treated as an Involuntary Withdrawal as provided in Section 7.4.
7.4 Involuntary Withdrawal. Upon the Involuntary Withdrawal of any
Member, the Company shall be dissolved unless within 90 days thereof VHMC and
NC-DSH (or Members holding a majority of all Interests in the Company if VHMC
and NC-DSH do not collectively hold a majority in Interests (as such phrase is
defined in Revenue Procedure 94-46) in the Company) elect to continue the
business of the Company. The Involuntary Withdrawal of the Member shall be
treated as an offer to sell the Interest of such Member as provided in Section
8.2. In the event the remaining Members do not purchase the Interest of the
withdrawing Member and continue the business of the Company upon the Involuntary
Withdrawal of a Member, the successor in interest may, upon the written consent
of the other Members, become a transferee with respect to the Interest of the
Member with the rights set forth in Section 7.2. The "INVOLUNTARY WITHDRAWAL" of
a Member shall be deemed to have occurred with respect to a Member in the event
such Member:
7.4.1 suffers a "bankruptcy event" as defined in Act
ss.18-304;
7.4.2 attempts to resign or withdraw from the Company in
breach of this Agreement;
7.4.3 is dissolved, liquidated, terminated or otherwise ceases
to exist;
7.4.4 makes a Transfer or attempts to Transfer any part of
such Member's Units in violation of Section 7.1 and such Transfer is
not treated as an offer to sell the Interest of such Member pursuant to
Section 8.1 or 8.3; or
7.4.5 is responsible for any occurrence, event or state of
facts that would otherwise cause the dissolution and liquidation of the
Company.
7.5 Exceptions to Restrictions. Neither: (i) any conveyance by VHMC or
NC-DSH of its Interest to a Person that controls or is controlled by or is under
common control with VHMC or NC-DSH, respectively; nor (ii) the sale of all or
substantially all of the assets of or the Transfer of the stock, merger or
change of control of Universal Health Services, Inc., a Delaware corporation, or
of Quorum Health Group, Inc., a Delaware Corporation, shall be deemed a Transfer
or Involuntary Withdrawal pursuant to this Agreement (and shall not be subject
to Article 8).
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7.6 Loss of Voting Rights. Upon the occurrence of an Involuntary
Withdrawal, no voting rights shall be exercisable with respect to the Interest
of the Member until such Units are disposed of in accordance with Article 8.
7.7 Tax Treatment of Acquisitions of Interests by Company. The parties
hereto expressly agree that any withdrawal of all of a Member's Capital Account
whereby the Company acquires the Interest of one or more Members pursuant to
Article 7 shall be treated as a complete liquidation of such Member's Interest
pursuant to Section 736 of the Code. The Members hereby expressly agree and
acknowledge that the amount of money (or the fair market value of property)
distributed to a Member withdrawing all of his or her Capital Account shall be
treated as a payment in liquidation under Section 736(b) of the Code to the
extent of the fair market value of the withdrawing Member's "interest in
partnership property" within the meaning of Section 736 of the Code and the
excess, if any, of the withdrawal payments shall be treated as a Section 707(c)
"guaranteed payment" under Section 736(a) of the Code. Further, if in connection
with such transaction, interest is paid to a Member, the Members hereby agree
and acknowledge that the payment of such interest shall be treated as a
"guaranteed payment" which in turn shall be treated as a Code Section 736(a)
payment. Each Member agrees that the price at which the Company may reacquire
the Interests of a Member shall be agreed upon at arm's length as described in
the second paragraph of Regulation Section 1.704-1(b)(2)(ii)(b)(3).
ARTICLE 8
PURCHASE RIGHTS AND OPTIONS
8.1 Purchase Right. Subject to the exceptions contained in Section 7.5
and as set forth in Section 8.1.4, prior to any Transfer by a Member ("SELLING
MEMBER"), the other Members ("PURCHASING MEMBERS") shall have a right of first
refusal to purchase ("PURCHASE RIGHT") the Interest of the Selling Member as
provided in this Section 8.1. The terms of the Purchase Right are as follows:
8.1.1 Offer By Selling Member. In the event a Selling Member
desires to make a Transfer pursuant to a bona fide written offer
presented to the Selling Member by any prospective third party
transferee(s) (the "THIRD PARTY OFFER"), it shall make an offer in
writing to the Purchasing Members (the "OFFER"), and the Offer shall
include: (i) a statement of the Selling Member's intention to make a
Transfer, (ii) the name(s) and address(es) of the prospective third
party transferee(s), (iii) the number of Units involved in the proposed
third party transaction, and (iv) the full terms and conditions of the
transaction (which shall include, but not be limited to, a detailed
description of the transaction, the price, time, method and other
conditions of payment), including a true copy of the Third Party Offer.
8.1.2 Acceptance of Offer. The Purchasing Members may, at each
of their option, provide a written notice to the Selling Member of
their acceptance of the Offer within 60 days of the date the Purchasing
Members received the Offer. If
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there is more than one Purchasing Member, the Purchasing Members shall
be entitled to purchase pursuant to the Offer in proportion to their
respective Percentage Share of Units at the time of the Offer. If the
Offer is not accepted by all Purchasing Members, the Selling Member
shall give notice thereof to the accepting Purchasing Members and then
any accepting Purchasing Member shall have the right to purchase all of
the remaining Units involved in the Offer within the succeeding 15 day
period. If not all of the Units described in the Offer have been
accepted in the fashion described above, the Offer shall be deemed not
accepted by any Purchasing Members. If the Offer is not accepted, the
Selling Member may make a bona fide Transfer to the third party
transferee named in the statement attached to the Offer but only in
strict accordance with the Third Party Offer.
8.1.3 Purchase Price Determination. The purchase price and the
terms and conditions subject to the Offer shall be the same as set
forth in the Third Party Offer. The closing of the purchase shall take
place at the principal office of the Company and shall occur within 30
days of acceptance of the Offer. At closing, the purchase price shall
be paid in the manner set forth in the Third Party Offer, provided that
if the Third Party Offer includes any consideration other than cash,
the accepting Purchasing Member(s), at their option, may pay in cash
the fair market value of such non-cash consideration.
8.1.4 Exception. Notwithstanding the foregoing provisions of
Section 8.1, VHMC shall be entitled to Transfer up to twenty percent
(20%) of its Interest without compliance with Section 8.1 provided that
NC-DSH has approved the transferee in advance in writing and such
transferee shall be subject to the terms and conditions of this
Agreement and otherwise comply with Section 7.2.
8.1.5 Additional Assets. In the event any Third Party Offer
received by a Selling Member is part of an acquisition which extends to
or includes assets in addition to the Interest of the Selling Member
("ADDITIONAL ASSETS"), the Offer shall be deemed to extend to and
include the Additional Assets and the Offer shall contain the
information set forth in Section 8.1.1 with respect to the Additional
Assets. In such case, if the Offer is not accepted in its entirety,
including, without limitation, the purchase of Additional Assets by the
Purchasing Members, the Selling Member may consummate the transactions
contemplated by the Third Party Offer but only in strict accordance
with such Third Party Offer. This Section 8.1.5 shall not be
interpreted or construed to apply to Third Party Offers that are the
subject of clause (ii) of Section 7.5.
8.2 Purchase Option. Upon the Involuntary Withdrawal of a Member (the
"SELLING MEMBER") the other Members ("PURCHASING MEMBERS") shall have the right
(the "INVOLUNTARY WITHDRAWAL OPTION") to purchase the Interest of the Selling
Member for a price and upon the terms set forth in this Section 8.2.
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8.2.1 Exercise. To exercise the Involuntary Withdrawal Option,
the Purchasing Members may, at each of their options, provide written
notice to the Selling Member suffering an Involuntary Withdrawal of
their intention to exercise their Involuntary Withdrawal Option as
provided in this Section 8.2 within 15 days of the date the Purchasing
Members receive notice of the event of Involuntary Withdrawal. If there
is more than one Purchasing Member, the Purchasing Members shall be
entitled to purchase in accordance with their respective Percentage
Share of Units at the time of the written notice to the Selling Member.
8.2.2 Purchase Price Determination. Within 20 days of the date
of the exercise of an Involuntary Withdrawal Option, the affected
Members shall mutually agree upon a purchase price for the Interest
being sold. If the affected Members are unable to mutually agree upon a
purchase price, the affected Members shall mutually select a
disinterested appraiser nationally recognized as experienced in valuing
healthcare businesses including hospitals to evaluate the Business and
determine the fair market value of the Company. If the affected Members
cannot select an appraiser, then the American Arbitration Association
shall be petitioned to designate an appraiser. The cost of the
appraisal and any necessary arbitration shall be paid one-half by the
Selling Member and one-half by the Purchasing Members. The appraiser
shall promptly provide a written notice ("FAIR MARKET VALUE NOTICE") to
each affected Member of its determination of the fair market value,
which determination shall be binding upon the affected Members. The
purchase price for the Interest being acquired pursuant to this Section
8.2 shall then be the product of (i) the fair market value of the
Company pursuant to the Fair Market Value Notice multiplied by (ii) the
Percentage Share of the Selling Member.
8.2.3 Closing. The closing of the purchase pursuant to this
Section 8.2 shall take place at the principal office of the Company as
such time during reasonable business hours on such day as designated by
the Purchasers or Purchasing Members, provided that such closing shall
not be later than 10 days after the purchase price has been determined
in accordance with Section 8.2.2. Unless otherwise agreed by the
Members, the purchase price shall be payable in immediately available
funds.
8.3 Tag Along/Co-Sale Rights on Transfers by a Member. Should a Member
(the "SELLING MEMBER") receive a bona fide offer from an unrelated Person to
purchase all, but not less than all, of its Interest, the Selling Member shall
not consummate a Transfer to the proposed purchaser until the proposed purchaser
shall have offered to buy all Interests of all remaining Members (the "REMAINING
MEMBERS") at the same price and on the same terms and conditions. In the event
the Selling Member is unable to cause the proposed purchaser to offer to buy all
Interests of Remaining Members as set forth in this Section 8.3 and any
Remaining Member declines to exercise its Purchase Right pursuant to Section
8.1, the Selling Member shall not consummate the Transfer to the proposed
purchaser.
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8.4 Put Right.
8.4.1 NC-DSH shall have the right to require the Company to
purchase NC-DSH's Interest (the "PUT RIGHT") at any time following the
occurrence of any one of the following events (each a "TRIGGERING
EVENT"): (i) the Consolidated EBITDA Margin (as defined below) of
Valley Health System LLC and Summerlin Hospital Medical Center LLC
(collectively the "LLCS") for any trailing twelve (12) month period
beginning twenty-five (25) months following consummation of the
transactions contemplated under the Contribution Agreement is less than
seventeen percent (17%) provided that the Put Notice (as defined below)
is given within sixty (60) days following receipt by NC-DSH of the
LLCs' financial statements that indicate the existence of a Triggering
Event; (ii) the total cash distributions to NC-DSH for any trailing
twelve (12) month period beginning twenty-five (25) months following
consummation of the transactions contemplated under the Contribution
Agreement are less than NC-DSH's Percentage Share of twelve percent
(12%) of Consolidated Net Revenues (as defined below) of the LLCs
provided that the Put Notice is given within sixty (60) days following
receipt by NC-DSH of the LLCs' financial statements that indicate the
existence of a Triggering Event; (iii) any material violation of
Section 2.2.7 or 6.2 or 8.2 of the Management Agreement (or comparable
provisions of any renewal or successor or replacement thereof) entered
into by the Company pursuant to Section 4.16 of this Agreement; (iv)
the Percentage Share of NC-DSH is reduced to less than twenty percent
(20%) provided that the Put Notice is given within sixty (60) days
following such reduction; (v) the Percentage Share of NC-DSH is reduced
to less than seventeen and one-half percent (17.5%) provided that the
Put Notice is given within sixty (60) days following such reduction;
(vi) the Percentage Share of NC-DSH is reduced to less than fifteen
percent (15%) provided that the Put Notice is given within sixty (60)
days following such reduction; (vii) the Percentage Share of NC-DSH is
reduced to less than twelve and one-half percent (12.5%) provided that
the Put Notice is given within sixty (60) days following such
reduction; or (viii) the Percentage Share of NC-DSH is reduced to less
than ten percent (10%) and the Put Notice is given any time thereafter.
Upon a Triggering Event, the Put Right shall be exercisable by NC-DSH,
at NC-DSH's sole option, by written notice (the "PUT NOTICE") to the
Company. Notwithstanding the foregoing, in the event the Triggering
Event is (ii) above and was caused by a capital project that was
approved by NC-DSH in writing and which approval refers specifically to
clause (ii) of this Section 8.4.1 and but for such capital project no
Triggering Event would have occurred, then such Triggering Event shall
be deemed not to have occurred.
8.4.2 Upon receipt of the Put Notice, NC-DSH and the Company
shall negotiate in good faith for sixty (60) days to determine the
purchase price payable pursuant to the Put Right. If agreement has not
been reached on the purchase price within sixty (60) days, each of
NC-DSH and the Company shall promptly appoint a disinterested appraiser
of national reputation who is a member of the American Society of
Appraisers and holds MAI designation with the Appraisal Institute to
provide a written appraisal of the fair market value of the Company as
of the date of the Put Notice. If a party does not select an appraiser
as provided in
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the preceding sentence within fifteen (15) days after the other party
has given written notice of the name of its appraiser, such party shall
lose its right to appoint an appraiser and the appraiser already
selected shall determine the fair market value of the Company. In the
event that both appraisers are timely selected and the lower of the two
appraisals is not less than ninety percent (90%) of the higher of the
two appraisals, the product of the average of the two appraisals
multiplied by the Percentage Share of NC-DSH shall be the purchase
price payable by the Company for NC-DSH's Interest.
8.4.3 In the event that the lower of the two appraisals is
more than seventy-five percent (75%) but less than ninety percent (90%)
of the higher of the two appraisals, the two appraisers shall promptly
appoint a third appraiser (of the same qualifications described in
Section 8.4.2) to provide a written appraisal of the fair market value
of the Company as of the date of the Put Notice. The product of the
third appraisal (subject to the other two appraisals as lower and upper
limits) multiplied by the Percentage Share of NC-DSH shall be the
purchase price payable by the Company for NC-DSH's Interest.
8.4.4 In the event that the lower of the two appraisals is
less than seventy-five percent (75%) of the higher of the two
appraisals, NC-DSH and the Company shall promptly cause the American
Arbitration Association to appoint an arbitrator who will select two
appraisers (of the same qualifications described in Section 8.4.2) and
each appraiser shall provide a written appraisal of the fair market
value of the Company as of the date of the Put Notice. The product of
the average of the two appraisals (subject to the two original
appraisals as the lower and upper limits) multiplied by the Percentage
Share of NC-DSH shall be the purchase price payable by the Company for
NC-DSH's Interest.
8.4.5 The rights of NC-DSH as a Member shall cease upon the
Put Notice. the Company shall pay one dollar ($1.00) of the purchase
price upon receipt of the Put Notice and shall pay the remainder of the
purchase price in immediately available funds on the date of the
closing described below plus interest at the following rates: (i) for
the first six (6) months following the date of the Put Notice the rate
of interest per annum shall be the rate of interest paid on one month
certificates of deposit published in the Money Rates section of the
Wall Street Journal plus one percent (1%), and (ii) for the remainder
of the period the rate of interest per annum shall be equal to the
prime rate published by the Wall Street Journal plus two percent (2%)
as such rate changes from time-to-time. Interest shall accrue from the
date of the Put Notice through the date of receipt of payment by
NC-DSH. Closing of the purchase pursuant to this Section 8.4 shall take
place at the principal office of the Company or at such other location
and at such time during normal business hours as the Company and NC-DSH
shall agree. The Company shall use its reasonable best efforts to close
the transaction contemplated by this Section 8.4 as quickly as possible
following the date of the Put Notice. In the event the parties are
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unable to agree on a Closing Date, the closing shall occur
three-hundred and sixty seven (367) days following the date of the
Put Notice.
8.4.6 For purposes of this Section 8.4 the following
definitions shall apply: (i) "CONSOLIDATED EBITDA MARGIN" shall
mean that fraction, expressed as a percentage, obtained by dividing
the combined total EBITDA of the LLCs by Consolidated Net Revenues;
(ii) "EBITDA" shall mean Consolidated Net Revenues less
Consolidated Operating Expenses; (iii) "CONSOLIDATED NET REVENUES"
shall mean the combined totals of the LLCs' patient revenues and
other operating revenues (but not non-operating revenues) less
contractual allowances, adjustments, discounts and charity (but not
bad debts); and (iv) "CONSOLIDATED OPERATING EXPENSES" shall mean
the combined totals of the LLCs' expenses including management fees
payable pursuant to the Management Agreement identified on Exhibit
4.16 but excluding interest expense, depreciation and amortization,
income taxes and non-operating and extraordinary expenses. For
purposes of this Section 8.4, all items of revenue and expense will
be determined and classified in accordance with generally accepted
accounting principles consistently applied.
8.4.7 Each party shall bear and promptly pay the expenses and
fees of their appraiser selected in accordance with Section 8.4.2
and shall bear and promptly pay one-half of the expenses and fees
of any appraiser and/or arbitrator selected in accordance with
Sections 8.4.3 and 8.4.4. Copies of all appraisals shall be
addressed to and provided to both the Company and NC-DSH.
8.4.8 Universal Health Services, Inc. hereby guarantees the
payment and performance of the obligations of the Company under
this Section 8.4.
ARTICLE 9
DISSOLUTION AND LIQUIDATION OF THE COMPANY
9.1 Liquidating Events. The existence of the Company shall be
perpetual provided, however, that the Company shall be dissolved
and liquidated upon the occurrence of any of the following events:
9.1.1 The unanimous written agreement of VHMC and NC-DSH to
terminate the Company;
9.1.2 The entry of a final judgment, order or decree of a
court of competent jurisdiction adjudicating the Company to be a
Bankrupt and the expiration of the period, if any, allowed by
applicable law in which to appeal therefrom;
9.1.3 The entry of a final judgment, order or decree of
judicial dissolution of the Company issued by a court of competent
jurisdiction under the authority of Act
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Section 18-802, and the expiration of the period, if any, allowed by
applicable law in which to appeal therefrom; or
9.1.4 The administrative dissolution of the Company by action
of the Secretary of State of the State of Delaware and the expiration
of the period, if any, allowed by applicable law in which to appeal
therefrom or to become reinstated.
Notwithstanding any other provision of this Agreement, in no event shall the
redemption or purchase of the Units of a Member by the Company be a dissolving
event and any such redemption or purchase by the Company shall constitute and
evidence the consent of the Members to the continued existence and business of
the Company as provided in Act Section 18-801(4).
9.2 Method of Liquidation. Upon the happening of any of the events
specified in Section 9.1, the Company shall continue solely for the purpose of
winding up its affairs, liquidating its assets, and satisfying the claims of its
creditors and Members. The Board of Directors shall be responsible for
overseeing the winding up and liquidation of the Company. In the course of
winding up its affairs, any of the Company's assets may be sold upon the consent
of the Board of Directors, and any proceeds derived from any such sale, together
with all assets that are not sold, shall be applied and distributed in the
following manner and in the following order of priority:
9.2.1 To the payment of the debts and liabilities of the
Company and to the expenses of liquidation in the order of priority as
provided by law, and to the establishment of any reserves that the
Board of Directors, VHMC and NC-DSH deem necessary for any contingent
liabilities or obligations of the Company. Such reserves shall be paid
over to a bank to be held in escrow for the purpose of paying any such
contingent liabilities or obligations, and at the expiration of such
period as the Board of Directors, VHMC and NC-DSH deem advisable,
distributing the balance of such reserves in the manner hereinafter
provided; then
9.2.2 To the payment of any liabilities or debts, other than
Capital Accounts, of the Company to any of the Members; then
9.2.3 To the Members (and assignees) in accordance with the
relative positive balances of their Capital Accounts, after giving
effect to all contributions, distributions and allocations under this
Agreement for all periods as required by Section 704(b) of the Code and
the Regulations promulgated thereunder.
In the course of any liquidation, the difference between the fair market value
and book value of any assets that are distributed in kind shall be credited or
charged, as the case may be, to the Members' (or assignees') Capital Accounts in
the manner provided in Subsection 3.9.5.
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9.3 Reasonable Time for Liquidation. A reasonable time (not to exceed
twelve (12) months) shall be allowed for the orderly liquidation and winding up
of the Company in order to minimize any losses that may be attendant upon such
liquidation.
9.4 Distribution to Liquidating Trust. In the discretion of the Board
of Directors, VHMC and NC-DSH, assets otherwise distributable to the Members (or
assignees) pursuant to Section 9.2 may be distributed to a liquidating trust
established for the benefit, and upon the agreement, of all Members (and
assignees) for purposes of liquidating Company assets, collecting amounts owed
to the Company, and paying any contingent or potential liabilities or
obligations of the Company.
9.5 Date of Termination. The Company shall be completely terminated
when all property of the Company shall have been disposed of by the Company in
accordance with Section 9.2. The establishment of any reserves in accordance
with the provisions of Section 9.2 or the creation of a liquidating trust in
accordance with Section 9.4 shall not have the effect of extending the existence
of the Company, but any remaining balance in any such reserve or liquidating
trust shall be distributed in the manner provided in Section 9.2 upon expiration
of the period of such reserve or liquidating trust, as the case may be.
9.6 Certificate of Cancellation. Upon completing the winding up and
liquidation of the Company, the Company shall cause to be filed a Certificate of
Cancellation of the Company as provided by Act Section 18-203. The Members agree
to join in executing such document if such joinder is required by the Act or
deemed necessary or appropriate by the Company. Upon the filing of the
Certificate of Cancellation, the Members shall cease to be such and the Company
and this Agreement shall be terminated.
ARTICLE 10
COMPANY FUNDS AND ACCOUNTING
10.1 Books of Account; Records and Information. The books of account of
the Company shall be maintained at the Company's principal executive office and
at all reasonable times each Member (and its auditors, attorneys and
representatives) shall have access thereto, as well as to information received
by the Company pursuant to any management or similar agreement. The Company
shall also maintain such records and information required by Act Section 18-305
and shall permit the inspection and copying of such records and information by
the Members. In addition to the foregoing, the Company shall promptly provide
each Member, on a monthly basis, financial statements (including balance sheet,
income statement and statement of cash flows) of the Company. Such financial
statements shall be internally prepared in accordance with generally accepted
accounting principles consistently applied. The Company shall cause an
unqualified audit of its books and records to be performed no less than annually
by an independent certified public accountant of recognized national standing
and shall promptly provide each Member a complete copy of the audit report. No
manager of the Company shall keep confidential from the Members any information
regarding the Company pursuant to Act Section 10-305
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or otherwise except to the extent such information is the proprietary
information of such manager.
10.2 Period and Method of Accounting. The Company's books of account
shall be maintained on such fiscal year basis as may be required by Code Section
706, and such books shall be kept in accordance with such method of accounting
as may be required by the Code.
10.3 Reports. As soon as reasonably practicable after the end of each
fiscal year, the Company shall furnish each Member (and assignee) with a copy of
a statement of income or loss of the Company for such year, and a statement
showing the amounts allocated to such Member (or assignee) pursuant to this
Agreement during or in respect of such year, and any items of income, expense or
credit allocated to it for purposes of federal income taxation pursuant to this
Agreement, all prepared in accordance with the accounting method adopted by the
Company, all of which information will be reflected in the Company's federal
income tax return. Delivery of a copy of such tax return to each Member (and
assignee) shall be sufficient to fulfill the obligation of the Company with
respect to providing such information. The Company shall use its reasonable best
efforts to provide each Member such income tax information (including Schedule
K-1) within ninety (90) days after the end of each fiscal year (for tax
purposes) of the Company.
10.4 Tax Elections. Except as specified in Section 3.3.7, 3.6 or
elsewhere in this Agreement, the Board of Directors shall have the
responsibility for making (and revoking) all tax elections on behalf of the
Company (and which are to be made by the Company as opposed to the Members)
under the Code. Upon the transfer of an Interest in the Company or a
distribution of property to a Member (or assignee), the Company may, but is not
required to, elect, pursuant to Section 754 of the Code, to adjust the basis of
Company Property as allowed by Section 734(b) and 743(b) thereof.
10.5 Tax Matters Manager. VHMC shall be Tax Matters Manager and shall
act as the Tax Matters Partner as defined in the Code Section 6231(a)(7). As
such, shall keep all the Members informed of all administrative and judicial
proceedings, as required by Code Section 6223(g) and shall furnish all Members a
copy of each notice or communication received by VHMC (as the Tax Matters
Manager) from the Internal Revenue Service regarding any such administrative or
judicial proceeding. The Tax Matters Manager shall execute, on behalf of the
Company, any and all documents and returns necessary to comply with the
Regulations promulgated under Code Sections 6221 through 6232.
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ARTICLE 11
NONCOMPETE
11.1 Business Activities of Members. Except as set forth in this
Article 11, each Member and its Affiliates may engage in other business
activities, including but not limited to preferred provider organizations,
health maintenance organizations or other health care provider businesses,
without liability or accounting to the Company. It shall not be deemed a breach
of any Member's duty of loyalty to the Company for that Member to pursue, for
that Member's own benefit, any opportunity outside of the Noncompete Area
described in Section 11.2 after compliance with the provisions of this Article
11.
11.2 Covenant Not to Compete. Each of the Members, Universal Health
Services, Inc. and Quorum Health Group, Inc., for itself and on behalf of their
respective Affiliates, hereby covenant and agree that during the Noncompete
Period within the Noncompete Area they shall not directly or indirectly, (a)
build, develop, invest in, acquire, lease, manage, be a member of, consult for,
finance or own any part of (as member, shareholder, partner or otherwise) any
Person or health care facility which provides any services similar to the
services provided by the Business or Hospitals, or (b) disrupt or attempt to
disrupt any past, present or reasonably foreseeable future relationship,
contractual or otherwise between the Company, on the one hand, and any
physician, physician group, or other healthcare provider with whom the Company
contracts in connection with Business or Hospitals, on the other hand. The
"NONCOMPETE PERIOD" shall commence as to each Member upon such Member's
admission as a Member and terminate at such time as such Person is no longer a
Member. The "NONCOMPETE AREA" shall mean the entire area included within the
city of Las Vegas, Nevada and within a fifty (50) mile radius of the boundaries
of the city of Las Vegas, Nevada. Notwithstanding the foregoing, none of the
following shall be deemed a breach of this Section 11.2: (i) ownership of less
than five percent (5%) of the stock of a publicly held company; (ii) the
activities described in the second sentence of Section 11.1; (iii) VHMC or its
Affiliates' continued operation of Goldring Surgery Center ("GOLDRING") and
Nevada Radiation Oncology Center ("NEVADA") together with any expansion thereof
provided such expansion is consistent with and limited to the operations and
services of such businesses as of the date hereof and is located at the current
sites of such businesses; and (iv) the continued operation by a Person who is an
indirect transferee of an Interest in the Company pursuant to clause (ii) of
Section 7.5 of the business of such Person conducted within the Noncompete Area
on the date the transaction undertaken pursuant to clause (ii) of Section 7.5 is
first contemplated. Further, in the event a Member or one of its Affiliates
acquires, directly or indirectly, a healthcare business with operations in the
Noncompete Area from an unrelated third Person ("UTP") as part of an acquisition
from such UTP of multiple healthcare facilities then such Member or its
Affiliate shall sell the business operated within the Noncompete Area to the
Company on commercially reasonable terms acceptable to VHMC and NC-DSH. The
parties hereto acknowledge and agree that capital projects engaged in by the
Company pursuant to Section 2.3 shall not be subject to this Article 11. VHMC
and its Affiliates covenant and agree that they shall not initiate an increase
in or otherwise seek to increase, directly or indirectly, their ownership
interests (beneficial or otherwise) (collectively, the "OWNERSHIP") in Goldring
and Nevada or in any entity or organization owning or operating Goldring or
Nevada or any successor to Goldring and Nevada or the organizations owning or
operating Goldring and Nevada. VHMC and its Affiliates further covenant and
agree that in the event they are required, despite their compliance with the
immediately preceding sentence, to increase their Ownership they shall use their
reasonable best efforts to promptly convey
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such increased Ownership to the Company on terms and conditions reasonably
acceptable to the Company, VHMC and NC-DSH.
11.3 Enforcement. In the event of a breach of Section 11.2 hereof, the
breaching party recognizes that monetary damages shall be inadequate to
compensate the nonbreaching party(ies) and the nonbreaching party(ies) shall be
entitled, without the posting of a bond, to an injunction restraining such
breach, with the costs (including attorneys fees) of securing such injunction to
be borne by the breaching party and its Affiliates, jointly and severally.
Nothing herein contained shall be construed as prohibiting the nonbreaching
party(ies) from pursuing any other remedy available for such breach or
threatened breach.
11.4 Reasonableness. All parties hereto hereby acknowledge the
necessity of protection against the competition of the Members and their
respective Affiliates and that the nature and scope of such protection has been
carefully considered by the parties. The period provided and the area covered
are expressly represented and agreed to be fair, reasonable and necessary. The
consideration provided for herein is deemed to be sufficient and adequate to
compensate the parties for agreeing to the restrictions contained in Section
11.2 hereof. If, however, any court determines that the forgoing restrictions
are not reasonable, such restrictions shall be modified, rewritten or
interpreted to include as much of their nature and scope as will render them
enforceable.
ARTICLE 12
GENERAL
12.1 Filings. The Company shall execute and cause to be filed such
certificates and documents required by any jurisdiction in which the Company
engages in business. The Company shall take all other actions reasonably
necessary to perfect and maintain the status of the Company as a limited
liability company under the laws of Delaware and any other jurisdiction in which
the Company engages in business.
12.2 Status of Company for Tax Purposes. The Members intend that the
Company be classified as a partnership for federal income tax purposes. The
Members shall be under a continuing obligation to perform their duties and
responsibilities under this Agreement in light of such intention, and the
Company shall do any and all things and acts necessary or appropriate to
maintain such classification including filing Form 8832 with the Internal
Revenue Service.
12.3 Waiver of Action for Partition. Each Member (and assignee)
irrevocably waives, during the term of the Company, any right that it may have
to maintain any action for partition with respect to the Company and its
property.
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12.4 Nonrecourse Loans. If the Company borrows money on a nonrecourse
basis, then the creditor who makes such a loan to the Company will not have or
acquire at any time as a result of making the loan, any direct or indirect
interest in the profits, capital or property of the Company other than as a
secured creditor.
12.5 Notice. Any notice or request required or desired to be given
pursuant to this Agreement shall be deemed to have been properly given if the
same shall be in writing and shall be either personally delivered, or deposited
in the United States certified or registered mail, with postage prepaid, or
deposited with any other generally recognized delivery service with charges
prepaid or billed to the sender, and addressed to the Company at its principal
executive office or addressed to such other person to whom such notice or
request is intended to be given at such address as such person may have
previously furnished in writing to the Company or to such person's last known
address.
12.6 Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the Members and their respective heirs, representatives,
transferees, successors and assigns. This Agreement may be executed in
counterparts and by facsimile, which together shall deemed one and the same
instrument.
12.7 Construction. As herein used, the singular number shall include
the plural, the plural the singular, and the use of any gender shall be
applicable to all genders, unless the context would otherwise fairly require.
The titles of the Articles and Sections herein have been inserted for
convenience of reference only and shall not control or affect the meaning or
construction of any of the terms or provisions hereof. All references herein to
Articles and Sections shall mean the appropriate numbered Article or Section
hereof except where reference is made to the Act, the Code, the Regulations or
to some other specified law, regulation or instrument. The parties to this
Agreement shall be under a duty to act in good faith when exercising or
declining to exercise any right or obligation hereunder, provided that, with
respect to items that are the subject of Super-Majority approval or VHMC or
NC-DSH consent, no reasonableness standard will be imposed and such decisions
shall be in each of VHMC and NC-DSH's complete and unfettered discretion; each
such party having a veto power with respect to the action proposed to be taken
by the Company. It is acknowledged by the parties that this Agreement has
undergone several drafts with the negotiated suggestions of each and, therefore,
no presumptions will arise favoring any party by virtue of the authorship of any
of its provisions or the changes made through revisions.
12.8 Survival of Provisions. Whenever possible, each provision and term
of this Agreement shall be interpreted in such manner as to be valid and
enforceable; provided that in the event any provision or term of this Agreement
should be determined to be invalid or unenforceable, all other provisions and
terms of this Agreement and the application thereof to all persons and
circumstances subject thereto shall remain unaffected to the extent permitted by
law.
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12.9 Integrated Agreement. This Agreement constitutes the entire
understanding and agreement among the Members with respect to the subject matter
hereof and shall control over any inconsistent understanding, restriction,
representation, or warranty among the Members.
12.10 Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the State of Delaware except where reference is
herein made to sections or provisions of the Code or Regulations. All references
to sections or provisions of the Act, Code and Regulations shall mean such
sections or provisions as now or hereafter amended and shall include any
successor sections or provisions.
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The undersigned Members have executed this Agreement as of the date
first above written.
"VHMC"
Valley Hospital Medical Center, Inc.
By:
-------------------------------------
Title:
-----------------------------------
"NC-DSH"
NC-DSH, Inc.
By:
-------------------------------------
Roland P. Richardson, Vice President
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The undersigned have executed this Agreement as of the date first above
written for purposes of acknowledging their agreement to the provisions of
Article 11. Universal Health Services, Inc. has executed this Agreement as of
the date first above written for the further purpose of acknowledging its
agreement to the provisions of Section 8.4.
Universal Health Services, Inc.
By:
-------------------------------------
Title:
----------------------------------
Quorum Health Group, Inc.
By:
-------------------------------------
Title:
----------------------------------
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