-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BzarfZT6oHCfGBvTx5H4wVBx2JID6q9ge/VnPtwiDUqn5M7/evQ6U14FWaMocZxn UKRBfizlmImNgahoV3Oayg== 0000950135-05-007007.txt : 20051216 0000950135-05-007007.hdr.sgml : 20051216 20051216160516 ACCESSION NUMBER: 0000950135-05-007007 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20051216 DATE AS OF CHANGE: 20051216 GROUP MEMBERS: GLENN M. PARKER, M.D. GROUP MEMBERS: LEWIS P. STONE GROUP MEMBERS: RGGPLS HOLDING, INC. STOCK BONUS PLAN AND TRUST GROUP MEMBERS: ROBERT GREGG SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NationsHealth, Inc. CENTRAL INDEX KEY: 0001233426 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 061688360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79247 FILM NUMBER: 051269846 BUSINESS ADDRESS: STREET 1: 13650 N.W. 8TH STREET STREET 2: SUITE 109 CITY: SUNRISE STATE: FL ZIP: 33325 BUSINESS PHONE: 6102932511 MAIL ADDRESS: STREET 1: 13650 N.W. 8TH STREET STREET 2: SUITE 109 CITY: SUNRISE STATE: FL ZIP: 33325 FORMER COMPANY: FORMER CONFORMED NAME: MILLSTREAM ACQUISITION CORP DATE OF NAME CHANGE: 20030516 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RGGPLS, LLC CENTRAL INDEX KEY: 0001302789 IRS NUMBER: 342028098 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 13650 N.W. 8TH STREET, SUITE 109 CITY: SUNRISE STATE: FL ZIP: 33325 BUSINESS PHONE: 954-903-5000 MAIL ADDRESS: STREET 1: 13650 N.W. 8TH STREET, SUITE 109 CITY: SUNRISE STATE: FL ZIP: 33325 FORMER COMPANY: FORMER CONFORMED NAME: RGGPLS Holding, Inc. DATE OF NAME CHANGE: 20040910 SC 13D/A 1 b58209nhsc13dza.htm NATIONSHEALTH, INC. sc13dza
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 4)*

NATIONSHEALTH, INC.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

63860C100

(CUSIP Number)

RGGPLS, LLC
13650 N.W. 8th St., Suite 109
Sunrise, Florida 33325
Tel. (954) 903-5000

with a copy to:
Ira Coleman, Esq.
McDermott Will & Emery LLP
201 South Biscayne Boulevard
Miami, FL 33131
Tel. (305) 358-3500

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

December 5, 2005

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.


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CUSIP No. 63860C100

  1. Name of Reporting Person:
RGGPLS, LLC
I.R.S. Identification Nos. of above persons (entities only):
34-2028098

  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) þ  
    (b) o  

  3. SEC Use Only:

  4. Source of Funds (See Instructions):
Not applicable

  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o

  6. Citizenship or Place of Organization:
Delaware

Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0

8. Shared Voting Power:
17,986,065 shares

9. Sole Dispositive Power:
0

10.Shared Dispositive Power:
10,428,017 shares

  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
17,986,065 shares

  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o

  13.Percent of Class Represented by Amount in Row (11):
67.1%

  14.Type of Reporting Person (See Instructions):
OO


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CUSIP No. 63860C100

  1. Name of Reporting Person:
RGGPLS Holding, Inc. Stock Bonus Plan and Trust
I.R.S. Identification Nos. of above persons (entities only):

  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) þ  
    (b) o  

  3. SEC Use Only:

  4. Source of Funds (See Instructions):
Not applicable

  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o

  6. Citizenship or Place of Organization:
Florida

Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0

8. Shared Voting Power:
1,612,376 shares

9. Sole Dispositive Power:
0

10.Shared Dispositive Power:
0

  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
1,612,376 shares

  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o

  13.Percent of Class Represented by Amount in Row (11):
6.0%

  14.Type of Reporting Person (See Instructions):
OO


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CUSIP No. 63860C100

  1. Name of Reporting Person:
Glenn M. Parker, M.D.
I.R.S. Identification Nos. of above persons (entities only):

  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) þ  
    (b) o  

  3. SEC Use Only:

  4. Source of Funds (See Instructions):
Not applicable

  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o

  6. Citizenship or Place of Organization:
United States

Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
32,687 shares

8. Shared Voting Power:
17,986,065 shares

9. Sole Dispositive Power:
1,382,687 shares

10.Shared Dispositive Power:
10,428,017 shares

  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
18,018,752 shares

  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o

  13.Percent of Class Represented by Amount in Row (11):
67.1%

  14.Type of Reporting Person (See Instructions):
IN


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CUSIP No. 63860C100

  1. Name of Reporting Person:
Lewis P. Stone
I.R.S. Identification Nos. of above persons (entities only):

  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) þ  
    (b) o  

  3. SEC Use Only:

  4. Source of Funds (See Instructions):
Not applicable

  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o

  6. Citizenship or Place of Organization:
United States

Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
32,687 shares

8. Shared Voting Power:
17,986,065 shares

9. Sole Dispositive Power:
32,687 shares

10.Shared Dispositive Power:
10,428,017 shares

  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
18,018,752 shares

  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o

  13.Percent of Class Represented by Amount in Row (11):
67.1%

  14.Type of Reporting Person (See Instructions):
IN


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CUSIP No. 63860C100

  1. Name of Reporting Person:
Robert Gregg
I.R.S. Identification Nos. of above persons (entities only):

  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) þ  
    (b) o  

  3. SEC Use Only:

  4. Source of Funds (See Instructions):
Not applicable

  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o

  6. Citizenship or Place of Organization:
United States

Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
32,687 shares

8. Shared Voting Power:
17,986,065 shares

9. Sole Dispositive Power:
32,687 shares

10.Shared Dispositive Power:
10,428,017 shares

  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
18,018,752 shares

  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o

  13.Percent of Class Represented by Amount in Row (11):
67.1%

  14.Type of Reporting Person (See Instructions):
IN


Item 4. Purpose of Transaction.
Item 5. Interest in Securities of the Issuer.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
Item 7. Materials to be Filed as Exhibits.
SIGNATURE
Exhibit Index
Ex-99.1 Amended & Restated Joint Filing Agreement
Ex-99.2 Voting Agreement, dated as of December 5, 2005
Ex-99.4 Limited Liability Company Agreement, dated as of August 27, 2004


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     THIS SCHEDULE 13D/A is filed by RGGPLS, LLC (reorganized from RGGPLS Holding, Inc.) (“RGGPLS”), the RGGPLS Holding, Inc. Stock Bonus Plan & Trust (the “Incentive Plan”), Robert Gregg, Lewis Stone and Glenn M. Parker, M.D. (collectively, the “Reporting Persons”). This filing shall serve to further amend the Schedule 13D filed by the Reporting Persons on September 10, 2004 and amended on January 11, 2005, March 14, 2005 and July 12, 2005. This Schedule 13D/A is being amended to, among other reasons specifically set forth below, eliminate the Glenn M. Parker 2004 Multigenerational Trust (the “Parker Trust”), the Lewis P. Stone 2004 Multigenerational Trust (the “Stone Trust”), the Robert Gregg 2004 Multigenerational Trust (the “Gregg Trust”), the Robert Gregg Revocable Trust dated December 18, 2000 (the “Gregg Revocable Trust”), Robin S. Parker and Robert Gregg as trustees of the Parker Trust, Stephanie T. Stone and Robin S. Parker as trustees of the Stone Trust, Pamela Fay Gregg and Kathryn G. Pincus as trustees of the Gregg Trust, and Robert Gregg as trustee of the Gregg Revocable Trust as Reporting Persons because those entities and individuals are not managing members of RGGPLS pursuant to its limited liability company agreement and thus those entities and individuals have vested voting and dispositive power of the securities described herein with Robert Gregg, Lewis Stone and Glenn M. Parker, M.D.
Item 4. Purpose of Transaction.
     Item 4 is hereby amended and supplemented by adding the following information at the conclusion of the Section:
     Distribution to Glenn M. Parker, M.D.
     On December 5, 2005, RGGPLS transferred 1,350,000 shares of Common Stock allocable to one of its members, Glenn M. Parker, M.D., into his name (the “Parker Transfer”). Simultaneously with the Parker Transfer, RGGPLS and Dr. Parker entered into that certain Voting Agreement, dated December 5, 2005 (the “Parker Voting Agreement”). The Parker Voting Agreement provides that Dr. Parker will vote the shares he obtained pursuant to the Parker Transfer in favor of (a) all of the RGGPLS nominees if directors are to be elected at the stockholders meeting; (b) any matter brought before a stockholders meeting and proposed or sponsored by RGGPLS to be acted upon by the stockholders of the Corporation at such stockholders meeting (an “RGGPLS Matter”) and (c) any other matter as directed by RGGPLS; and against (x) the election of any person or persons nominated in opposition to the RGGPLS nominees (if directors are to be elected at the stockholders meeting); (y) any matter brought before such stockholders meeting to be acted upon by the stockholders of the Corporation that is in opposition to an RGGPLS Matter or (z) any other matter as directed by RGGPLS.
     Distribution Pursuant to the terms of the RGGPLS Holding, Inc. Stock Bonus Plan & Trust
     On December 12, 2005, upon the satisfaction of certain vesting conditions, the Incentive Plan transferred an aggregate of 128,258 shares of Common Stock, previously awarded, into the names of the Beneficiaries (as defined in the Incentive Plan) pursuant to Section 3(a) of the Incentive Plan (the “December 2005 Transfer”) and the terms of a Letter of Instruction from the Incentive Plan and its broker to Continental Stock Transfer & Trust Company describing the terms of the December 2005 Transfer to the Beneficiaries.
Item 5. Interest in Securities of the Issuer.
     Item 5 is hereby amended and restated in its entirety to read as follows:
     (a) and (b). RGGPLS is the owner, with shared dispositive and voting power, of 10,428,017 shares of Common Stock, which represents 38.9% of the shares of Common Stock outstanding as of December 12, 2005. As a result of the rights granted to RGGPLS under the Incentive Plan, the

 


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stockholders agreement dated as of March 9, 2004, and amended as of June 2, 2004, by and among the Corporation, RGGPLS and GRH (the “Merger Stockholder Agreement”), the MHR Stockholder Agreement and the Parker Voting Agreement described in Item 4 above, RGGPLS may also be deemed the beneficial owner, with shared voting power, of an additional 1,612,376 shares of Common Stock held by RGGPLS as trustee of the Incentive Plan, 2,809,958 shares of Common Stock issued to GRH, 1,785,714 shares issued to the Investors and 1,350,000 shares held by Dr. Parker, respectively, for a total beneficial ownership of 17,986,065 shares of Common Stock, which represents 67.1% of the shares of Common Stock outstanding as of December 12, 2005.
     As a result of the December 2005 Transfer as described in Item 4 above, the Incentive Plan may be deemed the beneficial owner of, and has voting power over, 1,612,376 shares of Common Stock, which represents 6.0% of the shares of Common Stock outstanding as of December 12, 2005.
     Glenn M. Parker, M.D., as a managing member of RGGPLS, may be deemed the beneficial owner, with shared dispositive and voting power, of 10,428,017 shares of Common Stock held by RGGPLS which represents 38.9% of the shares of Common Stock outstanding as of December 12, 2005. As a result of Dr. Parker’s position as a managing member of RGGPLS and the rights granted to RGGPLS under the Incentive Plan, the Merger Stockholder Agreement and the MHR Stockholder Agreement described in Item 4 above, Dr. Parker may also be deemed the beneficial owner, with shared voting power, of an additional 1,612,376 shares of Common Stock held by RGGPLS as trustee of the Incentive Plan, 2,809,958 shares of Common Stock issued to GRH and 1,785,714 shares issued to the Investors. In addition, Dr. Parker owns 1,350,000 shares of Common Stock in his individual capacity, over which he shares voting control with RGGPLS pursuant to the terms of the Parker Voting Agreement and holds currently exercisable options to purchase an additional 32,687 shares of Common Stock, for a total beneficial ownership of 18,018,752 shares of Common Stock, which represents 67.1% of the shares of Common Stock outstanding as of December 12, 2005.
     Lewis P. Stone, as a managing member of RGGPLS, may be deemed the beneficial owner, with shared dispositive and voting power, of 10,428,017 shares of Common Stock held by RGGPLS which represents 38.9% of the shares of Common Stock outstanding as of December 12, 2005. As a result of Mr. Stone’s position as a managing member of RGGPLS and the rights granted to RGGPLS under the Incentive Plan, the Merger Stockholder Agreement, the MHR Stockholder Agreement and the Parker Voting Agreement described in Item 4 above, Mr. Stone may also be deemed the beneficial owner, with shared voting power, of an additional 1,612,376 shares of Common Stock held by RGGPLS as trustee of the Incentive Plan, 2,809,958 shares of Common Stock issued to GRH, 1,785,714 shares issued to the Investors and 1,350,000 shares of Common Stock held by Dr. Parker. In addition, Mr. Stone holds currently exercisable options to purchase an additional 32,687 shares of Common Stock, for a total beneficial ownership of 18,018,752 shares of Common Stock, which represents 67.1% of the shares of Common Stock outstanding as of December 12, 2005.
     Robert Gregg, as a managing member of RGGPLS, may be deemed the beneficial owner, with shared dispositive and voting power, of 10,428,017 shares of Common Stock held by RGGPLS which represents 38.9% of the shares of Common Stock outstanding as of December 12, 2005. As a result of Mr. Gregg’s position as a managing member of RGGPLS and the rights granted to RGGPLS under the Incentive Plan, the Merger Stockholder Agreement, the MHR Stockholder Agreement and the Parker Voting Agreement described in Item 4 above, Mr. Gregg may also be deemed the beneficial owner, with shared voting power, of an additional 1,612,376 shares of Common Stock held by RGGPLS as trustee of the Incentive Plan, 2,809,958 shares of Common Stock issued to GRH, 1,785,714 shares issued to the Investors and 1,350,000 shares of Common Stock held by Dr. Parker. In addition, Mr. Gregg holds currently exercisable options to purchase an additional 32,687 shares of Common Stock, for a total beneficial ownership of 18,018,752 shares of Common Stock, which represents 67.1% of the shares of Common Stock outstanding as of December 12, 2005.

 


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     The calculation of the foregoing percentages is based on information from the Corporation stating that there were 26,803,112 shares of Common Stock issued and outstanding as of December 12, 2005.
     Other than as set forth above, no shares of Common Stock are beneficially owned by any of the Reporting Persons.
     (c). On December 5, 2005, the Parker Transfer was made and on December 12, 2005, the December 2005 Transfer was made, both as described in Item 4 above, which descriptions are incorporated herein by reference.
     (d). None.
     (e). Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
     Item 6 is hereby amended and restated in its entirety to read as follows:
     On December 30, 2004, the Incentive Plan was established as described in Item 4 above, which description is incorporated herein by reference. On February 28, 2005, the Stock Transfer Letters, the Investment Unit Purchase Agreement and the MHR Stockholders Agreement became effective as described in item 4 above, which descriptions are incorporated herein by reference.
     On June 30, 2005, the Incentive Plan was amended to clarify that the Common Stock over which the Incentive Plan may be deemed the beneficial owner is subject to the claims of the Company’s general creditors.
     On December 5, 2005 the Parker Voting Agreement became effective as described in item 4 above, which description is incorporated herein by reference.
     On December 6, 2005, Dr. Parker pledged the shares of Common Stock he obtained pursuant to the Parker Transfer to Gibraltar Bank.
     Except as set forth herein, none of the Reporting Persons has any entered into any contracts, arrangements, understandings or relationships required to be described in Item 6 of Schedule 13D.
Item 7. Materials to be Filed as Exhibits.
     See the Exhibit Index immediately following the signature page, which is incorporated herein by reference.

 


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SIGNATURE
     After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: December [     ], 2005
         
  RGGPLS, LLC



 
 
  By:   /s/ Glenn M. Parker    
    Name:   Glenn M. Parker, M.D.    
    Title:   Managing Member   
 
         
     
  /s/ Glenn M. Parker    
  Glenn M. Parker, M.D.    
     
 
         
     
  /s/ Lewis P. Stone    
  Lewis P. Stone    
     
 
         
     
  /s/ Robert Gregg    
  Robert Gregg    
     
 
         
  RGGPLS HOLDING, INC. STOCK BONUS PLAN AND TRUST
 
 
  By:   RGGPLS, LLC as Trustee    
       
  By:   /s/ Glenn M. Parker    
    Name:   Glenn M. Parker, M.D.    
    Title:   Managing Member   

 


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Exhibit Index
     
Exhibit No.   Description
1
  Amended and Restated Joint Filing Agreement, executed in accordance with Rule 13d-1(k) under the Securities and Exchange Act of 1934, as amended.
 
   
2
  Voting Agreement, dated as of December 5, 2005, by and between RGGPLS and Glenn M. Parker, M.D.
 
   
3
  Stockholders Agreement, dated as of March 9, 2004, as amended on June 2, 2004, among the Corporation, RGGPLS, and GRH (incorporated by reference to Annex E to the Corporation’s Definitive Proxy Statement (File No. 000-50348) filed on August 13, 2004 and incorporated herein by reference.
 
   
4
  Limited Liability Company Agreement of RGGPLS, dated as of August 27, 2004.

 

EX-99.1 2 b58209nhexv99w1.htm EX-99.1 AMENDED & RESTATED JOINT FILING AGREEMENT exv99w1
 

Exhibit 1
AMENDED AND RESTATED JOINT FILING AGREEMENT
     In accordance with Rule 13d-1(k) under the Securities and Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.0001 per share, of NationsHealth, Inc., and further agree that this Amended and Restated Joint Filing Agreement be included as Exhibit 1 to Amendment No. 4.
     This Amended and Restated Joint Filing Agreement supercedes the Joint Filing Agreement entered into among RGGPLS Holding, Inc. (predecessor to RGGPLS, LLC) and certain of the other persons named below.
     In evidence thereof, the undersigned hereby execute this Amended and Restated Joint Filing Agreement as of December 15, 2005.
         
  RGGPLS, LLC
 
 
  By:   /s/ Glenn M. Parker    
    Name:   Glenn M. Parker, M.D.   
    Title:   Managing Member   
 
         
 
  /s/ Glenn M. Parker
 
Glenn M. Parker, M.D.
   
 
       
 
  /s/ Lewis P. Stone    
 
       
 
  Lewis P. Stone    
 
       
 
  /s/ Robert Gregg    
 
       
 
  Robert Gregg    
         
  RGGPLS HOLDING, INC. STOCK
BONUS PLAN & TRUST


BY: RGGPLS, LLC, trustee
 
 
  By:   /s/ Glenn M. Parker    
    Name:   Glenn M. Parker, M.D.   
    Title:   Managing Member   
 

EX-99.2 3 b58209nhexv99w2.htm EX-99.2 VOTING AGREEMENT, DATED AS OF DECEMBER 5, 2005 exv99w2
 

Exhibit 2
VOTING AGREEMENT
     VOTING AGREEMENT, dated as of December 5, 2005 (this “Agreement”), among RGGPLS, LLC, a Delaware limited liability company (“RGGPLS”), and Glenn M. Parker, M.D. (the “Specified Stockholder”).
PRELIMINARY STATEMENTS
     WHEREAS, RGGPLS and the Specified Stockholder desire to make certain covenants and agreements set forth herein with respect to the voting of the Shares (as defined below) held by the Specified Stockholder in order for NationsHealth, Inc. (the “Company”), a Delaware corporation, to maintain its status as a Controlled Company status under the Nasdaq Marketplace Rules and certain other matters; and
     WHEREAS, RGGPLS and the Specified Stockholder desire to agree to act together for the purpose of voting the Shares.
     NOW THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
     SECTION 1.01 Definition of Certain Terms Used Herein. As used herein, the following terms shall have meanings specified below:
     “Affiliate” shall mean, with respect to any person, any other person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with such person. For the purposes of this definition, “control” when used with respect to any particular person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
     “Applicable Exchange” shall mean Nasdaq, the NYSE, the AMEX or any other stock exchange, as the case may be, if the Common Stock is then traded on Nasdaq, the NYSE, the AMEX or such other stock exchange, and shall mean none of Nasdaq, the NYSE, the AMEX or any other stock exchange if the Common Stock is not then traded on Nasdaq, the NYSE, the AMEX or any other stock exchange.
     “beneficial owner” shall have the meaning assigned to such term in Rule 13d-3 under the Exchange Act.
     “Board of Directors” shall mean the Board of Directors of the Company.
     “Common Stock” shall mean the common stock, par value $0.0001 per share, of the Company.

 


 

     “directors” shall mean members of the Board of Directors.
     “DGCL” shall mean the Delaware General Corporation Law, as amended.
     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
     “Other Matter” shall mean any matter (including the election of directors to the Board of Directors) brought before a Stockholders Meeting and proposed or sponsored by a person other than RGGPLS, to be acted upon by the stockholders of the Company.
     “RGGPLS Matter” shall mean any matter brought before a Stockholders Meeting and proposed or sponsored by RGGPLS to be acted upon by the stockholders of the Company at such Stockholders Meeting.
     “RGGPLS Nominee” shall mean any person nominated by RGGPLS for election as a director to the Board of Directors.
     “SEC” shall mean the United States Securities and Exchange Commission or any other United States federal agency at the time administering the Securities Act or the Exchange Act, as applicable, whichever is the relevant statute.
     “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations thereunder.
     “Shares” shall mean One Million Three Hundred Fifty Thousand (1,350,000) shares of the Company’s common stock, par value $0.0001 per share.
     “Stockholders” shall mean both of RGGPLS and the Specified Stockholder, and “Stockholder” shall mean either of RGGPLS or the Specified Stockholder.
     “Stockholders Meeting” shall mean (i) any annual or special meeting of the stockholders of the Company or (ii) any action by written consent of the stockholders of the Company.
     “Triggering Event” shall mean, if the Common Stock is then listed or quoted on an Applicable Exchange, the failure of the Company to constitute a “Controlled Company” for purposes of the rules and regulations of the Applicable Exchange (it being understood and agreed that if the Common Stock is not then listed or quoted on an Applicable Exchange, then a Triggering Event shall not be capable of occurring).
     SECTION 1.02 Usage. The definitions in this Article I shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references in this Agreement to Articles, Sections and Schedules shall be deemed to be references to Articles, Sections and Schedules of or to this Agreement, unless the context shall otherwise require. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, regardless of whether such phrase so appears.

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ARTICLE II
REPRESENTATIONS AND WARRANTIES
     SECTION 2.01 Representations and Warranties of the Stockholders. Each Stockholder hereby represents and warrants to each other party as follows: (i) the execution, delivery and performance by such Stockholder of its obligations under this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of such Stockholder; and (ii) this Agreement has been duly and validly executed and delivered by such Stockholder and constitutes the legal, valid and binding obligation of such Stockholder, enforceable against it in accordance with its terms.
ARTICLE III
VOTING
     SECTION 3.01 Agreement to Vote. So long as the Specified Stockholder is the beneficial owner of the Shares, at each and every Stockholders Meeting, the Specified Stockholder hereby agrees (x) if any annual or special meeting of the stockholders of the Company is held, to appear at such meeting or otherwise cause its Shares to be counted as present thereat for purposes of establishing a quorum, and (y) to vote or to act by written consent with respect to (or cause to be voted or acted upon by written consent), (i) all Shares for which the Specified Stockholder is the record holder or beneficial owner at the time of such vote or action by written consent and (ii) all Shares as to which the Specified Stockholder at the time of such vote or action by written consent has voting control, in each case:
  (A)   In favor of:
     (i) All of the RGGPLS Nominees (if directors are to be elected at such Stockholders Meeting);
     (ii) Any RGGPLS Matter; and/or
     (iii) Any Other Matter, only if RGGPLS directs (by oral or written notice) the Specified Stockholder to vote in favor of such Other Matter; and
  (B)   Against:
     (i) The election of any person or persons nominated in opposition to the RGGPLS Nominees (if directors are to be elected at such Stockholders Meeting);
     (ii) Any matter brought before such Stockholders Meeting to be acted upon by the stockholders of the Company that is in opposition to an RGGPLS Matter; and/or
     (iii) Any Other Matter, only if RGGPLS directs (by oral or written notice) the Specified Stockholder to vote against such Other Matter.

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     SECTION 3.02 Grant of Irrevocable Proxy. The Specified Stockholder hereby irrevocably grants to and appoints RGGPLS (and any officer of RGGPLS or each of them individually) as the Specified Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Specified Stockholder, to vote, act by written consent or grant a consent, proxy or approval in respect of such Shares with respect to such vote or action by written consent exclusively as agreed by the Specified Stockholder in this Agreement, in the event that the Specified Stockholder shall fail at any time to vote or act by written consent with respect to any of the Specified Stockholder’s Shares as agreed by the Specified Stockholder in this Agreement. The Specified Stockholder hereby affirms that any such irrevocable proxy set forth in this Section 3.02 is given to secure the performance of obligations of the Specified Stockholder under this Agreement. The Specified Stockholder hereby further affirms that any such proxy hereby granted shall be irrevocable and shall be deemed coupled with an interest, in accordance with Section 212(e) of the DGCL. The Specified Stockholder agrees to execute and deliver any further powers of attorney, consents, proxies or other agreements necessary or appropriate to give effect to this Section 3.02.
     SECTION 3.03 Certain Actions. Each Stockholder agrees that it will, and will cause its subsidiaries and Affiliates to, take all action as a stockholder of the Company or as is otherwise within its control as are necessary to give effect to the provisions of this Agreement and to perform, pay and satisfy all of their respective obligations and liabilities hereunder as and when due.
ARTICLE IV
COVENANTS
     SECTION 4.01 Status of the Company. At all times prior to the occurrence of a Triggering Event and so long as the Common Stock is listed or quoted on an Applicable Exchange, the Specified Stockholder shall publicly take the position that the Company is a “Controlled Company” within the rules and regulations of the Applicable Exchange and cause the disclosure in all statements, reports, schedules or other documents required to be filed by the Specified Stockholder with the SEC pursuant to the Exchange Act to state that the Company is a “Controlled Company” within the rules and regulations of the Applicable Exchange and the basis for such determination. Without limiting the generality of the foregoing, if required by the rules and regulations of the Applicable Exchange in order for the Company to constitute a “Controlled Company” within the rules and regulations of such Applicable Exchange, the Specified Stockholder agrees to file a Statement on Schedule 13D with the SEC on a timely basis stating that RGGPLS and the Specified Stockholder constitute a “group” within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder with respect to the Shares if such filing and statement are required or allowed under the applicable rules of the SEC.

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ARTICLE V
MISCELLANEOUS PROVISIONS
     SECTION 5.01 Specific Performance. The parties hereto hereby declare that irreparable damage would occur as a result of the failure of any party hereto to perform any of its obligations under this Agreement in accordance with the specific terms hereof. Therefore, all parties hereto shall have the right to specific performance of the obligations of the other parties under this Agreement and if any party hereto shall institute any action or proceeding to enforce the provisions hereof, any person against whom such action or proceeding is brought hereby waives the claim or defense therein that such party has an adequate remedy at law. The right to specific performance should be in addition to any other remedy to which a party hereto may be entitled at law or in equity.
     SECTION 5.02 Conflicts and Inconsistent Agreements. Neither the Company nor any Stockholder shall enter into any agreement inconsistent with the terms of this Agreement.
     SECTION 5.03 Complete Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto with respect to the matters referred to herein and supersedes all prior agreements and understandings among the parties hereto with respect to the matters referred to herein.
     SECTION 5.04 Amendment. This Agreement may not be amended, modified or supplemented, and no waivers of or consents to departures from the provisions hereof may be given, unless consented to in writing by RGGPLS and the Specified Stockholder.
     SECTION 5.05 Successors; Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, directly or indirectly, including by operation of law, by any party hereto without the prior written consent of the other parties hereto. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that the Specified Stockholder shall be permitted to pledge its shares as collateral in connection with a loan or financing. Notwithstanding the foregoing, the obligations of the Specified Stockholder under this Agreement and the rights of RGGPLS to vote the Shares under Section 3.01 shall no longer apply and this Agreement shall be deemed terminated with respect to any Shares which are sold or otherwise disposed of (including any transfer resulting from sale or foreclosure) by the Specified Stockholder to a third party that is not an Affiliate of the Specified Stockholder, in compliance with the terms of this Agreement.
     SECTION 5.06 Attorney Fees. A party in breach of this Agreement shall, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees and expenses, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled.
     SECTION 5.07 Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent by

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prepaid telex, cable or telecopy or sent, postage prepaid, by registered, certified or express mail or reputable overnight courier service and shall be deemed given when so delivered by hand, telexed, cabled or telecopied, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service), as follows (or at such other address, telephone number and fax number as a party shall notify each other party hereto):
  (i)   if to RGGPLS:
 
      RGGPLS, LLC
13650 N.W. 8th St., Suite 109
Sunrise, Florida 33325
Attention: Robert Gregg and Lewis Stone
Telecopy No.: (954) 903-5007
 
      with a copy to:
 
      McDermott, Will & Emery
201 S. Biscayne Blvd., Suite 2200
Miami, FL 33131
Attention: Ira J. Coleman, Esq.
Telecopy No.: (305) 347-6500
 
  (ii)   if to the Specified Stockholder:
 
      Glenn M. Parker, M.D.
10401 Golden Eagle Court
Plantation, FL 33324
Telecopy No.: (954) [______]
     SECTION 5.08 Interpretation. The headings contained in this Agreement and in any Schedule hereto are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.
     SECTION 5.09 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other party.
     SECTION 5.10 Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstance.

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     SECTION 5.11 Governing Law. This Agreement and all actions contemplated hereby shall be governed by and construed and enforced in accordance with the laws of the State of Delaware (without regard to conflict of laws principles).
     SECTION 5.12 Submission to Jurisdiction. Any and all suits, legal actions or proceedings arising out of this Agreement shall be brought in the Superior Court or the Court of Chancery of the State of Delaware or the United States District Court for the District of Delaware or in the Supreme Court of the State of New York, New York County or the United States District Court for the Southern District of New York and each party hereby submits to and accepts the exclusive jurisdiction of such courts for the purpose of such suits, legal actions or proceedings. In any such suit, legal action or proceeding, each party waives personal service of any summons, compliant or other process and agrees that service thereof may be made by certified or registered mail directed to it at its address set forth in the books and records of the company. To the fullest extent permitted by law, each party hereto hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue or any such suit, legal action or proceeding in any such court and hereby further waives any claim that any suit, legal action or proceeding brought in any such court has been brought in an inconvenient forum.
     SECTION 5.13 Waiver of Jury Trial. Each party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each party (i) certifies that no representative of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 5.14.
     SECTION 5.14 No Waiver of Rights. No failure or delay on the part of any party in the exercise of any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude other or further exercise thereof or of any other right or power. The waiver by any party or parties hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach hereunder. All rights and remedies existing under this Agreement are cumulative and are not exclusive of any rights or remedies otherwise available.

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     IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
         
  RGGPLS, LLC
 
 
  By:   /s/ Lewis Stone    
    Name:   Lewis Stone   
    Title:   Treasurer   
 
         
  SPECIFIED STOCKHOLDER:

GLENN M. PARKER, M.D.
 
 
  By:   /s/ Glenn M. Parker    
    Name:   Glenn M. Parker   
       
 

 

EX-99.4 4 b58209nhexv99w4.htm EX-99.4 LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF AUGUST 27, 2004 exv99w4
 

Exhibit 4
LIMITED LIABILITY COMPANY AGREEMENT
OF
RGGPLS, LLC
     THIS LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is entered into this 27th day of August, 2004, by and between the Persons set forth on the signature page hereto (together with all other Persons who later become members pursuant to this Agreement, individually a “Member” and collectively the “Members”).
ARTICLE 1
FORMATION
     1.1 Formation and Structure. The Members have caused the Company to be formed as a limited liability company under the Act, for the purposes and upon the terms, covenants and conditions set forth in this Agreement.
     1.2 Name. The name of the Company shall be RGGPLS, LLC, or such other name as determined by the Management Board.
     1.3 Purpose. The sole and exclusive purpose of the Company shall any lawful activity for which limited liability companies may be organized under the Act.
     1.4 Principal Office. The principal office of the Company may be fixed by the Management Board at any place within the United States, whether within or without the state of Delaware.
     1.5 Term. The term of the Company commenced upon filing of the certificate of formation with the Secretary of State of the State of Delaware and will terminate at such time as described in this Agreement or required under the Act.
ARTICLE 2
DEFINITIONS
     The following terms shall have the meanings set forth below:
     Act means the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as amended, or any successor statute.
     Agreement means this Limited Liability Company Agreement (including all Exhibits hereto), as it may be amended, supplemented or restated from time to time.
     Indemnitee has the meaning ascribed such term in Section 7.5.

 


 

     Management Board has the meaning ascribed such term in Section 6.1.
     Manager has the meaning ascribed such term in Section 6.1.
     Members as of the date hereof has the meaning ascribed such term in the preamble to this Agreement. A Member shall remain a member of the Company until it ceases to be a member in accordance with the Act, the Certificate of Formation of the Company, or this Agreement.
     Membership Interest means the entire ownership interest of a Member in the Company at any particular time. Such interest includes, without limitation, the right to receive distributions, the right to receive allocations of income, gain, loss, deduction or credit of the Company, if and solely to the extent provided herein, and any and all benefits to which any such Member may be entitled as provided in this Agreement or the Act, together with the obligations of any such Member to comply with the terms and provisions of this Agreement.
     Percentage Interest means with respect to each Member, the percentage relating to such Member’s Membership Interest as set forth on Exhibit A hereto.
     Person means an individual or a corporation, partnership, trust, limited liability company, unincorporated organization, association or other entity.
     Transfer means (i) any disposition, directly or indirectly, by operation of law or otherwise, voluntarily or involuntarily, by intestacy, will, trust or estate distribution, or inter vivos action, including any sale, gift, pledge, encumbrance or other creation of a security interest or attachment, (ii) any event that results in a holder of a Membership Interest ceasing to be a Family Member, including a change in family relationship due to adoption, a change in beneficiaries (in the case of a fiduciary arrangement), and a change in ownership or control (in the case of a business organization), and (iii) a Member ceasing to be trustee or co-trustee of the Member’s Revocable Declaration of Trust, unless the trustee of such trust has been admitted as a Member. “Transfer” shall not include (i) the creation or acquisition of a community or marital property interest in a Membership Interest by a spouse of a Membership Interest holder as long as the spouse is not a registered owner and exercises no management, dominion, or control over such Membership Interest, (ii) a transfer to (but not from) the executor, administrator, or other legal representative of the estate of a deceased Membership Interest holder, or (iii) a transfer to the guardian or conservator for a legally adjudicated incompetent Membership Interest holder. "Transferred”, “Transferee”, and “Transferor” shall have correlative meanings.
     Treasury Regulations means the income tax regulations promulgated under the Code and in effect, as amended, supplemented or modified from time to time.

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ARTICLE 3
CAPITALIZATION OF THE COMPANY
     3.1 Capital Contributions. No capital contributions shall be required or permitted unless approved by all the Members.
     3.2 Capital Accounts. A Capital Account shall be maintained for each Member in accordance with Treasury Regulation § 1.704-1(b)(2)(iv).
ARTICLE 4
DISTRIBUTIONS AND WITHDRAWALS
     4.1 Distributions Generally. Distributions shall be made, in the discretion of the Management Board, to the Members in accordance with the Members’ respective Percentage Interests.
     4.2 Liquidation Distributions. Distributions in liquidation of the Company shall be made as provided in Section 9.2.
ARTICLE 5
ALLOCATIONS AND ACCOUNTING
     5.1 Allocations. Profits and losses of the Company (and items of taxable income, gain, loss, and deduction) for each Fiscal Year or other period shall be allocated as follows to the Members in accordance with their relative Percentage Interests.
     5.2 Bank Accounts. The bank accounts of the Company shall be maintained in such banking institutions as the Management Board shall determine. The funds of the Company shall not be commingled with the funds of any other Person.
     5.3 Fiscal Year. The fiscal year of the Company for tax and accounting purposes (the “Fiscal Year”) shall be the calendar year.
ARTICLE 6
MANAGEMENT/DECISIONS/MEMBERS
     6.1 Management Generally. The day-to-day business and affairs of the Company shall be managed by and under the authority of a Management Board (the “Management Board”), and each member of the Management Board (“Manager”) shall be a “manager” as that term is used in the Act. The Management Board shall initially consist of three (3) Managers who may be removed and replaced by the Members acting unanimously. The decisions of the

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Management Board must be unanimous. The Management Board shall perform the duties prescribed to it hereunder, including without limitation conducting the ordinary and usual business affairs of the Company. Except as otherwise provided in this Agreement or under the Act, no Member shall have either the obligation or the right to take part, directly or indirectly, in the active management or control of the business of the Company, and no Member shall have the right or authority to act for or bind the Company. The initial managers are:
Robert Gregg
Glenn M. Parker
Lewis P. Stone
     6.2 Compensation. Absent a unanimous consent of the Members, no member of the Management Board, as such, shall be entitled to any compensation from the Company for the performance of the duties on its part to be performed in such managing capacity; however, each member of the Management Board shall be entitled to reimbursement for its reasonable out-of-pocket costs incurred in carrying out its duties in connection with the Company.
ARTICLE 7
MEMBERS / INDEMNITY
     7.1 New Members. A new Member may be admitted only upon the unanimous consent of the Members.
     7.2 Withdrawal or Resignation. No Member may withdraw or resign from the Company.
     7.3 Tax Matters Partner. The “Tax Matters Partner” shall have the meaning of Code § 6231(a)(7) and shall be Robert Gregg.
     7.4 Indemnity. Subject to the last sentence of this Section 7.5, no current or former Member or Manager (in such capacity, an “Indemnitee”) shall have any liability, responsibility or accountability in damages or otherwise to any Members or the Company for any loss suffered by the Company, except to the extent such loss was caused by the fraud, bad faith, gross negligence or willful misconduct of such Indemnitee. Each Indemnitee shall be indemnified by the Company and the Company hereby agrees to indemnify, pay, protect and hold harmless each Indemnitee (on the demand of and to the satisfaction of such Indemnitee) from and against any and all liabilities, obligations, losses, damages, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature, provided that the same were not the result of (as determined by a final adjudication) fraud, bad faith, gross negligence or willful misconduct on the part of the Indemnitee. The foregoing includes, without limitation, all reasonable legal fees, costs and expenses of defense, appeal and settlement of any and all suits, actions or proceedings instituted against such Indemnitee or the Company and all costs of investigation in connection therewith (collectively referred to as “Liabilities” for the remainder of this Section)

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that may be imposed on, incurred by or asserted against an Indemnitee or the Company in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, or on the part of an Indemnitee. If any action, suit or proceeding shall be pending against the Company or an Indemnitee relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on either of their parts, the Company shall have the right to employ, at the expense of the Company, separate counsel of its choice in such action, suit or proceeding. The satisfaction of the obligations of the Company under this Section 7.4 shall be from and limited to the assets of the Company and no Member shall have any liability on account thereof. Nothing in this Section 7.4 shall limit the rights of any Member against any other Member for breach of this Agreement.
ARTICLE 8
TRANSFERS
     8.1 Transfers of Membership Interests. Except as specifically provided herein, no holder of a Membership Interest may Transfer all or any portion of such interest other than with the unanimous consent of the Members, such consent being in the sole discretion of each Member. Any purported Transfer in violation of the foregoing shall be null and void to the fullest extent permitted by law.
ARTICLE 9
TERMINATION AND DISSOLUTION
     9.1 Dissolution. The Company shall be dissolved solely upon the occurrence of any one of the following events:
  9.1.1   The written determination of all Managers to dissolve; or
 
  9.1.2   The entry of a decree of judicial dissolution under law.
     9.2 Dissolution Procedure.
            9.2.1 Winding Up, Liquidation, and Distribution of Assets. Upon dissolution of the Company, unless it is reconstituted and continued, the Manager, or, if no Manager is then serving, the person appointed by the Members acting unanimously (the “Liquidator”) shall immediately proceed to wind up the affairs of the Company. Upon liquidation of the Company, the assets of the Company shall be applied in the following manner and order of priority:
                    (a) First, to the payment and discharge of all debts and liabilities of the Company to creditors (including Members that are creditors) in the order of priority as provided by law, and of the costs and expenses of liquidation;

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                    (b) Second, to establish such reserves as the Liquidator deems reasonably necessary or advisable, or as required by the Act, to provide for the contingent liabilities of the Company in connection with the liquidation of the Company; and
                    (c) Third, to the Members proportion to their Percentage Interests.
          9.2.2 Complete Distribution. The distribution of cash or property to a Member in accordance with the provisions of this Section 9.2 shall constitute a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its interest in the Company and the Company’s property.
          9.2.3 Dissolution. Upon completion of the winding up, liquidation and distribution of the assets as described above, the Company shall be deemed terminated. Upon the issuance of the certificate of cancellation, the existence of the Company shall cease, except for any purposes as provided for in the Act.
ARTICLE 10
GENERAL PROVISIONS
     10.1 Rights of Creditors and Third Parties Under Agreement. This Agreement is entered into among the Company and the Members for the exclusive benefit of the Company, the Members, and their successors and assignees. This Agreement is expressly not intended for the benefit of any creditor of the Company or any other Person. Except and only to the extent provided by applicable statute, no such creditor or third party shall have any rights under this Agreement or any agreement between the Company and the Members with respect to any Capital Contribution or otherwise.
     10.2 Integration. This Agreement embodies the entire agreement and understanding among the Members and supersedes all prior agreements and understandings, if any, among and between the Members relating to the subject matter hereof.
     10.3 Applicable Law. THIS AGREEMENT AND THE RIGHTS OF THE MEMBERS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES THEREOF.
     10.4 Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one Agreement binding on all parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterpart.
     10.5 Headings. Headings are used merely for reference purposes and do not affect content in any manner.

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     10.6 Gender. Wherever applicable, the pronouns designating the masculine or neuter shall equally apply to the feminine, neuter and masculine genders. Furthermore, wherever applicable within this Agreement, the singular shall include the plural.
     10.7 Exhibits. Exhibits, if any, referred to in this Agreement are incorporated by reference into this Agreement.
     10.8 Amendments. Except as otherwise specifically provided for herein, any amendment of this Agreement must be in writing and approved by the unanimous consent of the Members.
     10.9 Authorized Person. The Members agree that any partner of McDermott, Will & Emery is authorized to file and execute such certificates, and to take such actions, that are necessary or helpful to form the Company in the state of Delaware and to qualify the Company in any other jurisdiction in which it conducts business, and that any such actions heretofore taken are hereby confirmed, ratified, and adopted.
[remainder of the page intentionally blank]

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     IN WITNESS WHEREOF, the undersigned Members have executed this Limited Liability Company Agreement as of the day and year first above written.
  /s/ Robert Gregg                    
Robert Gregg, not individually but as trustee of that certain unrecorded trust agreement known as the Robert Gregg Revocable Trust dated December 18, 2000

  /s/ Pamela Fay Gregg                        /s/ Kathryn G. Pincus                    
Pamela Fay Gregg and Kathryn G. Pincus as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Robert Gregg 2004 Multigenerational Trust

  /s/ Glenn M. Parker                    
Glenn M. Parker

  /s/ Robin S. Parker                        /s/ Robert Gregg                    
Robin S. Parker and Robert Gregg as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Glenn M. Parker 2004 Multigenerational Trust

  /s/ Lewis P. Stone                    
Lewis P. Stone

  /s/ Lewis P. Stone                        /s/ Robin S. Parker                    
Stephanie T. Stone and Robin S. Parker as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Lewis P. Stone 2004 Multigenerational Trust

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EXHIBIT A
MEMBERS AND PERCENTAGE INTERESTS
         
    Percentage
Member   Interest
Robert Gregg, not individually but as trustee of that certain unrecorded trust agreement known as the Robert Gregg Revocable Trust dated December 18, 2000
    10 %
 
       
Pamela Fay Gregg and Kathryn G. Pincus as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Robert Gregg 2004 Multigenerational Trust
  23 and 1/3%
 
       
Glenn M. Parker
  11 and 2/3%
 
       
Robin S. Parker and Robert Gregg as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Glenn M. Parker 2004 Multigenerational Trust
  21 and 2/3%
 
       
Lewis P. Stone
  6 and 2/3%
 
       
Stephanie T. Stone and Robin S. Parker as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Lewis P. Stone 2004 Multigenerational Trust
  26 and 2/3%
 
Totals
    100 %
 

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