Amended and Restated Limited Liability Company Agreement of GondolaBio, LLC, dated as of August 16, 2024

6.7          Withholding.  The Company at all times shall be entitled to make payments with respect to each Member in amounts required to discharge any obligation of the Company to withhold or make payments to any U.S. federal, state, local or foreign taxing authority with respect to any distribution or allocation of income or gain or otherwise with respect to such Member and to withhold (or deduct) the same from distributions to such Member.  Any funds withheld from a distribution or paid in respect of a Member (including related tax credits or benefits to which such Member may be entitled as a result of any payment by the Company to any taxing authority and the portion of any imputed underpayment (as determined under Code Section 6225) attributable to such Member) by reason of this Section 6.7 shall be treated as actually distributed to such Member for all purposes of this Agreement.  If the Company makes any payment to a taxing authority in respect of a Member (including the portion of any imputed underpayment (as determined under Code Section 6225) attributable to such Member) that is not withheld from actual distributions to the Member, then the Member shall indemnify and reimburse the Company for the amount of such payment (including any interest, penalties and related expenses), on demand.  The amount of a Member’s indemnification and reimbursement obligations under this Section 6.7, to the extent not paid, shall bear interest at a rate of the Prime Rate as of such due date, and shall be deducted from the distributions to such Member; any amounts so deducted shall constitute a repayment of such Member’s obligation hereunder.  Each Member’s indemnification and reimbursement obligations under this Section 6.7 shall survive a transfer by such Member of its interest in the Company, a withdrawal by such Member and a winding up or dissolution of the Company.  Each Member agrees to furnish the Company with any representations, forms, documentation and other information reasonably requested by the Company to assist it in determining the extent of, and in fulfilling, any withholding obligations it may have.  Each Member agrees to indemnify and hold harmless the Company and the other Members from and against any liability with respect to taxes, interest, penalties and related expenses that may be asserted by reason of the failure to deduct and withhold tax on amounts distributable or allocable to such Member.  Any amount payable as indemnity hereunder by a Member will be paid promptly to the Company or such other Member, as applicable, and if not so paid, the Company will be entitled to retain or otherwise offset any distributions due to such Member for all such amounts. Any income taxes, penalties and interest payable by the Company (including any entity-level tax incurred by the Company and creditable against an individual’s personal tax liability, including, but not limited to, state taxes described in Internal Revenue Service Notice 2020-75) shall be treated as specifically attributable to the Members and shall be allocated among the Members such that the burden of (or any diminution in distributable proceeds resulting from) any such taxes, penalties or interest is borne by those Members to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise), in each case as reasonably determined by the Board, which shall take into account for this purpose any special tax treatment or status of a Member or its indirect owners.

6.8          Restrictions on Distributions.  Notwithstanding anything to the contrary provided herein, no Distribution or Tax Distribution shall be made if, and for so long as, such Distribution or Tax Distribution would violate (x) any Law then applicable to the Company or (y) any contractual covenant or agreement between the Company or any of its Subsidiaries and any third-party lender or other bona fide third-party source of financing.

 

6.9          Determinations by the Board.  Notwithstanding anything to the contrary in this Agreement (other than Section 6.2), in the event the Board determines that it would be prudent to modify the manner in which the Capital Accounts and the allocation of net income or loss (including items thereof, and other tax items) are computed in order to effectuate the intended economic sharing arrangement of the Members or to comply with Section 704 and the Regulations thereunder, the Board may make such modification; provided that, to the extent such a modification has a material disproportionate economic impact on an Investor, the Board shall provide reasonable advance written notice to such impacted Investor of the intended modification (together with any written analysis and information available substantiating such modification) and provide such Investor with a reasonable opportunity to comment on such modification.

 

7.1          Books.  The Board shall cause to be maintained complete and accurate books of account of the Company’s affairs at the Company’s principal place of business.  Such books shall be kept on such method of accounting as the Board shall select.  For purposes of the Company’s financial statements, the Company’s assets and liabilities and statements of operations and cash flows shall be prepared in conformity with GAAP.  The Company’s accounting period shall be as determined by the Board.  The books of account of the Company shall be closed after the close of each Fiscal Year.

 

7.2          Information Rights.

 

(a)         For so long as a Member owns any Class A Units, the Company shall afford such Member and its Representatives access during normal business hours to (i) the Company’s and its Subsidiaries’ properties, (ii) the corporate, financial and similar records, reports and documents of the Company and its Subsidiaries, including all books and records and (iii) any officers and senior employees of the Company or its Subsidiaries and provide such Member and its Representatives the opportunity to discuss the affairs, finances and accounts of the Company with such officers and senior employees, in each case, (y) for the proper business purposes related to the Company and its Subsidiaries or in order to comply with applicable Law and (z) in such manner as to not interfere with the normal business operations of the Company and its Subsidiaries.

 

(b)         For so long as a Member owns any Class A Units, the Company shall deliver or cause to be delivered to such Member:

(i)          within one hundred and twenty (120) days after the end of each Fiscal Year (or such longer period of time as is approved by the Board), an audited consolidated balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year and the related consolidated income statement, consolidated statement of Members’ equity and consolidated statement of cash flows including all footnotes thereto for such Fiscal Year prepared in accordance with GAAP, consistently applied; and

 

(ii)          within sixty (60) days after the end of each quarterly accounting period, an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarterly accounting period and an unaudited related consolidated income statement, consolidated statement of Members’ equity and consolidated statement of cash flows for such quarterly accounting period prepared in accordance with GAAP (excluding footnotes and normal year-end adjustments), consistently applied.

 

(c)          Each applicable Member shall (i) bear all expenses incurred in any examination requested by such Member and (ii) obtain written confidentiality agreements in customary form from any agent, employee or certified public accountant auditing or examining the books of account of the Company or its Subsidiaries pursuant to this Section 7.2.

 

(d)          Notwithstanding anything to the contrary in this Section 7.2, the Company shall not be obligated to provide any Member with access to any information to the extent the Board reasonably believes that disclosure would violate applicable Law, or impair attorney-client or other legal privilege; provided that, the Company and the requesting Member shall cooperate in good faith to permit disclosure of such information in a manner that does not result in such a violation, breach or impairment.

 

7.3          Tax Matters.

 

(a)          The Company shall arrange for the preparation of all income and other Tax Returns of the Company and shall cause the same to be filed in a timely manner.  For each Fiscal Year for which the Company is treated as a partnership for U.S. federal income tax purposes, the Company shall use reasonable best efforts to furnish to each Member, an IRS Schedule K-1 (or any successor form and any corresponding form and schedule required to be issued under state or local income tax law) with respect to such Member no later than March 15 following each tax year (other than the first tax year of the Company) and shall furnish such IRS Schedule K-1(or any successor form and any corresponding form and schedule required to be issued under state or local income tax law) to such Member no later than March 31 following each tax year; provided, that with respect to any Fiscal Year in which the Company disposes of an interest in any of its Subsidiaries, the Company shall make commercially reasonable efforts to furnish an IRS Schedule K-1 (or any successor form and any corresponding form and schedule required to be issued under state or local income tax law) with respect to each Member no later than March 31 following each tax year and otherwise shall do so as soon thereafter as is reasonably practicable.  In addition, the Company shall use reasonable best efforts to provide, to the extent reasonably available, such other information as a Member may reasonably request for purposes of complying with tax reporting requirements applicable to such Member.  Except as otherwise provided in Section 4.10 and Section 9.2(c), at the discretion of the Board, the Company shall be entitled to make any tax elections allowed under the Code or the tax laws of any state or other jurisdiction having taxing jurisdiction over the Company and monitor any governmental tax authority in any audit that such authority may conduct of the Company’s books and records or other documents.  The Company shall, if requested by a Member, elect, in accordance with Code Section 754, to adjust basis in the event any interest of the Company is transferred in accordance with this Agreement or any Company property is distributed to any Member.

(b)          At the request of the Company, each Member shall, to the extent it is reasonably able to, provide the Company with such information, representations, waivers, certificates, duly completed forms and other documentation as is reasonably necessary for the Company or its Affiliates to comply with any withholding, reporting or other tax obligation; provided that, notwithstanding anything to the contrary in this Agreement, no Member shall be required to provide information with respect to any direct or indirect owner of such Member, except to the extent that such information is reasonably available to the applicable Member, is not subject to any non-disclosure restrictions imposed by contractual obligations or policies of the applicable Member, and such information is necessary for the Company and/or its Subsidiaries to comply with any applicable tax filing obligations (including determining whether any Subsidiary of the Company has had an “ownership change” within the meaning of Section 382 of the Code and the Treasury Regulations issued thereunder).

 

(c)          The Members intend that the Company shall be treated as a partnership for federal, state and local income and franchise tax purposes, and the Company shall not elect, and the Board shall not permit the Company to elect, to be treated as an association taxable as a corporation for federal, state or local income tax purposes under Regulations Section  ###-###-####-3 or under any corresponding provision of state or local law.  Each Member and the Company shall file all Tax Returns consistent with such treatment.  This characterization, solely for such tax purposes, does not create or imply a general partnership among the Members for any other purpose.

 

(d)          BridgeBio shall act as the “partnership representative” as defined in Section 6223 of the Code (or corresponding provisions of state or local law) (the “Partnership Representative”) in connection with any tax audit or other tax proceeding, and shall appoint an individual to act as a “designated individual” on behalf, and subject to the direction and control of, the Partnership Representative in accordance with Treasury Regulation ###-###-####-1. The Partnership Representative shall have the power and authority to perform in such capacity those duties as may be required to be performed by the “partnership representative” under the Code (and in any similar capacity under state or local Law), and to expend Company funds for reasonable out-of-pocket professional services and costs associated therewith. The Partnership Representative shall advise and consult with the Board from time to time regarding the status of tax-related elections, investigations, proceedings and negotiations with Governmental Authorities.

 

(e)          If the Company becomes the subject of any audit, assessment or other examination relating to taxes by any tax authority or any judicial or administrative proceedings relating to taxes (a “Tax Audit”), each Member agrees to cooperate with the Board and the Partnership Representative and to do or refrain from doing any or all things reasonably required by them to conduct such Tax Audit (including to implement any modifications to any imputed underpayment or similar amount under Section 6225(c) of the Code, any elections under Sections 6221 or 6226 of the Code and any administrative adjustment request under Section 6227 of the Code)). The Partnership Representative shall provide each Member with any information reasonably requested by such Member with respect to such Tax Audit; provided that the Partnership Representative shall not settle any such Tax Audit without a Member’s prior written consent if such Member would be materially, disproportionately and adversely impacted by such settlement of such Tax Audit (as reasonably determined by the Board).

(f)          Notwithstanding other provisions of this Agreement to the contrary, if any “partnership adjustment” (as defined in the Code) is determined with respect to the Company and the Partnership Representative has not caused the Company to elect pursuant to Section 6226 of the Code to have such adjustment passed through to the Members for the year to which the adjustment relates, then any “imputed underpayment” (as determined in accordance with Section 6225 of the Code) or “partnership adjustment” that does not give rise to an “imputed underpayment” shall be apportioned among the Members of the Company for the taxable year in which the adjustment is finalized in such manner as may be necessary (as determined by the Partnership Representative in good faith after consulting with the Company’s accountants, tax return preparers or other advisers, taking into account any differences in the amount of taxes attributable to each Member because of such Member’s status, nationality or other characteristics) so that, to the maximum extent possible, the tax and economic consequences of the partnership adjustment or imputed underpayment are borne by the Members in the same manner as they would have been borne had the adjustment or imputed underpayment been properly reflected on the Company’s tax returns for the year(s) to which the adjustment relates.  In furtherance of the foregoing, in the event the Company is liable for any “imputed underpayment” which is apportioned to a Member under the foregoing rules for the applicable year, such Member shall promptly reimburse the Company for such amount and such reimbursement shall not be considered a Capital Contribution to the Company by such Member.  The Partnership Representative shall use commercially reasonable efforts to provide to such Member information allowing such Member to file an amended federal income tax return or to follow an alternative procedure to filing an amended federal income tax return, as described in Section 6225(c)(2)(B) of the Code.

 

(g)          The Company shall use reasonable best efforts to cause the Company (i) not to engage in any activity that would cause a Member (or any direct or indirect beneficial owner thereof, as applicable) that is not a United States person within the meaning of Code Section 7701(a)(30) (A) to recognize, solely as a result of its status as a Member (or any direct or indirect owner thereof, as applicable) of the Company, income that is “effectively connected with the conduct of a trade or business within the United States” within the meaning of Code Section 864(c) of the Code, or (B) to be treated as engaged in a “trade or business within the United States” within the meaning of Section 864(b) of the Code, (ii) not to engage in any activity that would cause a Member (or any direct or indirect beneficial owner thereof, as applicable) to be treated as engaged in commercial activities or recognize income that is treated as derived from the conduct of any commercial activity, in each case within the meaning of Section 892 of the Code and (iii) not to engage in any conduct that would cause a Member (or any direct or indirect beneficial owner thereof, as applicable), shall be deemed to have “unrelated business taxable income” as defined in Section 512 of the Code (including pursuant to the application of Section 514 of the Code).  The Company shall provide the Members with timely written notice if the Company reasonably believes the Company may be treated as engaged in any activity described in the immediately preceding sentence.  The Members acknowledge and agree that the actions and activities of the Company contemplated as of the date of this Agreement are not inconsistent with the foregoing limitations on the activities of the Company.

(h)          At the reasonable written request of any Member, the Company shall use commercially reasonable efforts to promptly provide such Member with any certificate reasonably necessary to mitigate any tax withholding obligations pursuant to a Transfer, including pursuant to Section 1445 or Section 1446 of the Code.

 

7.4          Fiscal Year.  The fiscal year of the Company (the “Fiscal Year”) for financial statement and federal income tax purposes shall end on December 31 of each calendar year, except as otherwise may be required under Code Section 706 and the Regulations thereunder.

 

7.5          Initial Budget. The Company’s budget from the date hereof through the end of calendar year 2025 is set forth on Schedule C (the “Initial Budget”).

 

8.1          Prohibition.

 

(a)          Class A Units.  Without the prior written consent or approval of a majority of the entire Board, prior to the earlier of (i) five (5) years following the Closing or (ii) a Qualified IPO (the “Lock-Up Period”), each Member and any Assignee or Permitted Transferee shall not, directly or indirectly, Transfer any Class A Units or any right or interest therein, other than Transfers (A) of such Class A Units to a Tag-Along Purchaser pursuant to Section 8.9, (B) of Drag-Along Units to a Drag-Along Purchaser pursuant to Section 8.10, or (C) of such Class A Units to a Permitted Transferee of such Member (or such Assignee or Permitted Transferee) in accordance with this Section 8.1.

 

(b)          Any attempted Transfer of Units by any Member, other than in strict accordance with this Article VIII, shall be null and void ab initio and the purported transferee shall have no rights as a Member or Assignee hereunder, and the Company shall not record such Transfer on its books or treat any purported transferee of such Units as the owner of such units for any purpose.  No Member shall avoid the provisions of this Agreement by making one or more Transfers to one or more Permitted Transferees and then disposing of all or any portion of such party’s interest in any such Permitted Transferee, and any Transfer or attempted Transfer in violation of this covenant shall be null and void ab initio.

 

(c)          If any Member wishes to Transfer Units to a Permitted Transferee, such Member shall give written notice to the Company of their intention to make such a Transfer not less than ten (10) days prior to effecting such Transfer, which notice shall state the name and address of each Permitted Transferee to whom such Transfer is proposed, the relationship of such Permitted Transferee to such Member and the number of Units proposed to be Transferred to such Permitted Transferee.  In connection with any such Transfer, the Permitted Transferee must, prior to any such Transfer, have agreed in writing to be bound by the provisions of this Agreement and have executed and delivered a joinder agreement substantially in the form set forth on Exhibit A (a “Joinder Agreement”) and such other documents that may be reasonably requested by the Company.  Except as otherwise determined by the Board, it shall be a condition precedent for admittance (and continued admittance) of any natural Person as a party to this Agreement that the spouse of such natural Person execute and deliver to the Company a Spousal Consent, substantially in the form set forth on Exhibit B (a “Spousal Consent”).

 

(d)          Class B Units. Without the prior written consent or approval of a majority of the entire Board, during the Lock-Up Period, each Member and any Assignee or Permitted Transferee shall not, directly or indirectly, Transfer any Class B Units or any right or interest therein, other than Transfers (i) of Drag-Along Units to a Drag-Along Purchaser pursuant to Section 8.10 or (ii) of such Class B Units to a Permitted Transferee of such Member (or such Assignee or Permitted Transferee) in accordance with this Section 8.1. Management Holdco shall not cause or permit any Transfer of any Class B Units or Corresponding Management Holdco Units, except for Transfers of Class B Units or Corresponding Management Holdco Units to the extent permitted by the terms of this Agreement, of the Management Holdco Operating Agreement (to the extent consistent with the terms of this of this Agreement) or the Applicable Class B Unit Agreement, including pursuant to a forfeiture, cancellation or repurchase provision of the Applicable Class B Unit Agreement.

(e)          Permitted Transfer.  Any Transfer permitted under this Section 8.1 is referred to herein as a “Permitted Transfer”.

 

(f)          Qualified IPO.  This Section 8.1 shall terminate upon the consummation of a Qualified IPO; provided that, any subsequent lock-up period, if applicable, will be determined in accordance with Section 9.3(b).

 

8.2          Conditions to Permitted Transfers.

 

(a)          Without limiting the restrictions on Transfers and other terms of Section 8.1, a Member shall be entitled to make a Permitted Transfer only upon satisfaction of each of the following conditions, unless waived by the Board:

 

(i)          such Transfer does not require the registration or qualification of such Units pursuant to any applicable federal or state securities Laws;

 

(ii)         such Transfer does not result in a violation of applicable Laws;

 

(iii)        such Transfer would not cause the Company to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in ERISA Section 3(14)) or a “disqualified person” (as defined in Code Section 4975(c));

 

(iv)        such Transfer would not, in the opinion of legal counsel to the Company, cause any portion of the assets of the Company to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.2-101;

 

(v)          such Transfer is in compliance with, and does not cause the Company to lose, its status as a partnership for federal, and, where applicable, state and local, income tax purposes;

(vi)        such Transfer is not made to any Person who lacks the legal right, power or capacity to own Units;

 

(vii)       such Transfer does not create a material risk that the Company would become a “publicly traded partnership” that would be subject to tax as a corporation for U.S. federal income tax purposes;

 

(viii)      such Transfer does not cause the Company to become a reporting company under the Exchange Act; and

 

(ix)        such Transfer does not subject the Company to regulation under the Investment Company Act of 1940 or the Investment Advisers Act of 1940.

 

(b)          Notwithstanding anything in Section 8.2(a) to the contrary, none of the conditions set forth in Section 8.2(a) shall apply to the following types of Transfers by Members: (i) any Transfer of Units or other securities of the Company to a Company Offeror that is formed for the purpose of engaging in a Qualified IPO or that otherwise acts as the issuer in a Qualified IPO, (ii) any Transfer in a Qualified IPO of Units or other securities of any Company Offeror that is formed for the purpose of engaging in a Qualified IPO or that otherwise acts as the issuer in a Qualified IPO, (iii) any Transfer of Units in connection with a Conversion Transaction, (iv) any Transfer of Units pursuant to Section 8.8, (v) any Transfer of Class A Units to a Tag-Along Purchaser pursuant to Section 8.9, (vi) any Transfer of Units to a Drag-Along Purchaser pursuant to Section 8.10 or (vii) any Transfer of Class B Units pursuant to a forfeiture, cancellation or repurchase provision of the Applicable Class B Unit Agreement.

 

8.3          Effect of Transfers.

 

(a)          Upon any Transfer effected in compliance with this Article VIII (other than Permitted Transfers to a Permitted Transferee), the Assignee of the Transferred Units shall be entitled to receive the Distributions and allocations of income, gain, loss, deduction, credit or similar items to which the transferring Member would be entitled with respect to such Units, but shall not be entitled to exercise any of the other rights of a Member with respect to the transferring Member’s Units, including the right to vote, unless and until such Assignee is admitted to the Company as a Substitute Member pursuant to Section 8.5.

 

(b)          Upon any Permitted Transfer to a Permitted Transferee, the Assignee of the Transferred Units shall be entitled to all rights of the transferor with respect to the Transferred Units and shall become a Substitute Member hereunder subject to such Permitted Transferee’s compliance with Section 8.1(c), Section 8.2 and Section 8.5.

 

8.4          Admission of Additional Members.  A Person shall become an Additional Member pursuant to the terms of this Agreement only if and when each of the following conditions is satisfied:

 

(a)          the Board approves such Person’s admission;

 

(b)          the Board determines the nature and amount of the Unit Consideration to be paid by such Person to the Company (if any);

(c)         the Company has received such Person’s Unit Consideration payable to the Company (if any); and

 

(d)         the Company receives written instruments, including a Joinder Agreement and, to the extent applicable, a Spousal Consent, that are in substantially the forms attached as Exhibits hereto.

 

8.5          Admission of Assignees as Substitute Members.  Except as otherwise provided in Section 8.3(b), an Assignee of all or any portion of the Units of a Member shall become a Substitute Member of the Company only if and when each of the following conditions is satisfied:

 

(a)          such Assignee is (i) a Permitted Transferee, (ii) the acquiror in an Unrelated Party Transfer effected in accordance with Section 8.7 or (iii) the Board approves such Assignee’s admission; and

 

 

(b)          the Company receives a Joinder Agreement and, to the extent applicable, a Spousal Consent, that are in substantially the forms attached as Exhibits hereto.

 

8.6          Withdrawal of Members upon Transfer.

 

(a)          If a Member has Transferred all of its Units in one or more Permitted Transfers or otherwise in compliance with this Agreement, then such Member shall withdraw from the Company on the date upon which each Assignee of such Units has been admitted as a Substitute Member in accordance with Section 8.3(b) or Section 8.5, and such Member shall no longer be entitled to exercise any rights or powers of a Member under this Agreement; provided (i) that no cessation of any Person as a Member shall (A) relieve a Person that is not a natural person from their obligation hereunder to reacquire any Units from a Permitted Transferee that ceases to qualify as such hereunder (and if such Person ceases to hold Units due to transfers to one or more Permitted Transferees such Person shall also continue to be subject to the Transfer restrictions in this Article VIII) or (B) affect the obligation of such Member to fund such Member’s Additional Cash Contributions (if applicable); and (ii) all rights of such Person in Article XII shall survive any termination of such Person’s membership in the Company.

 

 

(b)          No Member shall have the right to withdraw from the Company other than pursuant to Section 8.6(a).

 

8.7          Right of First Offer.

 

(a)          Prior to a Qualified IPO or Change of Control (and subject to the expiration of the Lock-Up Period, if applicable), if a Member holding Class A Units or any of its Assignees or Permitted Transferees (the “Transferring Member”) proposes to Transfer, directly or indirectly, any Class A Units or any right or interest therein (the “Offered Units”) to any Person other than the Company or a Permitted Transferee of the Transferring Member (an “Unrelated Party Transfer”), then the Transferring Member shall deliver to the other Members holding Class A Units (each a “Non-Transferring Member”) a written notice (a “ROFO Sale Notice”) setting forth the number of Offered Units proposed to be Transferred and the other material terms and conditions of the proposed Transfer that would reasonably be expected to have a material impact on the value of the Transfer (collectively, the “ROFO Terms”).

(b)          The Non-Transferring Members shall have a right of first offer with respect to any proposed Unrelated Party Transfer by a Transferring Member; provided that each Non-Transferring Member shall have the right to purchase such Non-Transferring Member’s ROFO Portion of the Offered Units.  A Non-Transferring Member’s “ROFO Portion” is an amount obtained by multiplying (i) the number of Offered Units by (ii) a fraction, the numerator of which is the number of Class A Units then held by such Non-Transferring Member and the denominator of which is the number of Class A Units then issued and outstanding.  Each time the Transferring Member proposes to Transfer any Offered Units in an Unrelated Party Transfer, the Transferring Member shall first make an offering of the Offered Units to the Non-Transferring Members in accordance with this Section 8.7. Each Non-Transferring Members may exercise its right of first offer within sixty (60) days following their receipt of a ROFO Sale Notice (such period, the “ROFO Election Period”) by delivering to the Transferring Member a written offer to purchase its ROFO Portion of the Offered Units (the “ROFO Offer”), which ROFO Offer sets forth the proposed purchase price and all other material terms and conditions pursuant to which such Non-Transferring Member is willing to purchase the Offered Units. Any ROFO Offer shall be binding and irrevocable for the duration of the applicable ROFO Acceptance Period.

 

(c)          If any Non-Transferring Member delivers a ROFO Offer pursuant to and in accordance with Section 8.7(b) within the ROFO Election Period, then the Transferring Member may (but shall have no obligation to) accept or reject, for any or no reason, such ROFO Offer during the thirty (30) day period after receipt by the Transferring Member of a ROFO Offer from such Non-Transferring Member (the “ROFO Acceptance Period”); provided that, if the Transferring Member does not accept, or fails to respond to, any ROFO Offer within the ROFO Acceptance Period, then it shall be deemed to have rejected such ROFO Offer. If the Transferring Member accepts any ROFO Offer, the Transferring Member shall notify the applicable Non-Transferring Members of such acceptance in a written notice (a “ROFO Acceptance Notice”). Following the delivery of a ROFO Acceptance Notice, the Transferring Member and the applicable Non-Transferring Members shall negotiate in good faith to complete the sale, purchase and Transfer of (and payment for) the relevant Offered Units at the same price and on the same other terms and conditions of Transfer as set forth in the applicable ROFO Offer within ninety (90) days after the delivery of the ROFO Acceptance Notice.

 

(d)         If any Non-Transferring Member declines or does not exercise its right of first offer pursuant to Section 8.7(b), the remaining Non-Transferring Members shall have the right to purchase such Class A Units that could have been purchased by such declining Non-Transferring Member; provided that if the remaining Non-Transferring Members have oversubscribed for such Class A Units, then such Class A Units will be allocated on a pro rata basis as between such remaining Non-Transferring Members based on their respective Class A Units holdings).  The notice issuances and corresponding timing requirements contemplated by Sections 8.7(a)-(c) shall apply to this Section 8.7(d) mutatis mutandis, except that the referenced 30-day periods shall be replaced with 10-day periods.

 

(e)          If, following the occurrence of all procedures in Sections 8.7(a)-(d) (such time, the “ROFO End Period”), any portion of the Offered Units was not offered for purchase by any of the Non-Transferring Members, then the Transferring Member shall be free to effect an Unrelated Party Transfer with respect to such unsubscribed Offered Units so long as such Transfer (i) shall be at a price per Class A Unit that is same as or greater than the price per Class A Unit set forth in the ROFO Offer, (ii) shall otherwise be made upon terms no less favorable in the aggregate to the Transferring Member than those set forth in the ROFO Offer, and (iii) shall comply with the provisions of Section 8.2; provided that, if a definitive written agreement evidencing such Unrelated Party Transfer is not executed within one hundred twenty (120) days following the ROFO End Period, then the Transferring Member may not consummate such sale without again complying with the procedures set forth in this Section 8.7.

8.8          Call Rights.

 

(a)          Call Right.  With respect to any Management Holder, during any six (6) month period commencing on the date of effectiveness of Termination of such Management Holder (the last day of such period, the “Call Notice Deadline”), the Company shall have the right, but not the obligation, to purchase from Management Holdco, and Management Holdco shall have the obligation to sell to the Company, all or any portion of the Vested Class B Units or any other Units held by Management Holdco, up to the amount of Corresponding Management Holdco Units held by the applicable Management Holder (all of the Vested Class B Units and any other Units held by Management Holdco which may be purchased by the Company pursuant to this sentence, the “Called Units”).  The purchase price (the “Call Price”) for any Called Units repurchased in accordance with this Section 8.8(a) shall be equal to the Fair Market Value of such Called Units on the date the Call Notice is delivered; provided, however, that in the event that the Termination of the Management Holder is for Cause, the Call Price for any Called Units repurchased in accordance with this Section 8.8 shall be equal to the lesser of (A) the cost paid by the Management Holder to directly or indirectly acquire such Called Units (which, for purposes of Vested Class B Units, shall be deemed to be $0) less any Distributions previously made with respect to such Called Units and (B) the Fair Market Value (after giving effect to any Losses arising from any conduct constituting Cause) of such Called Units on the date the Call Notice is delivered (the “Call Right”).  Management Holdco shall, concurrently with any purchase of Called Units hereunder, repurchase the equivalent number and type of such Units from the Management Holder pursuant to the terms of the Management Holdco Operating Agreement.  The Company and Management Holdco shall reasonably cooperate to consider alternative structures for implementing the exercise of any Call Right in a manner that would minimize any taxes imposed on the Members with respect to the purchase of Called Units and the funding of such purchase; provided, that no such alternative structure shall be implemented without the consent of BridgeBio if such structure could reasonably be expected to have a disproportionate and adverse effect on BridgeBio or any of its Affiliates. Exercise of the Call Right shall not be deemed to limit any other rights or remedies of the Company or any of its Affiliates relating to any conduct constituting Cause.

 

(b)          Call Notice.  The Company may exercise its Call Right by delivery of a written notice to Management Holdco and the applicable Management Holder of the Company’s election to exercise its Call Right on or prior to the Call Notice Deadline and setting forth the categories and number of Called Units it will purchase (the “Call Notice”).

(c)          Closing.  The closing of any purchase and sale of Called Units shall take place within ninety (90) days following the delivery of the Call Notice at the principal office of the Company or at such other time and location as the parties to such repurchase may mutually determine (the “Management Repurchase Closing”); provided that, if applicable, the deadline for payment by the Company pursuant to this Section 8.8 may be extended as required from time to time by the Company’s and its Subsidiaries’ debt financing arrangements or for regulatory reasons.  At the Management Repurchase Closing, Management Holdco and the applicable Management Holder shall be required to make customary representations and warranties to the Company, including as to Management Holdco and such Management Holder’s authority to sell, the enforceability of agreements against such Person, that the Called Units shall be free and clear of any Liens (other than pursuant to U.S. federal and state (and other jurisdiction) securities laws), that it is the sole beneficial and record owner of such Called Units.  At the Management Repurchase Closing, the Company shall deliver payment in full in immediately available funds for the Called Units purchased by it.  Purchases of any Called Units shall be settled in cash. At the Management Repurchase Closing, all of the parties to the transaction shall execute such additional documents as are otherwise necessary or appropriate.

 

(d)          Other.  Notwithstanding anything set forth in this Section 8.8 to the contrary, the Company shall not purchase any Called Units pursuant to the Call Right until the date that is six (6) months and one (1) day following the date of the issuance or vesting of such Called Units, whichever is later, and in the event that any Called Units subject to the Call Right were issued or vested within the six (6) months immediately preceding the Call Notice Deadline, then the Call Notice Deadline shall become the date that is thirty (30) Business Days following the expiration of such six (6) month period.

 

8.9          Tag-Along Rights.

 

(a)          General.  Subject to Section 8.10 and the other terms of this Agreement, if at any time prior to the consummation of a Qualified IPO or a Change of Control, any Member proposes to Transfer, directly or indirectly, in one or more related transactions, Class A Units then held by such Member (“Tag-Along Seller”) representing in excess of one percent (1%) of the Class A Units then issued and outstanding] (the “Offered Tag Units”) (a “Tag-Along Sale”), to a Person other than one of such Member’s Permitted Transferees (the “Tag-Along Purchaser(s)”), then each other Member holding Class A Units (each a “Tag-Along Rightholder”) shall have the right (the “Tag-Along Right”), upon the terms and conditions set forth in this Section 8.9 and Section 8.11, to sell to such Tag-Along Purchaser such Tag-Along Rightholder’s Tag-Along Portion of its Class A Units in such Tag-Along Sale.  A Tag-Along Rightholder’s “Tag-Along Portion” is an amount obtained by multiplying (i) the number of Offered Tag Units in a Tag-Along Sale by (ii) a fraction, the numerator of which is the number of Class A Units then held by such Tag-Along Rightholder and the denominator of which is the number of Class A Units then issued and outstanding.

 

(b)          Procedure.  The Tag-Along Seller shall give written notice (the “Sale Notice”) to each Tag-Along Rightholder of any Tag-Along Sale giving rise to the rights pursuant to this Section 8.9 at least twenty (20) Business Days prior to the proposed consummation of such sale, setting forth the material terms of the proposed Tag-Along Sale, including in reasonable detail (to the extent known or available) (A) the number of Offered Tag Units proposed to be sold by the Tag-Along Seller, (B) the maximum number of Class A Units that may be sold by such Tag-Along Rightholder, (C) the identity of the proposed Tag-Along Purchaser, (D) the proposed amount and form of consideration and other material terms and conditions offered by such Tag-Along Purchaser, (E) the proposed date and time of the closing of the Tag-Along Sale, (F) a copy of the form of Transfer agreement proposed to be executed in connection with the Tag-Along Sale and (G) a representation that such Tag-Along Purchaser has been informed of the rights provided for in this Section 8.9.  The rights provided by this Section 8.9 must be exercised by any Tag-Along Rightholder within fifteen (15) Business Days following receipt of the Sale Notice (the “Tag-Along Period”), by delivery of an irrevocable written notice (the “Tag-Along Election Notice”) to the Tag-Along Seller indicating such Tag-Along Rightholder’s (each a “Tagging Member”) election to exercise its rights, in whole or in part, pursuant to this Section 8.9 and specifying the number of Class A Units to be sold by such Tagging Member in the Tag-Along Sale or indicating that the Tagging Member wants to sell all of the Tagging Member’s Class A Units that it is permitted to sell (calculated in accordance with Section 8.9(a)).  Any Tag-Along Rightholder may waive its rights under this Section 8.9 with respect to any Tag-Along Sale prior to the expiration of such fifteen (15) Business Day period by giving written notice to the Tag-Along Seller, with a copy to the Company. Each Tag-Along Rightholder who does not timely deliver a Tag-Along Election Notice shall be deemed to have waived its right to participate in such Tag-Along Sale.

(c)          Reduction of Class A Units Transferred.  The Tag-Along Seller shall attempt to obtain the inclusion in the proposed Tag-Along Sale of the entire number of Class A Units which each of the Tagging Members shall have requested to be included in the Tag-Along Sale (as evidenced, in the case of the Tag-Along Seller, by the Sale Notice and, in the case of each Tagging Member, by such Tagging Member’s Tag-Along Election Notice).  In the event that the Tag-Along Seller shall be unable to obtain the inclusion of such entire number of Class A Units in the proposed Tag-Along Sale, the number of Class A Units to be sold in the proposed Tag-Along Sale shall be allocated among the Tag-Along Seller and the Tagging Members in proportion, as nearly as practicable, to the respective number of shares of Class A Units specified for Transfer in accordance with this Section 8.9 by the Tag-Along Seller and each Tagging Member (as evidenced, in the case of the Tag-Along Seller, by the Sale Notice and, in the case of each Tagging Member, by such Tagging Member’s Tag-Along Election Notice).

 

(d)          Terms and Consideration.  In connection with any Tag-Along Sale, subject to Section 8.11, each Tagging Member shall receive the same per unit consideration (including in respect of the amount and form of consideration) for any of its Class A Units that are actually included in the Tag-Along Sale pursuant to this Section 8.9.  Each Tagging Member shall otherwise be entitled to participate in such Tag-Along Sale on terms and conditions no less favorable in any material respect than those that apply to the Tag-Along Seller.  The consideration to be paid in respect of the Class A Units owned by a Tagging Member that are actually included in such Tag-Along Sale in accordance with this Section 8.9 shall be an amount equal to the aggregate amount that would be distributed to such Tagging Member pursuant to Section 6.4 in respect of such Class A Units in a hypothetical liquidation of the Company, which aggregate liquidation value of the Company shall be based on the aggregate purchase price to be paid in respect of the Class A Units proposed to be sold by the Tag-Along Rightholders in the Tag-Along Sale.

 

(e)          Consummation of Tag-Along Sale.  The Tag-Along Seller shall have sixty (60) days following the expiration of the Tag‑Along Period in which to consummate the Tag-Along Sale, on terms not more favorable to the Tag-Along Seller than those set forth in the Sale Notice (which such 60-day period may be extended for a reasonable time, not to exceed ninety (90) days to the extent reasonably necessary to obtain required approvals or consents from any Governmental Authority).  If at the end of such period the Tag-Along Seller has not completed the Tag-Along Sale, the Tag-Along Seller may not then effect a Transfer that is subject to this Section 8.9 without again fully complying with the provisions of this Section 8.9.

(f)          Scope.  The provisions of this Section 8.9 shall not apply to (i) Transfers to a Permitted Transferee of any Member or any director, officer or employee of the Company or any of its Subsidiaries, (ii) any Transfer of Units upon exchange of such Units pursuant to a Conversion Transaction, (iii) any Transfer of Drag-Along Units to a Drag-Along Purchaser pursuant to Section 8.10 or (iv) any Transfer in connection with a Qualified IPO.  The provisions of this Section 8.9 are in addition to, and not in limitation of, any other restrictions on Transfers of Units contained in this Agreement.

 

8.10          Drag-Along Rights.

 

(a)          General.  Prior to a Qualified IPO or a Change of Control, (x) a Member or Members representing at least a majority of the issued and outstanding Voting Units (which majority must include each of (i) Viking, so long as the Investor Member Sell-Down Event in respect of Viking has not occurred, (ii) Patient Square, so long as the Investor Member Sell-Down Event in respect of Patient Square has not occurred, (iii) BridgeBio, so long as the Investor Member Sell-Down Event in respect of BridgeBio has not occurred and (iv) NK, so long as the Investor Member Sell-Down Event in respect of NK has not occurred), (y) following the fifth (5th) anniversary of the Closing, subject to the Minimum Return Condition being satisfied, a Member or Members representing at least a majority of the issued and outstanding Voting Units or (z) following the seventh (7th) anniversary of the Closing, each of (A) Viking, so long as the Investor Member Sell-Down Event in respect of Viking has not occurred or (B) Patient Square, so long as the Investor Member Sell-Down Event in respect of Patient Square has not occurred (such Persons in prongs (x), (y) and (z), as applicable, the “Drag-Along Sellers”), shall have the right, by delivery of a written notice to the Company to require that the Company pursue and cause a sale of the Company (or one or more of its assets, divisions or Subsidiaries) (a “Drag-Along Sale”), and the Drag-Along Sellers may require each other equityholder of the Company (each a “Dragged Member”) to Transfer its Drag-Along Portion of such equityholder’s Units to the prospective purchaser (the “Drag-Along Purchaser”). “Minimum Return Condition” shall mean that each Investor has received or will receive its respective Priority Return upon the consummation of the sale of the Company (or one or more of its assets, divisions or Subsidiaries); provided that such Minimum Return Condition may be waived or reduced with written approval from both Viking and Patient Square.

 

(b)          Drag-Along Notice.  Drag-Along Sellers shall send written notice (the “Drag-Along Notice”) of the exercise of their rights pursuant to this Section 8.10 to each Dragged Member at least thirty (30) days prior to the consummation of the Drag-Along Sale.  The Drag-Along Notice shall set forth the material terms and conditions of the Drag-Along Sale, including (to the extent available) (i) the form and amount of consideration to be paid for the Units, (ii) the identity of the Drag-Along Purchaser, (iii) the proposed date and time of the closing of the Drag-Along Sale and (iv) a copy of the form of definitive agreement proposed to be executed in connection with the Drag-Along Sale.  If the Drag-Along Sellers consummate the Drag-Along Sale to which reference is made in the Drag-Along Notice, each Dragged Member shall be bound and obligated to Transfer the applicable Drag-Along Portion of its Units (the “Drag-Along Units”) in such Drag-Along Sale subject to the terms and conditions set forth in this Section 8.10 and Section 8.11.  Any Drag-Along Notice may be rescinded by the Drag-Along Sellers at any time prior to consummation of the Drag-Along Sale by Drag-Along Sellers delivering written notice thereof to each Dragged Member.

(c)          Cooperation.  Without limiting Section 8.11(a), in connection with any Drag-Along Sale that is effected in accordance with the terms and conditions set forth in this Section 8.10 and Section 8.11, each Dragged Member hereby agrees:  (i) to vote or cause to be voted (whether at a meeting or by written consent in lieu thereof, at the option of the Drag-Along Sellers) all equity securities that the Dragged Member holds or with respect to which the Dragged Member has the power to direct the voting and which the Dragged Member is entitled to vote on such proposed Drag-Along Sale in favor of such proposed Drag-Along Sale; (ii) if the Drag-Along Sale is structured as a merger, consolidation or similar business combination, to waive (and hereby does waive) all appraisal rights, dissenters rights and similar rights (if any) in connection therewith; and (iii) not to make any claim or take any action reasonably likely to hinder, impede, delay or have an adverse effect on such Drag-Along Sale.

 

(d)          Facilitation. Notwithstanding anything contained in this Section 8.10 to the contrary, the Board shall control the day-to-day management of any Drag-Along Sale and shall (i) pursue such Drag-Along Sale in good faith and use reasonable best efforts to effect such Drag-Along Sale on reasonably acceptable terms and conditions consistent with the Drag-Along Notice; and (ii) consult in good faith with the Drag-Along Sellers with respect to the following matters in connection with such Drag-Along Sale: (A) the number, nature and identity of any potential bidders approached, (B) the selection of any investment banking firm or any other advisors and the terms of engagement with such third parties, (C) drafts of any information memorandums, management presentations, purchase agreements, contracts or other material documents developed or produced in connection with the sale process and (D) the final terms of any such Drag-Along Sale and corresponding documentation.

 

(e)          Terms and Consideration.  Subject to Section 8.11, in connection with any Drag-Along Sale, (i) the Transfer of each Dragged Member’s Units shall be on terms and conditions which are not economically less favorable to the Dragged Members in any non-de minimis respect than those applicable to the Drag-Along Sellers and (ii) the Dragged Members shall receive (A) the same per unit consideration as the Drag-Along Sellers with respect to such Dragged Members’ Class A Units and (B) the same form or combination of forms of consideration as the consideration proposed to be paid to the Drag-Along Sellers; provided that each Dragged Member will receive in such Drag-Along Sale in respect of its Units the aggregate amount that would be distributed to such Dragged Member in respect of such Units in a hypothetical liquidation of the Company pursuant to Section 6.4, which aggregate liquidation value of the Company shall be based upon the aggregate purchase price to be paid in the Drag-Along Sale.  If the Drag-Along Sellers are given an option as to the form and amount of consideration to be received, to the extent reasonably possible the same option will be given to the Dragged Members.  When used in this Section 8.10, the phrase “same per unit consideration” shall not include any employment, consulting, change of control or any other consideration payable to the Dragged Members who are Management Holders pursuant to any other arrangements, whether in connection with such Drag-Along Sale or otherwise, and the phrase “same form of consideration” shall not apply to any Units in connection with a “rollover” in such Drag-Along Sale.  Each Member acknowledges and agrees that depending upon the aggregate consideration to be distributed in connection with the Drag-Along Sale, certain classes or series of Units may receive less consideration per Unit than other classes or series of Units, and certain classes or series may receive no consideration in the Drag-Along Sale.

(f)          Class B Units.  Notwithstanding anything to the contrary herein, in the event of a Drag-Along Sale, the Board may (i) cancel and redeem any Class B Unit or (ii) cause any Class B Unit to be converted into or exchanged for Class A Units or other securities, in each case, at a value equal to the value that would have been distributed to such Class B Unit in such Drag-Along Sale in respect of such Class B Unit in a hypothetical liquidation of the Company pursuant to Section 6.4, which aggregate liquidation value of the Company shall be based upon the aggregate purchase price to be paid in the Drag-Along Sale.

 

8.11          Certain Terms and Conditions Applicable to Drag-Along Sales and Tag-Along Sales.  The following provisions shall apply to any proposed Transfer of Units or other transaction to which Section 8.9 or Section 8.10 applies (each an “Article 8 Transaction”), except to the extent any provision of this Section 8.11 by its terms only applies to a specified subset of such Sections:

 

(a)          Efforts. Each Dragged Member or Tagging Member (each an “Article 8 Seller”), whether in such Person’s capacity as a Member, equityholder, officer, director or employee of the Company, shall, to the maximum extent permitted by Law, take all actions customary, necessary or desirable in order to consummate expeditiously any Article 8 Transaction and any related transactions, including executing, acknowledging and delivering any applicable equity purchase agreement, merger agreement, consents, assignments, waivers, releases, letters of transmittal, and other documents or instruments necessary (including a release of claims, furnishing information and copies of documents, filing applications, reports, returns, filings and other documents or instruments with governmental authorities) and otherwise reasonably cooperate with any Drag-Along Seller, Tag-Along Seller, Tag-Along Purchaser or Drag-Along Purchaser, in each case, subject to the applicable terms of Section 8.9 and Section 8.10.  Without limiting the generality of the foregoing:

 

(i)          each Article 8 Seller shall, on a several and not joint basis (in accordance with its pro rata portion (determined based on the respective proceeds payable to each Article 8 Seller in connection with such Article 8 Transaction in accordance with Section 6.4) (the “Pro Rata Share”)): (A) make customary individual fundamental representations and warranties as to (1) such Article 8 Seller’s own organization, (2) such Article 8 Seller’s power, authority, capacity and legal right to enter into and consummate the transactions contemplated by any applicable agreement to which such Article 8 Seller becomes party, (3) the unencumbered title to such Article 8 Seller’s Units (other than encumbrances arising under this Agreement or pursuant to U.S. federal and state (and any other applicable jurisdiction) securities laws, (4) the absence of any conflict with respect to such Article 8 Seller’s Units or the Transfer thereof to the extent such conflict limits its ability to enter into and consummate the transactions contemplated by any applicable agreement to which such Article 8 Seller becomes a party and (5) the binding effect and enforceability of any applicable agreement to which such Article 8 Seller becomes a party; and (B) provide customary indemnification with respect to a breach thereof (taking into account the limitations set forth in Section 8.11(a)(v) other than with respect to preceding prongs (2) and (3));

(ii)          subject to Section 8.11(a)(v), each Article 8 Seller shall, on a several and not joint basis (in accordance with its Pro Rata Share), be liable (whether by transaction expenses, purchase price adjustment, escrows, indemnity payments or other similar items) in respect of representations, warranties, covenants and agreements made in respect of the Company and its Subsidiaries;

 

(iii)        none of the Article 8 Sellers shall be required to agree to (A) any non-compete, non-solicitation, non-disparagement or other similar restrictive covenants (other than confidentiality obligations that are no more restrictive than the confidentiality obligations applicable to the Tag-Along Seller or the Drag-Along Sellers (as applicable) or (B) any restrictive covenants that bind any portfolio company of any Fund Investor;

 

(iv)        none of the Article 8 Sellers shall be liable for any individual representation, warranty, covenant or other agreements made by any other Article 8 Seller or the Tag-Along Seller or the Drag-Along Sellers, as applicable; and

 

(v)          the aggregate liability of each Article 8 Seller shall in no event exceed the proceeds received (taking into account any amounts in escrow) by such Article 8 Seller in connection with such Article 8 Transaction.  Further, no Article 8 Seller will be required to bear more than its Pro Rata Share of any escrows, holdbacks, adjustments or indemnification obligations.

 

(b)          No Liability.  All determinations as to whether to complete any Article 8 Transaction be at the sole discretion of the Tag-Along Seller or the Drag-Along Sellers (as applicable), and the Tag-Along Seller and the Drag-Along Sellers and their respective Affiliates shall not have any liability arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any proposed Article 8 Transaction (except to the extent the Tag-Along Seller and the Drag-Along Sellers (as applicable) fails to comply with the provisions of Section 8.9, Section 8.10 or this Section 8.11) or any other transaction pursuant to Article VIII or Article IX.

 

(c)          Closing.  Subject to compliance with this Agreement and applicable law, the closing of an Article 8 Transaction shall take place at such time and place as the Tag-Along Seller or the Drag-Along Sellers, as applicable, shall specify by written notice to each Article 8 Seller.  At the closing of such Article 8 Transaction, each Article 8 Seller shall (if applicable) deliver the certificates evidencing the Units to be Transferred by such Article 8 Seller, duly endorsed, or with unit (or equivalent) powers duly endorsed for transfer with signature guaranteed, free and clear of any Liens (other than pursuant to U.S. federal and state (and other jurisdiction) securities laws).

 

(d)          Expenses.  In connection with the negotiation or consummation of any Article 8 Transaction, the Tag-Along Seller or the Drag-Along Sellers, as applicable, and each Article 8 Seller shall bear (i) all costs and expenses incurred by such Person on an individual basis for such Person’s sole benefit and (ii) its respective Pro Rata Share of the costs and expenses incurred by such Person, to the extent such costs and expenses are incurred for the benefit of all participating Members (including the costs and expenses incurred in respect of collective documentation and advice for such Article 8 Transaction), are reasonable and documented and are not otherwise paid by the Company or the acquiring party, in each case in connection with such Article 8 Transaction, whether or not such Article 8 Transaction is consummated.

(e)          Expiration.  Section 8.9, Section 8.10, and this Section 8.11 (other than any unsatisfied or ongoing obligations pursuant to this Section 8.11 in connection with any Article 8 Transaction) shall expire upon the consummation of a Qualified IPO.

 

8.12        Effect of Notices.  Notwithstanding any provision hereof to the contrary, the giving to the holders of Units of any Drag-Along Notice or any Sale Notice shall not obligate the Drag-Along Sellers or Tag-Along Seller, respectively, to consummate or effect any transaction referred to therein.

8.13        After-Acquired Securities.  All of the provisions of this Agreement shall apply to all of the Units now owned or which may be issued or Transferred hereafter to a Member or other equity holder of the Company in consequence of any additional issuance, purchase, exchange or reclassification of any of such Units, corporate reorganization, or any other form of recapitalization, consolidation, merger, share split or share dividend, or which are acquired by a Member or other equity holder of the Company in any other manner.

 

8.14        Management Holdco Purchase Rights.  If Management Holdco is required pursuant to this Agreement, the Management Holdco Operating Agreement or an agreement approved by the Board and the manager or other managing body of Management Holdco, or the Board and the manager or other managing body of Management Holdco otherwise elect or agree, to repurchase membership interests of Management Holdco (the “Indirect Management Purchase Units”) held by a member of Management Holdco (an “Indirect Management Member” and any such repurchase, an “Indirect Management Repurchase”), then the Company shall repurchase from Management Holdco all of the Units held by Management Holdco that are attributable to the Indirect Management Purchase Units (the “Corresponding Direct Management Units”) at a price per Corresponding Direct Management Unit equal to the per unit price paid for each Indirect Management Purchase Unit or such other price provided pursuant to Section 5.4.  The repurchase described in this Section 8.14 may be effected by causing the Indirect Management Purchase Units being repurchased to be exchanged for Corresponding Direct Management Units followed by a repurchase of such interests by the Company. For clarity, any Indirect Management Repurchase or other transaction contemplated by this Section 8.14 shall be subject to the prior approval of the Board.

9.1          Qualified IPO Mechanics.

(a)          Conversion Transaction.  In connection with the consummation of a Qualified IPO, the Board may: (i) reorganize the Company into a corporation incorporated under the Laws of the State of Delaware or such other jurisdiction in such manner as the Board deems appropriate, efficient and in the best interests of the Company (and the Board shall use commercially reasonable efforts to effectuate such reorganization in a manner that is tax efficient for both the Company and its Members and the owners of such Members), subject to the requirements of this Section 9.1, including by way of conversion, merger, recapitalization, exchange or asset and liability transfer, in each case, giving effect to the same economic and voting rights contained in this Agreement after taking into consideration the structure of the Company and the Company’s Subsidiaries and their respective classes of securities (the transactions described in this clause (i) being referred to herein as a “Conversion Transaction”); (ii) cause the exchange of Units for shares of common stock or other equity securities of a holding company formed to hold all or substantially all of the assets of the Company’s Subsidiaries or any other Company Offeror that will be the issuer in such Qualified IPO; (iii) cause the treatment of the Class B Units in connection with such Qualified IPO as determined by the Company to be in accordance with the terms of the Applicable Class B Unit Agreements; or (iv) take any such other action as the Board may determine in good faith to create an appropriate vehicle to effectuate a Qualified IPO.

 

(b)          Effect of Conversion Transaction.  Prior to or upon consummation of a Qualified IPO involving a Conversion Transaction, this Agreement shall be replaced by a stockholders agreement (or agreements) executed by the Company Offeror and the Members containing terms and conditions substantially similar to those set forth herein, except that all references to the Class A Units and the Class B Units, respectively, in this Agreement shall be deemed to refer to the corresponding class, series or tranche of equity securities, as applicable, into which such Class A Units, and Class B Units were converted or exchanged in such Conversion Transaction, respectively, and all references to the Company herein shall be deemed to refer to the Company’s successor.  The certificate of incorporation and bylaws of the Company Offeror shall be in such form as is approved by the Board; provided that they do not conflict with or vary the terms and conditions of the replacement agreement (or agreements) described in the preceding sentence, and provided, further, that the certificate of incorporation of the Company Offeror shall contain a corporate opportunity provision substantially similar to the one contained in Section 4.9(a)-(c) and provisions reflecting the Company Offeror’s election to not be governed by Section 203 of the Delaware General Corporation Law (or similar provision, if the Company Offeror is incorporated in a jurisdiction other than Delaware).  The terms of any such stockholders agreement (or agreements) to be entered into among the Company Offeror and the Members in connection with a Conversion Transaction shall, to the extent practicable and permitted by applicable Law, rule, regulation or historical standard, and except as otherwise provided herein, replicate the provisions of this Agreement with respect to (i) the Board designation rights set forth in Article IV (except to the extent that any of the rights granted therein would be inconsistent with the requirements of any securities exchange on which the Company Offeror’s securities will be traded or quoted after the Qualified IPO, in which case the rights granted herein shall be replicated to the greatest extent practicable consistent with the requirements of such exchange), (ii) the exculpation and indemnification provisions set forth in Article XII and (iii) the amendment provisions set forth in Article XIII, in each case, with appropriate modification to reflect the corporate structure of the Company Offeror.

(c)          Cooperation of Members.  In connection with and in order to facilitate a Qualified IPO and any related Conversion Transaction, each Member shall take all such action as is reasonably necessary (including making any applicable tax elections or the voting of all equity interests in the Company Offeror owned by such person) in order to effect amendments to the Company Offeror’s organizational documents as are customary for a company which is to engage in an initial public offering of its equity securities and which are reasonably requested by the managing underwriters in order to expedite or facilitate the disposition of the equity securities of the Company Offeror in connection with such offering and any Conversion Transaction; provided, however, that no Member holding a certain type or class of Units shall be required to take any actions not required from the other Members holding the same type or class of Units.  Each Member hereby (i) consents to any such Conversion Transaction or exchange of Units involving a Company Offeror and (ii) agrees to execute, acknowledge and deliver any further agreements, documents or instruments requested by the Company (or any successor thereto) reasonably necessary or customary in connection with this Section 9.1.

 

(d)          Qualified IPO of Company Offeror.  If the Qualified IPO is structured as an offering of the securities of a Company Offeror other than the Company, then this Agreement shall remain in place, substantially on the terms set forth herein, except that: (i) this Agreement shall be amended to (A) provide for (I) the exchange of Class A Units for shares of common stock of the Company Offeror; provided that such exchange shall be effected in a manner consistent with Section 9.2 and (II) the treatment of Class B Units in connection with such Qualified IPO as determined by the Company in accordance with the terms of the Applicable Class B Unit Agreements, (B) adjust the provisions of this Agreement relating to Distributions and allocations to the extent necessary to permit the exchange of Class A Units and treatment of Class B Units contemplated by clause (A) immediately above, and (C) make such other changes as the Board determines to be reasonable and prudent to facilitate such Qualified IPO of such Company Offeror’s securities without adversely affecting the relative rights of any Member hereunder in a manner disproportionate (recognizing the priorities and preferences of the Units held by any Member relative to the Units held by any similarly situated Member as of the date hereof as set forth in Section 6.4) as compared to the relative rights of other Members similarly situated; and (ii) the Company shall enter into arrangements with such Company Offeror, in such form as the Board shall deem appropriate, providing for the exercise by the Company of registration rights no less favorable than the registration rights described in Section 9.3 with respect to the common stock or other equity securities of such Company Offeror to be received by the Members upon exchange of Class A Units of the Company; provided that no Member shall have any registration rights hereunder or pursuant to the registration rights described in Section 9.3 or otherwise with respect to Class B Units.  Upon any exchange of Class A Units (and Class B Units, if applicable) for shares of capital stock of such Company Offeror, such Units shall no longer be subject to the terms of this Agreement and shall instead become subject to the terms of the certificate of incorporation and bylaws of such Company Offeror.  Notwithstanding the consummation of a Qualified IPO effected by a Company Offeror (other than the Company), the rights to Distributions and allocations set forth in Article VI, in a Qualified IPO structured as an “UP-C”, the exculpation and indemnification rights and obligations of the Company and the Members set forth in Article XII and the amendment provisions set forth in Article XIII shall each survive such Qualified IPO and continue to apply to the Units under this Agreement.

 

(e)          Fractional Units.  Fractional shares of common stock of a Company Offeror issuable pursuant to a Conversion Transaction or upon exchange of Units for shares of a Company Offeror shall be rounded, cashed out or aggregated and sold in connection with such Qualified IPO in an equitable manner, as determined by the Board.

(f)          Qualified IPO Request.  Following the (i) fifth (5th) anniversary of the Closing, a Member or Members representing at least a majority of the issued and outstanding Voting Units and (ii) seventh (7th) anniversary of the Closing, each of (A) Viking, so long as the Investor Member Sell-Down Event in respect of Viking has not occurred and (B) Patient Square, so long as the Investor Member Sell-Down Event in respect of Patient Square has not occurred, shall, in each case, have the right, by delivery of a written notice to the Company to require that the Company pursue in a diligent and commercially reasonable manner and consummate a Qualified IPO.

 

9.2          Treatment of Units in Conversion Transaction.

 

(a)          Conversion Rate.  For purposes of the conversion of Units pursuant to a Conversion Transaction or upon the exchange of Units for shares or equity securities of a Company Offeror, each Unit shall be converted at a conversion rate based upon the percentage of the aggregate pre-tax value to be received by each holder of Units being converted that would otherwise have been received if the aggregate equity value of the Company Offeror at the price implied by the Qualified IPO had been distributed in accordance with Article VI as a Distribution following a Liquidity Event.

 

(b)          Acknowledgment.  If a Qualified IPO is effected, in whole or in part, by means of a public offering of the securities of a Company Offeror that is a Subsidiary of the Company that is a holding company for all or substantially all of the assets of the Company and its other Subsidiaries, each of the Members and the Company hereby acknowledges and agrees that such Qualified IPO shall be effected to the greatest extent practicable in a manner that gives effect to this Section 9.2.

 

(c)          Notwithstanding the foregoing, other than in connection with a Qualified IPO, without the prior written consent of the Fund Investors, the Company (i) shall not effectuate a Conversion Transaction and (ii) shall take any actions, including refraining from making an election to be treated as a corporation, as may be required to ensure that at all times the Company is classified as partnership for United States federal income tax purposes.

 

9.3          Registration Rights.

 

(a)          Registration Rights Agreement. Following a Qualified IPO, the Members (and, if applicable, equityholders of such Members) and the Company Offeror shall enter into a registration rights agreement that shall contain customary registration rights in favor of each Member, including the provisions set forth in Sections 9.3(b) and 9.3(c).  All Members (or, as applicable, the equityholders of such Members) shall have customary “piggyback” registration rights, including in any secondary sale effected as part of such Qualified IPO or thereafter, with pro rata cutbacks.  The registration rights agreement shall provide that each of (i) Viking, so long as the Investor Member Sell-Down Event in respect of Viking has not occurred and (ii) Patient Square, so long as the Investor Member Sell-Down Event in respect of Patient Square has not occurred), shall, in each case, have the right to demand that the Company or applicable Company Offeror register the resale of all or a part of their securities (a “Demand Registration”), subject to customary limitations.  From and after a Qualified IPO, and subject to any applicable lock-up period with respect to such Qualified IPO, as described in Section 9.3(b) below, the Company or Company Offeror will provide reasonable and customary assistance to any Member (or, as applicable, equityholder of such Member) seeking to offer and sell its securities in the public market so as to enable such Member (or, as applicable, equityholders of such Member) to sell its securities pursuant to Rule 144 under the Securities Act or any similar rules or regulations hereinafter adopted by the SEC, including reasonably cooperating with such Member (or, as applicable, equityholders of such Member) to facilitate the timely preparation and delivery of certificates representing the securities to be sold and not bearing any Securities Act legend in connection with any such sale.

(b)          Lock-Up.  Each Member (or, as applicable, the equityholders of such Members) shall not Transfer any securities of the Company or a Company Offeror for a period commencing on the date marketing commences with respect to a Qualified IPO and ending not more than one hundred eighty (180) days following the closing of such Qualified IPO.  Each Member (or, as applicable, the equityholders of such Members) agrees to execute and deliver such other agreements as may be reasonably requested by the Company or its underwriter which are consistent with the foregoing or which are necessary to give further effect thereto.  In addition, if requested by the Company or any representative of the underwriter, each Member shall provide, within ten (10) Business Days of such request, such information as may be required by the Company or such representative in connection with the completion of any public offering of the Company’s securities pursuant to a Qualified IPO.  The Company may impose stop-transfer instructions with respect to the equity securities subject to the foregoing restriction until the end of the applicable period.

 

(c)          Underwriter Selection.  The underwriter for any registration statement filed by the Company of Company Offeror in connection with a sale of units or other equity securities thereof shall be selected by the Board.

10.1          Dissolution.  The Company shall be dissolved upon the occurrence of any of the following events (each an “Event of Dissolution”):

 

(a)          Subject to Section 4.10, a determination by the Board to dissolve the Company; or

 

(b)          A judicial dissolution of the Company under Section 18-802 of the Act.

 

The Members hereby agree that the Company shall not dissolve prior to the occurrence of an Event of Dissolution and that no Member shall seek a dissolution of the Company under Section 18-802 of the Act.  No other event, including the retirement, withdrawal, insolvency, liquidation, dissolution, insanity, resignation, expulsion, bankruptcy, death, incapacity, or adjudication of incompetency of a Member, shall cause a dissolution of the Company or cause the existence of the Company to terminate.

11.1          Liquidation.  If an Event of Dissolution shall occur, then the Company shall be liquidated and its affairs shall be wound up.  All proceeds from such liquidation shall be distributed as set forth below, in accordance with the provisions of Section 18-804 of the Act:

 

(a)          to creditors, including Members who are creditors to the extent permitted by Law, in satisfaction of the Company’s liabilities; and

 

 

(b)          then, to the Members in accordance with Article VI.

 

11.2        Final Accounting.  In the event of the dissolution of the Company, prior to any liquidation, a proper accounting shall be made to the Members from the date of the last previous accounting to the date of dissolution.

11.3        Distribution in Kind.  If the Board determines in connection with the liquidation of the Company following an Event of Dissolution that a portion of the Company’s assets must be distributed in kind to the Members, then such assets shall be so distributed in kind to the Members in undivided shares therein as tenants in common in the manner specified in Section 6.1.

11.4        Certificate of Cancellation.  Upon the completion of the winding up of the Company’s affairs and distribution of the Company’s assets, the Company shall be terminated and the Members shall cause the Company to execute and file a Certificate of Cancellation in accordance with Section 18-203 of the Act.

12.1        Exculpation.  Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by the Act, none of the Covered Persons shall be liable to the Company or any Member, Director or other Person who is a party to or bound by this Agreement for any Losses (as defined below) arising out of or relating to any act or omission, or any consent or approval given or withheld, in each case, in relation to the management of the Company or otherwise relating to the conduct of the Company’s business and affairs; provided that nothing herein shall limit the liability of any Person for any act or omission by such Covered Person that constitutes fraud, a willful breach of applicable Law, willful misconduct, an intentional breach of such Person’s obligations under this Agreement (if any) or a bad-faith violation of the implied contractual covenant of good faith and fair dealing (to the extent applicable).

 

12.2          Indemnification.

(a)          To the fullest extent permitted by the Act, the Company shall indemnify and hold harmless each current and former (i) Covered Person and (ii) officer of the Company and its Subsidiaries (collectively, the “Indemnified Persons” and each individually an “Indemnified Person”) from and against any and all losses, claims, demands, liabilities, reasonable out-of-pocket expenses (including attorneys’ fees), judgments, fines, settlements and other amounts (“Losses”) incurred by such Person in connection with any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative in which such Indemnified Person may be involved, or threatened to be involved, as a party, a witness or otherwise, by reason of, or in connection with, any act or omission, or any consent or approval given or withheld, in each case, in relation to the management of the Company or otherwise relating to the conduct of the Company’s business and affairs (“Claims”).  Notwithstanding the foregoing, no current or former Indemnified Person shall be entitled to indemnification under this Section 12.2 with respect to: (i) any act or omission by such Indemnified Person that constitutes fraud, a willful breach of applicable Law, willful misconduct, or an intentional breach of this Agreement or a bad faith violation of the implied contractual covenant of good faith and fair dealing (to the extent applicable); or (ii) any Claim initiated by such Indemnified Person unless such Claim (or part thereof) was (A) brought to enforce such Indemnified Person’s rights to indemnification or advancement of expenses hereunder or (B) authorized or consented to by the Board prior to the initiation of such Claim. 

 

(b)          Reasonable, documented, out-of-pocket expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Indemnified Person to repay the amount advanced if it shall be ultimately determined in a final, nonappealable determination of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified by the Company as authorized by Section 12.2(a).  If the Company indemnifies any Indemnified Person or former Indemnified Person pursuant to Section 12.2(a), it shall be subrogated to the rights of such Indemnified Person or former Indemnified Person against, and shall be entitled to seek contribution from, any third party, including any insurance company, to recover the amount of such indemnification (or such portion thereof as to which the Company shall be entitled to contribution) after the Indemnified Person or former Indemnified Person shall have been fully and completely indemnified (whether pursuant to this Agreement or otherwise) in respect of the Claim which gave rise to such indemnification.  Any such Indemnified Person or former Indemnified Person shall fully cooperate with the Company at the Company’s expense in its efforts to enforce against any such third party the rights to which it is so subrogated.

 

12.3        Effect of Modification.  Any repeal or modification of this Article XII shall not adversely affect any rights of such Indemnified Person pursuant to this Article XII, including the right to indemnification and to the advancement of expenses of an Indemnified Person existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

12.4        Nonexclusivity of Rights.  The rights conferred on any Indemnified Person by this Article XII shall not be exclusive of any other rights that such Indemnified Person may have or hereafter acquire under any statute, provision of this Agreement, agreement, vote of members or disinterested directors or otherwise.

13.1        Amendments.

 

(a)          Subject Section 13.1(b) and except as otherwise provided in this Agreement, including Section 4.3 and Section 4.10, amendments, supplements or modifications to this Agreement shall be approved by each of (i) a majority of the entire Board. (ii) Viking, so long as the Investor Member Sell-Down Event in respect of Viking has not occurred, and (iii) Patient Square, so long as the Investor Member Sell-Down Event in respect of Patient Square has not occurred, and any such amendment, supplement or modification shall be binding on the parties hereto, including the Company and the Members; provided, that (i) any amendment, supplement or modification of this Agreement in a manner that would have a material disproportionately adverse impact on any right or obligation of any Member, the consent of such Member shall also be required, (ii) in no event shall any Member’s Total Funding Commitment be amended, supplemented or modified without the written consent of such Member, and (iii) in no event shall any Member be obligated to make any cash or non-cash contribution to the Company’s capital other than as contemplated by Section 5.1(e)(i) (as in effect on the date hereof) without the written consent of such Member.

 

(b)          An amendment shall become effective as of the date specified in the applicable approval or, if none is specified, as of the date of such approval or as otherwise provided in the Act.  Notwithstanding the provisions set forth in Section 13.1(a), but subject to Section 4.3 and Section 4.10, the Board may amend this Agreement, including the schedules hereto, without the approval of any Members (i) to reflect the issuance, redemption, repurchase or forfeiture of Class B Units in connection with the Applicable Class B Unit Agreements, (ii) to implement the admission of Substitute Members or Additional Members, (iii) to change the name of the Company and (iv) to implement the provisions set forth in Article IX.

14.1        Expenses.  Except as otherwise expressly provided herein or as contemplated by Section 10.1 of the Transaction Agreement, all costs and expenses, including fees and disbursements of legal counsel, financial advisors and accountants, incurred in connection with this Agreement shall be borne by the party incurring such costs and expenses.

14.2        Notices.  All notices hereunder shall be in writing and shall be deemed to have been duly given or made (i) as of the date delivered if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested) or sent by overnight courier (providing proof of delivery) or (ii) as of the date transmitted if sent by electronic transmission to the following electronic mail addresses, in each case, to the addresses below (or at such other contact information for a party hereto as shall be specified by like notice):

 

If to the Company:

 

BridgeBioX Pharma, LLC
3160 Porter Drive, Suite 250
Palo Alto, CA 94304
Attention: Legal Department
Email: ***@***

 

If to a Member, to the address of such Member specified on Schedule A hereto.

 

Such addresses may be changed, from time to time, by means of a notice given in the manner provided in this Section 14.2.

14.3        Publicity; Confidentiality.  Except as may be required by applicable Disclosure Law, none of the parties hereto shall issue a press release or public announcement or otherwise make any disclosure concerning this Agreement or the transactions contemplated hereby or any other information, statements, reports, trade secrets, documents, and other materials concerning the Company, any Member or any of their respective Affiliates that any Member may receive or that may be disclosed, distributed or disseminated (whether in writing, orally, electronically or by other means) by or to such Member or any representative of such Member, or otherwise as a result of such Member’s ownership of any Units.  Each Member agrees (on behalf of itself and its directors, officers, managers, equityholders, partners, employees, agents and members (collectively, “Representatives”)) that it will keep confidential the terms of this Agreement and all information that it receives from the Company in its capacity as a Member (including all confidential or proprietary information concerning the Company and its Subsidiaries and the business of the Company and its Subsidiaries) except that it may disclose such information (a) as may be required in the course of obtaining legal advice or enforcement with respect to the rights and obligations created hereby, (b) to its legal, financial, accounting and other advisors, (c) as may be required by law, regulation, rule, court order, subpoena or other stock exchange or governmental body or in the preparation of tax returns or other governmental or regulatory filings, (d) as and to the extent that such Member’s legal counsel determines that such disclosure is required by applicable Law, (e) to the extent required in the good-faith performance of such Member’s duties to the Company and its Subsidiaries as an employee thereof, and (f) to the extent reasonably necessary to enforce the terms of this Agreement; provided, however, that each Member may disclose such information to (i) any of its actual and prospective equityholders and lenders, and any equityholder thereof that is an investment fund may disclose such information to its actual and prospective limited partners or other investors (provided in each case that such Persons are subject to reasonable confidentiality obligations with respect to such information), (ii) any Person in connection with financings, acquisitions, divestitures and similar events involving the Company and its Affiliates (provided in each case that such Persons are subject to reasonable confidentiality obligations with respect to such information), (iii) any of its directors, officers, employees or professional advisers to the extent that such disclosure is reasonably necessary in connection with the such Member’s investment in the Company for use solely for such purpose and (iv) any Person in connection with such Member’s ordinary course internal market, industry and investment analyses, so long as the recipient of such information is subject to a duty of confidentiality to such Member with respect to such information.  In the event of any disclosure as permitted above under clauses (a), (b) and (f) hereof to a Member’s representatives and advisors, the disclosing party shall direct any Person receiving such information to maintain its confidentiality and shall be responsible for any breach of the confidentiality provisions hereunder by any such Person receiving such information.  Notwithstanding anything in this Section 14.3 to the contrary, except in connection with a Change of Control and with the approval of the Board, or except as permitted under clause (e) hereof, no Director or Member shall provide any information that it receives from the Company in its capacity as a Director or Member to any Person (including any officer, director, member, manager, partner, trustee, employee, or agent thereof) that, in the good-faith reasonable judgment of the Board, is an actual or potential competitor of the Company.

14.4        Entire Agreement and Waiver.  This Agreement, together with all exhibits and schedules hereto and all other agreements referenced herein and therein, shall constitute the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior contracts, agreements, discussions and understandings between them.  No provision of this Agreement shall be deemed to modify, amend, waive, rescind or otherwise impact the terms of the Transaction Agreement.  Any waiver (express or implied) of any default or breach of this Agreement must be in writing and shall not constitute a waiver of any other or subsequent default or breach.

14.5        Conflict between This Agreement and Class B Unit Agreement.  Notwithstanding anything to the contrary in this Agreement, in the event of a conflict between any term or provision contained herein and a term or provision of any Applicable Class B Unit Agreement or the Management Holdco Operating Agreement, the Board acting in good faith shall be entitled to resolve such conflict.  Notwithstanding any other provision of this Agreement to the contrary, no Member who holds only Class B Units shall have any right to receive or review a copy of Schedule A or Schedule B to this Agreement (except for information on Schedule A or Schedule B that relates solely to such Member) or obtain other information about the identities of the other Members or the size or nature of their interests in the Company; provided, however, that any Person may view a copy of Schedule A or Schedule B if the Board determines that it is reasonably necessary for such Person to perform his or her duties in connection with the Company.

14.6        Counterparts.  This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, but all of which together shall constitute one agreement binding on the parties hereto.  Transmission of an executed counterpart by electronic transmission of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart, and such signatures shall be deemed original signatures for purposes of the enforcement and construction of this Agreement.

14.7        Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the Members’ expectations regarding this Agreement.  Otherwise, the Members agree to replace any invalid or unenforceable provision with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.

14.8          Governing Law; Venue; Waiver of Jury Trial.

(a)          This Agreement, and all claims, causes of action and disputes (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) that may be based on, arise out of or relate to this Agreement or the negotiation, execution, performance or subject matter hereof, shall be governed by the Laws of the State of Delaware applicable to agreements made and to be performed solely therein, without giving effect to principles of conflicts of law.

 

(b)          The parties hereto irrevocably submit to the jurisdiction of the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware (and any appellate court therefrom)) (collectively, the “Chosen Courts”) in any action or proceeding that arises in respect of the interpretation and enforcement of the provisions of this Agreement and the documents referred to in this Agreement or in respect of the transactions contemplated herein, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for interpretation or enforcement hereof or any such document that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in the Chosen Courts or that venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such Chosen Courts, and the parties hereto irrevocably agree that all claims with respect to such action, suit or proceeding shall be heard and determined exclusively by such Chosen Courts.

 

(c)          EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY 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; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 14.8.

 

14.9        Binding Effect.  This Agreement shall be binding upon, and inure to the benefit of, the Members.

14.10      Additional Documents and Acts.  The Members shall from time to time execute or cause to be executed all other documents or cause to be done all filing, recording, publishing, or other acts as may be necessary or desirable to comply with the requirements for the operation of a limited liability company under the laws of the State of Delaware and all other jurisdictions in which the Company may from time to time conduct business.

14.11     No Third-Party Beneficiary.  This Agreement is made solely for the benefit of the parties hereto and no other Person shall have any rights, interest, or claims hereunder or otherwise be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise, except for the rights of the Member Related Parties pursuant to Section 14.12 or any Indemnified Person pursuant to Section 12.2.

14.12     Nonrecourse.  Notwithstanding anything to the contrary in this Agreement, except in the case of fraud, this Agreement may only be enforced against, and any action, dispute, claim, suit or other proceeding for breach of this Agreement may only be made against, the entities that are expressly identified herein as parties and none of the former, current and future Affiliates, directors, officers, managers, employees, advisors, representatives, shareholders, members, managers, partners, successors and assigns of a Member or any Affiliate thereof or any former, current and future Affiliate, director, officer, manager, employee, advisor, representative, shareholder, member, manager, partners, successor and assign of any of the foregoing (collectively, “Member Related Parties”) shall have any liability for any liabilities or obligations of the parties hereto for any action, dispute, claim, suit or other proceeding (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral representations made or alleged to be made in connection herewith, the Company or any other Member or their respective Affiliates shall have no rights of recovery in respect hereof against any Member Related Party and no personal liability shall attach to any Member Related Party through such Member or otherwise, whether by or through attempted piercing of the corporate veil, by or through an action, dispute, claim, suit or other proceeding (whether in tort, contract or otherwise) by or on behalf of a Member against any Member Related Party, by the enforcement of any judgment, fine or penalty or by virtue of any statute, regulation or other applicable Law, or otherwise.  The Company agrees that (i) each of Viking, Patient Square, Sequoia, Frazier, Cormorant and Aisling and their respective Affiliates (each, a “Fund Investor”) are professional investment funds, and as such invest in numerous portfolio companies, some of which may be deemed competitive with the Company or its Subsidiaries’ businesses, and, to the extent permitted by applicable Law, no Fund Investor shall be liable to the Company or any of its subsidiaries for any claim arising out of, or based upon, the investment by any Fund Investor in any entity competitive with the Company or its Subsidiaries and (ii) to the extent permitted by applicable Law, each Fund Investor is permitted to acquire, own and/or dispose of any debt, equity and/or equity-linked securities or other investment in any competitor of the Company or its Subsidiaries without any liability to the Company or its subsidiaries; provided that nothing in the foregoing clauses (i) and (ii) shall relieve any Fund Investor from liability associated with the unauthorized disclosure or use of the Company’s confidential information in breach of this Agreement or any other obligation of confidentiality or non-use owed to the Company or any of its Subsidiaries by the Fund Investors.

14.13     Successors and Assigns.  This Agreement is personal to the parties hereto and shall not be capable of assignment; it being understood that the foregoing shall not be read to limit any Transfer pursuant to and in accordance with Article VIII.  All of the terms and provisions of this Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and permitted transferees, if any.

14.14     Specific Performance.  Each of the Members acknowledges and agrees that in the event of any breach or threatened breach of this Agreement, the nonbreaching party or parties would be irreparably harmed and could not be made whole by monetary damages. The Members hereby agree that, in addition to any other remedy to which they may be entitled at law or in equity, they shall be entitled to compel specific performance of this Agreement in any action instituted in any court set forth in Section 14.8.

14.15      Representations and Warranties.  Each Person that becomes an Additional Member or a holder of Units on or after the date hereof (each a “Warrantor”) makes, as of the date such Warrantor becomes an Additional Member or acquires Units, the representations and warranties to the Company set forth on Schedule D hereto.

 

14.16     Survival of Representations and Warranties; Termination of Covenants.  All representations and warranties contained in this Agreement or made in writing by any party hereto in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.  In the event any provision of this Agreement is terminated, such termination shall not relieve any party hereto from liability for such party’s prior breach of this Agreement or for failure by such party to perform such party’s obligations hereunder.

14.17      Agent’s Rights.

 

(a)          Notwithstanding anything contained herein to the contrary, BridgeBio or its Affiliates, each in its capacity as a Member of the Company (each in such capacity, the “Pledging Member”), shall be permitted to pledge or hypothecate any or all of its economic ownership of Units, including all rights to receive the Distributions and allocations of income, gain, loss, deduction, credit and similar items to which the Pledging Member would be entitled, to Blue Owl Capital Corporation, as administrative agent (together with its permitted successors and assigns, in such capacity, the “Agent”) under that certain Financing Agreement, dated as of January 17, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among BBIO, BridgeBio, Agent, the lenders from time to time party thereto and the other parties from time to time party thereto, and any transfer of such economic rights pursuant to the Agent’s exercise of remedies in connection with any such pledge or hypothecation shall be permitted under this Agreement with no further action or approval required hereunder.  Notwithstanding anything contained herein to the contrary, upon an event of default under the Financing Agreement, the Agent (or its assignee, transferee or designee, as applicable) (i) shall have the right, without further approval of any Member and without becoming a Member, to take economic ownership of the Pledging Member’s Units (the “Foreclosed Units”) and to receive the Distributions and allocations of income, gain, loss, deduction, credit and similar items to which the Pledging Member would be entitled and (ii) shall not have the right to exercise any of the Pledging Member’s voting rights, consent rights, control rights or status rights as a Member. For the avoidance of doubt, upon any such transfer of the economic ownership of Foreclosed Units, the Pledging Member shall cease to have any voting rights, consent rights, control rights or status rights as a Member with respect to the Foreclosed Units.

 

(b)          The parties hereto further agree that so long as any pledge or hypothecation of the Units in favor of the Agent is in effect, (x) the Company shall not elect that the Units become governed by Article 8 of the Uniform Commercial Code as in effect from time to time in the State of Delaware, (y) this Section 14.17 may not be amended or modified, in each case, without the prior written consent of the Agent and (z) the Agent shall be a third party beneficiary of the provisions of this Section 14.17.

(c)          The execution and delivery of this Agreement by a Member shall constitute any necessary approval of such Member under the Act to the foregoing provisions of this Section 14.17.

IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.