AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT of TEXAS PATHOLOGY, LLC
Exhibit 3.52
AMENDED AND RESTATED
of
TEXAS PATHOLOGY, LLC
This Amended and Restated Limited Liability Company Operating Agreement (this “Agreement”)
of Texas Pathology, LLC, a Texas limited liability company (the “Company”), is made as of December
31, 2010, by and between the Company and Aurora Diagnostics, LLC (the “Member”, and
together with any party hereafter admitted as a member of the Company in accordance with the terms
hereof, the “Members”).
Intending to be legally bound, the Members and the Company hereby agree as follows:
1. Amendment and Restatement. This Amended and Restated Operating Agreement shall replace
any and all prior operating agreements of the Company and is entered into in connection with the
Member’s purchase of all of the outstanding membership interests of the Company as of December 31,
2010.
2. Term. The Company will have perpetual existence unless terminated in accordance with
this Agreement.
3. Name. The name of the Company will be “Texas Pathology, LLC” or such other name that
complies with applicable law as the Members may select from time to time.
4. Purpose; Powers. The Company is organized for the object and purpose of engaging in all
lawful transactions and business activities as may be permitted for limited liability companies
under the Texas Limited Liability Company Act (the “Act”) and determined from time to time
by the Members. The Company will have any and all powers necessary or desirable to carry out the
purposes and business of the Company, to the extent the same may be lawfully exercised by limited
liability companies under the Act.
5. Registered Office and Agent. The registered office of the Company in the State of Texas
is 000 X. Xx. Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000. The registered agent of the Company for
service of process at such address is CT Corporation System. The registered office and/or
registered agent of the Company may be changed from time to time in the discretion of the Members.
6. Members. The name of the Member of the Company is Aurora Diagnostics, LLC. Except as
provided in Section 16 below, new Members may be admitted to the Company at any time and
from time to time with the written consent of the Members. The Schedule of Members attached
hereto shall be amended to reflect the future admission of each additional Member.
7. Management.
(i) Management by Members. The powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under the direction of,
the Members, and the Members shall make all decisions and take all actions for the Company.
(ii) Officers. The Members may, from time to time, designate one or more persons to be
officers of the Company. No officer need be a resident of the State of Texas or a Member. Any
officers so designated shall have such authority and perform such duties as the Members may, from
time to time, delegate to them. The Members may assign titles to particular officers. Unless the
Members otherwise decide, if the title is one commonly used for officers of a business corporation,
the assignment of such title shall constitute the delegation to such officer of the authority and
duties that are normally associated with that office. Each officer shall hold office until such
officer’s successor shall be duly designated and shall qualify or until such officer’s earlier
death, resignation or removal. Any number of offices may be held by the same individual. The
salaries or other compensation, if any, of the officers and agents of the Company shall be fixed
from time to time by the Members.
(iii) Action by Members Without a Meeting. Action required or permitted to be taken by the
Members may be taken without a meeting if the action taken is evidenced by one or more written
consents describing the action taken, signed by the Members and delivered to the Company for
inclusion in its records. Action taken under this Section 7(iii) is effective when the Members have
signed the consent, unless the consent specifies a different effective date.
8. Contributions. The Members may, but shall not be required to, make additional
contributions to the capital of the Company; provided, that, no additional
contributions to the capital of the Company shall be made without the written consent of the
Members. Persons or entities hereafter admitted as Members of the Company shall make such
contributions of cash, property or services to the Company as shall be determined by the Members at
the time of each such admission. For the purposes hereof, “Unit” means an interest of a
Member in the Company representing a fractional part of the interests of all Members and having the
rights and obligations specified with respect to such Units in this Agreement.
9. Allocations of Profits and Losses; Capital Accounts. If the Company becomes a partnership
under Treasury Regulation Section 301.7701-2(c), the Company shall maintain a separate capital
account (the “Capital Accounts”) for each Member according to the rules of Treasury
Regulation Section 1.704-l(b)(2)(iv). For this purpose, the Company may, upon the occurrence of the
events specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(f), increase or decrease the
Capital Accounts in accordance with the rules of such regulation and Treasury Regulation Section
1.704-1(b)(2)(iv)(g) to reflect a revaluation of the Company property. The Company’s profits and
losses will be allocated among the Members pro rata in accordance with their
respective capital contributions.
10. Distributions. Distributions of cash or other assets of the Company shall be made at
such times and in such amounts as the Members may determine. Distributions shall
be made to
Members pro rata in accordance with their respective positive Capital Account balances
immediately prior to a distribution.
11. Assignments. Except as provided in Section 17, a Member may assign all or any
portion of its Units only (i) with the consent of all of the Members, which consent may be given or
withheld in each Member’s sole discretion, and (ii) upon such assignee’s agreement in writing to be
bound by the terms hereof. Upon any such permitted assignment, the assignee will be admitted to the
Company as a substitute Member.
12. Dissolution. The Company will be dissolved and its affairs will be wound up and
terminated only upon (i) the affirmative vote of all of the Members or (ii) an administrative
dissolution or the entry of a decree of judicial dissolution under Section 6.02 of the Act. Upon
dissolution, the Company will be liquidated in an orderly manner by the Members.
13. Amendments to Agreement. The terms and provisions of this Agreement may be modified or
amended, or amended and restated with the written consent of all Members.
14. Governing Law. This Agreement will be governed by, and construed in accordance with,
the internal laws (and not the laws of conflicts) of the State of Texas.
15. Exculpation and Indemnification.
(i) Limitation of Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall
be solely the debts, obligations and liabilities of the Company, and no Member (or a manager or
officer thereof) shall be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Member (or a manager or officer thereof). Except as otherwise
provided in this Agreement, a Member’s liability (in its capacity as such) for debts, liabilities
and losses of the Company shall be limited to such Member’s share of the Company’s assets;
provided that a Member shall be required to return to the Company any distribution
made to it in clear and manifest accounting or similar error. The immediately preceding sentence
shall constitute a compromise to which all Members have consented within the meaning of the Act.
Notwithstanding anything contained herein to the contrary, the failure of the Company to observe
any formalities or requirements relating to the exercise of its powers or management of its
business and affairs under this Agreement or the Act shall not be grounds for imposing personal
liability on the Members (or a manager or officer thereof) for liabilities of the Company, except
to the extent constituting fraud or willful misconduct by such Members.
(ii) Indemnification. The Company shall indemnify and hold harmless any Member or other
person (each an “Indemnified Person”) to the fullest extent permitted under the Act, as the
same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such
amendment, substitution or replacement only to the extent that such amendment, substitution or
replacement permits the Company to provide broader indemnification rights than the Company is
providing immediately prior to such amendment), against all expenses, liabilities and losses
(including attorney fees, judgments, fines, excise taxes or penalties) reasonably incurred or
suffered by such Indemnified Person (or one or more of such
person’s affiliates) by reason of the fact that such Indemnified Person is or was a Member or is or
was serving as a manager, officer, director, principal, member, employee, agent or representative
of the Company (or a Member) or is or was serving at the request of the Company as a managing
member, manager, officer, director, principal, member, employee, agent or representative of another
corporation, partnership, joint venture, limited liability company, trust or other enterprise;
provided that no Indemnified Person shall be indemnified for any expenses,
liabilities and losses suffered that are attributable to such Indemnified Person’s or its
affiliates’ (excluding, for purposes hereof, the Company’s and its subsidiaries’) willful
misconduct or knowing violation of law or willful breach of this Agreement as determined by a final
judgment, order or decree of an arbitrator or a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired and no appeal has
been perfected) or for any present or future breaches of any representations, warranties or
covenants by such Indemnified Person or its affiliates’ (excluding, for purposes hereof, the
Company’s and its subsidiaries’), employees, agents or representatives contained herein or in any
other agreement with the Company or its affiliates. Expenses, including attorneys’ fees and
expenses, incurred by any such Indemnified Person in defending a proceeding shall be paid by the
Company in advance of the final disposition of such proceeding, including any appeal therefrom,
upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if
it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by
the Company. The right to indemnification and the advancement of expenses conferred in this
Section 15(ii) shall not be exclusive of any other right which any Indemnified Person may
have or hereafter acquire under any statute, agreement, law, vote of the Members or otherwise. If
this Section 15(ii) or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each
Indemnified Person pursuant to this Section 15(ii) to the fullest extent permitted by any
applicable portion of this Section 15(ii) that shall not have been invalidated and to the
fullest extent permitted by applicable law.
(iii) Nonexclusively of Rights. The right to indemnification and the advancement of
expenses conferred in this Section 15 shall not be exclusive of any other right which any
Indemnified Person may have or hereafter acquire under any statute, agreement, law, vote of the
Members or otherwise.
16. No Restrictions on Ability to Pledge. Notwithstanding any other provision in this
Agreement, no consent of the Members shall be required to permit (i) any Member to pledge its
membership interest as security for a loan to such Member, the Company or any of their respective
affiliates or (ii) a pledgee of any Member’s membership interest in the Company to transfer such
membership interest in connection with such pledgee’s exercise of its rights and remedies with
respect thereto in accordance with the provisions of the Act applicable to limited liability
companies, or to permit such pledgee or its assignee to be substituted for any Member under this
Agreement in connection with such pledgee’s exercise of such rights and remedies.
* * * * *
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date
first written above.
| MEMBER: AURORA DIAGNOSTICS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxx | ||||
| Chief Operating Officer | ||||
| COMPANY: TEXAS PATHOLOGY, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxx | ||||
| Chief Operating Officer | ||||
[Signature Page to LLC Operating Agreement]
Schedule of Members
Member |
Percentage of Membeship Interests/Units |
|
| Aurora Diagnostics, LLC | 100% |
