AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT of BIOPSY DIAGNOSTICS, LLC
Exhibit 3.24
AMENDED AND RESTATED
of
BIOPSY DIAGNOSTICS, LLC
This Amended and Restated Limited Liability Company Operating Agreement (this
“Agreement”) of Biopsy Diagnostics, LLC, a South Carolina limited liability company (the
“Company”), is made as of October 8, 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
October 8, 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 “Biopsy Diagnostics, 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 the South Carolina 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 South
Carolina is 2 Xxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx Xxxxxxxx 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
South
Carolina 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 1.704-1(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 00-00-000 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 South Carolina.
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) Nonexclusivity 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 pledge of any Member’s membership interest in the Company to transfer such
membership interest in connection with such pledge’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 pledge or its assignee to be substituted for any Member under this
Agreement in connection with such pledge’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: BIOPSY DIAGNOSTICS, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx, M.D. | ||||
| President | ||||
[Signature Page to LLC Operating Agreement]
Schedule of Members
| Percentage of Membership | ||||
| Members | Interests/Units | |||
Aurora Diagnostics, LLC
|
100 | % | ||
