OPERATING AGREEMENT OF ADVANCED NA, LLC A DELAWARE LIMITED LIABILITY COMPANY
OF
A
DELAWARE LIMITED LIABILITY COMPANY
This
OPERATING AGREEMENT OF ADVANCED NA, LLC (this “Agreement”) dated as
of the 2nd day of
January 1998, is hereby (i) duly adopted as the operating agreement of ADVANCED
NA, LLC, a Delaware limited liability company (the “Company”), by Xxxx X. Xxxxx and Xxxx X. Xxxxx the
Managers, and (ii) ratified, confirmed and approved as such by the Members (as
each term is defined below).
WHEREAS,
the Members desire to establish a Company governed by this Operating Agreement
of the Company, for the purpose of developing, owning and operating Positron
Emission Technology Imaging (“PET”) facilities and related equipment, fixtures
and accessories, and carrying on any and all activities relating to the
foregoing purposes;
ARTICLE
I. GENERAL
1.2. Name and Formation.
The name of the Company is “ADVANCED NA, LLC.” The Articles of Organization of
the Company have been filed with the Secretary of State of
Delaware.
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ARTICLE
2. DEFINITIONS
“Accountant” means the
certified public accountant or firm of certified public accountants, if any,
selected by the Managers to perform accounting functions on behalf of the
Company.
“Act” means the Maryland Limited
Liability Company Act, as the same may be amended from time to
time.
“Agreement” means
these regulations as originally adopted and as amended from time to
time.
“Articles” means the
Articles of Organization of the Company which were filed in the Office of the
Secretary of State of Maryland.
“Bank” means the bank
selected by the Managers.
“Bankruptcy” means,
for any Member, the taking or acquiescing in the taking by that Member of an
action seeking relief under, or advantage of, an applicable debtor relief,
liquidation, receivership, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, reorganization, or similar law affecting the right or
remedies of creditors generally, as in effect from time to time.
“Business Day” means a
day other than a Saturday, Sunday or other day which is a nationally recognized
holiday.
“Capital Contribution”
means, with respect to any Member, any contribution to the capital of the
Company in cash or property by that Member whenever made.
“Code” means the
Internal Revenue Code of 1986, as amended (or any corresponding provisions of
succeeding law).
“Company” means
ADVANCED NA, LLC, a Maryland limited liability company.
“Distributable Cash”
means all cash, revenues and funds received by the Company from the operations
of the Company, less the sum of the following to the extent paid or set aside by
the Company; (i) all principal and interest payments on indebtedness of the
Company and all other sums paid to lenders; (ii) all cash expenditures incurred
incident to the normal operations of the business of the Company; and (iii) such
cash reserves as a Majority of the Managers deems reasonably necessary to the
proper operation of the business of the Company.
“Fiscal Year” means
the fiscal year of the Company, which shall be the calendar year.
“Initial Capital
Contribution” means, with respect to any Member, the initial contribution
to the capital of the Company made by that Member pursuant to this
Agreement.
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“Majority” means, with
respect to any referenced group of Managers, a combination of any of such
Managers constituting more than fifty percent (50%) of the number of Managers of
such referenced group who are then elected and qualified.
“Majority in
Interest” means, with respect to any referenced group of Members, a
combination of any of such members who, in the aggregate, own more than fifty
percent (50%) of the Membership Interests owned by all of such referenced group
of Members.
“Managers” means Xxxx
X. Xxxxx and Xxxx X. Xxxxx, and hereafter any other Person or Persons to succeed
him in that capacity or elected to act as additional managers of the Company as
provided herein.
“Member” means each
Person designated as a member on Exhibit A, attached
hereto and hereby made a part hereof, any successor or successors to all or any
part of any such Person’s interest in the Company, or any other Person admitted
as a member of the Company in accordance with this Agreement and the Act, each
in the capacity as a member of the Company.
“Membership Interest”
means the number of members interests of a Member at any particular time as
specified on Exhibit
A.
“Person” means any
corporation, limited liability company, partnership, joint venture, co-tenancy,
individual, trust, any other legal entity or individual, whether or not a party
to this Agreement.
“Prime Rate” means the
rate of interest announced from time to time by BANK OF AMERICA OF TEXAS, N.A.
(or any successor thereof) as its prime rate of interest.
“Property” means at
any time all of the assets of the Company at that time.
“Pro Rata” means the
ratio determined by dividing the Membership Interests of Members to whom a
particular provision of this Agreement is stated to apply by the aggregate of
the Membership Interests of all Members to whom that provision is stated to
apply.
“Regulations” means
the Income Tax Regulations, including Temporary Regulations, promulgated under
the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
“Unanimous Consent”
means, on any matter, the affirmative consent, of all Members or, if
specifically stated, only all Members entitled to vote on that
matter.
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ARTICLE
3. CAPITALIZATION
(a) Upon
the execution of this Agreement, each Member shall contribute cash to the
Company in the amount set forth as the Initial Capital Contribution of such
Member on Exhibit
A. Such cash shall be the Initial Capital Contribution of each such
Member and, upon such contribution, each such Member shall receive the
Membership Interest set forth by the name of that Member on Exhibit
A.
(b) If
at any time a Majority of the Managers determines that the Company has
insufficient funds to carry out the purposes of the Company, the Managers may
request that the Members make additional contributions to the capital of the
Company.
(a) A
Member shall not receive out of the Property any part of its Capital
Contribution until all liabilities of the Company, except the liabilities to
Members on account of their Capital Contributions, have been paid or there
remains property of the Company sufficient to pay such liabilities.
(b) No
Member shall have the right to withdraw all or any part of its Capital
Contribution or to receive any return on any portion of its Capital
Contribution, except as may be otherwise specifically provided in this
Agreement. Under circumstances involving a return of any Capital Contribution,
no Member shall have the right to receive property other than cash.
(c) No
Member shall have priority over any other Member, either as to the return of
Capital Contributions or as to distributions; provided that this subsection
shall not apply to loans (as distinguished from Capital Contributions) which a
Member has made to the Company.
ARTICLE
4. DISTRIBUTIONS AND
ALLOCATIONS
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ARTICLE
5. MANAGEMENT
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5.14. Indemnification. THE
MANAGERS SHALL BE INDEMNIFIED AND HELD HARMLESS BY THE COMPANY, INCLUDING
ADVANCEMENT OF EXPENSES, BUT ONLY TO THE EXTENT THAT THE PROPERTY IS SUFFICIENT
THEREFOR, FROM AND AGAINST ALL CLAIMS, LIABILITIES, AND EXPENSES ARISING OUT OF
ANY MANAGEMENT OF THE AFFAIRS OF THE COMPANY, BUT EXCLUDING THOSE CAUSED BY THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE MANAGER, SUBJECT TO ALL
LIMITATIONS AND REQUIREMENTS IMPOSED BY THE ACT. THESE INDEMNIFICATION RIGHTS
ARE IN ADDITION TO ANY RIGHTS THAT THE MANAGERS MAY HAVE AGAINST THIRD PARTIES.
THE FOREGOING INDEMNIFICATION
SPECIFICALLY INCLUDES THOSE CLAIMS THAT ARISE OUT OF THE INDEMNIFIED PARTY’S
SOLE, JOINT OR CONTRIBUTORY NEGLIGENCE, BUT SPECIFICALLY EXCLUDES THOSE CLAIMS
THAT ARISE OUT OF THE INDEMNIFIED PARTY’S WILLFUL MISCONDUCT. THE INDEMNIFIED
PARTY WOULD NOT HAVE ENTERED THIS AGREEMENT IF NOT FOR THIS
INDEMNIFICATION.
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(a) A
current list that states:
(i) The
name and mailing address of each Member; and
(ii) The
Membership Interest owned by each Member;
(b) Copies
of the federal, state and local information or income tax returns for each of
the six (6) most recent tax years of the Company;
(c) A
copy of the Articles and this Agreement, all amendments or restatements,
executed copies of any powers of attorney, and copies of any document that
creates, in the manner provided by the Articles or this Agreement, classes or
groups of Members;
(d) Correct
and complete books and records of account of the Company; and
(e) Any
other books, records or documents required by the Act or other applicable
law.
ARTICLE
6. MEETINGS OF
MEMBERS
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ARTICLE
7. TRANSFER OF
MEMBERSHIP INTERESTS
ARTICLE
8. DISSOLUTION AND
TERMINATION
8.1.
Dissolution.
(a) The
Company shall be dissolved upon the first of the following to
occur:
(1) When
the period fixed for the duration of the Company shall expire;
(2) Upon
the election to dissolve the Company by a Majority in Interest of the
Members;
(3) Upon
the death, retirement, resignation, expulsion, Bankruptcy, legal incapacity or
dissolution of any Member who is at such time a Manager, or the occurrence of
any other event which terminates the continued membership of any Member who is
at such time a Manager of the Company, unless there is at least one remaining
Member and the business of the Company is continued by the Unanimous Consent of
the remaining Members within ninety (90) days; or
(4) The
entry of a decree of judicial dissolution, pursuant to the Act, by a Court of
competent jurisdiction.
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(b) Upon
dissolution of the Company, the business and affairs of the Company shall
terminate, and the assets of the Company shall be liquidated under this Article
8.
(c) Dissolution
of the Company shall be effective as of the day on which the event occurs giving
rise to the dissolution, but the Company shall not terminate until there has
been a winding up of the business and affairs of the Company, and the Property
has been distributed as provided in Section
8.2.
(d) Upon
dissolution of the Company, the Managers may cause any part or all of the assets
of the Company to be sold in such manner as the Managers shall determine in an
effort to obtain the best prices for such assets; provided, however that the
Managers may distribute assets of the Company in kind to the Members to the
extent practicable.
(a) First,
to creditors, in the order of priority as provided by applicable law, except
those to Members of the Company on account of their Capital Contributions;
and
(b) Second,
any remainder shall be distributed to the Members Pro Rata.
ARTICLE
9. MISCELLANEOUS
(a)
Any notice, notification, demand or request provided or permitted to be given
under this Agreement must be in writing and shall have been deemed to have been
properly given, unless explicitly stated otherwise, if sent by (i) Federal
Express or other comparable overnight courier, (ii) registered or certified
mail, postage prepaid, return receipt requested, or (iii) telecopy during normal
business hours to the place of business of the recipient.
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(b) For
purposes of all notices, the addresses and telecopy numbers of the Members are
set forth on Exhibit
A.
(c) All
notices, notifications, demands or requests so given shall be deemed given and
received (i) if mailed, three (3) days after being deposited in the mail; (ii)
if sent via overnight courier, the next business day after being deposited; or
(iii) if telecopied on a business day, that day, or if telecopied on a day that
is not a business day, the next day that is a business day.
9.2. Interpretation. The
construction and validity of this Agreement and the rights and obligations of
the respective parties hereunder shall be governed by and interpreted and
enforced in accordance with the laws of the State of Texas.
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Remainder
of Page Intentionally Left Blank.
Signature
Page Follows.
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MEMBER:
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ADVANCED
IMAGING PARTNERS, INC.
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx X. Xxxxx
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Title:
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General Counsel and Senior Vice
President
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MANAGERS:
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/s/
Xxxx X. Xxxxx
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Xxxx
X. Xxxxx, Manager
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/s/ Xxxx X. Xxxxx | ||
Xxxx
X. Xxxxx,
Manager
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EXHIBIT
A
Name,
Initial Capital
Contribution
and Membership Iuterests of the Members
and Membership Iuterests of the Members
Name, Address, and
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Membership
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Telephone Number
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Percentage Interest
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Advanced
Imaging Partners, Inc.
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100 | % | ||
c/o
Radiologix, Inc.
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3600
Chase Tower
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0000
Xxxx Xxxxxx
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Xxxxxx,
Xxxxx 00000-0000
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Tel:
(000) 000-0000
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