LIMITED LIABILITY COMPANY OPERATING AGREEMENT of
Exhibit 3.26
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of
C R COLLECTIONS, LLC
This Limited Liability Company Operating Agreement (this “Agreement”) of C R
Collections, LLC, an Alabama limited liability company (the “Company”), is made as of April
30, 2007, by Aurora Diagnostics, LLC, a Delaware limited liability company (the “Sole
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 hereby agree as follows:
1. Formation of the Company. The Company was formed upon the execution and filing of
Articles of Organization (as amended, the “Articles”) with the Alabama Secretary of State
in accordance with the provisions of the Alabama Limited Liability Company Act, as amended (the
“Act”).
2. Term. The Company will have perpetual existence unless terminated in accordance
with this Agreement.
3. Name. The name of the Company will be “C R Collections, 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 such lawful transactions and business activities as may be 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
Alabama is 000 Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000. The registered agent of the
Company for service of process at such address is Xxxxxx X. XxXxxxxx. 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 Sole Member of the Company is Aurora Diagnostics, LLC.
Except as provided in Section 17 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
Alabama 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 formed, 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.
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. 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
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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
10-12-38 of the Act. Upon dissolution, the Company will be liquidated in an orderly
manner by the Members.
13. Limitation on Liability. 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 officer of the Company shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of being a Member or
officer.
14. Amendments to Agreement. The terms and provisions of this Agreement may
be modified or amended, or amended and restated with the written consent of the Sole Member.
15. 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 Alabama.
16. 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 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 of the Company (or a manager or
officer of a Member). 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 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
of a
Member) for liabilities of the Company, except to the extent constituting fraud or willful
misconduct by such Members.
(ii) Indemnification. The Company hereby agrees to 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
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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 16(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 16(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 16(ii) to the fullest extent permitted by any
applicable portion of this Section 16(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 16 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.
17. No Restrictions on Ability to Pledge. Notwithstanding any other provision in this
Agreement, no consent of the Members shall be required to permit (i) the Sole Member to pledge its
membership interest as security for a loan to such Sole Member, the Company or any of their
respective affiliates, or (ii) a pledgee of the Sole 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, or to permit such pledgee or its assignee to be substituted for the
Sole Member under this Agreement in connection with such pledgee’s exercise of such rights and
remedies.
* * * * *
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first
written above.
| MEMBER XXXXXXXXXX PATHOLOGY, LLC. |
||||
| By: | /s/ Xxxxx X. New | |||
| Xxxxx X. New | ||||
| Its: Chief Executive Officer | ||||
[Signature Page to LLC Agreement—C R Collections, LLC]
Schedule of Members
| Member | Percentage of Membership
Interests/Unit |
|
| Xxxxxxxxxx Pathology, L.L.C. | 100% |
