AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT of TWIN CITIES DERMATOPATHOLOGY, LLC
Exhibit 3.54
Execution Version
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of
TWIN CITIES DERMATOPATHOLOGY, LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
of
TWIN CITIES DERMATOPATHOLOGY, LLC
This Amended and Restated Limited Liability Company Operating Agreement (this
“Agreement”) of Twin Cities Dermatopathology, LLC, a Minnesota limited liability company
(the “Company”), is made as of March 7, 2008, by and between the Company and 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 Sole Member 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 Sole Member’s purchase of all of the outstanding Membership Interests of the Company as of
March 7, 2008.
2. Term. The Company will have perpetual existence unless terminated in accordance
with this Agreement.
3. Name. The name of the Company will be “Twin Cities Dermatopathology, 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 Minnesota Limited Liability Company Act, as amended (the “Act”).
5. Registered Office and Agent. The registered office of the Company in the State of
Minnesota is 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000. The registered agent of the
Company for service of process at such address is C T Corporation System, Inc. 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 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. Member Control Agreement. This Agreement, as amended from time to time, shall
constitute a member control agreement, as that term is defined in Section 322B.37 of the Act.
8. Management.
(i) Management by Members. As permitted by Sections 322B.37 and 322B.606 of the Act,
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; the Members shall make
all decisions and take all actions for the Company; and the Company shall not have a board of
governors.
(ii) Officers. The Members may, from time to time, designate one or more natural
persons to be officers of the Company. No officer need be a resident of the State of Minnesota 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. The initial officers of the Company shall be Xxxxx
X. New, Chief Manager, Chief Executive Officer and President and Xxxxxx X. Xxxxxxxxxx, Chief
Financial Officer, Treasurer and Secretary, who shall have the powers and responsibilities of those
positions as described in Section 322B.673 of the Act, and Xxxxx X. Xxxx, M.D., Vice President.
9. 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 all 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.
10. 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.
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11. 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.
12. 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.
13. 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 322B.833 of the Act. Upon dissolution, the Company will be liquidated in an
orderly manner by the Members.
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 all Members.
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
Minnesota.
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 a manager or officer thereof) or Company officer 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) or Company officer. 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 any 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) or any Company
officer for liabilities of the Company.
(ii) Indemnification. The Company shall indemnify and hold harmless its
Members, officers and other persons (each an “Indemnified Person”) for and
against such expenses and liabilities, in such manner, under such circumstances, and to
the fullest extent, as required or permitted by Section 322B.699 of the Act, as amended
from time to time (but, in the
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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), or as required or permitted by other provisions of law or the Articles;
provided that no Indemnified Person shall be indemnified for any expenses,
liabilities and losses suffered that are attributable to any present or future breaches
of any representations, warranties or covenants by such Indemnified Person, or its
affiliates (excluding, for purposes hereof, any such breaches by the Company 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 that 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: AURORA DIAGNOSTICS, LLC |
||||
| By: | /s/ Xxxxx X. New | |||
| Xxxxx X. New | ||||
| Chief Executive Officer | ||||
| COMPANY: TWIN CITIES DERMATOPATHOLOGY, LLC |
||||
| By: | /s/ Xxxxx X. New | |||
| Xxxxx X. New | ||||
| Chief Executive Officer | ||||
[Signature Page to Amended & Restated LLC Agreement—Twin Cities Dermatopathology, LLC]
Schedule of Members
| Percentage of Membership | ||||
| Member | Interests/Units | |||
Aurora Diagnostics, LLC
|
100 | % | ||
