LIMITED LIABILITY COMPANY OPERATING AGREEMENT of MARK & KAMBOUR, LLC
Exhibit 3.43
of
XXXX & XXXXXXX, LLC
This Limited Liability Company Operating Agreement (this “Agreement”) of Xxxx &
Xxxxxxx, LLC, a Florida limited liability company (the “Company”), is made as of September
19 2007, 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 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 Florida Secretary of State
in accordance with the provisions of the Florida 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 “Xxxx & Xxxxxxx, 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
Florida is 11360 Xxxxx Xxx Xxxx, Xxxxx 000, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000. The registered agent
of the Company for service of process at such address is Xxxxx X. New. 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. 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 Florida 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. The initial officers of the Company shall be Xxxxx X. New,
President and Chief Executive Officer, and Xxxxxx X. Xxxxxxxxxx, Secretary and Chief Financial
Officer.
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 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.
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 l.704-l(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 16, 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
- 2 -
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 608.441 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 Florida.
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 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 of the Company. 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 an 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 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 an 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, officer, director, principal,
member, employee, agent or representative of another
- 3 -
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. 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) 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.
- 4 -
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 XXXX AND XXXXXXX, LLC |
||||
| By: | /s/ Xxxxx X. New | |||
| Xxxxx X. New | ||||
| Chief Executive Officer | ||||
[Signature Page to LLC Agreement—Xxxx & Xxxxxxx, LLC]
Schedule of Members
| Percentage of Membership | ||
| Member | Interests/Units | |
Aurora Diagnostics, LLC |
100% |
