LIMITED LIABILITY COMPANY OPERATING AGREEMENT of DERMPATH NEW ENGLAND, LLC
Exhibit 3.32
of
DERMPATH NEW ENGLAND, LLC
This Limited Liability Company Operating Agreement (this “Agreement”) of DermPath New
England, LLC, a Massachusetts limited liability company (the “Company”), is made as of May
31, 2011, 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 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 May 31, 2011.
2. Term. The Company will have perpetual existence unless terminated in accordance with
this Agreement.
3. Name. The name of the Company will be “DermPath New England, 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 Massachusetts Limited Liability Company Act, as amended (the “Act”).
5. Registered Office and Agent. The registered office of the Company in the Commonwealth of
Massachusetts is 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000. The registered agent of the
Company for service of process at such address is The Corporation Trust Company. 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 Massachusetts 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.
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-l(b)(2)(iv). For this purpose, the Company may, upon the occurrence of the
events specified in Treasury Regulation Section 1.704-l(b)(2)(iv)(f), increase or decrease the
Capital Accounts in accordance with the rules of such regulation and Treasury Regulation Section
1.704-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 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
- 2 -
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 the Members or (ii) an administrative dissolution
or the entry of a decree of judicial dissolution under Section 42:2B-49 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 Massachusetts.
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
Massachusetts 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’
- 3 -
(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) Nonexclusivitv 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 have 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 DERMPATH NEW ENGLAND, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxx | ||||
| Chief Operating Officer | ||||
[Signature Page to Operating Agreement — DermPath New England]
Schedule of Members
| Percentage of Membership | ||||
| Member | Interests/Units | |||
Aurora Diagnostics, LLC
|
100 | % | ||
