AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BHS PHYSICIANS ALLIANCE FOR ACE, LLC
Exhibit 3.64
AMENDED AND RESTATED
OF
BHS PHYSICIANS ALLIANCE FOR ACE, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated as of March 9,
2009 (this “Agreement”), of BHS Physicians Alliance for ACE, LLC is entered into by and
between the person or persons listed on the signature pages hereto as member or members
(collectively, the “Members”). This Agreement amends and restates in its entirety the Limited
Liability Company Agreement of the Company dated September 25, 2002.
The Members hereby form a limited liability company pursuant to and in accordance with the
Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as amended from
time to time (the “Act”), and hereby agree as follows:
1. Name; Formation. The name of the limited liability company shall be BHS
Physicians Alliance for ACE, LLC (the “Company”), or such other name as the Members may
from time to time hereafter designate. The Company shall be formed upon the execution and
filing by any Member, by any person designated by a Member or by any officer, agent or employee of
the registered agent of the Company in the State of Delaware (any such person being hereby
authorized to take such action) of a certificate of formation of the Company with the
Secretary of State of the State of Delaware setting forth the information required by Section
18-201 of the Delaware Act.
2. Definitions. Capitalized terms not otherwise defined herein shall have the
meanings set forth in Section 18-101 of the Act.
3. Purpose. The Company is formed for the purpose of engaging in any lawful
business permitted by the Act or the laws of any jurisdiction in which the Company may do
business. The Company shall have the power to engage in all activities and transactions
that the
Members deem necessary or advisable in connection with the foregoing.
4. Offices; Registered Agent.
(a) The principal office of the Company, and such additional offices as the
Members may determine to establish, shall be located at such place or places inside or
outside
the State of Delaware as the Members may designate from time to time.
(b) The registered office of the Company in the State of Delaware is located at
National Registered Agents, Inc., 000 Xxxxxxxxx Xxxxx, Xxxxx 000, in the City of Dover,
Delaware.
The name and address of the registered agent of the Company for service of process on the
Company in the State of Delaware shall be National Registered Agents, Inc., 000 Xxxxxxxxx
Xxxxx,
Xxxxx 000, in the City of Dover, Delaware. The Member may change such registered office and/or
registered agent from time to time.
5. Members. The names and the mailing addresses of the Members are as set forth on
Schedule A attached hereto, as the same may be amended from time to time.
6. Term. The term of the Company shall commence on the date of filing of the
certificate of formation of the Company in accordance with the Act and shall continue until the
Company is dissolved and its affairs are wound up in accordance with Section 13 of this
Agreement and a certificate of cancellation is filed in accordance with the Act.
7. Powers; Management.
(a) Except as specifically provided otherwise in this Agreement, the
management and control of the business and affairs of the Company shall to the maximum extent
permitted under applicable law be vested exclusively in the Board of Representatives of the
Company (the “Board”), which shall possess all rights and powers of managers as provided in
the Act and otherwise by Law. Except as otherwise expressly provided for herein, the Members
hereby consent to the exercise by the Board of all such powers and rights conferred on them by
the Act or otherwise by law with respect to the management and control of the Company. No
Member and no Representative, in its capacity as such, shall have any power to act for, sign
for,
or do any act that would bind the Company.
(b) Board of Representatives. (i) Initial Board. The Board shall
initially
consist of the following three individuals:
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. XxXxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. XxXxxxxxx
(ii) Chairman. A Chairman of the Board (the “Chairman”) may, from time to
time, be appointed by the Representatives from among themselves or any other member of the
Board. The Chairman of the initial Board shall be Xxxxxx X. Xxxxxxx. The Chairman, if
appointed, shall preside over meetings of the Board and shall otherwise have no greater
authority than any other Representative. In the absence of the Chairman, any one of the
other Representatives shall preside at all meetings of the Board. Such Representative shall
have duties customarily performed by a “lead director” or “presiding director” and shall
otherwise have no greater authority than any other Representative.
(iii) Voting. Each Representative, including the Chairman, shall have a single
vote. Except as otherwise required by Law, the affirmative vote of a majority of the
Representatives in attendance at any meeting at which a quorum is present in accordance with
Section 7C(c) shall be required to authorize any action. Any vote, consent or other action
of the Board may be undertaken with the unanimous written consent (in lieu of meeting) of
the Representatives, in each case who have been appointed and who are then in office.
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(iv) Proxies. Any Representative may vote at a meeting of the Board or any
committee thereof either in person or by proxy executed in writing by such Representative.
A telegram, telex, cablegram or similar transmission by the Representative, or a
photographic, photostatic, facsimile or similar reproduction of a writing executed by the
Representative shall (if stated thereon) be treated as a proxy executed in writing for
purposes of this Section 7B(d). Proxies for use at any meeting of the Board or any
committee thereof or in connection with the taking of any action by written consent shall
be filed with the Board, before or at the time of the meeting or execution of the written
consent, as the case may be. No proxy shall be valid after eleven months from the date of
its execution unless otherwise provided in the proxy. A proxy shall be revocable unless the
proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with
an interest.
(c) Meetings of the Board.
(i) Meetings. The Board shall meet at such times and at such places as the
Board may designate. Special meetings of the Board shall be held at the request of any
Representative upon at least two business days’ written notice to all of the
Representatives, or upon such shorter notice as may be approved by all of the
Representatives; provided that if the nature of the action to be taken is such that
time is of the essence with respect to such action, such meeting may be held without such
two business days’ notice if at least one business day’s notice has been given and (A) a
good faith effort has been made to notify and consult with each of the Representatives
entitled to vote on such action and (B) a quorum exists for the taking of such action. Any
Representative may waive the requirement of such notice as to itself, before, at or after
the meeting.
(ii) Conduct of Meetings. Any meeting of the Board may be held in person,
telephonically or through other communications equipment by means of which all
participating members of the Board can simultaneously hear each other during the meeting.
(iii) Quorum. A majority of the Representatives who have been appointed
pursuant to the provisions of this Agreement and who are then in office shall be necessary
to constitute a quorum of the Board for purposes of conducting business.
(iv) Payments to Representatives; Reimbursements. All Representatives will be
entitled to reimbursement of their reasonable out-of-pocket expenses incurred in connection
with their attendance at Board meetings and such reasonable and customary fees as may be
authorized by the Board.
(v) Board Committees. The Board may organize such committees of the Board as it
deems reasonably necessary to effectively govern the Company.
(d) Member Action. Any action of the Members shall be authorized if the
affirmative vote of the holders of a majority of the membership interests present at a meeting
at
which a quorum is present shall be obtained. Any action which may be taken by the Members
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under this Agreement shall be authorized if consents in writing setting forth the action so
taken are signed by Members who hold a majority of the membership interests then outstanding. Any
Member who does not participate in taking the action by written consent shall be given written
notice thereof by the Secretary of the Company after such action has been taken. The presence in
person or by proxy of the holders of a majority of the outstanding membership interests shall be
necessary to constitute a quorum for action by the Members. Whenever the giving of any notice to
Members is required by law or this Agreement, a waiver thereof, in writing and delivered to the
Company signed by the person or persons entitled to said notice, whether before or after the event
as to which such notice is required, shall be deemed equivalent to notice. Attendance of a Member
at a meeting or execution of a written consent to any action shall constitute a waiver of notice
of such meeting or action.
(e) Officers. (i) Designation and Appointment. The Board may, from time
to time, employ and retain persons as may be necessary or appropriate for the conduct of the
Company’s business (subject to the supervision and control of the Board), including
employees,
agents and other Persons (any of whom may be a Member or Representative) who may be
designated as Officers of the Company, with titles including but not limited to “chief
executive
officer,” “president,” “vice chairman,” vice president,” “treasurer,” “secretary,” “general
counsel,” “director,” “chief financial officer” and “chief operating officer” as and to the
extent
authorized by the Board. Any number of offices may be held by the same Person. In the
Board’s discretion, the Board may choose not to fill any office for any period as it may deem
advisable. Officers need not be residents of the State of Delaware or Members. Any Officers
so
designated shall have such authority and perform such duties as the Board may, from time to
time, delegate to them. The Board may assign titles to particular Officers. Each Officer
shall
hold office until his successor shall be duly designated and shall have qualified as an
Officer or
until his death or until he shall resign or shall have been removed in the manner hereinafter
provided. The salaries or other compensation, if any, of the Officers of the Company shall be
fixed from time to time by the Board.
(ii) Resignation and Removal. Any Officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified therein,
or if no time is specified, at the time of its receipt by the Board. The acceptance by the
Board of a resignation of any Officer shall not be necessary to make such resignation
effective, unless otherwise specified in such resignation. Any Officer may be removed as
such, either with or without cause, at any time by the Board. Designation of any Person as
an Officer by the Board shall not in and of itself vest in such Person any contractual or
employment rights with respect to the Company.
(iii) Duties of Officers Generally. The Officers, in the performance of their
duties as such, shall owe to the Company and the Members duties of loyalty and due care of
the type owed by the officers of a corporation to such corporation and its stockholders
under the laws of the State of Delaware, and keep the Board reasonably apprised of material
developments in the business of the Company.
(iv) Chief Executive Officer. Subject to the powers of the Board, the chief
executive officer of the Company shall be in general and active charge of the entire
business and affairs of the Company, and shall be its chief policy making Officer.
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(v) Vice Chairman. The Vice Chairman, or if there be more than one, then each of them,
shall, subject to the powers of the Board and the chief executive officer of the Company,
participate in the supervision of the business and affairs of the Company, and shall have such
other powers and perform such other duties as may be prescribed by the chief executive officer or
by the Board. A Vice Chairman need not be a member of the Board.
(iv) President. The president of the Company shall, subject to the powers of the Board
and the chief executive officer of the Company, have general and active management of the business
of the Company, and shall see that all orders and resolutions of the Board are effectuated. The
president of the Company shall have such other powers and perform such other duties as may be
prescribed by the chief executive officer of the Company or by the Board.
(vii) Chief Financial Officer. The chief financial officer of the Company shall keep
and maintain, or cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the Company, including accounts of the
Company’s assets, liabilities, receipts, disbursements, gains, losses, capital and membership
interests. The chief financial officer of the Company shall have custody of the funds and
securities of the Company, keep full and accurate accounts of receipts and disbursements in books
belonging to the Company, and deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by such officer. The chief
financial officer of the Company shall have such other powers and perform such other duties as may
from time to time be prescribed by the chief executive officer of the Company or by the Board.
(viii) Vice President(s). The vice president(s) of the Company shall perform such
duties and have such other powers as the chief executive officer of the Company or the Board may
from time to time prescribe. A vice president may be designated as an Executive Vice President, a
Senior Vice President, an Assistant Vice President, or a vice president with a functional title.
(ix) Secretary. The secretary of the Company shall, if requested by the Board, attend
meetings of the Board, record all the proceedings of the meetings and perform similar duties for
the committees of the Board when required. The secretary of the Company shall keep all documents as
may be required under the Act. The secretary shall perform such other duties and have such other
authority as may be prescribed elsewhere in this Agreement or from time to time by the chief
executive officer of the Company or the Board. The secretary of the Company shall have the general
duties, powers and responsibilities of a secretary of a Corporation. If the Board chooses to
appoint an assistant secretary or assistant secretaries, the assistant secretaries, in the order of
seniority, shall in the Company secretary’s absence, disability or inability to act, perform the
duties and exercise the powers of the secretary of the Company, and shall perform such other duties
as the chief executive officer of the Company or the Board may from time to time prescribe.
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(x) Treasurer. The treasurer of the Company shall receive, keep, and
disburse, or cause to be received, kept or disbursed, all moneys belonging to or coming to
the Company. The treasurer of the Company shall prepare, or cause to be prepared, detailed
reports and records of all expenses, losses, gains, assets, and liabilities of the Company
as directed by the chief financial officer of the Company and shall perform such other
duties in connection with the administration of the financial affairs of the Company as may
from time to time be prescribed by the chief financial officer or the chief executive
officer of the Company or by the Board.
8. Capital Contributions. The Members shall make capital contributions to the
Company in such amounts and at such times as may be unanimously determined by the
Members, which amounts will be set forth in the books and records of the Company.
9. Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated among the Members in proportion to their membership percentages, as set forth on
Schedule A (as to each Member, its “Membership Percentage”).
10. Distributions. Distributions shall be made to the Members at the times and in the
aggregate amounts as unanimously determined by the Members. Such distributions shall be
divided among the Members in the same proportion as their Membership Percentages.
11. Assignments; Withdrawals. A Member may not assign in whole or in part his
limited liability company interest without the written consent of all of the other Members,
which
consent may be granted or withheld in a Member’s sole and absolute discretion. No Member
shall have the right to resign from the Company except with the consent of the other Members
and upon such terms and conditions; as may be specifically agreed upon between such other
Members and the resigning Member. The provisions hereof with respect to distributions upon
resignation are exclusive and no Member shall be entitled to claim any further or different
distribution upon resignation under Section 18-604 of the Delaware Act or otherwise.
12. Membership Interest Certificates. Each Member’s Membership Interest in the
Company shall be evidenced by a certificate in the form of Exhibit A attached hereto (a
“Certificate”), and shall constitute a security governed by Article 8 of the Delaware Uniform
Commercial Code-Investment Securities (Del Code Title 6:§8-101, et, seq.).
13. Registrations. Registration of Transfers and Exchanges. The Company shall
maintain all records for the exchange and registration of the Certificates including all forms
of
transfer for the Certificates and shall:
(a) Keep at its principal place of business a register (the “Register”) in such
form as it may determine, in which, subject to such reasonable regulations as it may
prescribe, it
shall provide for the registration of the Certificates and of transfers thereof;
(b) Ensure that all Certificates presented for transfer shall be duly endorsed
for transfer or be accompanied by a written instrument of transfer; and
(c) Ensure that each Certificate shall bear an original issue date.
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Notwithstanding anything contained herein to the contrary, the Company shall not be required to
ascertain whether any transfer or exchange of Certificates complies with the registration
provisions or exemptions from the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, applicable state securities law or the Investment Company Act of 1945, as
amended; provided that, if a Certificate is specifically required to be delivered to the
Company by a purchaser or transferee of a Certificate, the Company shall be under a duty to
examine the same to determine whether it conforms to the requirements of this Agreement and shall
promptly notify the party delivering the same if such Certificate does not so conform.
14. Persons Deemed Owners. Prior to due presentment of a Certificate for
registration or transfer, the Company, or any agent or manager of the Company, may treat the
person in whose name such Certificate is registered as the owner of the Certificate for the
purpose of receiving distributions pursuant to this Agreement and for all other purposes
whatsoever, and the Company shall not be affected by notice to the contrary.
15. Mutilated, Lost, Stolen or Destroyed Certificates. If (i) any mutilated
Certificate
is surrendered to the Company, or (ii) the Company receives evidence to its satisfaction of
the
destruction, loss or theft of any Certificate, together with indemnity or security sufficient
to hold
it harmless, the Company shall execute, and upon its written request the Company shall
authenticate and deliver, in exchange for any such mutilated Certificate or in lieu of any
such
destroyed, lost or stolen Certificate, a new Certificate of like tenor and principal amount,
bearing
a number not contemporaneously outstanding. Upon the issuance of any new Certificate under
this Section, the Company may require the payment of a sum sufficient to cover any tax or
other
governmental charge that may be imposed in relation thereto and any other expenses in
connection therewith. The provisions of this Section are exclusive and shall preclude (to
the
extent permissible under applicable law) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
16. New Members. New Members may be admitted to the Company on such terms
as may be agreed to by all existing Members, and in connection with any such admission, the
Schedule A shall be amended to reflect the name, address and capital contribution (if
any) of the
additional Member and any changes in Membership Percentage of the Members in connection
with the admission of the additional Member.
17. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon
the first to occur of the following (a) the written consent of all of the Members, (b) the
death,
retirement, expulsion, insolvency, bankruptcy or dissolution of a Member or the occurrence of
any other event which terminates the continued membership of a Member in the Company
provided that the Company shall not be dissolved if, within 90 days after any such event, all
remaining Members agree in writing to continue the business of the Company, or (c) the entry
of
a decree of judicial dissolution under Section 18-802 of the Act.
18. 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.
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19. Amendments. This Agreement may be amended, restated, modified or
supplemented from time to time, only upon the unanimous written approval of the Members.
20. Governing Law. This Agreement shall be governed by, and construed under, the
laws of the State of Delaware, all rights and remedies being governed by said laws.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement of the Company as of the
day and year first above written.
| VHS SAN ANTONIO PARTNERS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Xxxxxx X. Xxxxxxx | ||||
| Executive Vice President | ||||
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SCHEDULE A
| Membership Interest and | ||||
| Member and Address | Membership Percentage | |||
VHS San Antonio Partners, LLC |
100 | % | ||
00 Xxxxxx Xxxxx Xxxxxxxxx |
||||
Xxxxx 000 |
||||
Xxxxxxxxx, XX 00000 |
||||
Attention: Xxxxxx X. Xxxxxxx |
||||
EXHIBIT A
This Certificate has not been and will not be registered under the Securities Act of 1933, as
amended (the “Securities Act”), or any state securities laws and neither this Certificate nor
any interest herein may be offered, sold, pledged or otherwise transferred except in
accordance with the Limited Liability Company Agreement of BHS Physicians Alliance for ACE,
LLC, the Securities Act, and applicable securities laws of any state of the united states.
Certificate for Limited Liability Company
Membership Interests of BHS Physicians Alliance for ACE, LLC
Membership Interests of BHS Physicians Alliance for ACE, LLC
| Certificate Number | Membership Interest - % |
BHS Physicians Alliance for ACE, LLC, a Delaware limited liability company (the
“Company”), hereby certifies that (the “Holder”) is the registered
owner of % of the Membership Interests in the Company (the “Certificate”). This
Certificate shall constitute a security governed by Article 8 of the Delaware Uniform Commercial
Code-Investment Securities (Delaware Code Title 6: §8-101, seq.) The rights, powers, preferences,
restrictions and limitations of the Membership Interests are set forth in, and this Certificate
and the Membership Interests hereby represented are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Limited Liability Company Agreement of the
Company, dated as of March 9, 2009, as the same may be amended from time to time (the “Company
Agreement”). Capitalized terms used herein and not otherwise defined have the meaning ascribed to
them in the Company Agreement.
This Certificate is
transferable only in accordance with the terms of the Company Agreement, which imposes
certain limitations and restrictions on transfers of Membership Interests.
By acceptance of this Certificate, and as a condition to being entitled to any rights
and/or benefits with respect to the Membership Interests evidenced hereby, a registered
Holder hereof (including any registered transferee hereof) is deemed to have agreed, to
comply with and be bound by all terms and conditions of the Company Agreement. The Company
will furnish a copy of such Company Agreement to each Member without charge upon written
request to the Company at is principal place of business or registered office, as the case
may be.
| Date: | BHS PHYSICIANS ALLIANCE FOR ACE, LLC | |||||
| By: | ||||||
| Executive Vice President | ||||||
