EXHIBIT 3.76
------------------------------------------------
LIMITED LIABILITY COMPANY AGREEMENT
OF
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
------------------------------------------------
July 11, 2003
1. Formation.................................................................... 1
1.1 Formation.......................................................... 1
2. Name and Office.............................................................. 1
2.1 Name............................................................... 1
2.2 Principal Office................................................... 1
3. Purpose and Term............................................................. 1
3.1 Purpose............................................................ 1
3.2 Company's Power.................................................... 1
3.3 Term............................................................... 1
4. Capital...................................................................... 2
4.1 Capital Structure.................................................. 2
4.2 No Liability of Member............................................. 2
4.3 No Interest on Capital Contributions............................... 2
4.4 No Withdrawal of Capital........................................... 2
5. Accounting................................................................... 2
5.1 Books and Records.................................................. 2
5.2 Fiscal Year........................................................ 2
6. Bank Accounts................................................................ 2
6.1 Bank Accounts...................................................... 2
7. Net Income and Net Loss...................................................... 2
7.1 Net Income and Net Loss............................................ 2
8. Federal Income Tax Treatment................................................. 3
8.1 Corporate Tax Treatment............................................ 3
9. Distributions................................................................ 3
10. Board of Directors.......................................................... 3
10.1 General Powers.................................................... 3
10.2 Number, Election and Term......................................... 3
10.3 Resignation of Directors.......................................... 3
10.4 Removal of Directors by Member.................................... 3
10.5 Vacancy on Board.................................................. 3
10.6 Compensation of Directors......................................... 3
10.7 Meetings.......................................................... 4
10.8 Special Meetings.................................................. 4
10.9 Action Without Meetings........................................... 4
10.10 Notice of Meeting................................................ 4
10.11 Waiver of Notice................................................. 4
10.12 Quorum and Voting................................................ 4
10.13 Chairman and Vice-Chairman of the Board.......................... 5
11. Executive and Other Committees.............................................. 5
11.1 Executive Committee............................................... 5
11.2 Authority of Executive Committee.................................. 5
11.3 Tenure and Qualifications......................................... 5
11.4 Meetings.......................................................... 5
11.5 Quorum and Voting................................................. 5
11.6 Vacancies......................................................... 6
11.7 Resignations and Removals......................................... 6
11.8 Other Committees.................................................. 6
12. Governing Body.............................................................. 6
12.1 Establishment of Board of Trustees................................ 6
12.2 Meetings of Board of Trustees..................................... 6
13. Officers.................................................................... 7
13.1 Officers Generally................................................ 7
13.2 Duties of Officers................................................ 7
13.3 Appointment and Term of Office.................................... 7
13.4 Resignation and Removal of Officers............................... 7
13.5 Contract Rights of Officers....................................... 7
13.6 Chairman of the Board............................................. 7
13.7 President......................................................... 7
13.8 Vice-President.................................................... 8
13.9 Treasurer......................................................... 8
13.10 Secretary........................................................ 8
13.11 Assistant Treasurers and Assistant Secretaries................... 9
13.12 Compensation..................................................... 9
14. Standard of Care of Directors and Officers; Indemnification................. 9
14.1 Standard of Care.................................................. 9
14.2 Indemnification................................................... 10
15. Other Activities; Related Party Transactions................................ 11
15.1 Other Activities.................................................. 11
15.2 Related Party Transactions........................................ 11
16. Member...................................................................... 11
16.1 Member Voting..................................................... 11
17. Dissolution................................................................. 11
17.1 Dissolution....................................................... 11
17.2 Sale of Assets Upon Dissolution................................... 12
17.3 Distributions Upon Dissolution.................................... 12
18. Withdrawal, Assignment and Addition of Members.............................. 12
18.1 Assignment of a Member's Units.................................... 12
18.2 Bankruptcy, Dissolution, Etc. of Member........................... 12
18.3 Certificates for Units............................................ 12
19. General..................................................................... 13
19.1 Amendment......................................................... 13
19.2 Captions; Section References...................................... 13
19.3 Number and Gender................................................. 13
19.4 Severability...................................................... 13
19.5 Binding Agreement................................................. 13
19.6 Applicable Law.................................................... 13
19.7 Entire Agreement.................................................. 13
GLOSSARY OF DEFINED TERMS
DEFINED TERM SECTION
Act............................................................................. 1.1
Affiliate....................................................................... 14.1
Agreement....................................................................... Preamble
Board........................................................................... 10.1
Chairman........................................................................ 10.13
Company......................................................................... 1.1
Fiscal Year..................................................................... 5.2
Liability....................................................................... 13.2(a)
Member.......................................................................... Preamble
Units........................................................................... 4.1
LIMITED LIABILITY COMPANY AGREEMENT
OF
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT ("Agreement") is made as of
the 11th day of July, 2003, by BHC Properties, Inc., a Delaware corporation
("Member').
1. FORMATION.
1.1 FORMATION. The Member does hereby form a limited liability company
(the "Company") pursuant to the provisions of the Delaware Limited Liability
Company Act ("Act").
2. NAME AND OFFICE.
2.1 NAME. The name of the Company shall be BHC Northwest Psychiatric
Hospital, LLC.
2.2 PRINCIPAL OFFICE. The principal office of the Company shall be at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be determined by the Board (as hereinafter defined) in
accordance with the provisions of the Act. The books of the Company shall be
maintained at such registered place of business or such other place that the
Board shall deem appropriate. The Company shall designate an agent for service
of process in Delaware in accordance with the provisions of the Act.
3. PURPOSE AND TERM.
3.1 PURPOSE. The purposes of the Company are as follows:
(a) To acquire, own, manage and operate certain healthcare
facilities.
(b) To engage in such other lawful activities in which a
limited liability company may engage under the Act as is determined by the
Member from time to time.
(c) To do all other things necessary or desirable in
connection with the foregoing, or otherwise contemplated in this Agreement.
3.2 COMPANY'S POWER. In furtherance of the purpose of the Company as
set forth in Section 3.1, the Company shall have the power to do any and all
things whatsoever necessary, appropriate or advisable in connection with such
purpose, or as otherwise contemplated in this Agreement.
3.3 TERM. The term of the Company shall commence as of the date of the
filing of a Certificate of Formation with the Delaware Secretary of State's
Office, and shall continue until dissolved in accordance with Section 17.
-1-
4. CAPITAL.
4.1 CAPITAL STRUCTURE. The total number of units ("Units"), which the
Company is initially authorized to issue, is 1,000 Units.
4.2 NO LIABILITY OF MEMBER. Except as otherwise specifically provided
in the Act, no Member shall have any personal liability for the obligations of
the Company.
4.3 NO INTEREST ON CAPITAL CONTRIBUTIONS. No Member shall be entitled
to interest on any capital contributions made to the Company.
4.4 NO WITHDRAWAL OF CAPITAL. No Member shall be entitled to withdraw
any part of the Member's capital contributions to the Company, except as
provided in Section 17. No Member shall be entitled to demand or receive any
property from the Company other than cash, except as otherwise expressly
provided for herein.
5. ACCOUNTING.
5.1 BOOKS AND RECORDS. The Company shall maintain full and accurate
books of the Company at the Company's principal place of business, or such other
place as the Board shall determine, showing all receipts and expenditures,
assets and liabilities, net income and loss, and all other records necessary for
recording the Company's business and affairs. Upon reasonable request of the
Member, such books and records shall be open to the inspection and examination
by the Member in person or by the Member's duly authorized representatives
during normal business hours and may be copied at the Member's expense.
5.2 FISCAL YEAR. The fiscal year of the Company shall be the calendar
year ("Fiscal Year").
6. BANK ACCOUNTS.
6.1 BANK ACCOUNTS. All funds of the Company shall be deposited in its
name into such checking, savings and/or money market accounts or time
certificates as shall be designated by the Board. Withdrawals therefrom shall be
made upon such signature or signatures as the Board may designate. Company funds
shall not be commingled with those of any other person or entity.
7. NET INCOME AND NET LOSS.
7.1 NET INCOME AND NET LOSS. All net income or net loss of the Company
shall be allocated to the Member in accordance with its respective percentage
share of ownership in the Company.
-2-
8. FEDERAL INCOME TAX TREATMENT.
8.1 TAX TREATMENT. It is the intention of the Member that for Federal,
state and local income tax purposes the Company be disregarded as an entity
separate from the Member in accordance with the provision of Treas. Reg.
301.7701-2(c)(2)(i) and 301.7701-3(b)(1)(ii). The Member shall take all actions
which may be necessary or required in order for the Company to be so disregarded
for income tax purposes.
9. DISTRIBUTIONS. The Board shall determine whether distributions shall
be made to the Member or whether the cash of the Company shall be reinvested for
Company purposes.
10. BOARD OF DIRECTORS.
10.1 GENERAL POWERS. All powers of the Company shall be exercised by
or under the authority of, and the business and affairs of the Company managed
under the direction of, its Board of Directors ("Board").
10.2 NUMBER, ELECTION AND TERM. The Board shall consist of not less
than one, nor more than seven individuals, the exact number of which shall be
determined by the Member from time to time. A decrease in the number of
directors shall not shorten an incumbent director's term. Each director shall
hold office until the director resigns or is removed. Despite the expiration of
a director's term, such director shall continue to serve until the director's
successor is elected and qualifies, until there is a decrease in the number of
directors or the director is removed.
10.3 RESIGNATION OF DIRECTORS. A director may resign at any time by
delivering written notice to the Board, its Chairman (as hereinafter defined),
if any, or the Company. A resignation shall be effective when the notice is
delivered unless the notice specifies a later effective date.
10.4 REMOVAL OF DIRECTORS BY MEMBER. A director may be removed by the
Member with or without cause by a vote of the majority in amount of all the
outstanding Units of the Company entitled to vote.
10.5 VACANCY ON BOARD. If a vacancy occurs on the Board, including a
vacancy resulting from an increase in the number of directors, the Board shall
fill the vacancy, and if the directors remaining in office constitute fewer than
a quorum of the Board, they may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office. A vacancy that will occur at
a specific later date may be filled before the vacancy occurs, but the new
director may not take office until the vacancy occurs.
10.6 COMPENSATION OF DIRECTORS. The Board may fix the compensation of
directors. No such compensation shall preclude any director from serving the
Company in any other capacity and from receiving compensation therefor.
-3-
10.7 MEETINGS. The Board may hold regular or special meetings in or
out of the State of Delaware. The Board may permit any or all directors to
participate in a regular or special meeting by, or conduct the meeting through
the use of, any means of communication by which all directors participating may
simultaneously hear each other during the meeting. A director participating in a
meeting by this means shall be deemed to be present in person at the meeting.
10.8 SPECIAL MEETINGS. Special meetings of the Board may be called by,
or at the request of, the Chairman, if any, or the chief executive officer of
the Company. All special meetings of the Board shall be held at the principal
office or such other place as may be specified in the notice of the meeting.
10.9 ACTION WITHOUT MEETINGS. Any action required or permitted to be
taken at a Board meeting may be taken without a meeting if the action is taken
by the number of directors whose vote would be necessary to approve the action
at a meeting of the Board at which all directors were present. The action shall
be evidenced by one or more written consents describing the action taken, signed
by the directors taking the action, and delivered to the Company for inclusion
in the minutes or for filing with the Company records reflecting the action
taken. Action taken under this Section 10.9 shall be effective when the last
director signs the consent, unless the consent specifies a different effective
date. Prompt notice of the taking of such action by less than unanimous written
consent shall be given to those directors who have not consented in writing.
10.10 NOTICE OF MEETING. Regular meetings of the Board may be held
without notice of the date, time, place or purpose of the meeting. Special
meetings of the Board shall be preceded by at least two days notice of the date,
time and place of the meeting. The notice shall not be required to describe the
purpose of the special meeting. The notice provisions of Section 11.5 shall be
applicable to notices given to directors.
10.11 WAIVER OF NOTICE. A director may waive any notice required by
this Agreement before or after the date and time stated in the notice. Except as
otherwise provided in this Section 10.11, the waiver shall be in writing, signed
by the director entitled to the notice, and filed with the minutes or Company
records. A director's attendance at or participation in a meeting shall waive
any required notice to such director of the meeting unless the director at the
beginning of the meeting, or promptly upon the director's arrival, objects to
holding the meeting or transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
10.12 QUORUM AND VOTING. A majority of the number of directors fixed
by, or determined in accordance with, this Agreement shall constitute a quorum
of the Board. If a quorum is present, an affirmative vote by a majority of the
number of directors present shall constitute an act of the Board. A director who
is present at a meeting of the Board or a committee of the Board when action is
taken shall be deemed to have assented to the action taken unless (i) the
director objects at the beginning of the meeting, or promptly upon the
director's arrival, to holding it or transacting business at the meeting or (ii)
the director's dissent or abstention from the action taken is entered in the
minutes of the meeting or the director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the Company immediately
-4-
after adjournment of the meeting. The right of dissent or abstention shall not
be available to a director who votes in favor of the action taken.
10.13 CHAIRMAN AND VICE-CHAIRMAN OF THE BOARD. The Board may appoint
one of its members Chairman of the Board ("Chairman"). The Board may also
appoint one of its members as Vice-Chairman of the Board, and such individual
shall serve in the absence of the Chairman and perform such additional duties as
may be assigned to such person by the Board.
11. EXECUTIVE AND OTHER COMMITTEES.
11.1 EXECUTIVE COMMITTEE. The Board, by resolution adopted by the
greater of a majority of all directors in office when the action is taken, or
the number of directors required to take action under Section 10.12, may create
and appoint from among its members an Executive Committee consisting of two or
more directors, who shall serve at the pleasure of the Board.
11.2 AUTHORITY OF EXECUTIVE COMMITTEE. When the Board is not in
session, the Executive Committee shall have and may exercise all of the
authority of the Board, unless otherwise specified by the resolution appointing
the Executive Committee. Neither the Executive Committee, nor any other
committee created by the Board, shall have the authority to (i) authorize
distributions, (ii) approve or propose to the Member action that this Agreement
requires be approved by the Member, (iii) fill vacancies on the Board or on any
of its committees, (iv) amend this Agreement, (v) authorize or approve
reacquisition of Units, except according to a formula or method prescribed by
the Board, or (vi) authorize or approve the issuance or sale or contract for
sale of Units, or determine the designation and relative rights, preferences and
limitations of a class or series of Units, except that the Board may authorize a
committee (or a senior executive officer of the Company) to do so within limits
specifically prescribed by the Board.
11.3 TENURE AND QUALIFICATIONS. Each member of the Executive Committee
shall hold office until the next annual meeting of the Board following such
member's designation and until such member's successor shall be duly designated
and qualified.
11.4 MEETINGS. Sections 10.7 through 10.11, which address meetings,
action without meeting, notice of meeting and waiver of notice with respect to
the Board shall apply to the Executive Committee and its members as well.
11.5 QUORUM AND VOTING. A majority of the number of member appointed
by the Board shall constitute a quorum of the Executive Committee. If a quorum
is present when a vote is taken, the affirmative vote of a majority of members
present shall constitute an act of the Executive Committee. A member who is
present at a meeting of the Executive Committee when corporate action is taken
shall be deemed to have assented to the action taken unless (i) such member
objects at the beginning of the meeting, or promptly upon such member's arrival,
to holding it or transacting business at the meeting, or (ii) such member's
dissent or abstention from the action taken is entered in the minutes of the
meeting, or such member delivers written notice of the member's dissent or
-5-
abstention to the presiding officer of the meeting before its adjournment or to
the Company immediately after adjournment of the meeting. The right of dissent
or abstention shall not be available to a member who votes in favor of the
action taken.
11.6 VACANCIES. Any vacancy in the Executive Committee may be filled
by a resolution adopted by the Board in accordance with Section 10.1.
11.7 RESIGNATIONS AND REMOVALS. Any member of the Executive Committee
may be removed at any time, with or without cause, by resolution adopted by the
Board in accordance with Section 10.1. Any member of the Executive Committee may
resign from the Executive Committee at any time by giving written notice to the
Board, and resignation shall be effective when the notice is delivered unless
the notice specifies a later effective date.
11.8 OTHER COMMITTEES. The Board, by resolution adopted by the greater
of a majority of all directors in office when the action is taken, or the number
of directors required to take action under Section 10.12, may create and appoint
from among its members such other committees, consisting of two or more Board
members, as from time to time it may consider necessary or appropriate to
conduct the affairs of the Company. Each such committee shall have such power
and authority as the Board may, from time to time, legally establish for it. The
tenure and qualifications of the members of each committee, the time, place and
organization of such committee's meetings, the notice required to call any such
meeting, the number of members of each such committee that shall constitute a
quorum, the affirmative vote of the committee members required effectively to
take action at any meeting at which a quorum is present, the action that any
such committee can take without a meeting, the method in which a vacancy among
the members of such committee can be filled and the procedures by which
resignations and removals of members of such committee shall be acted upon or
accomplished shall be fixed by the resolution adopted by the Board relative to
such matters.
12. GOVERNING BODY.
12.1 ESTABLISHMENT OF BOARD OF TRUSTEES. The Company will own and
operate a healthcare facility and desires to establish a Board of Trustees for
the facility that will perform certain governance functions for the facility and
will act as the "governing body" of the healthcare facility. The Board of
Directors hereby delegates to the Board of Trustees powers and responsibilities
of a governing body consistent with the standards of the Joint Commission on
Accreditation of Healthcare.
12.2 MEETINGS OF THE BOARD OF TRUSTEES. The Board of Trustees shall be
governed by this Limited Liability Company Agreement, but in addition thereto,
shall authorize and adopt Bylaws for its own management subject to the Board of
Directors. Such Bylaws shall provide rules of procedure for the election of
officers, regular meetings, and keeping of a permanent record of the minutes of
the meetings of the Board of Trustees. Such Bylaws and rules of procedure shall
also provide for the giving of adequate notice of the meetings, and a fair and
just procedure to be followed in the reaching of evidentiary and judgmental
determinations as to the actions of any medical staff member
-6-
or any employee of the healthcare facility or company. The rules of procedure
shall further provide that all action taken by the Board of Trustees shall be
reported to the Board of Directors of the Company.
13. OFFICERS.
13.1 OFFICERS GENERALLY. The Company shall have the officers appointed
by the Board in accordance with this Agreement. A duly appointed officer may
appoint one or more officers or assistant officers if authorized by the Board.
The same individual may simultaneously hold more than one office in the Company.
Section 13.10 delegates to the Secretary, if such office be created and filled,
the required responsibility of preparing minutes of the directors' and Member's
meetings and for authenticating records of the Company. If such office shall not
be created and filled, then the Board shall delegate to one of the officers of
the Company such responsibility.
13.2 DUTIES OF OFFICERS. Each officer of the Company shall have the
authority and shall perform the duties set forth in this Agreement for such
office or, to the extent consistent with this Agreement, the duties prescribed
by the Board or by direction of an officer authorized by the Board to prescribe
the duties of other officers.
13.3 APPOINTMENT AND TERM OF OFFICE. The officers of the Company shall
be appointed by the Board. Vacancies may be filled or new offices created and
filled at any meeting of the Board. Each officer shall hold office until such
officer's successor shall be duly appointed or until the officer's death or
until the officer shall resign or shall have been removed in the manner
hereinafter provided.
13.4 RESIGNATION AND REMOVAL OF OFFICERS. An officer may resign at any
time by delivering notice to the Company. A resignation shall be effective when
the notice is delivered unless the notice specifies a later effective date. If a
resignation is made effective at a later date and the Company accepts the future
effective date, the Board may fill the pending vacancy before the effective date
if the Board provides that the successor shall not take office until the
effective date. The Board may remove any officer at any time with or without
cause.
13.5 CONTRACT RIGHTS OF OFFICERS. Appointment of an officer or agent
shall not of itself create contract rights. An officer's removal shall not
affect the officer's contract rights, if any, with the Company. An officer's
resignation shall not affect the Company's contract rights, if any, with the
officer.
13.6 CHAIRMAN OF THE BOARD. The Chairman, if that office be created
and filled, may, at the discretion of the Board, be the chief executive officer
of the Company and, if such, shall, in general, supervise and control the
affairs and business of the Company, subject to control by the Board. The
Chairman shall preside at all meetings of the Member and the Board.
13.7 PRESIDENT. The President, if that office be created and filled,
shall be the chief executive officer of the Company, unless a Chairman is
appointed and designated chief executive officer pursuant to Section 11.6. If no
Chairman has been appointed or, in the absence of the Chairman, the
-7-
President shall preside at all meetings of the Member. The President may sign
certificates for Units, any deeds, mortgages, bonds, contracts or other
instruments which the Board has authorized to be executed, except in cases where
the signing and execution thereof shall be expressly delegated by the Board or
by this Agreement to some other officer or agent of the Company, or shall be
required by law to be otherwise signed or executed. The President shall, in
general, perform all duties incident to the office of President of a Delaware
company and such other duties as may be prescribed by the Board or the Chairman
from time to time. Unless otherwise ordered by the Board, the President shall
have full power and authority on behalf of the Company to attend, act and vote
in person or by proxy at any meetings of shareholders of any company in which
the Company may hold stock, and at any such meeting shall hold and may exercise
all rights incident to the ownership of such stock which the Company, as owner,
would have had and could have exercised if present. The Board may confer like
powers on any other person or persons.
13.8 VICE-PRESIDENT. In the absence of the President, or in the event
of the President's death, inability or refusal to act, the Vice-President (or,
in the event there be more than one Vice-President, the Vice-Presidents in order
designated at the time of their appointment, or in the absence of any
designation, then in the order of their appointment), if that office be created
and filled, shall perform the duties of the President and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President. Any Vice-President may sign, with the Secretary or an assistant
secretary, certificates for Units and shall perform such other duties as from
time to time may be assigned to such person by the Chairman, the President or by
the Board.
13.9 TREASURER. The Treasurer, if that office be created and filled,
shall have charge and custody of, and be responsible for, all funds and
securities of the Company, receive and give receipts for monies due and payable
to the Company from any source whatsoever, and deposit all such monies in the
name of the Company in such banks, trust companies and other depositories as
shall be selected in accordance with the provisions of Section 6.1, and in
general, perform all the duties incident to the office of Treasurer of a
Delaware company and such other duties as from time to time may be assigned to
such person by the Chairman, the President or the Board. If required by the
Board, the Treasurer shall give a bond for the faithful discharge of such
officer's duties in such sum and with such surety or sureties as the Board shall
determine.
13.10 SECRETARY. The Secretary, if that office be created and filled,
shall keep the minutes of the Member's meetings and of the Board's meetings in
one or more books provided for that purpose, see that all notices are duly given
in accordance with the provisions of this Agreement or as required by law, be
custodian of the Company records and of the seal, if any, of the Company, be
responsible for authenticating records of the Company, keep a register of the
mailing address of the Member, which shall be furnished to the Secretary by the
Member, sign with the President or a Vice-President certificates for Units, have
general charge of the transfer books of the Company, and, in general, perform
all duties incident to the office of Secretary of a Delaware company and such
other duties as from time to time may be assigned to such person by the
Chairman, the President or the Board.
-8-
13.11 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
(a) ASSISTANT TREASURER. The Assistant Treasurer, if that
office be created and filled, shall, if required by the Board, give bond for the
faithful discharge of such officer's duty in such sum and with such surety as
the Board shall determine.
(b) ASSISTANT SECRETARY. The Assistant Secretary, if that
office be created and filled, and if authorized by the Board, may sign, with the
President or Vice-President, certificates for Units.
(c) ADDITIONAL DUTIES. The Assistant Treasurers and Assistant
Secretaries, in general, shall perform such additional duties as shall be
assigned to them by the Treasurer or the Secretary, respectively, or by the
Chairman, the President or the Board.
13.12 COMPENSATION. The compensation of the officers of the Company
shall be fixed from time to time by the Board, and no officer shall be prevented
from receiving such compensation by reason of the fact that the officer is also
a director of the Company.
14. STANDARD OF CARE OF DIRECTORS AND OFFICERS; INDEMNIFICATION.
14.1 STANDARD OF CARE. The directors and officers of the Company shall
not be liable, responsible or accountable in damages to the Member or the
Company for any act or omission on behalf of the Company performed or omitted by
them in good faith and in a manner reasonably believed by them to be in the best
interests of the Company and, in the case of a criminal proceeding, had no
reasonable cause to believe that the conduct was unlawful.
-9-
14.2 INDEMNIFICATION.
(a) To the fullest extent permitted by the Act, the Company
shall indemnify each director or officer of the Company against reasonable
expenses (including reasonable attorneys' fees), judgments, taxes, penalties,
fines (including any excise tax assessed with respect to an employee benefit
plan) and amounts paid in settlement (collectively "Liability"), incurred by
such person in connection with defending any threatened, pending or completed
action, suit or proceeding (whether civil, criminal, administrative or
investigative, and whether formal or informal) to which such person is, or is
threatened to be made, a party because such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, partner, member, employee or agent of another domestic or
foreign corporation, partnership, limited liability company, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, provided that (i) the director or officer acted in good faith and in a
manner reasonably believed by the director or officer to be in the best
interests of the Company or, in the case of an employee benefit plan, the
interests of the participants and beneficiaries, (ii) in the case of a criminal
proceeding, the director or officer had no reasonable cause to believe the
conduct unlawful, (iii) in connection with a proceeding brought by or in the
right of the Company, the officer or director was not adjudged liable to the
Company, and (iv) the officer or director was not adjudged liable in a
proceeding charging improper personal benefit. A director or officer shall be
considered to be serving an employee benefit plan at the Company's request if
such person's duties to the Company also impose duties on or otherwise involve
services by such person to the plan or to participants in or beneficiaries of
the plan.
(b) To the fullest extent authorized or permitted by the Act,
the Company shall pay or reimburse reasonable expenses (including reasonable
attorneys' fees) incurred by a director or officer who is a party to a
proceeding in advance of final disposition of such proceeding if:
(1) The director or officer furnishes the Company a
written affirmation of his good faith belief that he has met the
standard of conduct described in Section 14.2(a);
(2) The director or officer furnishes the Company a
written undertaking, executed personally or on the director's or
officer's behalf, to repay the advance if it is ultimately determined
that the director or officer did not meet the standard of conduct. Such
undertaking shall be an unlimited general obligation of the director or
officer, but shall not be required to be secured and may be accepted
without reference to financial ability to make repayment.
(3) A determination is made that the facts then known
to those making the determination would not preclude indemnification
under the provisions of this Section 14.2.
(c) The indemnification against Liability and advancement of
expenses provided by, or granted pursuant to, this Section 14.2 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement may be entitled under any agreement, action of the Member or
disinterested directors or otherwise, both as to action in their official
-10-
capacity and as to action in another capacity while holding such office of the
Company, shall continue as to a person who has ceased to be a director or
officer of the Company, and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(d) Any repeal or modification of this Section 14.2 by the
Member shall not adversely affect any right or protection of a director or
officer of the Company under this Section 14.2 with respect to any act or
omission occurring prior to the time of such repeal or modification.
15. OTHER ACTIVITIES; RELATED PARTY TRANSACTIONS.
15.1 OTHER ACTIVITIES. The directors and officers shall devote such of
their time to the affairs of the Company's business, as they shall deem
necessary. The Member directors, officers and their Affiliates (as hereinafter
defined) may engage in, or possess an interest in, other business ventures of
any nature and description, independently or with others, provided such
activities are not directly competitive with those of the Company. Neither the
Company nor the Member shall have any rights by virtue of this Agreement in and
to such independent ventures, or to the income or profits derived therefrom. The
Member shall not be obligated to present any particular noncompeting business
opportunity of a character which, if presented to the Company, could be taken by
the Company and the Member and their Affiliates shall not have the right to take
for their own account, or to recommend to others, any such particular business
opportunity to the exclusion of the Company and the Member. For purposes of this
Agreement, the term "Affiliate" shall mean any person, corporation, partnership,
limited liability company, trust or other entity (directly or indirectly)
controlling, controlled by, or under common control with, the Member.
15.2 RELATED PARTY TRANSACTIONS. The fact that a director, officer or
their Affiliates are directly or indirectly interested in or connected with any
person, firm or company employed by the Company to render or perform a service,
or to or from whom the Company may purchase, sell or lease property, shall not
prohibit the Company from employing such person, firm or company or from
otherwise dealing with him or it, and neither the Company, nor the Member, shall
have any rights in or to any income or profits derived therefrom. All such
dealings with a director or such director's Affiliates will be on terms, which
are competitive and comparable with amounts charged by independent third
parties.
16. MEMBER.
16.1 MEMBER VOTING. Whenever a vote of the Member is required under
this Agreement, such vote may be taken at a meeting of the Member or by a
writing signifying the consent to the Member. At a meeting of the Member, the
Member may vote by proxy.
17. DISSOLUTION.
17.1 DISSOLUTION. Except as otherwise provided in the Act, the Company
shall dissolve upon the decision of the Member to dissolve the Company.
Dissolution of the Company shall be effective upon the date specified in the
Member's resolution, but the Company shall not terminate until the
-11-
assets of the Company shall have been distributed as provided in Section 17.3.
Notwithstanding dissolution of the Company, prior to the liquidation and
termination of the Company, the Company shall continue to be governed by this
Agreement.
17.2 SALE OF ASSETS UPON DISSOLUTION. Following the dissolution of the
Company, the Company shall be wound up and the Board shall determine whether the
assets of the Company are to be sold or whether some or all of such assets are
to be distributed to the Member in kind in liquidation of the Company.
17.3 DISTRIBUTIONS UPON DISSOLUTION. Upon the dissolution of the
Company, the properties of the Company to be sold shall be liquidated in orderly
fashion and the proceeds thereof, and the property to be distributed in kind,
shall be distributed as follows:
(a) First, to the payment and discharge of all of the
Company's debts and liabilities, to the necessary expenses of liquidation and to
the establishment of any cash reserves which the Board determines to create for
unmatured and/or contingent liabilities or obligations of the Company.
(b) Second, to the Member.
18. WITHDRAWAL, ASSIGNMENT AND ADDITION OF MEMBER.
18.1 ASSIGNMENT OF MEMBER'S UNITS. The Member may freely sell, assign,
transfer, pledge, hypothecate, encumber or otherwise dispose of the Member's
Units. The transferor of the Units shall automatically become a substitute
Member in the place of the Member.
18.2 BANKRUPTCY, DISSOLUTION, ETC. OF MEMBER. Upon the occurrence of
bankruptcy or dissolution with respect to the Member, the successor-in-interest
of the Member shall automatically become a substitute Member.
18.3 CERTIFICATES FOR UNITS. Certificates representing Units shall be
in such form as may be determined by the Board. Such certificates shall be
signed by the President or a Vice-President and by the Secretary or an Assistant
Secretary, if such offices be created and filled, or signed by two officers
designated by the Board to sign such certificates. The signature of such
officers upon such certificates may be signed manually or by facsimile. All
certificates for Units shall be consecutively numbered. The name of the person
owning the Units represented thereby, with the number of Units and date of
issue, shall be entered on the books of the Company. All certificates
surrendered to the Company for transfer shall be canceled and no new
certificates shall be issued until the former certificates for a like number of
Units shall have been surrendered and canceled, except that, in case of a lost,
destroyed or mutilated certificate, a new one may be issued therefor upon such
terms and indemnity to the Company as the Board may prescribe.
-12-
19. GENERAL.
19.1 AMENDMENT.
(a) Except as provided in Section 19.1(b), this Agreement may
be modified or amended from time to time only upon the consent of the Member.
(b) In addition to any amendments authorized by Section 19.1
(a), this Agreement may be amended from time to time by the Board without the
consent of the Member to cure any ambiguity, to correct or supplement any
provision hereof which may be inconsistent with any other provision hereof, or
to make any other provisions with respect to matters or questions arising under
this Agreement which will not be inconsistent with the provisions of this
Agreement.
19.2 CAPTIONS; SECTION REFERENCES. Section titles or captions
contained in this Agreement are inserted only as a matter of convenience and
reference, and in no way define, limit, extend or describe the scope of this
Agreement, or the intent of any provision hereof. All references herein to
Sections shall refer to Sections of this Agreement unless the context clearly
requires otherwise.
19.3 NUMBER AND GENDER. Unless the context otherwise requires, when
used herein, the singular shall include the plural, the plural shall include the
singular, and all nouns, pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, as the identity of the person or
persons may require.
19.4 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person, entity or circumstances, shall be invalid or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to other persons, entities or circumstances, shall
not be affected thereby and shall be enforced to the greatest extent permitted
by law.
19.5 BINDING AGREEMENT. Except as otherwise provided herein, this
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective executors, administrators, heirs, successors and assigns.
19.6 APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to its conflict of laws rules.
19.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
with respect to the subject matter hereof.
-13-
IN WITNESS WHEREOF, the Member have duly executed this Agreement as of
the date and year first written above.
BHC PROPERTIES, INC.
By: /s/ [ILLEGIBLE]
--------------------------
Title: Sr. Vice President
-14-