AMENDED AND RESTATED OPERATING AGREEMENT OF ADVANCED RADIOLOGY, LLC A MARYLAND LIMITED LIABILITY COMPANY
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
ADVANCED
RADIOLOGY, LLC
A
MARYLAND LIMITED LIABILITY COMPANY
THE
MEMBERSHIP INTERESTS REFERENCED HEREIN HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE SECURITIES LAWS. WITHOUT REGISTRATION, THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
ON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE MANAGERS
OF THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR THE
SUBMISSION TO THE MANAGERS OF THE COMPANY OF OTHER EVIDENCE SATISFACTORY TO THE
MANAGERS TO THE EFFECT THAT ANY TRANSFER WILL NOT BE IN VIOLATION OF THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR ANY
RULE OR REGULATIONS PROMULGATED THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER
TRANSFER OF A MEMBERSHIP INTEREST IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE
SET FORTH IN THE REGULATIONS OF THE COMPANY.
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
ADVANCED
RADIOLOGY, LLC
A
MARYLAND LIMITED LIABILITY COMPANY
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ARTICLE
1. GENERAL
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1
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1.1.
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Continuation
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1
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1.2.
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Name
and Formation
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1
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1.3.
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Principal
Place of Business
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1
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1.4.
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Registered
Office and Registered Agent
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1
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1.5.
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Term
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1
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1.6.
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Purposes
and Powers
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1
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ARTICLE
2. DEFINITIONS
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2
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2.1.
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Definitions
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2
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2.2.
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Other
Definitional Provisions
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3
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ARTICLE
3. CAPITALIZATION
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4
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3.1.
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Capital
Contributions
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4
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3.2.
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Withdrawal
or Reduction of Capital Contributions
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4
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3.3.
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Liability
of Members
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4
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ARTICLE
4. DISTRIBUTIONS AND ALLOCATIONS
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4
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4.1.
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Distributions
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4
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4.2.
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Limitation
Upon Distribution
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4
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4.3.
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Allocations
of Taxable Items
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5
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4.4.
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Regulatory
Compliance
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5
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4.5.
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Accounting
Principles
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5
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ARTICLE
5. MANAGEMENT
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5
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5.1.
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Management
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5
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5.2.
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Number
and Qualifications
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5
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5.3.
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Election
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5
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5.4.
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Vacancy
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5
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5.5.
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Removal
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5
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5.6.
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Place
of Meetings
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5
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5.7.
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Annual
Meetings of Managers
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5
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5.8.
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Regular
Meetings of Managers
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6
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5.9.
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Special
Meetings of Managers
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6
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5.10.
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Quorum
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6
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5.11.
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Attendance
and Waiver of Notice
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6
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5.12.
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Compensation
of Managers
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6
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5.13.
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Officers
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6
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5.14.
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Indemnification
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6
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5.15.
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Records
and Reports
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7
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Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
i
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5.16.
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Returns
and Other Elections
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7
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5.17.
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Depositories
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7
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ARTICLE
6. MEETINGS OF MEMBERS
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7
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6.1.
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Place
of Meetings
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7
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6.2.
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Annual
Meetings of Members
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8
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6.3.
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Special
Meetings of Members
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8
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6.4.
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Notice
of Meetings of Members
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8
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6.5.
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Quorum
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8
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6.6.
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Voting
on Most Matters
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8
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6.7.
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Voting
in the Election of Managers
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8
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6.8.
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List
of Members Entitled to Vote
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8
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6.9.
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Registered
Members
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9
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6.10.
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Actions
Without a Meeting and Telephone Meetings
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9
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ARTICLE
7. TRANSFER OF MEMBERSHIP INTERESTS
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9
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7.1.
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Transfers |
9
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7.2.
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Tax
Matters
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9
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ARTICLE
8. DISSOLUTION AND TERMINATION
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9
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8.1.
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Dissolution
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9
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8.2.
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Distribution
of Assets upon Dissolution
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10
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8.3.
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Distributions
in Kind
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10
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8.4.
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Certificate
of Dissolution
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10
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ARTICLE
9. MISCELLANEOUS
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10
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9.1.
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Notices
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10
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9.2.
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Interpretation
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11
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9.3.
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Terms
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11
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9.4.
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References
to Agreement
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11
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9.5.
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Severability |
11
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9.6.
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No
Third-Party Beneficiary
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11
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9.7.
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Sole
and Absolute Discretion
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11
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9.8.
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Binding
Effect
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11
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9.9.
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Complete
Agreement
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11
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9.10.
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Amendment
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12
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9.11.
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Agreement
in Counterparts
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12
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9.12.
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Reliance
on Authority
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12
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9.13.
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Title
to Property
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12
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9.14.
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Other
Business
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12
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9.15.
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Partition
Rights
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12
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9.16.
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Additional
Documents and Acts
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12
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Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
ii
AMENDED
AND RESTATED OPERATING AGREEMENT
OF
ADVANCED
RADIOLOGY, LLC
A
MARYLAND LIMITED LIABILITY COMPANY
This
AMENDED AND RESTATED OPERATING AGREEMENT OF ADVANCED RADIOLOGY, LLC (this “Agreement”) dated as
of the 26th day of
November, 1997, is hereby (i) duly adopted as the amended and restated operating
agreement of ADVANCED RADIOLOGY, LLC, a Maryland limited liability company (the
“Company”'), by
▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ the Managers, and (ii) ratified, confirmed and
approved as such by the Members (as each term is defined below).
WHEREAS,
the Members desire to continue the Company governed by this Amended and Restated
Operating Agreement of the Company, for the purpose of developing, owning and
operating Open Scan Magnetic Resonance Imaging (“MRI”) facilities and related
equipment, fixtures and accessories, and carrying on any and all activities
relating to the foregoing purposes;
NOW,
THEREFORE, to amend and restate the entire agreement of the Members with respect
to rights and obligations as Members and with respect to the Company and its
affairs, and in consideration of these premises, it is hereby agreed as
follows:
ARTICLE
1. GENERAL
1.1. Continuation. The
Members hereby continue the Company pursuant to the Act. Except as otherwise
provided in this Agreement, the rights and liabilities of the Members shall be
governed by the Act.
1.2. Name and Formation.
The name of the Company is “ADVANCED RADIOLOGY, LLC” The Articles of
Organization of the Company were filed to be effective September 1,
1994.
1.3. Principal Place of
Business. The principal places of business of the Company are ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may locate its place(s)
of business and registered office at any other place or places as the Managers
may from time to time deem necessary or advisable.
1.4. Registered Office and
Registered Agent. The registered agent and registered office of the
Company shall be ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
1.5. Term. The term of
existence of the Company shall be perpetual from the date its Articles of
Organization were filed with the Secretary of State of Maryland, unless the
Company is earlier dissolved in accordance with either the provisions of this
Agreement or the Act.
1.6. Purposes and Powers.
The purpose of the Company is to develop, own and operate open scan MRI
facilities and related equipment, fixtures and accessories, and carry on any and
all activities relating to the foregoing purposes.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
1
ARTICLE
2. DEFINITIONS
2.1. Definitions. The
following terms used in this Agreement shall have the following meanings (unless
otherwise expressly provided herein):
“Accountant” means the
certified public accountant or firm of certified public accountants, if any,
selected by the Managers to perform accounting functions on behalf of the
Company.
“Act” means the Maryland Limited
Liability Company Act, as the same may be amended from time to
time.
“Agreement” means
these regulations as originally adopted and as amended from time to
time.
“Articles” means the
Articles of Organization of the Company which were filed in the Office of the
Secretary of State of the State of Maryland.
“Bank” means the bank
selected by the Managers.
“Bankruptcy” means,
for any Member, the taking or acquiescing in the taking by that Member of an
action seeking relief under, or advantage of, an applicable debtor relief,
liquidation, receivership, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, reorganization, or similar law affecting the rights
or remedies of creditors generally, as in effect from time to time.
“Business Day” means a
day other than a Saturday, Sunday or other day which is a nationally recognized
holiday.
“Capital Contribution”
means, with respect to any Member, any contribution to the capital of the
Company in cash or property by that Member whenever made.
“Code” means the
Internal Revenue Code of 1986, as amended (or any corresponding provisions of
succeeding law).
“Company”means
ADVANCED RADIOLOGY, LLC, a Maryland limited liability company.
“Distributable Cash”
means all cash, revenues and funds received by the Company from the operations
of the Company, less the sum of the following to the extent paid or set aside by
the Company; (i) all principal and interest payments on indebtedness of the
Company and all other sums paid to lenders; (ii) all cash expenditures incurred
incident to the normal operations of the business of the Company; and (iii) such
cash reserves as a Majority of the Managers deems reasonably necessary to the
proper operation of the business of the Company.
“Fiscal Year” means
the fiscal year of the Company, which shall be the calendar year.
“Initial Capital
Contribution” means, with respect to any Member, the initial contribution
to the capital of the Company made by that Member pursuant to this
Agreement.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
2
“Majority” means, with
respect to any referenced group of Managers, a combination of any of such
Managers constituting more than fifty percent (50%) of the number of Managers of
such referenced group who are then elected and qualified.
“Majority in Interest”
means, with respect to any referenced group of Members, a combination of any of
such members who, in the aggregate, own more than fifty percent (50%) of the
Membership Interests owned by all of such referenced group of
Members.
“Managers” means ▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, and hereafter any other Person or Persons to succeed
him in that capacity or elected to act as additional managers of the Company as
provided herein.
“Member” means each
Person designated as a member on Exhibit A, attached
hereto and hereby made a part hereof, any successor or successors to all or any
part of any such Person’s interest in the Company, or any other Person admitted
as a member of the Company in accordance with this Agreement and the Act, each
in the capacity as a member of the Company.
“Membership
Interest”
means the number of members interests of a Member at any particular time as
specified on Exhibit
A.
“Person” means any
corporation, limited liability company, partnership, joint venture, co-tenancy,
individual, trust, any other legal entity or individual, whether or not a party
to this Agreement.
“Prime Rate” means the
rate of interest announced from time to time by BANK OF AMERICA OF TEXAS, N.A.
(or any successor thereof) as its prime rate of interest.
“Property” means at
any time all of the assets of the Company at that time.
“Pro Rata” means the
ratio determined by dividing the Membership Interests of Members to whom a
particular provision of this Agreement is stated to apply by the aggregate of
the Membership Interests of all Members to whom that provision is stated to
apply.
“Regulations” means
the Income Tax Regulations, including Temporary Regulations, promulgated under
the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
“Unanimous Consent”
means, on any matter, the affirmative consent, of all Members or, if
specifically stated, only all Members entitled to vote on that
matter.
2.2. Other Definitional
Provisions. All terms used in this Agreement which are not defined in
this Article 2
have the meanings contained elsewhere in this Agreement. Defined terms used
herein in the singular shall import the plural and vice
versa.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
3
ARTICLE
3. CAPITALIZATION
3.1. Capital
Contributions.
(a) Upon
the execution of this Agreement, each Member shall contribute cash to the
Company in the amount set forth as the Initial Capital Contribution of such
Member on Exhibit
A. Such cash shall be the Initial Capital Contribution of each such
Member and, upon such contribution, each such Member shall receive the
Membership Interest set forth by the name of that Member on Exhibit
A.
(b) If
at any time a Majority of the Managers determines that the Company has
insufficient funds to carry out the purposes of the Company, the Managers may
request that the Members make additional contributions to the capital of the
Company.
3.2. Withdrawal or Reduction of
Capital Contributions.
(a) A
Member shall not receive out of the Property any part of its Capital
Contribution until all liabilities of the Company, except the liabilities to
Members on account of their Capital Contributions, have been paid or there
remains property of the Company sufficient to pay such liabilities.
(b) No
Member shall have the right to withdraw all or any part of its Capital
Contribution or to receive any return on any portion of its Capital
Contribution, except as may be otherwise specifically provided in this
Agreement. Under circumstances involving a return of any Capital Contribution,
no Member shall have the right to receive property other than cash.
(c) No
Member shall have priority over any other Member, either as to the return of
Capital Contributions or as to distributions; provided that this subsection
shall not apply to loans (as distinguished from Capital Contributions) which a
Member has made to the Company.
3.3. Liability of Members.
No Member shall be liable for the debts, liabilities or obligations of
the
Company beyond such Person’s respective Initial Capital Contribution. Except as
otherwise provided herein,
no Member shall be required to contribute to the capital of, or to loan, the
Company any funds.
ARTICLE
4. DISTRIBUTIONS AND
ALLOCATIONS
4.1. Distributions. All
distributions of Distributable Cash or other property shall be made to the
Members Pro Rata. Except as provided in Section 4.2, all
distributions of Distributable Cash and property shall be made at such time as
determined by a Majority of the Managers. All amounts, if any, withheld pursuant
to the Code or any provisions of state or local tax laws with respect to any
payment or distribution to the Members from the Company shall be treated as
amounts distributed to the relevant Member or Members pursuant to this Section
4.1.
4.2. Limitation Upon
Distribution. No distribution shall be declared and paid unless, if after
the distribution is made, the value of the Property would exceed the liabilities
of the Company, except liabilities to Members on account of their Capital
Contributions.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
4
4.3. Allocations of Taxable
Items. All taxable items of the Company shall be allocated among the
Members Pro Rata.
4.4. Regulatory
Compliance. The Managers and Members shall exercise the utmost good faith
in cooperating to amend this Agreement to effect the changes, if any,
recommended by the professional tax advisors of the Company to cause compliance
with Code Section 704 and the Regulations promulgated thereunder.
4.5. Accounting
Principles. The economic profits and losses and tax items of the Company
shall be determined in accordance with accounting principles applied on a
consistent basis under the cash receipts and disbursements method of
accounting.
ARTICLE
5. MANAGEMENT
5.1. Management. 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, its designated
Manager or Managers. In addition to the powers and authorities expressly
conferred by this Agreement upon the Managers, the Managers may exercise all
such powers of the Company and do all such lawful acts and things as are not
directed or required to be exercised or done by the Members by the Act, the
Articles or this Agreement, including, but not limited to, contracting for or
incurring debts, liabilities and other obligations on behalf of the
Company.
5.2. Number and
Qualifications. The number of Managers of the Company shall be two (2).
The number of Managers may be increased or decreased as may be determined by the
Members from time to time, but no decrease in the number of Managers shall have
the effect of shortening the term of any incumbent Manager. Managers need not be
residents of the State of Maryland.
5.3. Election. At the
first annual meeting of the Members and at each annual meeting thereafter, the
Members shall elect one or more Managers to hold office until the next
succeeding annual meeting. Unless removed in accordance with this Agreement,
each Manager shall hold office for the term for which he is elected and until
his successor shall be elected and qualified.
5.4. Vacancy. Any vacancy
occurring for any reason in the number of Managers shall be
filled by the
affirmative vote of a Majority in Interest of the Members. A Manager elected to
fill a vacancy shall be elected
for the unexpired term of the predecessor in office.
5.5. Removal. At a meeting
called expressly for such purpose, all or any lesser number of Managers may be
removed at any time, with or without cause, by the affirmative vote of a
Majority in Interest of the Members.
5.6. Place of Meetings.
All meetings of the Managers may be held either within or without the State of
Maryland.
5.7. Annual Meetings of
Managers. The annual meeting of Managers shall be held, without further
notice, immediately following the annual meeting of Members, and at the same
place, or at such other time and place as shall be fixed with the consent in
writing of all the Managers.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
5
5.8. Regular Meetings of
Managers. Regular meetings of the Managers may be held without notice at
such time and place either within or without the State of Maryland as shall from
time to time be determined by a Majority of the Managers.
5.9. Special Meetings of
Managers. Special meetings of the Managers may be called by any Manager
on three (3) days’ notice to each Manager, either by mail or
telecopy.
5.10.
Quorum. At all
meetings of the Managers, the presence of a Majority of the Managers shall be
necessary and sufficient to constitute a quorum for the transaction of business
unless a greater number is required by law. At a meeting at which a quorum is
present, the act of a Majority of the Managers shall be the act of the Managers,
except as otherwise provided by law, the Articles or this Agreement. If a quorum
shall not be present at any meeting of the Managers, the Managers present at the
meeting may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
5.11. Attendance and Waiver of
Notice. Attendance of a Manager at any meeting shall constitute a waiver
of notice of such meeting, except where a Manager attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Managers need be specified in the notice or waiver of notice of such
meeting.
5.12. Compensation of
Managers. No Manager, as such, shall receive any stated salary for his
services, but shall receive such compensation for his services as may be from
time to time agreed upon by a Majority of the Managers subject to the approval
of a Majority in Interest of the Members. In addition, a fixed sum and expenses
of attendance, if any, may be allowed for attendance at each regular or special
meeting of the Managers, provided that nothing contained in this Agreement shall
be construed to preclude any Manager from serving the Company in any other
capacity and receiving compensation for such service.
5.13. Officers. The
Managers, by an affirmative vote of a Majority of the Managers, may appoint and
remove the Chief Executive Officer, Chief Operating Officer, President,
Secretary, Treasurer, and one or more Vice Presidents, and such other officers
and agents as they may deem necessary. No officer need be a Member or a resident
of the State of Maryland. Any officers so designated shall have such authority
and perform such duties as the Managers may, from time to time, delegate to
them. Each officer shall hold office until his or her successor shall be duly
designated and shall qualify or until his or her death or until he or she shall
resign or shall have been removed in the manner hereinafter provided. Any number
of offices may be held by the same person. The salaries or other compensation,
if any, of the officers and agents of the Company shall be fixed from time to
time by the Managers. Any officer may be removed as such, either with or without
cause, by the Managers whenever in their judgment the best interests of the
Company will be served thereby. Any vacancy occurring in any office of the
Company (other than Manager) may be filled by the Managers.
5.14. Indemnification. THE
MANAGERS SHALL BE INDEMNIFIED AND HELD HARMLESS BY THE COMPANY, INCLUDING
ADVANCEMENT OF EXPENSES, BUT ONLY TO THE EXTENT THAT THE PROPERTY IS SUFFICIENT
THEREFOR, FROM AND AGAINST ALL CLAIMS, LIABILITIES, AND EXPENSES ARISING OUT OF
ANY MANAGEMENT OF THE AFFAIRS OF THE COMPANY, BUT EXCLUDING THOSE CAUSED BY THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE MANAGER, SUBJECT TO ALL
LIMITATIONS AND REQUIREMENTS IMPOSED BY THE ACT. THESE INDEMNIFICATION RIGHTS
ARE IN ADDITION TO ANY RIGHTS THAT THE MANAGERS MAY HAVE
AGAINST THIRD PARTIES. THE FOREGOING
INDEMNIFICATION SPECIFICALLY INCLUDES THOSE CLAIMS THAT ARISE OUT OF THE
INDEMNIFIED PARTY’S SOLE, JOINT OR CONTRIBUTORY NEGLIGENCE, BUT SPECIFICALLY
EXCLUDES THOSE CLAIMS THAT ARISE OUT OF THE INDEMNIFIED PARTY’S WILLFUL
MISCONDUCT. THE INDEMNIFIED PARTY WOULD NOT HAVE ENTERED THIS AGREEMENT IF NOT
FOR THIS INDEMNIFICATION.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
6
5.15. Records and Reports.
At the expense of the Company, the Managers shall maintain records and
accounts of all operations and expenditures of the Company. At a minimum, the
Company shall keep at its
principal place of business the following records:
(a) A
current list that states:
(i) The
name and mailing address of each Member; and
(ii) The
Membership Interest owned by each Member;
(b) Copies
of the federal, state and local information or income tax returns for each of
the six (6) most recent tax years of the Company;
(c) A
copy of the Articles and this Agreement, all amendments or restatements,
executed copies of any powers of attorney, and copies of any document that
creates, in the manner provided by the Articles or this Agreement, classes or
groups of Members;
(d) Correct
and complete books and records of account of the Company; and
(e) Any
other books, records or documents required by the Act or other applicable
law.
5.16. Returns and Other
Elections. The Managers shall cause the preparation and timely filing of
all tax returns required to be filed by the Company pursuant to the Code and all
other tax returns deemed necessary and required in each jurisdiction in which
the Company does business. Copies of such returns, or pertinent information
therefrom, shall be furnished to the Members within seventy-five (75) days after
the end of each Fiscal Year. All elections permitted to be made by the Company
under federal or state laws shall be made by a Majority of the Managers with the
consent of a Majority in Interest of the Members.
5.17. Depositories. One or
more accounts may be maintained for the Company at the Bank or at any other
commercial financial institution or depository chosen by Unanimous Consent. The
funds of the Company shall not be commingled with the funds of any other Person.
Checks may be drawn on the account or accounts of the Company only for the
purposes of the Company and shall be signed by a duly authorized representative
of the Company or such other Person or Persons as designated by Unanimous
Consent.
ARTICLE
6. MEETINGS OF
MEMBERS
6.1.
Place of
Meetings. All meetings of the Members shall be held at the principal
office of the Company or at such other place within or without the State of
Maryland as may be determined by the Managers and set forth in the respective
notice or waivers of notice of such meeting.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
7
6.2. Annual Meetings of
Members. The annual meeting of the Members of the Company for the
election of Managers and the transaction of such other business as may properly
come before the meeting, shall be held at such time and date as shall be
designated by the Managers from time to time and stated in the notice of the
meeting. Such annual meeting shall be called in the same manner as provided in
this Agreement for special meetings of the Members, except that the purposes of
such meeting must be enumerated in the notice of such meeting only to the extent
required by law in the case of annual meetings.
6.3. Special Meetings of
Members. Special meetings of the Members may be called by the Managers or
by the holders of not less than ten percent (10%) of all the Membership
Interests. Business transacted at all special meetings shall be confined to the
purposes stated in the notice.
6.4. Notice of Meetings of
Members. Written or printed notice stating the place, day and hour of the
meeting and, in the case of special meetings, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) nor more than
sixty (60) days before the date of the meeting, either by mail or telecopy, by
or at the direction of the Managers or Person calling the meeting, to each
Member of record entitled to vote at such meeting. If mailed, such notice shall
be deemed to be delivered when deposited in the United States mail addressed to
the address of the Member as it appears on the transfer records of the Company,
with postage prepaid.
6.5. Quorum. A Majority in
Interest of the Members shall constitute a quorum at all meetings of the
Members, except as otherwise provided by law or the Articles of Organization.
Once a quorum is present at the meeting of the Members, the subsequent
withdrawal from the meeting of any Member prior to adjournment or the refusal of
any Member to vote shall not affect the presence of a quorum at the meeting. If,
however, such quorum shall not be present at any meeting of the Members, the
Members entitled to vote at such meeting shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until the holders of the requisite amount of Membership Interests shall
be present or represented. At any meeting of the Members at which a quorum is
present, the vote of the holders of a Majority in Interest of all the Members
shall be the act of the Members, unless the vote of a greater number is required
by law, the Articles of Organization or this Agreement.
6.6. Voting on Most
Matters. For purposes of voting on matters other than the election of
Managers or a matter for which the affirmative vote of the holders of a
specified portion of the Membership Interests entitled to vote is required by
the Act, at any meeting of the Members at which a quorum is present, the act of
Members shall be the affirmative vote of the holders of a Majority in Interest
of all the Members.
6.7. Voting in the Election of
Managers. Managers shall be elected at any meeting of the Members at
which a quorum is present by the vote of a Majority in Interest of all the
Members.
6.8. List of Members Entitled to
Vote. The Managers shall make, at least ten (10) Business Days before
each meeting of Members, a complete list of the Members entitled to vote at such
meeting, or any adjournment of such meeting, arranged in alphabetical order,
with the address of and the Membership Interest held by each, which list, for a
period often (10) Business Days prior to such meeting, shall be kept on file at
the registered office of the Company and shall be subject to inspection by any
Member at any time during usual business hours. Such list shall also be produced
and kept open at the time and place of the meeting and shall be subject to
inspection of any Member during the whole time of the meeting. However, failure
to comply with the requirements of this Section shall not affect the validity of
any action taken at such meeting.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
8
6.9. Registered Members.
The Company shall be entitled to treat the holder of record of any Membership
Interest as the holder in fact of such Membership Interest for all purposes, and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such Membership Interest on the part of any other Person, whether or
not it shall have express or other notice of such claim or interest, except as
expressly provided by this Agreement or the laws of the State of
Maryland.
6.10. Actions Without a Meeting
and Telephone Meetings. Notwithstanding any provision contained in this
Article 6, all
actions of the Members provided for herein may be taken by written consent
without a meeting, or any meeting thereof may be held by means of a telephone
conference. Any such action that may be taken by the Members without a meeting
shall be effective only if the written consent or consents are in writing, set
forth the action so taken, and are signed by the holder or holders of Membership
Interests constituting not less than the minimum amount of Membership Interests
that would be necessary to take such action at a meeting at which the holders of
all Membership Interests entitled to vote on the action were present and
voted.
ARTICLE
7. TRANSFER OF
MEMBERSHIP INTERESTS
7.1. Transfers. Each
Member may sell, assign or otherwise transfer all or any portion of its interest
in the Company only upon the prior written approval of all Members; provided no
transferee shall be admitted as a member of the Company for purposes of
governance rights on the Company.
7.2. Tax Matters. On the
transfer of all or part of an interest in the Company, at the request of the
transferee of the interest, the Managers may cause the Company to elect,
pursuant to Section 754 of the Code to adjust the tax basis of the properties of
the Company as provided by Sections 734 and 743 of the Code.
ARTICLE
8. DISSOLUTION AND
TERMINATION
8.1 Dissolution.
(a) The
Company shall be dissolved upon the first of the following to
occur:
(1) When
the period fixed for the duration of the Company shall expire;
(2) Upon
the election to dissolve the Company by a Majority in Interest of the
Members;
(3) Upon
the death, retirement, resignation, expulsion, Bankruptcy, legal incapacity or
dissolution of any Member who is at such time a Manager, or the occurrence of
any other event which terminates the continued membership of any Member who is
at such time a Manager of the Company, unless there is at least one remaining
Member and the business of the Company is continued by the Unanimous Consent of
the remaining Members within ninety (90) days; or
(4) The
entry of a decree of judicial dissolution, pursuant to the Act, by a Court of
competent jurisdiction.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
9
(b) Upon
dissolution of the Company, the business and affairs of the Company shall
terminate, and the assets of the Company shall be liquidated under this Article
8.
(c) Dissolution
of the Company shall be effective as of the day on which the event occurs giving
rise to the dissolution, but the Company shall not terminate until there has
been a winding up of the business and affairs of the Company, and the Property
has been distributed as provided in Section
8.2.
(d) Upon
dissolution of the Company, the Managers may cause any part or all of the assets
of the Company to be sold in such manner as the Managers shall determine in an
effort to obtain the best prices for such assets; provided, however that the
Managers may distribute assets of the Company in kind to the Members to the
extent practicable.
8.2. Distribution of Assets upon
Dissolution. In settling accounts after dissolution, the Property
shall be
distributed in the following order:
(a) First,
to creditors, in the order of priority as provided by applicable law, except
those to
Members of the Company on account of their Capital Contributions;
and
(b) Second,
any remainder shall be distributed to the Members Pro Rata.
8.3. Distributions in
Kind. If any assets of the Company are distributed in kind, such assets
shall be distributed to the Members entitled thereto as tenants-in-common in the
same proportions as the Members would have been entitled to cash distributions
if such property had been sold for cash and the net proceeds thereof distributed
to the Members. In the event that distributions in kind are made to the Members
upon dissolution and liquidation of the Company, the Capital Account balances of
such Members shall be adjusted to reflect the allocable share of gain or loss of
the Members that would have resulted if the distributed property had been sold
at its fair market value.
8.4. Certificate of
Dissolution. When all liabilities and obligations of the Company have
been paid or discharged, or adequate provision has been made therefor, and all
of the remaining Property has been distributed to the Members according to their
respective rights and interests, the Articles of Dissolution shall be executed
on behalf of the Company by the Managers or an authorized Member and shall be
filed with the Secretary of the State of ▇▇▇▇ ▇▇▇▇, and the Managers and Members
shall execute, acknowledge and file any and all other instruments necessary or
appropriate to reflect the dissolution and termination of the
Company.
ARTICLE
9. MISCELLANEOUS
9.1. Notices.
(a) Any
notice, notification, demand or request provided or permitted to be given under
this Agreement must be in writing and shall have been deemed to have been
properly given, unless explicitly stated otherwise, if sent by (i) Federal
Express or other comparable overnight courier, (ii) registered or certified
mail, postage prepaid, return receipt requested, or (iii) telecopy during normal
business hours to the place of business of the recipient.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
10
(b) For
purposes of all notices, the addresses and telecopy numbers of the Members are
set forth on Exhibit
A.
(c) All
notices, notifications, demands or requests so given shall be deemed given and
received (i) if mailed, three (3) days after being deposited in the mail; (ii)
if sent via overnight courier, the next business day after being deposited; or
(iii) if telecopied on a business day, that day, or if telecopied on a day that
is not a business day, the next day that is a business day.
9.2. Interpretation. The
construction and validity of this Agreement and the rights and obligations of
the respective parties hereunder shall be governed by and interpreted and
enforced in accordance with the laws of the State of Texas.
9.3. Terms. Common nouns
and pronouns shall be deemed to refer to the masculine, feminine, neuter,
singular, and plural, as the identity of the Person may in the context require.
Any reference to the Code or other statutes or laws shall include all
amendments, modifications, or replacements of the specific sections and
provisions concerned. All amounts referenced herein “$” or “dollars” are to U.S.
dollars or U.S. dollar equivalents.
9.4. References to
Agreement. Unless otherwise expressly stated, references to numbered or
lettered articles, sections and subsections herein contained are to articles,
sections and subsections of this Agreement. The terms “herein,” “hereof,”
“hereunder,” “hereby,” “this Agreement” and other similar references shall be
construed to mean and include these regulations and all amendments thereof and
supplements thereto unless the context shall clearly indicate or require
otherwise.
9.5. Severability. If any
provision of this Agreement or the application of such provision to any Person
or circumstances shall be invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provisions to other Persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by applicable laws.
9.6. No Third-Party
Beneficiary. This Agreement is made solely and specifically between and
for the benefit of the parties hereto and their respective successors and
assigns, subject to the expressed provisions hereof relating to successors and
assigns, and no other Person whatsoever has any rights, interest, or claims
hereunder or is or will be entitled to any benefits under or on account of this
Agreement as a third-party beneficiary or otherwise unless specifically provided
in this Agreement.
9.7. Sole and Absolute
Discretion. Except as otherwise provided in this Agreement, all actions
which any Member may take and all determinations which any Member may make
pursuant to this Agreement may be taken and made at the sole and absolute
discretion of that Member.
9.8. Binding Effect.
Subject to the provisions of this Agreement relating to transferability, this
Agreement shall be binding upon and inure to the benefit of the parties
signatory hereto, and their respective distributees, successors and
assigns.
9.9. Complete Agreement.
This Agreement constitutes the complete and exclusive statement of the agreement
between the Members and replaces and supersedes all prior agreements. This
Agreement supersedes all written and oral statements, and no representation,
statement, condition, or warranty not contained in this Agreement shall be
binding on the Members or have any force or effect whatsoever. No Member
has rendered any services to or on behalf of any other Member or the Company,
and no Member shall have any rights with respect to any services which might be
alleged to have been rendered.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
11
9.10. Amendment. This
Agreement may not be amended, altered or modified except by an instrument in
writing signed by all of the Members (or the duly-authorized agent of any
party), excluding each Member who has transferred its entire interest in the
Company to an assignee pursuant to Article 7.
9.11. Agreement in
Counterparts. This Agreement may be executed in several counterparts, and
all so executed shall constitute one Agreement, binding on all of the parties
hereto, notwithstanding that all the parties are not signatories to the original
or the same counterpart.
9.12. Reliance on
Authority. If a Member is a trust (with or without disclosed
beneficiaries), partnership, limited partnership, joint venture, corporation, or
any entity other than a natural Person, the Company (i) is not required to
determine the authority of the Person signing this Agreement to make any
commitment or undertaking on behalf of such entity or to determine any fact or
circumstance bearing upon the existence of the authority of such Person; (ii) is
not required to see to the application or distribution of proceeds paid or
credited to Persons signing this Agreement on behalf of such entity; (iii) is
entitled to rely on the authority of the Person signing this Agreement with
respect to the giving of consent on behalf of such entity in connection with any
matter for which consent is permitted or required under this Agreement; and (iv)
is entitled to rely on the authority of any general partner, joint venturer, co-
or successor trustee, or president or vice president (as the case may be), of
any such entity the same as if such Person were the Person originally signing
this Agreement on behalf of such entity.
9.13. Title to Property. To
the extent that property of the Company is held in the name of a Member, the
property shall be deemed held by that Member as agent and nominee for and on
behalf of the Company. Any other property acquired by or standing in the name of
any Member shall be conclusively presumed not to be property of the Company,
unless an instrument in writing, signed by that Member, shall specify to the
contrary.
9.14. Other Business. Each
Member may be engaged in a business or businesses other than that of the Company
without being accountable or liable to the Company for the breach of any
fiduciary obligation.
9.15. Partition Rights. No
Member shall have the right to the partition of any property of the Company or
to take any action or initiate or prosecute any judicial proceeding for the
partition, or the partition and sale, of any property of the
Company.
9.16. Additional Documents and
Acts. In connection with this Agreement, as well as all transactions
contemplated by this Agreement, each Member shall, on the request of the other
Member, execute and deliver such additional documents and instruments and
perform such additional acts as may be necessary or appropriate to effectuate,
carry out, and perform all of the terms, provisions and conditions of this
Agreement and all such transactions.
Remainder
of Page Intentionally Left Blank.
Signature
Page Follows.
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
12
IN
WITNESS WHEREOF, the undersigned, being all of the Members and Managers of the
Company, have caused this Agreement to be duly adopted by the Company as of the
26th
of November, 1997.
|
MEMBER:
|
|||
|
ADVANCED
IMAGING PARTNERS, INC.
|
|||
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Title:
|
General Counsel and Senior Vice
President
|
||
|
MANAGERS:
|
|||
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
|
|||
|
▇▇▇▇
▇. ▇▇▇▇▇, Manager
|
|||
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
|
|||
|
▇▇▇▇
▇. ▇▇▇▇▇, Manager
|
|||
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
13
EXHIBIT
A
Name,
Initial Capital Contribution
and
Membership Interests of the Members
|
Name, Address, and
|
Membership
|
|||
|
Telephone Number
|
Percentage Interest
|
|||
|
Advanced
Imaging Partners, Inc.
|
100 | % | ||
|
c/o
Radiologix, Inc.
|
||||
|
3600
Chase Tower
|
||||
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
|
||||
|
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
||||
|
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
|
||||
Amended
and Restated Operating Agreement
Advanced
Radiology, LLC
14