OPERATING AGREEMENT of AURORA GEORGIA, LLC
Exhibit 3.38
of
AURORA GEORGIA, LLC
This Operating Agreement (this “Agreement”) of Aurora Georgia, LLC, a Georgia limited liability
company (the “Company”), is made as of March 21, 2007, by Aurora Diagnostics, LLC, a Delaware
limited liability company (the “Initial Member”, and together with any party hereafter admitted as
a member of the Company in accordance with the terms hereof, the “Members”).
Intending to be legally bound, the Members hereby agree as follows:
1. Formation of the Company. The Company was formed upon the execution and filing of Articles of
Organization (as amended, the “Articles”) with the Secretary of State of the State of Georgia in
accordance with the provisions of the Georgia Limited Liability Company Act, as amended (the
“Act”).
2. Term. The Company will have perpetual existence unless terminated in accordance with this
Agreement.
3. Name. The name of the Company will be “Aurora Georgia, LLC” or such other name that complies
with applicable law as the Members may select from time to time.
4. Purpose; Powers. The Company is organized for the object and purpose of engaging in all such
lawful transactions and business activities as may be determined from time to time by the Members.
The Company will have any and all powers necessary or desirable to carry out the purposes and
business of the Company, to the extent the same may be lawfully exercised by limited liability
companies under the Act.
5. Registered Office and Agent. The registered office of the Company in the State of Georgia is
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ . The registered agent of the Company for service of
process at such address is CT Corporation System. The registered office and/or registered agent of
the Company may be changed from time to time in the discretion of the Members.
6. Members. The name of the Initial Member of the Company is Aurora Diagnostics, LLC. Except as
provided in Section 18 below, new Members may be admitted to the Company at any time and from time
to time with the written consent of the Members. The Schedule of Members attached hereto shall be
amended to reflect the future admission of each additional Member.
7. Management.
(i) Management by Members. The powers of the Company shall be exercised by or under the authority
of, and the business and affairs of the Company shall be managed under the direction of, the
Members and the Members shall make all decisions and take all actions for the Company.
(ii) Officers. The Members may, from time to time, designate one or more persons to be officers of
the Company. No officer need be a resident of the State of Georgia or a Member. Any officers so
designated shall have such authority and perform such duties as the Members may, from time to time,
delegate to them. The Members may assign titles to particular officers. Unless the Members
otherwise decide, if the title is one commonly used for officers of a business corporation formed,
the assignment of such title shall constitute the delegation to such officer of the authority and
duties that are normally associated with that office. Each officer shall hold office until such
officer’s successor shall be duly designated and shall qualify or until such officer’s earlier
death, resignation or removal. Any number of offices may be held by the same individual. The
salaries or other compensation, if any, of the officers and agents of the Company shall be fixed
from time to time by the Members.
(iii) Action by Members Without a Meeting. Action required or permitted to be taken by the Members
may be taken without a meeting if the action taken is evidenced by one or more written consents
describing the action taken, signed by the Members and delivered to the Company for inclusion in
its records. Action taken under this Section 7(iii) is effective when the Members have signed the
consent, unless the consent specifies a different effective date.
8. Contributions. The Initial Member made the capital contributions set forth on the Schedule of
Members in exchange for the Units specified thereon on the effective date hereof. The Members may,
but shall not be required to, make additional contributions to the capital of the Company;
provided, that, no additional contributions to the capital of the Company shall be made without the
written consent of the Members. The Members shall maintain the Schedule of Members and amend it as
necessary to reflect any capital contribution made by the Members. Persons or entities hereafter
admitted as Members of the Company shall make such contributions of cash, property or services to
the Company as shall be determined by the Members at the time of each such admission. For the
purposes hereof, “Unit” means an interest of a Member in the Company representing a fractional part
of the interests of all Members and having the rights and obligations specified with respect to
such Units in this Agreement.
9. Allocations of Profits and Losses; Capital Accounts. The Company shall maintain a separate
capital account (the “Capital Accounts”) for each Member according to the rules of Treasury
Regulation Section 1.704-1 (b)(2)(iv). For this purpose, the Company may, upon the occurrence of
the events specified in Treasury Regulation Section 1.704-1 (b)(2)(iv)(f), increase or decrease the
Capital Accounts in accordance with the rules of such regulation and Treasury Regulation Section
1.704-1(b)(2)(iv)(g) to reflect a
revaluation of the Company property. The Company’s profits and losses will be allocated among the
Members pro rata in accordance with their respective capital contributions.
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10. Distributions. Distributions of cash or other assets of the Company shall be made at such times
and in such amounts as the Members may determine. Distributions shall be made to Members pro rata in accordance with their respective positive Capital Account balances immediately prior to a
distribution.
11. Assignments. Except as provided in Section 18, a Member may assign all or any portion of its
Units only (i) with the consent of all of the Members, which consent may be given or withheld in
each Member’s sole discretion, and (ii) upon such assignee’s agreement in writing to be bound by
the terms hereof. Upon any such permitted assignment, the assignee will be admitted to the Company
as a substitute Member.
12. Dissolution. The Company will be dissolved and its affairs will be wound up and terminated only
upon (i) the affirmative vote of all of the Members or (ii) an administrative dissolution or the
entry of a decree of judicial dissolution under Section 603 of the Act. Upon dissolution, the
Company will be liquidated in an orderly manner by the Members.
13. Limitation on Liability. The debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and no Member or officer of the Company shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a Member or officer.
14. Amendments to Agreement. The terms and provisions of this Agreement may be modified or amended,
or amended and restated with the written consent of the Initial Member.
15. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws (and not the laws of conflicts) of the State of Georgia.
16. Exculpation and Indemnification.
(i) Limitation
of Liability. Except as otherwise provided by the Act, the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Member (or manager or officer thereof)
shall be obligated personally for any such debt, obligation or liability of the Company solely by
reason of being a Member of the Company (or a manager or officer of a Member). Except as otherwise
provided in this Agreement, a Member’s liability (in its capacity as such) for debts, liabilities
and losses of the Company shall be such Member’s share of the Company’s assets; provided that a
Member shall be required to return to the Company any distribution made to it in clear and manifest
accounting or similar error. The immediately preceding sentence shall constitute a compromise to
which all Members have consented within the meaning of the Act. Notwithstanding anything contained
herein to the contrary, the failure of the Company to observe any formalities or requirements
relating to the exercise of its powers or management of its business and affairs under this
Agreement or the Act shall not be grounds for imposing personal liability on the Members (or a
manager or officer of a
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Member) for liabilities of the Company, except to the extent constituting fraud or willful
misconduct by such Members.
(ii) Indemnification. The Company hereby agrees to indemnify and hold harmless any Member or other
person (each an “Indemnified Person”) to the fullest extent permitted under the Act, as the same
now exists or may hereafter be amended, substituted or replaced (but, in the case of any such
amendment, substitution or replacement only to the extent that such amendment, substitution or
replacement permits the Company to provide broader indemnification rights than the Company is
providing immediately prior to such amendment), against all expenses, liabilities and losses
(including attorney fees, judgments, fines, excise taxes or penalties) reasonably incurred or
suffered by such Indemnified Person (or one or more of such person’s affiliates) by reason of the
fact that such Indemnified Person is or was a Member or is or was serving as a manager, officer,
director, principal, member, employee, agent or representative of the Company (or a Member) or is
or was serving at the request of the Company as a managing member, manager, officer, director,
principal, member, employee, agent or representative of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise; provided that no Indemnified Person
shall be indemnified for any expenses, liabilities and losses suffered that are attributable to
such Indemnified Person’s or its affiliates’ (excluding, for purposes hereof, the Company’s and its
subsidiaries’) willful misconduct or knowing violation of law or willful breach of this Agreement
as determined by a final judgment, order or decree of an arbitrator or a court of competent
jurisdiction (which is not appealable or with respect to which the time for appeal there from has
expired and no appeal has been perfected) or for any present or future breaches of any
representations, warranties or covenants by such Indemnified Person or its affiliates’ (excluding,
for purposes hereof, the Company’s and its subsidiaries’), employees, agents or representatives
contained herein or in any other agreement with the Company or its affiliates. Expenses, including
attorneys’ fees and expenses, incurred by any such Indemnified Person in defending a proceeding
shall be paid by the Company in advance of the final disposition of such proceeding, including any
appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to
repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled
to be indemnified by the Company. The right to indemnification and the advancement of expenses
conferred in this Section 16(ii) shall not be exclusive of any other right which any Indemnified
Person may have or hereafter acquire under any statute, agreement, law, vote of the Members or
otherwise. If this Section 16(ii) or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless
each Indemnified Person pursuant to this Section 16(ii) to the fullest extent permitted by any
applicable portion of this Section 16(ii) that shall not have been invalidated and to the fullest
extent permitted by applicable law.
(iii) Nonexclusivity of Rights. The right to indemnification and the advancement of expenses
conferred in this Section 16 shall not be exclusive of any other right which any Indemnified Person
may have or hereafter acquire under any statute, agreement, law, vote of the Members or otherwise.
17. Opt-in to Article 8 of the Uniform Commercial Code. The Company shall issue certificates in the
name of the Member(s) or such other holders of limited liability company
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interests (the “LLC Interest Certificates”). Each LLC Interest Certificate shall bear, in effect,
the following legend: “Each limited liability company interest in the Company represented by this
certificate evidences an interest in the Company and shall constitute a “security” within the
meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 102(a)(l 5)
thereof) as in effect from time to time in the State of Georgia and (ii) Article 8 of
the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter
substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law
Institute and the National Conference of Commissioners on Uniform State Laws and approved by the
American Bar Association on February 14, 1995 (and each limited liability company interest in the
Company shall be treated as such a “security” for all purposes, including, without limitation,
perfection of the security interest therein under Article 8 of each applicable Uniform Commercial
Code as the Company has “opted-in” to such provisions).” This provision shall not be amended, and
no such purported amendment to this provision shall be effective until all outstanding certificates
have been surrendered for cancellation. All Units are “securities” governed by Article 8 of the
Uniform Commercial Code as in effect from time to time in the State of Georgia.
18. No Restrictions on Ability to Pledge. Notwithstanding any other provision in this Agreement, no
consent of the Members shall be required to permit (i) the Initial Member to pledge its membership
interest as security for a loan to such Initial Member, the Company or any of their respective
affiliates, or (ii) a pledgee of the Initial Member’s membership interest in the Company to
transfer such membership interest in connection with such pledgee’s exercise of its rights and
remedies with respect thereto, or to permit such pledgee or its assignee to be substituted for the
Initial Member under this Agreement in connection with such pledgee’s exercise of such rights and
remedies.
* * * * *
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written above.
| MEMBER AURORA DIAGNOSTICS, LLC |
||||
| By: | /s/ ▇▇▇▇▇ ▇. New | |||
| ▇▇▇▇▇ ▇. New | ||||
| Its: Chief Executive Officer | ||||
[Signature Page to Operating Agreement]
Schedule of Members
| Capital | ||||
| Contribution | ||||
| with respect to | ||||
| Member | Units | Units | ||
| Aurora Diagnostics, LLC | 1,000 | $ | ||