Exhibit 3.60
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
HALLMARK REHABILITATION GP, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Amended and Restated Limited Liability Company Operating Agreement
(together with the exhibits attached hereto, this "Agreement") of Hallmark
Rehabilitation GP, LLC (the "LLC"), is made and entered into effective as of
August 14, 2003 (the "Effective Date"), by Hallmark Investment Group, Inc., a
Delaware corporation, as the sole equity member (the "Member").
The Member, by execution of this Agreement, hereby continues the LLC as a
limited liability company pursuant to, and in accordance with, the Delaware
Limited Liability Company Act, 6 Del. C. Section 18-101, et seq. (the "Act"),
and, in connection therewith, hereby agrees as follows:
ARTICLE I.
ORGANIZATIONAL AND OTHER MATTERS
Section 1.01 Name. The name of the LLC continued hereby is Hallmark
Rehabilitation GP, LLC (the "LLC").
Section 1.02 Principal Business Office. The principal business office of
the LLC shall be located at 27442 Portola Parkway, Suite 200, Foothill Ranch,
California 92610 or such other location as may hereafter be determined by the
Member.
Section 1.03 Registered Office. The address of the registered office of
the LLC in the State of Delaware is c/o National Registered Agents, Inc., 9 East
Loockerman Street, Suite 1B, Dover, Delaware 19901.
Section 1.04 Registered Agent. The name and address of the registered
agent of the LLC for service of process on the LLC in the State of Delaware is
National Registered Agents, Inc., 9 East Loockerman Street, Suite 1B, Dover,
Delaware 19901.
Section 1.05 Term. The LLC shall have a perpetual existence.
Section 1.06 Certificate of Formation. The LLC was formed as a limited
liability company under the Act by the initial Limited Liability Company
Agreement of the LLC, effective as of July 3, 2003, and the filing of a
Certificate of Formation by Sally G. Burns, as an authorized person, with the
Secretary of State of the State of Delaware on July 3, 2003, as the same may be
amended, restated or supplemented from time to time. Upon the filing of the
Certificate of Formation with the Secretary of State of the State of Delaware,
her powers as an "authorized person" ceased, and the sole member of the LLC
thereupon became the designated "authorized person." The Member shall continue
as the designated "authorized person" within the meaning of the Act. The Member
or an Officer shall execute, deliver and file any other certificates (and any
amendments, supplements and/or restatements thereof) necessary for the
LLC to qualify to do business in the State of California and in any jurisdiction
in which the LLC may wish to conduct business. The existence of the LLC as a
separate legal entity shall continue until cancellation of the Certificate of
Formation as provided in the Act.
ARTICLE II.
PURPOSE
The business purpose of the LLC is to engage in any lawful act or activity
and exercise any powers permitted to limited liability companies organized under
the laws of the State of Delaware.
ARTICLE III.
BOARD OF MANAGERS
Section 3.01 Board of Managers. Pursuant to Section 18-402 of the Act, and
to the extent specifically set forth in this Agreement, certain activities of
the LLC shall be managed through a Board of Managers (the "Board of Managers").
The Board of Managers shall have the following characteristics:
(a) the Board of Managers shall be composed of no less than three
individuals (each, a "Manager").
(b) the continuing Managers shall be as set forth on Exhibit A
attached hereto and incorporated herein by this reference;
(c) all actions of the Board of Managers shall require a majority
vote of the quorum of the Managers; provided, however, that the Board of
Managers may delegate the day-to-day management of the LLC to an individual(s)
or entity which may or may not be a Manager;
(d) the Board of Managers shall meet at such times as may be
necessary for the business of the LLC upon at least five business days' prior
written notice of the time, place and purpose of the meeting given by any two
Managers. Meetings of the Board of Managers may be in person or by conference
telephone or other similar communications system, and actions of the Board of
Managers may be by written consent (in which case, no notice shall be required),
which written consents, except as otherwise expressly required in this
Agreement, shall be effective if signed in one or more counterparts by a
majority of the Managers. The presence of two Managers, in person or by proxy,
shall constitute a quorum. Each Manager has the right to one vote. Each Manager
not only has the right to his own vote, but may vote by proxy for one other
Manager;
(e) the Member may remove any Manager for any reason or no reason by
executing a certificate setting forth the Manager being removed and the
replacement Manager;
(f) in the event there exists a vacancy on the Board of Managers,
the Member shall, as soon as reasonably practicable, execute a certificate
setting forth a replacement Manager; and
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(g) the debts, obligations and liabilities of the LLC, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the LLC, and no Manager shall be obligated for any such debt,
obligation or liability of the LLC solely by reason of its acting as a Manager
of the LLC.
ARTICLE IV.
MEMBER
Section 4.01 Unit Certificates. The limited liability company interests of
the LLC shall consist of 100 units (the "Membership Interests"), which shall be
evidenced by a unit certificate (the "Unit Certificate"). The Member hereby
irrevocably elects that all Membership Interests in the LLC shall be securities
governed by Article 8 of the Uniform Commercial Code as in effect in the State
of Delaware and each other applicable jurisdiction. The Unit Certificate shall
bear the following legends:
"This certificate evidences a membership interest in Hallmark
Rehabilitation GP LLC and shall be a security governed by Article 8 of the
Uniform Commercial Code as in effect in the State of Delaware and, to the
extent permitted by applicable law, Article 8 of the Uniform Commercial
Code of each other applicable jurisdiction."
"THIS CERTIFICATE AND THE MEMBERSHIP INTEREST EVIDENCED HEREBY ARE NOT
NEGOTIABLE AND ARE NOT TRANSFERABLE EXCEPT IN ACCORDANCE WITH THE TRANSFER
RESTRICTIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT. The Limited
Liability Company maintains books for the purpose of registering
transfers. This Certificate has not been and will not be registered under
the Securities Act of 1933 or under the securities or blue sky laws of any
state. The holder of this Certificate, by its acceptance hereof,
represents that it is acquiring this security for investment and not with
a view to any sale or distribution hereof."
This provision shall not be amended, and any purported amendment to this
provision, shall be null and void.
Section 4.02 Powers. The Member shall have the right and authority to take
all actions (i) specifically enumerated in this Agreement or (ii) which such
Member otherwise deems necessary, useful or appropriate for the day-to-day
management and conduct of the LLC's business and which are not otherwise
specifically reserved to the Managers.
Section 4.03 Liability. The Member shall not have any liability for the
obligations of the LLC except to the extent provided herein. The debts,
obligations and liabilities of the LLC, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the LLC,
and the Member shall not be obligated for any such debt, obligation or liability
of the LLC solely by reason of its status as the Member of the LLC.
Section 4.04 Allocations and Distributions. The LLC's profits and losses
shall be allocated to the Member. At the time determined by a majority of the
Managers, the Managers may cause the LLC to distribute to the Member any cash
held by it which is neither
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reasonably necessary for the operation of the LLC nor the performance of its
contractual obligations, nor which is in violation of Sections 18-607 or 18-804
of the Act or any contractual agreement binding on the LLC.
ARTICLE V.
OFFICERS
Section 5.01 Officers. The day-to-day operation of the business of the LLC
shall be managed by officers (the "Officers") to the extent specifically set
forth in this Agreement and under the direction of the Member and the Board of
Managers. The Officers shall:
(a) be comprised minimally of a President, Chief Executive Officer,
Chief Financial Officer, Vice President, and Secretary;
(b) be selected by the Member;
(c) be allowed to serve on the Board of Managers;
(d) serve so long as the Member desires or until their resignation,
death or incapacitation; and
(e) meet at such times as may be necessary for the business of the
LLC.
Section 5.02 Continuing Officers. The Officers shall continue in office
following the execution of this Agreement by the Member:
Boyd Hendrickson Chief Executive Officer
Jose Lynch President
John Harrison Chief Financial Officer
Roland Rapp Secretary
Section 5.03 Chief Executive Officer. The Chief Executive Officer shall,
under the direction of the Member and Board of Managers, perform all duties
incident to the office of Chief Executive Officer, have general charge of the
business, affairs and property of the LLC and general supervision over the other
Officers and any of the LLC's employees and agents and see that all orders and
resolutions of the LLC are carried into effect.
Section 5.04 President. The President shall, under the direction of the
Member, Board of Managers, and Chief Executive Officer, perform all duties
incident to the office of President and discharge such duties as may be assigned
to him or her by the Chief Executive Officer, Board of Managers or the Member.
During the absence or disability of the Chief Executive Officer, the President
shall exercise all the functions of the Chief Executive Officer
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and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer.
Section 5.05 Chief Financial Officer. The Chief Financial Officer shall,
under the direction of the Member, Board of Managers and Chief Executive
Officer, perform all duties incident to the office of Chief Financial Officer
and shall have such powers and discharge such duties as may be assigned to him
or her, from time to time, by the other Officers, Board of Managers or the
Member.
Section 5.06 Secretary. The Secretary shall, under the direction of the
Member, Board of Managers and Chief Executive Officer, perform all duties
incident to the office of Secretary and shall have such powers and discharge
such duties as may be assigned to him or her, from time to time, by the other
Officers, the Member or the Board of Managers. The Secretary shall:
(a) record all the actions taken by the Member, Officers and the
Board of Managers in a book to be kept for that purpose;
(b) if required, cause notices to be duly given in accordance with
the provisions of the Agreement and as required by statute;
(c) be custodian of the records; and
(d) see that all of the books, reports, statements, certificates and
all other documents and records required to be kept by statute or this Agreement
are properly filed and kept.
ARTICLE VI.
INDEMNIFICATION
To the fullest extent permitted by law, the Company shall indemnify and
hold harmless (i) the Member, (ii) any affiliate of the Member, and (iii) any
officer, director, employee, or agent of the Company, the Member or any of its
affiliates, (each, an "Indemnitee"), from and against any claim, loss, damage,
liability, or reasonable expense (including reasonable attorneys' fees, court
costs, and costs of investigation and appeal) suffered or incurred by any such
Indemnitee by reason of, or arising from, the operations, business, or affairs
of, or any action taken or failure to act on behalf of, the Company.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Assignments; Additions; Transfers; Dissolution.
(a) Assignments. The Member may, with prior written notice to the
LLC and in compliance with applicable laws, sell assign or convey its Membership
Interests at any time without the consent of the Managers. If the Member
transfers all of its Membership Interests pursuant to this Section 7.01(a), the
transferee shall be admitted to the LLC as a member of the LLC upon its
execution of an instrument signifying its agreement to be bound by
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the terms and conditions of this Agreement, which instrument may be a
counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the transfer and, immediately following such
admission, the transferor Member shall cease to be a member of the LLC. Any
successor to a Member by merger or consolidation shall, without further act, be
the Member hereunder, and such merger or consolidation shall not constitute an
assignment for purposes of this Agreement and the LLC shall continue without
dissolution.
(b) Resignation. If the Member resigns pursuant to this Section
7.01(b), an additional member of the LLC may be admitted to the LLC, subject to
Sections 7.01(c), upon its execution of an instrument signifying its agreement
to be bound by the terms and conditions of this Agreement, which instrument may
be a counterpart signature page to this Agreement. Such admission shall be
deemed effective immediately prior to the resignation and, immediately following
such admission, the resigning Member shall cease to be a member of the LLC.
(c) Admission of Additional Members. One or more additional members
of the LLC may be admitted to the LLC with the written consent of the Member.
(d) Dissolution. The LLC shall be dissolved, and its affairs shall
be wound up upon the first to occur of the following: (i) the termination of the
legal existence of the last remaining member of the LLC or the occurrence of any
other event which terminates the continued membership of the last remaining
member of the LLC in the LLC unless the LLC is continued without dissolution in
a manner permitted by this Agreement or the Act or (ii) the entry of a decree of
judicial dissolution under Section 18-802 of the Act.
Section 7.02 Amendments. Subject to the provisions set forth herein, this
Agreement may be modified, altered, supplemented or amended pursuant to a
written agreement executed and delivered by the Member or any successor Member.
Section 7.03 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without regard
to principles of conflicts of laws).
Section 7.04 Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 7.05 Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 7.06 Facsimile Signatures. This Agreement maybe executed by
facsimile transmission and such facsimile will be valid and binding to the same
extent as if it were an original.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Member has duly executed this Agreement effective
as of the Effective Date.
MEMBER:
Hallmark Investment Group, Inc.,
a Delaware corporation
By: /s/ Roland Rapp
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Roland Rapp
Secretary
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EXHIBIT A
CONTINUING MANAGERS
Boyd Hendrickson
Mark Wortley
John Harrison
Roland Rapp
August __, 2003
Hallmark Rehabilitation GP, LLC
27442 Portola Parkway, Suite 200
Foothill Ranch, California 92610
Re: Management Agreement - Hallmark Rehabilitation GP, LLC
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons, who
have been designated as Managers of Hallmark Rehabilitation GP, LLC, a Delaware
limited liability company (the "Company"), in accordance with the Amended and
Restated Limited Liability Company Operating Agreement of the Company, as it may
be amended or restated from time to time (the "LLC Agreement"), hereby agree:
1. To accept such person's rights and authority as a Manager (as defined
in the LLC Agreement) under the LLC Agreement and to perform and discharge such
person's duties and obligations as a Manager under the LLC Agreement and agrees
that such rights, authority, duties and obligations under the LLC Agreement
shall continue until such person's successor as a Manager is designated or until
such person's resignation or removal as a Manager in accordance with the LLC
Agreement. A Manager is designated as a "manager" of the Company within the
meaning of the Delaware Limited Liability Company Act.
2. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
/s/ Boyd Hendrickson
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Boyd Hendrickson
/s/ Mark Wortley
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Mark Wortley
/s/ John Harrison
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John Harrison
/s/ Roland Rapp
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Roland Rapp