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EXHIBT 3.39
OPERATING AGREEMENT
OF
IASIS HEALTHCARE MSO SUB OF SALT LAKE CITY, LLC
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This OPERATING AGREEMENT (this "Agreement") entered into by IASIS
Healthcare Hospital of Salt Lake City, LLC, as sole member (the "Initial
Member") is made and entered into as of October 26th 1999, to be effective as of
October 5, 1998.
ARTICLE I
FORMATION
1.1 Formation. The Initial Member previously formed a limited liability
company pursuant to the Utah Limited Liability Company Act (the "Act").
1.2 Name. The name of the limited liability company is IASIS Healthcare
MSO Sub of Salt Lake City, LLC (the "Company").
1.3 Articles of Organization. The Articles of Organization of the Company
(the "Articles"), as filed with the Secretary of State of the State of Utah on
October 5, 1998, are adopted and ratified by the Initial Member. In the event of
a conflict between the terms of this Agreement and the terms of the Articles,
the terms of the Articles shall prevail.
1.4 Definitions. Capitalized terms not otherwise defined in this Agreement
shall have the meaning set forth in the Act.
ARTICLE II
PURPOSE AND POWERS
2.1 Purpose. The purpose of the Company shall be to engage in any lawful
business.
2.2 Powers. In furtherance of the foregoing purpose, the Company shall
have the full power and authority to conduct its business as provided by the Act
and applicable law.
ARTICLE III
CAPITAL
3.1 Capital Accounts. A capital account shall be established on the books
of the Company for the Initial Member and each member that is admitted to the
Company pursuant to Section 7.6 of this Agreement (individually, a "Member" and
collectively, the "Members").
3.2 Capital Contributions. Each Member has made the contributions to the
capital of the Company in the amounts set forth on Schedule A attached hereto.
3.3 Additional Capitol Contributions. No additional capital contributions
shall be required of any Member. No Member may contribute additional capital to
the Company without the prior written consent of all the Members.
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3.4 No Right to Withdraw Capital. No Member shall have the right to demand
the return of, or otherwise withdraw the Member's capital or to receive any
specific property of the Company, except as specifically provided in this
Agreement. No Member shall have the right to demand and receive property other
than cash in return for his capital.
3.5 No Interest on Capital. No interest shall be paid on capital
contributions or on balances of capital accounts.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES;
DISTRIBUTION OF CASH FLOW
4.1 Allocations of Profits and Losses. All Company net profits and net
losses, and each item of income and expense related to net profits and net
losses, from whatever source derived (except for items relating to property
contributed to the Company by a Member, which shall be allocated pursuant to
Section 704(c) of the Internal Revenue Code of 1986, as amended from time to
tune (the "Code"), and the regulations under it), shall be allocated to the
Members pro rata based upon their respective "Percentage Interests." The term
"Percentage Interest" with respect to each Member shall mean the percentage
interest of each Member in the profits, losses, distributions, capital and
assets of the Company. The initial Percentage Interests of the Members are set
forth on Schedule A attached hereto. The Secretary shall keep accurate records
to reflect any and all changes which may occur in the Percentage Interests of
the Members.
4.2 Distribution of Cash Flow. Cash flow generated from Company operations
may be distributed to the Members in the amounts that the Members determine. All
distributions of cash flow shall be made in accordance with the Percentage
Interests of the Members.
ARTICLE V
MANAGEMENT OF THE COMPANY
5.1 Member-Managed. The management and control of the Company shall rest
with the Members. The Members shall have all the rights and powers that may be
possessed by Members under the Act (as modified by this Agreement or the
Articles).
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ARTICLE VI
OFFICERS
6.1 Officers. The Company shall at all times have at least two officers,
those being the President and the Secretary. The Company may have additional
officers who shall perform any duties prescribed by the Members upon their
election.
6.2 Duties of the Person Holding the Office of President. The President
shall have the duty to manage the day-to-day operations of the Company and to
perform other duties customarily performed by a chief executive officer.
6.3 Duties of the Person Holding the Office of Secretary. The Secretary
shall have the duty to maintain the records of all proceedings of the Members
and to perform other duties customarily performed by a secretary.
6.4 Election of Officers. All officers, including the President and the
Secretary, shall be elected by the Members.
6.5 Initial Officers. The initial officers of the Company shall be as
follows:
Office Name
------ ----
President, Chief Executive Officer Wayne Gower
Vice President, Treasurer Kenneth W. Perry
Vice President Roberta A. Kale
Vice President Linda Hishcke
Secretary Frank A. Coyle
6.6 Compensation of Officers. No officer shall receive any compensation
from the Company without the prior approval of the Members.
6.7 Removal and Resignation of Officers. The Members may remove any
officer, including the President and the Secretary, with or without cause. The
Members may eliminate any officer position other than that of the President and
the Secretary. Any officer may resign upon 30 days' prior written notice to the
Members. Upon the death, resignation or removal of the President, the Members
shall immediately vote to appoint another President. Upon the death, resignation
or removal of the Secretary, the Members shall immediately vote to appoint
another Secretary.
6.8 Other Activities. Any officer or Member may engage in other
activities, including those of a nature which are the same as or similar to the
business of the Company, without any duty or obligation to account to the
Company in connection with the other activities.
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ARTICLE VII
MEMBERS AND VOTING RIGHTS
7.1 Membership Voting Power. Each Member shall have voting power equal to
the Member's Percentage Interest. At any meeting of the Members, each Member
present (in person or by proxy) and entitled to vote shall have a number of
votes equal to the Member's Percentage Interest. At any meeting of the Members
at which a quorum is present (in person or by proxy), a majority of the
membership voting power present (in person or by proxy) at the time the vote is
taken is required to take action on a matter unless a vote of greater proportion
is otherwise required by this Agreement, the Articles or the Act.
7.2 Meetings. Meetings of all Members may be called by the President, the
Secretary or any Member by mailing notice to all Members no fewer than ten days
nor more than two months before the meeting date, stating the purpose or
purposes of the meeting. Meetings shall be held at the principal place of
business of the Company or any other place designated in the notice. When any
notice is required to be given to any Member, a waiver of notice in writing
signed by the person entitled to the notice, whether before, at, or after the
time stated in the notice, shall be equivalent to the giving of the notice.
Attendance by a Member at a meeting is a waiver of notice of the meeting, except
if the Member objects at the beginning of the meeting to the transaction of
business because the meeting is not lawfully called or convened and does not
otherwise participate in the consideration of any matter at the meeting. A
meeting may take place by telephone conference call or any other form of
electronic communication through which the Members may simultaneously hear each
other. Such meeting shall be deemed to be held at the principal executive office
of the Company or at the place properly named in the notice calling the meeting.
7.3 Quorum Requirements for Meetings. The Members present (in person or by
proxy) and holding a majority of the membership voting power at any meeting
shall constitute a quorum for the transaction of business. Once a Member is
represented at any meeting, the Member is deemed to be present for the remainder
of that meeting and for any adjournment. A meeting may be adjourned, and notice
of an adjourned meeting is not necessary if the date, time and place to which
the meeting is adjourned are announced at the meeting at which the adjournment
is taken.
7.4 Action Without a Meeting. Action required or permitted to be taken at
a meeting of the Members may be taken without a meeting if the action is
evidenced by one or more written consents describing the action taken, signed by
the Members holding a majority of the membership voting power entitled to vote
and delivered to the Secretary of the Company for filing with the Company
records.
7.5 Statements of Percentage Interests. Upon the written request of any
Member, the Secretary shall promptly advise the Member of the particular
Percentage Interest owned by the Member as of the date the written statement is
issued by the Secretary. The written statement of Percentage Interest shall not
be deemed to be a certificated security, a negotiable instrument, nor a
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bond or stock and shall not be a vehicle by which any transfer of any Member's
interest in the Company may be effected.
7.6 Admission of New Members. No other person shall be made a Member
without the written approval of all of the Members.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Company shall indemnify all Members and
employees to the fullest extent of and in accordance with the Act as now in
effect or as amended in the future.
ARTICLE IX
FISCAL MATTERS
9.1 Books and Records. Full and accurate books and records of the Company
shall be maintained at its principal executive office showing all receipts and
expenditures, assets and liabilities, profits and losses, and all other records
necessary for recording the Company's business, operations and affairs. All
Members shall have access at reasonable times to the books and records of the
Company, during regular business hours, at the Company's principal executive
office.
9.2 Fiscal Year. The fiscal year of the Company shall end on December 31
of each year.
9.3 Tax Status; Elections. Solely for purposes of the United States
federal income tax laws, each of the Members recognizes that the Company will be
subject to all provisions of Subchapter K of Chapter 1 of Subtitle A of the
Code. The filing of U.S. Partnership Returns of Income, however, shall not be
construed to extend the purposes of the Company or expand the obligations or
liabilities of the Members.
9.4 Bank Accounts. All funds of the Company shall be deposited in its name
at its principal financial institution, or at any other financial institutions
approved by the Members.
9.5 Tax Matters Member. The Initial Member shall be the initial Tax
Matters Member ("TMM"). The TMM shall promptly give notice to all Members of any
administrative or judicial proceeding pending before the Internal Revenue
Service involving any Company item and the progress of all proceedings. The TMM
shall have all the powers provided to a tax matters partner under Sections 6221
through 6233 of Code, including the specific power to extend the statute of
limitations with respect to any matter which is attributable to any Company item
or affecting any item pending before the Internal Revenue Service and to select
the forum to litigate any tax issue or liability arising from Company items. The
TMM may resign the position by giving 30 days written notice to all Members,
whereupon the Members shall promptly vote to designate a new TMM. The
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Members may, without cause, remove the TMM, whereupon the Members shall promptly
vote to designate a new TMM. The TMM shall be entitled to reimbursement for any
and all reasonable expenses incurred with respect to any administrative and/or
judicial proceedings affecting the Company.
ARTICLE X
TERMINATION OF MEMBERSHIP INTEREST
10.1 Termination of Interest. A Member's membership in the Company shall
terminate upon the:
(a) death of a Member;
(b) retirement of a Member;
(c) resignation or withdrawal of a Member;
(d) acquisition of a Member's complete Percentage Interest by the
Company;
(e) assignment of the Member's rights as a member of the Company
other than Financial Rights (as defined below) or the right to
assign Financial Rights (the "Governance Rights"), which
leaves a Member with no Governance Rights;
(f) expulsion of a Member;
(g) bankruptcy of a Member;
(h) dissolution of a Member;
(i) mental incapacity of a Member, if such Member is a natural
person;
(j) a merger in which the Company is not the surviving
organization; or
(k) the occurrence of any other event that terminates the
continued membership of a Member in the Company.
10.2 Effect of Termination of Membership. If for any reason the Percentage
Interest of a Member is terminated, then;
(a) if the business of the Company is continued pursuant to Section
12.3, the Member whose membership is terminated forfeits any and all
Governance Rights and will
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be considered merely an assignee of the Member's rights to share in the
profits, losses and distributions of the Company to the extent provided in
this Agreement (the "Financial Rights") owned before the termination; and
(b) if the business of the Company is not continued pursuant to
Section 12.3, the Member whose membership terminated retains all
Governance Rights owned before the termination and may exercise these
through the dissolution and winding up of the Company.
ARTICLE XI
ASSIGNMENT OF MEMBERSHIP INTEREST
11.1 Restrictions on Assignment. Except with the consent of all other
Members, no Member shall assign his Percentage Interest, Financial Rights or
Governance Rights, except as expressly permitted in this Article XI. The Members
acknowledge and agree that the restrictions on assignment in this Article XI are
not manifestly unreasonable.
11.2 Definition of "Assignment." For purposes of this Article XI, the
words "assign" or "assignment" shall include any transfer, alienation, sale,
assignment, pledge, hypothecation or other incumbrance or other disposition of a
Percentage Interest, Financial Rights, or Governance Rights, whether voluntarily
or by operation of law.
11.3 Assignments to Existing Members. Any Member may assign (during life
or at death) all or any part of the Member's interest in the Company (including
the Member's Financial Rights and Governance Rights) to or for the benefit of
any other Member.
11.4 Assignments upon the death of a Member or by Operation of Law.
Transfers occurring by reason of the death of a Member or by operation of law
shall be effective, but the transfers shall constitute only an assignment of the
transferring Member's Financial Rights in the Company unless (i) the admission
of the transferee as a Member is approved by all of the Members, and (ii) the
transferee signs this Agreement and agrees to be bound by the terms of it.
ARTICLE XII
TERM, DISSOLUTION, WINDING UP, TERMINATION
12.1 Term. The term of the Company commenced on the date as of which this
Agreement became effective and shall continue until September 30, 2050 unless
earlier terminated in accordance with the provisions of this Agreement or as
provided by law.
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12.2 Events Causing Dissolution. The Company shall be dissolved and its
affairs wound up:
(a) upon the expiration of the term of the Company stated in Section
12.1;
(b) upon the sale of all or substantially all of the assets of the
Company;
(c) upon the termination of a Member's membership pursuant to
Section 10.1, unless the remaining Members continue the Company as
provided in Section 12.3; or
(d) as may be otherwise provided by law.
12.3 Procedure Upon the Occurrence of an Event of Dissolution. Upon the
occurrence of an event of dissolution as set forth in Section 12.2, the
provisions of Section 12.4 shall apply, unless the existence of the Company is
continued upon the consent of at least a majority of the remaining Members.
Consent must be obtained no later than 90 days after the occurrence of the event
of dissolution.
12.4 Winding Up Affairs Upon Dissolution. Upon dissolution of the Company,
the officers or the other persons required or permitted by law to carry out the
winding up of the affairs of the Company shall:
(a) promptly notify all Members of the dissolution and proceed to
wind up the affairs of the Company;
(b) prepare and file all instruments or documents required by law to
be filed to reflect the dissolution of the Company;
(c) pay all outstanding liabilities and expenses of the Company;
(d) establish appropriate reserves for unknown or contingent
liabilities; and
(e) distribute any remaining assets to the Members in accordance
with their respective capital accounts (after giving effect to the
allocation of all net profits or net losses).
12.5 Liquidating Distributions in Kind. In the event of a distribution of
assets in kind (in whole or in part) pursuant to Section 12.4(e), the fair
market value of such assets shall be determined. Each Member shall receive an
undivided interest in the assets of the Company equal in value to the portion of
the proceeds to which the Member would have been entitled if the assets had been
sold or otherwise converted to cash at the asset's fair market value and the
distribution had been solely in the form of a cash distribution. Division of
property may be made on a non pro rata
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basis upon the consent of all of the Members, so that certain Members own
certain assets while other Members own other assets.
12.6 Termination. The Company shall be terminated when its affairs have
been wound up and the distribution of its assets has been completed.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Waiver of Right to Partition. As a material inducement to each Member
to execute this Agreement, each Member covenants and represents to each other
Member that, during the existence of the Company, no Member, nor his or her
heirs, representatives, successors, transferees or assigns, shall attempt to
make any partition of any Company assets, whether now owned or acquired in the
future, and each Member waives all rights of partition provided by statute or
principles of law or equity, including partition in kind or partition by sale.
13.2 Notices. All notices, consents, waivers, directions, requests, votes
or other instruments or communications provided for under this Agreement shall
be in writing, signed by the party taking the action, and shall be deemed
properly given three business days after mailing if sent by hand delivery or by
United States mail, postage prepaid, addressed:
(a) in the case of the Company, to:
IASIS Healthcare MSO Sub of Salt Lake City, LLC
2120 South 1300 East, Suite 200
Salt Lake City, Utah 84106
Attention: President
(b) in the case of any Member, to the address set forth on Schedule
A, or to any address a Member specifies in writing to the other parties.
13.3 Integration. This Agreement embodies the entire agreement and
understanding among the Members and supersedes all prior agreements and
understandings, if any, among and between the Members relating to the subject
matter of it.
13.4 Applicable Law. This Agreement and the rights of the Members shall be
governed by and construed and enforced in accordance with the laws of the State
of Utah.
13.5 Severability. In case any one or more of the provisions contained in
this Agreement or any application of it or them shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions and any other application of it or
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them shall not in any way be affected or impaired by such invalidity,
illegality, or unenforceability.
13.6 Binding Effect. Except as otherwise provided in this Agreement to the
contrary, this Agreement shall be binding upon, and inure to the benefit of, the
Members and their respective heirs, executors, administrators, successors,
transferees and assigns.
13.7 Arbitration. Members agree that any dispute relating to or in respect
of this Agreement shall be submitted to, and resolved pursuant to, arbitration
in accordance with the Arbitration Rules of the American Arbitration
Association.
13.8 Terminology. As the context may require, the singular shall include
the plural, as appropriate. Titles of Articles and Sections are for convenience
only, and neither limit nor amplify the provisions of this Agreement itself.
13.9 Amendment. This Agreement may be amended, modified or supplemented
only by a writing executed by all Members.
IASIS HEALTHCARE CORPORATION,
Sole Member
/s/ Frank Coyle
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By: Frank Coyle
Title: General Counsel and Secretary
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SCHEDULE A
TO
OPERATING AGREEMENT
Members
Cash Contributed
or Agreed Value
Percentage of Other Property or
Name, Address, SS# Interest Services Contributed
------------------ -------- --------------------
IASIS Healthcare Corporation 100% $100.00
104 Woodmont Blvd.
Nashville, Tennessee 37205
FEIN# 76-0450619