Exhibit 3.135
LIMITED LIABILITY COMPANY AGREEMENT
OF
PROVIDACARE, L.L.C.
This Limited Liability Company Operating Agreement dated as of February __, 2005
(this "Agreement") of Providacare, L.L.C. (the "Company") is made and entered
into by American Medical Pathways, Inc., as the 100% member of the Company (the
"Member").
The Member, by the filing of the articles of organization with the Texas
Secretary of State, has formed a limited liability company pursuant to and in
accordance with the Texas Limited Liability Company Act, Part Three (as amended
from time to time, the "Act"), and hereby agrees as follows:
ARTICLE I
Introduction
Section 1.1. Formation of Limited Liability Company. The name of the limited
liability company is Providacare, L.L.C. The Member is hereby authorized to
execute, deliver and file any amendments and/or its restatements of its articles
of organization (the "Certificate"), and any other certificates and any
amendments and/or restatements thereof as are necessary or appropriate for the
Company to qualify to do business in a jurisdiction in which the Company may
conduct business. The Company's business shall be conducted under such name
until such time as the Member shall hereafter designate otherwise and file
amendments to the Certificate in accordance with applicable law.
This Agreement is subject to, and governed by, the Act and the Certificate. In
the event of a conflict between the provisions of this Agreement and the
mandatory provisions of the Act or the provisions of the Certificate, such
provisions of the Act or the Certificate, as the case may be, will be
controlling.
Section 1.2. Term. The Company was formed upon the filing of its Certificate and
shall continue until it is dissolved and its affairs wound up in accordance with
the Act.
Section 1.3. Defined Terms. The terms used in this Agreement with their initial
letters capitalized shall, unless the context otherwise requires or unless
otherwise expressly provided herein, have the respective meanings specified in
this Section 1.3.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, is in Control of, is Controlled by or is under common Control with
such Person or is a director or officer of such Person.
"Capital Contribution" means the total value of cash and agreed gross fair
market value of property contributed and agreed to be contributed to the Company
by the Member, as shown on Exhibit A, as the same may be amended from time to
time. Additional Capital Contributions may be made by the Member.
"Code" means the Internal Revenue Code of 1986, as amended. All references
herein to sections of the Code shall include any corresponding provision or
provisions of succeeding law.
"Control" (including the terms "Controlling" and "Controlled by") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or voting interests, by contract or otherwise.
"Distribution" means any distribution of cash or other property made by the
Company to the Member. None of (i) the repayment of any loan made by the Member
to the Company, (ii) any payment of fees to the Member, or (iii) any
reimbursement of disbursements shall be considered a Distribution hereunder.
"Initial Capital Contribution" means the initial contribution by the Member to
the capital of the Company pursuant to this Agreement, as reflected on Exhibit A
hereto.
"Membership Interest" in the Company means the entire ownership interest of the
Member in the Company at any particular time, including the Member's interest in
the capital, profits and losses of the Company and the right of the Member to
any and all benefits to which the Member may be entitled as provided in this
Agreement and under the Act (including the right to receive distributions
hereunder), together with the obligations of the Member to comply with all of
the terms and provisions of this Agreement and under the Act.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, limited liability company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
Section 1.4. Company Purposes. The purposes of the Company are to engage in any
activity permitted to limited liability companies under the laws of the State of
Texas.
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ARTICLE II
Member, Membership Interest
Section 2.1. Name, Address and Initial Capital Contribution; Principal Office.
(a) The Member, its Initial Capital Contribution to the Company, its taxpayer
identification number and its address are set forth on Exhibit A.
(b)The principal office of the Company shall be located at the address set forth
on Exhibit A for the Member, or as the Member may otherwise determine.
(c)The registered agent for the service of process and the registered office in
the State of Texas shall be that Person and location reflected in the
Certificate. The Member may, from time to time, change the registered agent or
office through appropriate filing with the Secretary of State of the State of
Texas. In the event the registered agent ceases to act as such for any reason or
the registered office shall change, the Member shall promptly designate a
replacement registered agent or file a notice of change of address, as the case
may be.
Section 2.2. Additional Capital Contributions. In order to obtain additional
funds or for other business purposes, the Member may decide to make additional
Capital Contributions to the Company. Any such additional Capital Contributions
shall be in such amounts as determined by the Member and may be in cash or any
type of property. The Member shall not be required to make any Capital
Contributions to the Company other than the Initial Capital Contribution.
Section 2.3. Member Loans. Loans by the Member to the Company shall not be
considered additional contributions to the capital of the Company unless
otherwise agreed by the Member.
Section 2.4. Membership Interest. Distributions with respect to the Membership
Interest shall be made in accordance with Article V.
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Section 2.5. Certificate for Membership Interest. The Membership Interest of
the Member may be represented by a certificate or may be uncertificated. The
exact contents of any such certificate shall be determined by the Member.
Section 2.6. Capital and Capital Account.
III No interest shall be paid on any Capital Contribution.
IVA capital account (the "Capital Account") shall be established and maintained
on behalf of the Member.
(a) The Member shall not receive out of Company property any part of its Capital
Contributions until all liabilities of the Company, except liabilities to the
Member on account of its Capital Contributions, have been paid or there remains
property of the Company sufficient to pay them.
Section 4.2. Limitation on Liability. The Member shall not be liable under a
judgment, decree or order of a court, or in any other manner, for a debt,
obligation or liability of the Company, except as provided by law or as
specifically provided otherwise herein. The Member shall not be required to loan
any funds to the Company. The Member shall not be required to make any
contribution to the Company by reason of any negative balance in the Member's
Capital Account, nor shall any negative balance in the Member's Capital Account
create any liability on the part of the Member to any third party.
ARTICLE V
Management and Control of Business
Section 5.1. Management of the Company. The overall management and control of
the business and affairs of the Company shall be vested in the Member, who shall
be responsible for the management of the Company's business.
Section 5.2. Authority and Responsibility of the Member. All decisions
respecting any matter set forth in this Agreement or otherwise affecting or
arising out of the conduct of the business of the Company shall be made by the
Member, and the Member shall have the exclusive right and full authority to
manage, conduct and operate the Company's business.
Section 5.3. Duties of Parties.
(a) The Member shall devote such time to the business and affairs of the Company
as is necessary to carry out the Member's duties set forth in this Agreement.
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(b) Nothing in this Agreement shall be deemed to restrict in any way the rights
of the Member, or any Affiliate of the Member, to conduct any other business or
activity whatsoever, and neither the Member nor any Affiliate of the Member
shall be accountable to the Company with respect to such other business or
activity even if such other business or activity competes with the Company's
business.
(c)The Member understands and acknowledges that the conduct of the Company's
business may involve business dealings and undertakings with the Member and its
Affiliates. In any of those cases, those dealings and undertakings shall be at
arm's length and on commercially reasonable terms, as determined in the business
judgment of the Member.
Section 5.4. Liability and Indemnification.
(a) The Member shall not be liable, responsible or accountable, in damages or
otherwise, to the Company for any act performed by the Member with respect to
Company matters, except for fraud, gross negligence or an intentional breach of
this Agreement.
(b) The Company shall indemnify the Member for any act performed by the Member
with respect to Company matters, except for fraud, gross negligence or an
intentional breach of this Agreement by the Member.
ARTICLE VI
Accounting and Records
Section 6.1. Records and Accounting. The books and records of the Company shall
be kept, and the financial position and the results of its operations recorded,
at the expense of the Company in accordance with the accounting methods elected
to be followed by the Company for federal income tax purposes. The books and
records of the Company shall reflect all Company transactions and shall be
appropriate and adequate for the Company's business. The fiscal year of the
Company for financial reporting and for federal income tax purposes shall end on
August 31 of each year until changed by the Member.
Section 6.2. Access to Accounting Records. All books and records of the Company
shall be maintained at any office of the Company or at the Company's principal
place of business, and the Member and the Member's duly authorized
representative shall have access to them at such office of the Company and the
right to inspect and copy them at reasonable times.
Section 6.3. Income Tax Status and Elections. The Company shall be treated as a
sole proprietorship of the Member for federal and other income tax purposes
consistent with
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Treasury Regulation Sections 301.7701-2(c)(2)(i) and 301.7701-3(b)(ii) and shall
not make any elections for federal income tax purposes inconsistent therewith.
Section 6.4. Other Records. The Company shall maintain records at the principal
office of the Company or such other place as the Member may determine which
shall include the following:
(a) the Capital Account of the Member and the Membership Interest of the Member;
(b) a current list of the full name and last known business or mailing address
of the Member;
(c) a copy of the Certificate of the Company and all amendments thereto; and
(d)copies of the Company's currently effective written operating agreement,
copies of any writings permitted or required with respect to the Member's
obligation to contribute cash, property or services to the Company, and copies
of any financial statements of the Company for the three most recent fiscal
years.
ARTICLE VII
Allocations; Distributions and Interests
Section 7.1. Distributions. Subject to Section 5.09 of the Act, distributions
of cash and other assets shall be made to the Member from time to time as
determined by the Member.
Section 7.2. Allocation of Profit or Loss. Profits and losses, and each item of
Company income, gain, loss, deduction and tax preference with respect thereto,
for each fiscal year (or shorter period in respect of which such items are to be
allocated) shall be allocated to the Member, consistent with the
characterization of the Company as a sole proprietorship of the Member pursuant
to Section 4.3.
Section 7.3. Distributions and Allocations upon Liquidation. Upon liquidation
of the Company (or the Member's Membership Interest), liquidating distributions
will be made pursuant to Section 5.1 and in accordance with the positive Capital
Account balance of the Member as of the date of liquidation, as determined after
taking into account all Capital Account adjustments for the Company's taxable
year during which the liquidation occurs.
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ARTICLE VIII
Changes in Membership
Section 8.1. Change in Membership. The Member shall have the right or power,
directly or indirectly, to sell, assign, transfer, give, hypothecate, pledge,
encumber or otherwise dispose of all or any portion of its interest as a Member
in the Company to any Person (a "Transferee"). Any Transferee may be admitted as
a Member with the consent of, and upon such terms (including the capital
contribution to be made and the Membership Interest to be received) as may be
determined by the Member. Upon the admission of a Transferee as a Member,
Exhibit A annexed hereto shall be amended to reflect each Member's revised
Membership Interest. No Transferee shall become a Member until the Transferee
has become a party to, and adopted all of the terms and conditions of, this
Agreement.
ARTICLE IX
Dissolution
Section 9.1. Events of Dissolution. The Company shall be dissolved in
accordance with the Act.
Section 9.2. Effect of Dissolution. Upon dissolution, the Company shall not be
terminated and shall continue until a winding up of the affairs of the Company
is completed and a certificate of dissolution has been issued by the Texas
Secretary of State.
Section 9.3. Procedure for Dissolution. If the Company is dissolved, the Member
shall wind up the Company's affairs. On winding up of the Company, the assets of
the Company shall be applied in the manner, and in the order of priority, set
forth in Section 6.04 of the Act.
Section 9.4. Filing of Articles of Dissolution. If the Company is dissolved,
upon completion of the winding up of the Company, the Member shall promptly file
Articles of Dissolution with the office of the Texas Secretary of State.
ARTICLE X
Miscellaneous
Section 10.1. Complete Agreement. This Agreement and the Certificate constitute
the complete and exclusive statement of the Member, and replace and supersede
all prior agreements and all prior written and oral statements by the Member
with respect to the subject matter hereof. No representation, statement,
condition or warranty not contained in
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this Agreement or the Certificate will be binding on the Member or have any
force or effect whatsoever with respect to the subject matter hereof.
Section 10.2. Governing Law. This Agreement and the rights of the parties
hereunder will be governed by, interpreted and enforced in accordance with the
laws of the State of Texas.
Section 10.3. Binding Effect. Subject to the provisions of this Agreement
relating to transferability, this Agreement will be binding upon and inure to
the benefit of the Member and its successors and assigns.
Section 10.4. Terms. Common nouns and pronouns will be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity of the person
or persons, firm or corporation may in the context require.
Section 10.5. Headings. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
Section 10.6. Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under the present or future laws effective
during the term of this Agreement, such provision will be fully severable; this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
Section 10.7. Additional Documents and Acts. The Member agrees to execute and
deliver such additional documents and instruments and to 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 the transactions
contemplated hereby.
Section 10.8. No Third Party Beneficiary. This Agreement is made solely and
specifically for the benefit of the Member and its successors and assigns, and
no other Person will have any rights, interest or claims hereunder or be
entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
Section 10.9. Notices. Any notice to be given or to be served upon the Company
or the Member in connection with this Agreement must be in writing and will be
deemed to have been given and received when delivered to the address specified
by the party to receive
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the notice. Such notices will be given to the Member at the address specified in
Section 2.1(a) hereof and to the Company at the address specified in Section
2.1(b). The Member or the Company may, at any time, designate any other address
in substitution of the foregoing address to which such notice will be given,
such notice to be effective upon a Person upon its receipt.
Section 10.10. Amendments. All amendments to this Agreement must be in writing
and signed by the Member.
[Signature Page Follows]
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IN WITNESS WHEREOF, American Medical Pathways, Inc. has executed this Agreement
to be effective as of the date and year first above written.
Dated as of February __, 2005.
AMERICAN MEDICAL PATHWAYS, INC.
By: /s/ Randel Owen
------------------------------------
Name: Randel Owen
Title:
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[Signature Page to LLC Agreement of Providacare, L.L.C.]
EXHIBIT A
Member Initial Capital Contribution:
- ------ -----------------------------
American Medical Pathways, Inc. $100.00
6200 S. Syracuse Way
Suite 200
Greenwood Village, CO 80111
A-1