EXHIBIT 3.11
OPERATING AGREEMENT
OF
TRANSCOR AMERICA, LLC
THIS OPERATING AGREEMENT (the "Agreement") among the parties whose
signatures appear below (the "Members") is made and entered into as of the 20th
day of December, 2000.
ARTICLE I
FORMATION
1.1 FORMATION. The Members hereby form a member-managed limited
liability company pursuant to the Tennessee Limited Liability Company Act (the
"Act")
1.2 NAME. The name of the limited liability company shall be TransCor
America, LLC (the "Company").
1.3 ARTICLES OF ORGANIZATION. The Articles of Organization (the
"Articles"), filed with the Secretary of State of the State of Tennessee on
January 10, 2000, are hereby adopted and ratified by the Members. 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 herein 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 each Member. Each such capital account shall be
established and maintained in accordance with the provisions of Treas.
Reg.ss.1.704-1(b)(2)(iv), and shall be interpreted and applied in a manner
consistent therewith.
3.2 CAPITAL CONTRIBUTIONS. Each Member has made a contribution to the
capital of the Company in exchange for the Percentage Interest set forth on
Schedule A attached hereto.
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS. No additional capital
contributions shall be required of any Member. No Member may contribute
additional capital to the Company without the prior unanimous written consent of
the Members.
3.4 NO RIGHT TO WITHDRAW CAPITAL. No Member shall have the right to
demand the return of, or otherwise withdraw such 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 thereto, from whatever
source derived (except for such 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 (the "Code") and the regulations thereunder),
shall be allocated to the Members according to their respective percentage
interests as set forth on Schedule A attached hereto (the "Percentage
Interests"). The Chief Manager shall keep accurate records to reflect any and
all changes which may occur in the Percentage Interests of the Members from time
to time.
4.2 DISTRIBUTIONS TO MEMBERS. Distributions (in cash or in kind) shall
be made by the Company to the Members in such amounts and at such times as the
Members shall determine. All distributions shall be made in accordance with the
Percentage Interests of the Members (except for distributions upon the
dissolution and winding up of the Company which shall be made in the manner
hereinafter provided).
4.3 STATEMENTS OF MEMBERSHIP INTERESTS. Upon the written request of any
Member, the Secretary shall promptly advise such Member of the particular
Membership Interest owned by such Member as of the date such written statement
is issued by the Secretary. Any such written statement of Membership Interest
shall not be deemed to be a certificated security, a negotiable instrument, nor
a bond or stock and shall not be a vehicle by which any transfer of any Member's
interest in the Company may be effected.
ARTICLE V
MEMBERS AND VOTING RIGHTS
5.1 MEMBERSHIP VOTING POWER. Each Member shall have voting power equal
to such Member's Percentage Interest (determined without regard to any
assignment of such Member's
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Financial Rights) as shown on Schedule A. 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 such 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.
5.2 MEETINGS. Meetings of all Members may be called by the Chief
Manager, Secretary or any Member by mailing notice to all Members no fewer than
ten days and no more than two months before the meeting date, stating the
purpose or purposes of such meeting. Any such meetings shall be held at the
principal place of business of the Company or such other place as may be
designated in the notice. When any notice is required to be given to any Member,
a waiver thereof in writing signed by the person entitled to such notice,
whether before, at, or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance by a Member at a meeting is a waiver of notice
of such meeting, unless 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.
5.3 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, such 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.
5.4 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.
5.5 ADMISSION OF NEW MEMBERS. Except as provided in Article 10 of this
Agreement, no other person shall be made a Member without the written approval
of the Members holding 100% of the Percentage Interests.
5.6 NO POWER OR RIGHT TO WITHDRAW FROM MEMBERSHIP IN COMPANY. Except as
provided in Section 10.2, no Member shall have the power or right to withdraw,
resign or retire from the Company prior to the expiration of the term of the
Company as provided herein and any attempt by
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a Member to withdraw, retire or resign from the Company prior to the expiration
of the term shall be null and void.
ARTICLE VI
MANAGEMENT OF THE COMPANY
6.1 MEMBER-MANAGED. The Company shall be a "member-managed" limited
liability company as such term is defined in the Act. The management and control
of the Company shall rest with the Members exclusively in their membership
capacity. 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).
6.2 OFFICERS TO ACT FOR COMPANY. Each Member has the power to bind the
Company as an agent in the normal course of business of the Company. However,
the Members covenant and agree that they will not exercise such authority except
in their capacity as officers of the Company, it being the intention of the
Members that all actions taken by the Company shall be taken through its
officers.
ARTICLE VII
OFFICERS
7.1 OFFICERS. The Company shall at all times have at least two officers,
those being the Chief Manager and the Secretary. The Company may have additional
officers who shall perform such duties as may be prescribed by the Members upon
their election. An officer of the Company need not be a Member.
7.2 DUTIES OF THE PERSON HOLDING THE OFFICE OF CHIEF MANAGER. The Chief
Manager 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.
7.3 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.
7.4 ELECTION OF OFFICERS. All officers, including the Chief Manager and
the Secretary, shall be elected by the Members.
7.5 COMPENSATION OF OFFICERS. No officer shall receive any compensation
from the Company without the prior approval of the Members.
7.6 REMOVAL AND RESIGNATION OF OFFICERS. The Members may remove any
officer, including the Chief Manager and the Secretary, with or without cause.
The Members may eliminate any officer position other than that of the Chief
Manager and the Secretary. Any officer may resign
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upon 30 days prior written notice to the Members, but such resignation shall not
affect such person's status, if any, as a Member. Upon the death, resignation or
removal of the Chief Manager, the Members shall immediately vote to appoint a
new Chief Manager. Upon the death, resignation or removal of the Secretary, the
Members shall immediately vote to appoint a new Secretary.
7.7 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 therewith.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION. The Company shall indemnify all of its officers and
Members to the fullest extent of and in accordance with the Act as now in effect
or hereafter amended.
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. Solely for purposes of the United States federal income
tax laws, each of the Members hereby 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 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 Chief Manager 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 any such proceeding. The
TMM shall have all the powers provided to a tax matters partner under Sections
6221 through 6233 of the 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 such position by giving 30
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days written notice to all Members, whereupon the Members shall promptly vote to
designate a new TMM. The 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
TRANSFER OF MEMBERSHIP INTERESTS
10.1 TRANSFER RESTRICTIONS. No Member may sell, assign, encumber,
pledge, grant a security interest in or otherwise dispose of, voluntarily or
involuntarily, in whole or in part, its Membership Interest without the prior
written consent of a majority of the remaining Members, and any attempt to do so
shall be void and of no force or effect, and shall constitute a breach of this
Agreement. Notwithstanding the foregoing, the transfer, conveyance or
disposition of Membership Interest by any Member, without consideration, to a
member of the Member's immediate family or to a family limited partnership or
other estate or tax planning entity controlled by the Member shall not require
the prior written consent of a majority of the remaining Members. In the event
that, pursuant to this Article 10, any Member transfers or assigns its
Membership Interest to any person or entity other than one or more of the other
Members or the Company, no such transfer shall become effective until the
proposed transferee agrees in writing to assume and be bound by all the
obligations and restrictions to which the transferor Member is subject under the
terms of this Agreement and any further agreement with respect to the business
of the Company.
10.2 MEMBER RESIGNATION. Any Member may resign from the Company at any
time upon not less than six (6) month's prior written notice to each other
Member. No Member shall be entitled to any distribution from the Company as a
result of his resignation. A resigned Member shall have no right to vote on any
matter to be determined by the Members. A resigned Member shall have no
liability or obligation to make any additional contribution of capital to the
Company determined by the Members subsequent to his resignation.
10.3 EXPULSION OF A MEMBER. The Members and the Company shall not have
any power or authority to expel any Member for any reason, whether with or
without cause.
ARTICLE XI
TERM, DISSOLUTION, WINDING UP, TERMINATION
11.1 TERM. The term of the Company shall commence on the date as of
which the Articles were filed with the Secretary of the State of Tennessee and
shall continue for 50 years therefrom, unless earlier terminated in accordance
with the provisions hereof or as provided by law.
11.2 EVENTS CAUSING DISSOLUTION. The occurrence of any event listed in
Section 48-245-101(a)(5)(A)-(K) of the Act (or any successor sections) shall
not cause the dissolution of the Company. The Company shall be dissolved and its
affairs wound up only:
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(a) Upon the expiration of the term of the Company stated above;
or
(b) Upon the written consent of Members holding a majority of the
Percentage Interests in the Company.
11.3 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 cause the following steps
to be taken:
(a) NOTIFY MEMBERS. The Company shall promptly notify all Members
of such dissolution and proceed to wind up the affairs of the Company.
(b) FILE NECESSARY DOCUMENTS. The Company shall prepare and file
all instruments or documents required by law to be filed to reflect the
dissolution of the Company.
(c) PAY CREDITORS. The Company shall pay all outstanding
liabilities and expenses of the Company.
(d) ESTABLISH RESERVES. The Company shall establish such reserves
for unknown or contingent liabilities as are appropriate.
(e) DISTRIBUTE REMAINING ASSETS TO MEMBERS. The Company shall
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.) In the event of a distribution of assets
in kind (in whole or in part) 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 such Member would have been entitled if such assets had been sold
or otherwise converted to cash at such assets' fair market values and
the distribution had been solely in the form of a cash distribution.
Division of such property may be made on a non pro rata basis upon the
consent of all of the Members, such that certain Members own certain
assets while other Members own other assets.
(f) TERMINATION. The Members shall officially terminate the
Company when its affairs have been wound up and the distribution of its
assets has been completed.
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ARTICLE XII
GENERAL PROVISIONS
12.1 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
heirs, representatives, successors, transferees or assigns, shall attempt to
make any partition of any Company assets, whether now owned or hereafter
acquired, 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.
12.2 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 giving the same, and shall be deemed
properly given three (3) business days after mailing if sent by hand delivery or
by United States mail, postage prepaid, addressed:
(a) TO THE COMPANY
TransCor America, LLC
10 Burton Hills Boulevard
Nashville, Tennessee 37215
(b) TO MEMBERS. In the case of any Member, to the address of
such Member set forth in the records of the Company.
12.3 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 hereof.
12.4 APPLICABLE LAW. This Agreement and the rights of the Members shall
be governed by and construed and enforced in accordance with the substantive
laws of the State of Tennessee.
12.5 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and any other application thereof shall
not in any way be affected or impaired thereby.
12.6 BINDING EFFECT. Except as herein otherwise provided 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. The attached resolutions are hereby approved, adopted
and ratified by the Members.
12.7 TERMINOLOGY. As the context may require, all personal pronouns
used in this Agreement, whether used in the masculine, feminine or neuter
gender, shall include all other
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genders, and 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.
12.8 AMENDMENT. This Agreement may be amended, modified or supplemented
only by a writing executed by the holders of all of the Governance Rights and
Financial Rights.
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IN WITNESS WHEREOF, this Agreement is hereby executed and effective as
of the date first set forth above.
CCA OF TENNESSEE, INC.
By: /s/ Todd Mullenger
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Its: VP-Finance
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SCHEDULE A
TO
OPERATING AGREEMENT
MEMBERS
Name Percentage Interest
- ---- -------------------
CCA of Tennessee, Inc. 100%