EXHIBIT 3.6
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OPERATING AGREEMENT
OF
AHS ALBUQUERQUE HOLDINGS, LLC
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April 24, 2002
TABLE OF CONTENTS
SECTION PAGE
1. Formation ................................................................... 1
2. Name and Office ............................................................. 1
2.1 Name ............................................................ 1
2.2 Principal Office ................................................ 1
3. Purpose and Term ........................................................... 1
3.1 Purpose ......................................................... 1
3.2 Company's Power ................................................. 1
3.3 Term ............................................................ 1
4. Capital ..................................................................... 2
4.1 Capital Structure ............................................... 2
4.2 No Liability of the Member ...................................... 2
4.3 No Interest on Capital Contributions ............................ 2
4.4 No Withdrawal of Capital ........................................ 2
5. Accounting .................................................................. 2
5.1 Books and Records ............................................... 2
5.2 Fiscal Year ..................................................... 2
6. Bank Accounts ............................................................... 2
7. Net Income and Net Loss ..................................................... 2
8. Tax Treatment ............................................................... 2
9. Distributions ............................................................... 3
10. Board of Directors ......................................................... 3
10.1 General Powers .................................................. 3
10.2 Number, Election and Term ....................................... 3
10.3 Resignation of Directors ........................................ 3
10.4 Removal of Directors by the Member .............................. 3
10.5 Vacancy on Board ................................................ 3
10.6 Compensation of Directors ....................................... 3
10.7 Meetings ........................................................ 3
10.8 Special Meetings ................................................ 3
10.9 Action Without Meetings ......................................... 4
10.10 Notice of Meeting ............................................... 4
10.11 Waiver of Notice ................................................ 4
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TABLE OF CONTENTS
SECTION PAGE
10.12 Quorum and Voting........................................................... 4
10.13 Chairman and Vice-Chairman of the Board .................................. 4
11. Executive and Other Committees......................................................... 4
11.1 Executive Committee......................................................... 4
11.2 Authority of Executive Committee .......................................... 5
11.3 Tenure and Qualifications ................................................. 5
11.4 Meetings ................................................................... 5
11.5 Quorum and Voting .......................................................... 5
11.6 Vacancies .................................................................. 5
11.7 Resignations and Removals................................................... 5
11.8 Other Committees ........................................................... 6
12. Officers............................................................................... 6
12.1 Officers Generally ......................................................... 6
12.2 Duties of Officers ......................................................... 6
12.3 Appointment and Term of Office.............................................. 6
12.4 Resignation and Removal of Officers ....................................... 6
12.5 Contract Rights of Officers ............................................... 6
12.6 Chairman of the Board....................................................... 7
12.7 President .................................................................. 7
12.8 Vice-President ............................................................. 7
12.9 Treasurer .................................................................. 7
12.10 Secretary .................................................................. 7
12.11 Assistant Treasurers and Assistant Secretaries ............................. 8
12.12 Compensation ............................................................... 8
13. Standard of Care of Directors and Officers; Indemnification ........................... 8
13.1 Standard of Care ........................................................... 8
13.2 Indemnification ............................................................ 8
14. Other Activities; Related Party Transactions .......................................... 10
14.1 Other Activities ........................................................... 10
14.2 Related Party Transactions ................................................. 10
15. Member Voting ......................................................................... 10
16. Dissolution .......................................................................... 10
16.1 Dissolution ................................................................ 10
16.2 Sale of Assets Upon Dissolution ............................................ 10
16.3 Distributions Upon Dissolution ............................................. 11
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TABLE OF CONTENTS
SECTION PAGE
17. Withdrawal, Assignment and Addition of Members ........................................ 11
17.1 Assignment of the Member's Units ........................................... 11
17.2 Death, Dissolution, Bankruptcy, Etc. of the Member ......................... 11
17.3 Certificates for Units .................................................... 11
18. General .............................................................................. 11
18.1 Amendment .................................................................. 11
18.2 Captions; Section References ............................................... 11
18.3 Number and Gender .......................................................... 12
18.4 Severability ............................................................... 12
18.5 Binding Agreement .......................................................... 12
18.6 Applicable Law ............................................................. 12
18.7 Entire Agreement ........................................................... 12
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GLOSSARY OF DEFINED TERMS
DEFINED TERM SECTION
Act ............................................................................ 1
Affiliate ..................................................................... 14.1
Agreement ..................................................................... Preamble
Board ......................................................................... 10.1
Chairman ....................................................................... 10.13
Company ....................................................................... 1
Fiscal Year..................................................................... 5.2
Liability ..................................................................... 13.2(a)
Member ........................................................................ Preamble
Units........................................................................... 4.1
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OPERATING AGREEMENT
OF
AHS ALBUQUERQUE HOLDINGS, LLC
THIS OPERATING AGREEMENT ("Agreement") is made as of the 24th day of
April, 2002, by AHS NEW MEXICO HOLDINGS, INC., a New Mexico corporation
("Member").
1. FORMATION. The Member does hereby form a limited liability company
("Company") pursuant to the provisions of the New Mexico Limited Liability
Company Act ("Act").
2. NAME AND OFFICE.
2.1 NAME. The name of the Company shall be AHS Albuquerque
Holdings, LLC.
2.2 PRINCIPAL OFFICE. The principal office of the Company
shall be at 102 Woodmont Boulevard, Suite 800, Nashville. Tennessee 37205, or at
such other place as shall be determined by the Board (as hereinafter defined) in
accordance with the provisions of the Act. The books of the Company shall be
maintained at such principal place of business or such other place that the
Board shall deem appropriate. The Company shall designate an agent for service
of process in New Mexico in accordance with the provisions of the Act. The Board
shall maintain, at the Company's principal office, those items referred to in
Section 53-19-19 of the Act.
3. PURPOSE AND TERM.
3.1 PURPOSE. The purposes of the Company are as follows:
(a) To acquire, own, manage and operate certain
healthcare facilities.
(b) To engage in such other lawful activities in
which a limited liability company may engage under the Act as is determined by
the Member from time to time.
(c) To do all other things necessary or desirable in
connection with the foregoing, or otherwise contemplated in this Agreement.
3.2 COMPANY'S POWER. In furtherance of the purpose of the
Company as set forth in Section 3.1, the Company shall have the power to do any
and all things whatsoever necessary, appropriate or advisable in connection with
such purpose, or as otherwise contemplated in this Agreement.
3.3 TERM. The term of the Company shall commence as of the
date of the filing of the Articles of Organization with the New Mexico Public
Regulation Commission, and shall continue until dissolved in accordance with
Section 16.
4. CAPITAL.
4.1 CAPITAL STRUCTURE. The total number of units ("Units")
which the Company is initially authorized to issue is 1,000 Units. The Member
shall contribute to the capital of the Company $1,000.00 cash in exchange for
1,000 Units of the Company.
4.2 NO LIABILITY OF THE MEMBER. Except as otherwise
specifically provided in the Act, the Member shall not have any personal
liability for the obligations of the Company.
4.3 NO INTEREST ON CAPITAL CONTRIBUTIONS. The Member shall not
be entitled to interest on any capital contributions made to the Company.
4.4 NO WITHDRAWAL OF CAPITAL. The Member shall not be entitled
to withdraw any part of the Member's capital contributions to the Company,
except as provided in Section 16. The Member shall not be entitled to demand or
receive any property from the Company other than cash, except as otherwise
expressly provided for herein.
5. ACCOUNTING.
5.1 BOOKS AND RECORDS. The Company shall maintain full and
accurate books of the Company at the Company's principal place of business, or
such other place as the Board shall determine, showing all receipts and
expenditures, assets and liabilities, net income and loss, and all other records
necessary for recording the Company's business and affairs. Upon reasonable
request from the Member, such books and records shall be open to the inspection
and examination by the Member in person or by the Member's duly authorized
representatives during normal business hours and may be copied at the Member's
expense.
5.2 FISCAL YEAR. The fiscal year of the Company shall be the
calendar year ("Fiscal Year").
6. BANK ACCOUNTS. All funds of the Company shall be deposited in its
name into such checking, savings and/or money market accounts or time
certificates as shall be designated by the Board. Withdrawals therefrom shall
be made upon such signature or signatures as the Board may designate. Company
funds shall not be commingled with those of any other person or entity.
7. NET INCOME AND NET LOSS. All net income or net loss of the Company
shall be for the account of the Member.
8. TAX TREATMENT. It is the intention of the Member that for Federal,
state and local income tax purposes the Company be disregarded as an entity
separate from the Member in accordance with the provision of Treas. Reg.
Sections 301.7701-2(c)(2)(i)and 301.7701-3(b)(1)(ii). The Member shall take all
actions which may be necessary or required in order for the Company to be so
disregarded for income tax purposes.
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9. DISTRIBUTIONS. The Board shall determine whether distributions shall
be made to the Member or whether the cash of the Company shall be reinvested for
Company purposes.
10. BOARD OF DIRECTORS.
10.1 GENERAL POWERS. All powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company managed under the direction of, its Board of Directors ("Board").
10.2 NUMBER, ELECTION AND TERM. The Board shall consist of not
less than one, nor more than seven individuals, the exact number of which shall
be determined by the Member from time to time. The initial Board shall consist
of two individuals, William P. Barnes and Stephen C. Petrovich. A decrease in
the number of directors shall not shorten an incumbent director's term. Each
director shall hold office until the director resigns or is removed. Despite the
expiration of a director's term, such director shall continue to serve until the
director's successor is elected and qualifies, until there is a decrease in the
number of directors or the director is removed.
10.3 RESIGNATION OF DIRECTORS. A director may resign at any
time by delivering written notice to the Board, its Chairman (as hereinafter
defined), if any, or the Company. A resignation shall be effective when the
notice is delivered unless the notice specifies a later effective date.
10.4 REMOVAL OF DIRECTORS BY THE MEMBER. A director may be
removed by the Member with or without cause.
10.5 VACANCY ON BOARD. If a vacancy occurs on the Board,
including a vacancy resulting from an increase in the number of directors, the
Board shall fill the vacancy, and if the directors remaining in office
constitute fewer than a quorum of the Board, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in office. A
vacancy that will occur at a specific later date may be filled before the
vacancy occurs, but the new director may not take office until the vacancy
occurs.
10.6 COMPENSATION OF DIRECTORS. The Board may fix the
compensation of directors. No such compensation shall preclude any director from
serving the Company in any other capacity and from receiving compensation
therefor.
10.7 MEETINGS. The Board may hold regular or special meetings
in or out of the State of New Mexico. The Board may permit any or all directors
to participate in a regular or special meeting by, or conduct the meeting
through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means shall be deemed to be present in person
at the meeting.
10.8 SPECIAL MEETINGS. Special meetings of the Board may be
called by, or at the request of, the Chairman, if any, or the chief executive
officer of the Company. All special meetings of the Board shall be held at the
principal office or such other place as may be specified in the notice of the
meeting.
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10.9 ACTION WITHOUT MEETINGS. Any action required or permitted
to be taken at a Board meeting may be taken without a meeting if the action is
taken by the number of directors whose vote would be necessary to approve the
action at a meeting of the Board at which all directors were present. The action
shall be evidenced by one or more written consents describing the action taken,
signed by the directors taking the action, and delivered to the Company for
inclusion in the minutes or for filing with the Company records reflecting the
action taken. Action taken under this Section 10.9 shall be effective when the
last director signs the consent, unless the consent specifies a different
effective date. Prompt notice of the taking of such action by less than
unanimous written consent shall be given to those directors who have not
consented in writing.
10.10 NOTICE OF MEETING. Regular meetings of the Board may be
held without notice of the date, time, place or purpose of the meeting. Special
meetings of the Board shall be preceded by at least two days notice of the date,
time and place of the meeting. The notice shall not be required to describe the
purpose of the special meeting.
10.11 WAIVER OF NOTICE. A director may waive any notice
required by this Agreement before or after the date and time stated in the
notice. Except as otherwise provided in this Section 10.11, the waiver shall be
in writing, signed by the director entitled to the notice, and filed with the
minutes or Company records. A director's attendance at or participation in a
meeting shall waive any required notice to such director of the meeting unless
the director at the beginning of the meeting, or promptly upon the director's
arrival, objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
10.12 QUORUM AND VOTING. A majority of the number of directors
fixed by, or determined in accordance with, this Agreement shall constitute a
quorum of the Board. If a quorum is present, the affirmative vote by a majority
of the number of directors present shall constitute an act of the Board. A
director who is present at a meeting of the Board or a committee of the Board
when action is taken shall be deemed to have assented to the action taken unless
(i) the director objects at the beginning of the meeting, or promptly upon the
director's arrival, to holding it or transacting business at the meeting or (ii)
the director's dissent or abstention from the action taken is entered in the
minutes of the meeting or the director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the Company immediately after adjournment of the meeting. The
right of dissent or abstention shall not be available to a director who votes in
favor of the action taken.
10.13 CHAIRMAN AND VICE-CHAIRMAN OF THE BOARD. The Board may
appoint one of its members Chairman of the Board ("Chairman"). The Board may
also appoint one of its members as Vice-Chairman of the Board, and such
individual shall serve in the absence of the Chairman and perform such
additional duties as may be assigned to such person by the Board.
11. EXECUTIVE AND OTHER COMMITTEES.
11.1 EXECUTIVE COMMITTEE. The Board, by resolution adopted by
the greater of a majority of all directors in office when the action is taken,
or the number of directors required to take
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action under Section 10.12, may create and appoint from among its members an
Executive Committee consisting of two or more directors, who shall serve at the
pleasure of the Board.
11.2 AUTHORITY OF EXECUTIVE COMMITTEE. When the Board is not
in session, the Executive Committee shall have and may exercise all of the
authority of the Board, unless otherwise specified by the resolution appointing
the Executive Committee. Neither the Executive Committee, nor any other
committee created by the Board, shall have the authority to (i) authorize
distributions, (ii) approve or propose to the Member action that this Agreement
requires be approved by the Member, (iii) fill vacancies on the Board or on any
of its committees, (iv) amend this Agreement, (v) authorize or approve
reacquisition of Units, except according to a formula or method prescribed by
the Board, or (vi) authorize or approve the issuance or sale or contract for
sale of Units, or determine the designation and relative rights, preferences and
limitations of a class or series of Units, except that the Board may authorize a
committee (or a senior executive officer of the Corporation) to do so within
limits specifically prescribed by the Board.
11.3 TENURE AND QUALIFICATIONS. Each member of the Executive
Committee shall hold office until the next annual meeting of the Board following
such member's designation and until such member's successor shall be duly
designated and qualified.
11.4 MEETINGS. Sections 10.7 through 10.11, which address
meetings, action without meeting, notice of meeting and waiver of notice with
respect to the Board shall apply to the Executive Committee and its members as
well.
11.5 QUORUM AND VOTING. A majority of the number of members
appointed by the Board shall constitute a quorum of the Executive Committee. If
a quorum is present when a vote is taken, the affirmative vote of a majority of
members present shall constitute an act of the Executive Committee. A member who
is present at a meeting of the Executive Committee when corporate action is
taken shall be deemed to have assented to the action taken unless (i) such
member objects at the beginning of the meeting, or promptly upon such member's
arrival, to holding it or transacting business at the meeting, or (ii) such
member's dissent or abstention from the action taken is entered in the minutes
of the meeting, or such member delivers written notice of the member's dissent
or abstention to the presiding officer of the meeting before its adjournment or
to the Company immediately after adjournment of the meeting. The right of
dissent or abstention shall not be available to a member who votes in favor of
the action taken.
11.6 VACANCIES. Any vacancy in the Executive Committee may
be filled by a resolution adopted by the Board in accordance with Section 10.1.
11.7 RESIGNATIONS AND REMOVALS. Any member of the Executive
Committee may be removed at any time, with or without cause, by resolution
adopted by the Board in accordance with Section 10.1. Any member of the
Executive Committee may resign from the Executive Committee at any time by
giving written notice to the Board, and resignation shall be effective when the
notice is delivered unless the notice specifies a later effective date.
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11.8 OTHER COMMITTEES. The Board, by resolution adopted by the
greater of a majority of all directors in office when the action is taken, or
the number of directors required to take action under Section 10.12, may create
and appoint from among its members such other committees, consisting of two or
more Board members, as from time to time it may consider necessary or
appropriate to conduct the affairs of the Company. Each such committee shall
have such power and authority as the Board may, from time to time, legally
establish for it. The tenure and qualifications of the members of each
committee, the time, place and organization of such committee's meetings, the
notice required to call any such meeting, the number of members of each such
committee that shall constitute a quorum, the affirmative vote of the committee
members required effectively to take action at any meeting at which a quorum is
present, the action that any such committee can take without a meeting, the
method in which a vacancy among the members of such committee can be filled and
the procedures by which resignations and removals of members of such committee
shall be acted upon or accomplished shall be fixed by the resolution adopted by
the Board relative to such matters.
12. OFFICERS.
12.1 OFFICERS GENERALLY. The Company shall have the officers
appointed by the Board in accordance with this Agreement. A duly appointed
officer may appoint one or more officers or assistant officers if authorized by
the Board. The same individual may simultaneously hold more than one office in
the Company. Section 12.10 delegates to the Secretary, if such office be created
and filled, the required responsibility of preparing minutes of the directors'
and Member's meetings and for authenticating records of the Company. If such
office shall not be created and filled, then the Board shall delegate to one of
the officers of the Company such responsibility.
12.2 DUTIES OF OFFICERS. Each officer of the Company shall
have the authority and shall perform the duties set forth in this Agreement for
such office or, to the extent consistent with this Agreement, the duties
prescribed by the Board or by direction of an officer authorized by the Board to
prescribe the duties of other officers.
12.3 APPOINTMENT AND TERM OF OFFICE. The officers of the
Company shall be appointed by the Board. Vacancies may be filled or new offices
created and filled at any meeting of the Board. Each officer shall hold office
until such officer's successor shall be duly appointed or until the officer's
death or until the officer shall resign or shall have been removed in the manner
hereinafter provided.
12.4 RESIGNATION AND REMOVAL OF OFFICERS. An officer may
resign at any time by delivering notice to the Company. A resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later date and the
Company accepts the future effective date, the Board may fill the pending
vacancy before the effective date if the Board provides that the successor shall
not take office until the effective date. The Board may remove any officer at
any time with or without cause.
12.5 CONTRACT RIGHTS OF OFFICERS. Appointment of an officer or
agent shall not of itself create contract rights. An officer's removal shall not
affect the officer's contract rights, if any, with
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the Company. An officer's resignation shall not affect the Company's contract
rights, if any, with the officer.
12.6 CHAIRMAN OF THE BOARD. The Chairman, if that office be
created and filled, may, at the discretion of the Board, be the chief executive
officer of the Company and, if such, shall, in general, supervise and control
the affairs and business of the Company, subject to control by the Board. The
Chairman shall preside at all meetings of the Member and the Board.
12.7 PRESIDENT. The President, if that office be created and
filled, shall be the chief executive officer of the Company, unless a Chairman
is appointed and designated chief executive officer pursuant to Section 12.6. If
no Chairman has been appointed or, in the absence of the Chairman, the President
shall preside at all meetings of the Member. The President may sign certificates
for Units, any deeds, mortgages, bonds, contracts or other instruments which
the Board has authorized to be executed, except in cases where the signing and
execution thereof shall be expressly delegated by the Board or by this Agreement
to some other officer or agent of the Company, or shall be required by law to be
otherwise signed or executed. The President shall, in general, perform all
duties incident to the office of President of a New Mexico corporation and such
other duties as may be prescribed by the Board or the Chairman from time to
time. Unless otherwise ordered by the Board, the President shall have full power
and authority on behalf of the Company to attend, act and vote in person or by
proxy at any meetings of shareholders of any corporation in which the Company
may hold stock, and at any such meeting shall hold and may exercise all rights
incident to the ownership of such stock which the Company, as owner, would have
had and could have exercised if present. The Board may confer like powers on any
other person or persons.
12.8 VICE-PRESIDENT. In the absence of the President, or in
the event of the President's death, inability or refusal to act, the
Vice-President (or, in the event there be more than one Vice-President, the
Vice-Presidents in order designated at the time of their appointment, or in the
absence of any designation, then in the order of their appointment), if that
office be created and filled, shall perform the duties of the President and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the President. Any Vice-President may sign, with the Secretary or an
assistant secretary, certificates for Units and shall perform such other duties
as from time to time may be assigned to such person by the Chairman, the
President or by the Board.
12.9 TREASURER. The Treasurer, if that office be created and
filled, shall have charge and custody of, and be responsible for, all funds and
securities of the Company, receive and give receipts for monies due and payable
to the Company from any source whatsoever, and deposit all such monies in the
name of the Company in such banks, trust companies and other depositories as
shall be selected in accordance with the provisions of Section 6, and in
general, perform all the duties incident to the office of Treasurer of a New
Mexico corporation and such other duties as from time to time may be assigned to
such person by the Chairman, the President or the Board. If required by the
Board, the Treasurer shall give a bond for the faithful discharge of such
officer's duties in such sum and with such surety or sureties as the Board shall
determine.
12.10 SECRETARY. The Secretary, if that office be created and
filled, shall keep the minutes of the Member's meetings and of the Board's
meetings in one or more books provided for
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that purpose, see that all notices are duly given in accordance with the
provisions of this Agreement or as required by law, be custodian of the Company
records, be responsible for authenticating records of the Company, keep a
register of the mailing address of the Member, which shall be furnished to the
Secretary by the Member, sign with the President or a Vice-President
certificates for Units, have general charge of the transfer books of the
Company, and, in general, perform all duties incident to the office of Secretary
of a New Mexico corporation and such other duties as from time to time may be
assigned to such person by the Chairman, the President or the Board.
12.11 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
(a) ASSISTANT TREASURER. The Assistant Treasurer, if
that office be created and filled, shall, if required by the Board, give bond
for the faithful discharge of such officer's duty in such sum and with such
surety as the Board shall determine.
(b) ASSISTANT SECRETARY. The Assistant Secretary, if
that office be created and filled, and if authorized by the Board, may sign,
with the President or Vice-President, certificates for Units.
(c) ADDITIONAL DUTIES. The Assistant Treasurers and
Assistant Secretaries, in general, shall perform such additional duties as shall
be assigned to them by the Treasurer or the Secretary, respectively, or by the
Chairman, the President or the Board.
12.12 COMPENSATION. The compensation of the officers of the
Company shall be fixed from time to time by the Board, and no officer shall be
prevented from receiving such compensation by reason of the fact that the
officer is also a director of the Company.
13. STANDARD OF CARE OF DIRECTORS AND OFFICERS; INDEMNIFICATION.
13.1 STANDARD OF CARE. The directors and officers of the
Company shall not be liable, responsible or accountable in damages to the Member
or the Company for any act or omission on behalf of the Company performed or
omitted by them in good faith and in a manner reasonably believed by them to be
in the best interests of the Company unless they have been guilty of gross
negligence, reckless conduct, willful misconduct or a knowing violation of law.
13.2 INDEMNIFICATION.
(a) To the fullest extent permitted by the Act, the
Company shall indemnify each director or officer of the Company against
reasonable expenses (including reasonable attorneys' fees), judgments, taxes,
penalties, fines (including any excise tax assessed with respect to an employee
benefit plan) and amounts paid in settlement (collectively "Liability"),
incurred by such person in connection with defending any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative or
investigative, and whether formal or informal) to which such person is, or is
threatened to be made, a party because such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, partner, member, employee or agent of another domestic or
foreign corporation, partnership, limited liability
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company, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, provided that (i) the director or officer
acted in good faith and in a manner reasonably believed by the director or
officer to be in the best interests of the Company or, in the case of an
employee benefit plan, the interests of the participants and beneficiaries, (ii)
in the case of a criminal proceeding, the director or officer had no reasonable
cause to believe the conduct unlawful, (iii) in connection with a proceeding
brought by or in the right of the Company, the officer or director was not
adjudged liable to the Company and (iv) the officer's or director's conduct did
not constitute gross negligence, reckless conduct or willful misconduct. A
director or officer shall be considered to be serving an employee benefit plan
at the Company's request if such person's duties to the Company also impose
duties on or otherwise involve services by such person to the plan or to
participants in or beneficiaries of the plan.
(b) To the fullest extent authorized or permitted by
the Act, the Company shall pay or reimburse reasonable expenses (including
reasonable attorneys' fees) incurred by a director or officer who is a party to
a proceeding in advance of final disposition of such proceeding if:
(1) The director or officer furnishes the
Company a written affirmation of his good faith belief that he has met
the standard of conduct described in Section 13.2(a);
(2) The director or officer furnishes the
Company a written undertaking, executed personally or on the director's
or officer's behalf, to repay the advance if it is ultimately
determined that the director or officer did not meet the standard of
conduct. Such undertaking shall be an unlimited general obligation of
the director or officer, but shall not be required to be secured and
may be accepted without reference to financial ability to make
repayment.
(3) A determination is made that the facts
then known to those making the determination would not preclude
indemnification under the provisions of this Section 13.2.
(c) The indemnification against Liability and
advancement of expenses provided by, or granted pursuant to, this Section 13.2
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement may be entitled under any agreement, action of
the Member or disinterested directors or otherwise, both as to action in their
official capacity and as to action in another capacity while holding such office
of the Company, shall continue as to a person who has ceased to be a director or
officer of the Company, and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(d) Any repeal or modification of this Section 13.2
by the Member shall not adversely affect any right or protection of a director
or officer of the Company under this Section 13.2 with respect to any act or
omission occurring prior to the time of such repeal or modification.
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14. OTHER ACTIVITIES; RELATED PARTY TRANSACTIONS.
14.1 OTHER ACTIVITIES. The directors and officers shall devote
such of their time to the affairs of the Company's business as they shall deem
necessary. The Member, directors, officers and their Affiliates (as hereinafter
defined) may engage in, or possess an interest in, other business ventures of
any nature and description, independently or with others, provided such
activities are not directly competitive with those of the Company. Neither the
Company nor the Member shall have any rights by virtue of this Agreement in and
to such independent ventures, or to the income or profits derived therefrom.
The Member shall not be obligated to present any particular noncompeting
business opportunity of a character which, if presented to the Company, could be
taken by the Company and the Member and their Affiliates shall not have the
right to take for their own account, or to recommend to others, any such
particular business opportunity to the exclusion of the Company and the Member.
For purposes of this Agreement, the term "Affiliate" shall mean any person,
corporation, partnership, limited liability company, trust or other entity
(directly or indirectly) controlling, controlled by, or under common control
with, the Member, directors or officers.
14.2 RELATED PARTY TRANSACTIONS. The fact that a director,
officer or their Affiliates are directly or indirectly interested in or
connected with any person, firm or corporation employed by the Company to render
or perform a service, or to or from whom the Company may purchase, sell or lease
property, shall not prohibit the Company from employing such person, firm or
corporation or from otherwise dealing with him or it, and neither the Company,
nor the Member, shall have any rights in or to any income or profits derived
therefrom. All such dealings with a director or officer or such director's or
officer's Affiliates will be on terms which are competitive and comparable with
amounts charged by independent third parties.
15. MEMBER VOTING. Whenever a vote of the Member is required under this
Agreement, such vote may be taken at a meeting of the Member or by a writing
signifying the consent to the Member. At a meeting of the Member, the Member may
vote by proxy.
16. DISSOLUTION.
16.1 DISSOLUTION. Except as otherwise provided in the Act, the
Company shall dissolve upon the decision of the Member to dissolve the Company.
Dissolution of the Company shall be effective upon the date specified in the
Member's resolution, but the Company shall not terminate until the assets of the
Company shall have been distributed as provided in Section 16.3. Notwithstanding
dissolution of the Company, prior to the liquidation and termination of the
Company, the Company shall continue to be governed by this Agreement.
16.2 SALE OF ASSETS UPON DISSOLUTION. Following the
dissolution of the Company, the Company shall be wound up and the Board shall
determine whether the assets of the Company are to be sold or whether some or
all of such assets are to be distributed to the Member in kind in liquidation of
the Company.
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16.3 DISTRIBUTIONS UPON DISSOLUTION. Upon the dissolution of
the Company, the properties of the Company to be sold shall be liquidated in
orderly fashion and the proceeds thereof, and the property to be distributed in
kind, shall be distributed as follows:
(a) First, to the payment and discharge of all of the
Company's debts and liabilities, to the necessary expenses of liquidation and to
the establishment of any cash reserves which the Board determines to create for
unmatured and/or contingent liabilities or obligations of the Company.
(b) Second, to the Member.
17. WITHDRAWAL, ASSIGNMENT AND ADDITION OF MEMBERS.
17.1 ASSIGNMENT OF THE MEMBER'S UNITS. The Member may freely
sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose of
the Member's Units. The transferee of the Units shall automatically become a
substitute Member in the place of the Member.
17.2 DEATH, DISSOLUTION, BANKRUPTCY, ETC. OF THE MEMBER. Upon
the occurrence of any of the events set forth in Section 53-19-38 B of the Act
with respect to the Member, the successor-in-interest of the Member shall
automatically become a substitute Member in the place of the Member.
17.3 CERTIFICATES FOR UNITS. Certificates representing Units
shall be in such form as may be determined by the Board. Such certificates shall
be signed by the President or a Vice-President and by the Secretary or an
Assistant Secretary, if such offices be created and filled, or signed by two
officers designated by the Board to sign such certificates. The signature of
such officers upon such certificates may be signed manually or by facsimile. All
certificates for Units shall be consecutively numbered. The name of the person
owning the Units represented thereby, with the number of Units and date of
issue, shall be entered on the books of the Company. All certificates
surrendered to the Company for transfer shall be canceled and no new
certificates shall be issued until the former certificates for a like number of
Units shall have been surrendered and canceled, except that, in case of a lost,
destroyed or mutilated certificate, a new one may be issued therefor upon such
terms and indemnity to the Company as the Board may prescribe.
18. GENERAL.
18.1 AMENDMENT. This Agreement may be modified or amended from
time to time only upon the consent of the Member.
18.2 CAPTIONS; SECTION REFERENCES. Section titles or captions
contained in this Agreement are inserted only as a matter of convenience and
reference, and in no way define, limit, extend or describe the scope of this
Agreement, or the intent of any provision hereof. All references herein to
Sections shall refer to Sections of this Agreement unless the context clearly
requires otherwise.
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18.3 NUMBER AND GENDER. Unless the context otherwise requires,
when used herein, the singular shall include the plural, the plural shall
include the singular, and all nouns, pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine or neuter, as the identity of the
person or persons may require.
18.4 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person, entity or circumstances, shall be invalid or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to other persons, entities or circumstances, shall
not be affected thereby and shall be enforced to the greatest extent permitted
by law.
18.5 BINDING AGREEMENT. Except as otherwise provided herein,
this Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective executors, administrators, heirs, successors and
assigns.
18.6 APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Mexico without regard
to its conflict of laws rules.
18.7 ENTIRE AGREEMENT. This Agreement contains the entire
agreement with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Member has duly executed this Agreement as of
the date and year first written above.
AHS NEW MEXICO HOLDINGS, INC.
By: /s/ Stephen C. Petrovich
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Name: Stephen C. Petrovich
Title: Sr. Vice President/Secretary
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