Exhibit 3.251
OPERATING AGREEMENT
OF
Capital Equity Associates, LLC,
a Maryland Limited Liability Company
As of February 17, 1995
CONTENTS
SECTION 1 THE COMPANY - FORMATION AND PURPOSE............................. 1
1.1 Formation ...................................................... 1
1.2 Name ........................................................... 1
1.3 Governing Law .................................................. 1
1.4 Defined Terms .................................................. 2
1.5 Purpose and Powers ............................................. 2
SECTION 2 MEMBERS - STATUS, RIGHTS AND OBLIGATIONS ....................... 2
2.1 Members ........................................................ 2
2.2 Membership Interests ........................................... 2
2.3 Interests Freely Transferable .................................. 2
2.4 Admission of Members ........................................... 2
SECTION 3 MANAGEMENT OF THE COMPANY ...................................... 2
3.1 Management by Managers ......................................... 2
3.2 Actions by Managers; Committees; Delegation of Authority and
Duties ......................................................... 3
3.3 Number and Term of Office ...................................... 3
3.4 Vacancies; Removal; Resignation ................................ 3
3.5 Meetings ....................................................... 3
3.6 Approval or Ratification of Acts or Contracts by Members ....... 4
3.7 Action by Written Consent or Telephone Conference .............. 4
3.8 Compensation ................................................... 5
3.9 Conflicts of Interest .......................................... 5
3.10 Officers ....................................................... 5
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3.11 Third Parties .................................................. 6
SECTION 4 MEETINGS OF MEMBERS ............................................ 6
4.1 Meetings ....................................................... 6
4.2 Proxies ........................................................ 7
4.3 Conduct of Meetings ............................................ 7
4.4 Action by Written Consent or Telephone Conference .............. 7
SECTION 5 PAYMENT OBLIGATIONS OF MEMBERS ................................. 8
5.1 Payment For Membership Interest ................................ 8
5.2 No Interest Upon Payments ...................................... 8
5.3 Loans Not to be Treated as Capital Contributions ............... 9
5.4 Limited Liability .............................................. 9
SECTION 6 DISTRIBUTIONS .................................................. 9
6.1 Distributions .................................................. 9
SECTION 7 FEDERAL AND STATE TAX MATTERS .................................. 9
7.1 Taxation as Corporation ........................................ 9
SECTION 8 TERM AND TERMINATION OF THE COMPANY ............................ 9
8.1 Term of the Company ............................................ 9
8.2 Events of Termination .......................................... 9
8.3 Conclusion of Affairs .......................................... 9
8.4 Conclusion of Affairs .......................................... 10
8.5 Liquidating Distributions ...................................... 10
8.6 Termination .................................................... 11
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SECTION 9 ASSIGNMENTS AND THE ADDITION, SUBSTITUTION AND WITHDRAWAL OF
MEMBERS ........................................................ 11
9.1 No Restrictions on Transfers ................................... 11
9.2 General Assignment Provisions .................................. 11
SECTION 10 INDEMNIFICATION ................................................ 11
10.1 Right to Indemnification ....................................... 11
10.2 Advance Payment ................................................ 12
10.3 Indemnification of Employees and Agents ........................ 12
10.4 Appearance as a Witness ........................................ 12
10.5 Nonexclusivity of Rights ....................................... 13
10.6 Insurance ...................................................... 13
10.7 Member Notification ............................................ 13
10.8 Savings Clause ................................................. 13
SECTION 11 ADMINISTRATIVE PROVISIONS ...................................... 13
11.1 Principal Office ............................................... 13
11.2 Bank Accounts .................................................. 14
11.3 Notices ........................................................ 14
SECTION 12 MISCELLANEOUS PROVISIONS ....................................... 14
12.1 Entire Agreement ............................................... 14
12.2 Amendment ...................................................... 15
12.3 Interpretation ................................................. 15
12.4 Severability ................................................... 15
12.5 Burden and Benefit ............................................. 15
12.6 Further Assurances ............................................. 15
12.7 Counterparts ................................................... 15
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OPERATING AGREEMENT
OF
Capital Equity Associates, LLC,
a Maryland limited liability company
This Operating Agreement (the "Agreement") of Capital Equity
Associates, LLC, a Maryland limited liability company (the "Company"), is made
and effective as of the ____ day of __, 1995 by and between EMCARE HOLDINGS
INC., a Delaware corporation ("Holdings") and EMCARE, INC., a Delaware
corporation ("EmCare"). Holdings and EmCare may be referred to herein
individually as a "Member" and collectively as the "Members."
SECTION 1
THE COMPANY - FORMATION AND PURPOSE
1.1 Formation.
In consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, each of the Members of the Company hereby:
(i) acknowledges the formation of the Company as a limited
liability company pursuant to the Maryland Limited Liability Company Act, Md.
Corps. & Ass'ns Code Ann., Tit. 4A (the "Act") by virtue of Articles of
Organization (the "Articles") filed on, 1995, with the Maryland State Department
of Assessments and Taxation by Leonard M. Riggs, Jr., as organizer;
(ii) confirms and agrees to its status as a Member and subscribes
for the acquisition of a Membership Interest, as that term is defined herein,
upon the terms and conditions set forth in this Agreement; and
(iii) executes and adopts this Agreement as the Operating
Agreement of the Company pursuant to Section 4A-402 of the Act.
1.2 Name.
The name of the limited liability company shall be "Capital Equity
Associates, LLC."
1.3 Governing Law.
This Agreement and all questions with respect to the rights and
obligations of the Members, the construction, enforcement and interpretation
hereof, and the formation, administration and termination of the Company shall
be governed by the provisions of the Act and the law of the State of Maryland.
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1.4 Defined Terms.
Except as otherwise specified or when the context may otherwise
require, all capitalized terms used in this Agreement shall have the meanings
specified in the Section where such capitalized term is first used.
1.5 Purpose and Powers.
The Company has the purpose of engaging in any lawful business
permitted by the law of the State of Maryland, without limitation.
SECTION 2
MEMBERS - STATUS, RIGHTS AND OBLIGATIONS
2.1 Members.
The Members of the Company on the date hereof are Holdings and EmCare
and the business and notice address of each such Member are set forth on Exhibit
A hereto.
2.2 Membership Interests.
The Members agree that each Member's ownership interest in the
Company, hereinafter referred to generally as a "Membership Interest," shall be
as set forth on Exhibit A hereto, as such Exhibit A may be amended from time to
time.
2.3 Interests Freed Transferable.
Membership Interests shall be freely transferable, subject to Section
9.1 hereof.
2.4 Admission of Members.
Additional Members shall be admitted to the Company effective upon
such additional Member's acquisition of a Membership Interest.
SECTION 3
MANAGEMENT OF THE COMPANY
3.1 Management by Managers.
(a) Except to the extent the approval of the Members is required by
this Agreement or by nonwaivable provisions of applicable law, and subject to
Section 3.2, (i) the powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, one or more Managers (the "Managers"); and (ii) the Managers
may make all decisions and take all actions for the Company not otherwise
provided for in this Agreement, including, without limitation, the right, power
and
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authority on behalf of the Company to exercise all of the rights, powers and
authority of the Company under the Act.
(b) The Members shall not take part in the arrangement of the business
of the Company nor transact any business for the Company in their capacity as
Members, nor shall they have the power to sign for or to bind the Company.
3.2 Actions by Manager; Committees; Delegation of Authority and Duties.
(a) In managing the business and affairs of the Company and exercising
its powers, the Managers shall act (i) collectively through meetings and written
consents pursuant to Sections 3.5 and 3.7 and (ii) through committees pursuant
to Section 3.2(b). No Manager shall otherwise have authority to act for or in
the name of the Company.
(b) The Managers, if more than one, may, from time to time, designate
one or more committees, each of which shall be comprised of two or more
Managers. Any such committee, to the extent provided in such resolution or in
the Articles or these Regulations, shall have and may exercise all of the
authority of the Managers, subject to the limitations set forth in the Act. At
every meeting of any such committee, the presence of a majority of all the
members thereof shall constitute a quorum, and the affirmative vote of a
majority of the members present shall be for the adoption of any resolution. The
Managers may dissolve any committee at any time, unless otherwise provided in
the Articles or this Agreement.
3.3 Number and Term of Office.
The initial number of Managers of the Company shall be three, which
shall be the Managers named in the Articles of Organization. Each Manager shall
hold office for a term of one year and thereafter until his successor shall have
been appointed and qualified, or until his earlier death, resignation or
removal. Managers need not be Members or residents of the State of Maryland.
Managers shall be elected by the Members pursuant to a meeting or by written
consent pursuant to Section 4.4. The number of Managers may be changed by a duly
adopted resolution of either the Members or the Managers.
3.4 Vacancies; Removal; Resignation.
If any vacancies occur in the Managers, the Managers then in office,
though less than a quorum, may elect a successor or successors, or the Members
may elect a successor or successors. Any Manager may be removed, with or without
cause, by a majority of the Membership Interests. Any Manager may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or if no time be specified, at the time of its receipt
by the Company. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly so provided in the resignation.
3.5 Meetings.
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(a) Unless otherwise required by law or provided in the Articles or
this Agreement, a majority of the Managers shall constitute a quorum for the
transaction of business of the Managers, and the act of a majority of the
Managers present at a meeting at which a quorum is present shall be the act of
the Managers. A Manager who is present at a meeting of the Managers at which
action on any Company matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as secretary of the meeting before the adjournment thereof. Such right to
dissent shall not apply to a Manager who voted in favor of such action.
(b) Meetings of the Managers may be held at such place or places as
shall be determined from time to time by resolution of the Managers. At all
meetings of the Managers, business shall be transacted in such order as shall
from time to time be determined by resolution of the Managers. Attendance of a
Manager at a meeting shall constitute a waiver of notice of such meeting, except
where a Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
(c) In connection with any annual meeting of Members at which Managers
were appointed, the Managers may, if a quorum is present, hold its first meeting
for the transaction of business immediately after and at the same place as such
annual meeting of the Members. Notice of such meeting at such time and place
shall not be required.
(d) Regular meetings of the Managers shall be held at such times and
places as shall be designated from time to time by resolution of the Managers.
Notice of such regular meetings shall not be required.
(e) Special meetings of the Managers may be called by any Manager on
at least 48 hours' notice to each other Manager. Such notice need not state the
purpose or purposes of, nor the business to be transacted at, such meeting,
except as may otherwise be required by law or provided for by the Articles or
this Agreement.
3.6 Approval or Ratification of Acts or Contracts by Members.
The Managers in their discretion may submit any act or contract for
approval or ratification at any annual meeting of the Members, or at any special
meeting of the Members called for the purpose of considering any such act or
contract.
3.7 Action by Written Consent or Telephone Conference.
Any action permitted or required by the Act, the Articles or this
Agreement to be taken at a meeting of the Managers or any committee designated
by the Managers may be taken without a meeting if a consent in writing, setting
forth the action to be taken, is signed by all the Managers or members of such
committee, as the case may be. Such consent shall have the same force and effect
as a unanimous vote at a meeting and may be stated as such in any document or
instrument filed with the Maryland State Department of Assessments and Taxation,
and the execution of such consent shall constitute attendance or presence in
person at a meeting of the
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Managers or any such committee, as the case may be. Subject to the requirements
of the Act, the Articles or this Agreement for notice of meetings, unless
otherwise restricted by the Articles, Managers, or members of any committee
designated by the Managers, may participate in and hold a meeting of the
Managers or any committee of Managers, as the case may be, by means of a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such meeting shall constitute attendance and presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
3.8 Compensation.
The Managers shall receive such compensation, if any, for their
services as may be designated from time to time by the Managers. In addition,
the Managers shall be entitled to be reimbursed for out-of-pocket costs and
expenses incurred in the course of their service hereunder.
3.9 Conflicts of Interest.
Subject to the other express provisions of this Agreement, each
Manager, Member and officer of the Company at any time and from time to time may
engage in and possess interests in other business ventures of any and every type
and description, independently or with others, including ones in competition
with the Company, with no obligation to offer to the Company or any other
Member, Manager or officer the right to participate therein. The Company may
transact business with any Manager, Member, officer or affiliate thereof,
provided the terms of those transactions are no less favorable than those the
Company could obtain from unrelated third parties and are approved in accordance
with Section 3.5(a).
3.10 Officers.
(a) The Managers shall, from time to time, designate one or more
Persons to be Chairman, President, Vice President, Treasurer and Secretary of
the Company and may, from time to time, designate one or more Persons to be
other officers of the Company. No officer need be a resident of the State of
Maryland, a Member or a Manager. The Chairman, President, Vice President, and
Secretary shall be subject to the control of the Managers. In addition, all
officers shall have such authority and perform such duties as the Managers may,
from time to time, delegate to them. The Managers may assign titles to
particular officers. Unless the Managers decide otherwise, if the title is one
commonly used for officers of a business corporation formed under the Maryland
General Corporation Law, the assignment of such title shall constitute the
delegation to such officer of the authority and duties that are normally
associated with that office, subject to any specific delegation of authority and
duties made to such officer by the Managers. Each officer shall hold office
until his successor shall be duly designated and shall qualify or until his
death or until he shall resign or shall have been removed in the manner provided
in this Agreement. Any number of offices may be held by the same person. The
salaries or other compensation, if any, of the officers of the Company shall be
fixed from time to time by the Managers.
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(b) Any officer may resign as such at any time. Such resignation shall
be made in writing and shall take effect at the time specified therein, or if no
time be specified, at the time of its receipt by the Managers. The acceptance of
a resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation. Any officer may be removed as such, either with or
without cause, by the Managers whenever in their judgment the best interests of
the Company will be served thereby; provided, however, that such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Designation of an officer shall not of itself create contract rights. Any
vacancy occurring in any office of the Company (other than Manager) may be
filled by the Managers.
3.11 Third Parties.
Any Person dealing with the Company, other than a Member, may rely on
the authority of any officer in taking any action in the name of the Company
without inquiry into the provisions of this Agreement or compliance herewith,
regardless of whether that action actually is taken in accordance with the
provisions of this Agreement.
SECTION 4
MEETINGS OF MEMBERS
4.1 Meetings.
(a) A quorum shall be present at a meeting of Members if the holders
of a majority of the Membership Interests are represented at the meeting in
person or by proxy. With respect to any matter, other than a matter for which
the affirmative vote of the holders of a specified portion of the Membership
Interests of all Members entitled to vote is required by the Act, the
affirmative vote of a majority of the Membership Interests at a meeting of
Members at which a quorum is present shall be the act of the Members.
(b) All meetings of the Members shall be held at the principal place
of business of the Company or at such other place within or without the State of
Maryland as shall be specified or fixed in the notices or waivers of notice
thereof.
(c) Notwithstanding the other provisions of the Articles or this
Agreement, the chairman of the meeting or the holders of a majority of the
Membership Interests shall have the power to adjourn such meeting from time to
time, without any notice other than announcement at the meeting of the time and
place of the holding of the adjourned meeting. If such meeting is adjourned by
the Members, such time and place shall be determined by a vote of the holders of
a majority of the Membership Interests. Upon the resumption of such adjourned
meeting, any business may be transacted that might have been transacted at the
meeting as originally called.
(d) An annual meeting of the Members, for the appointment of the
Managers and for the transaction of such other business as may properly come
before the meeting, shall be held at such place, within or without the State of
Maryland, on such date and at such time as the
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Managers shall fix and set forth in the notice of the meeting, which date shall
be within 13 months subsequent to the date of organization of the Company or the
last annual meeting of Members, whichever most recently occurred.
(e) Special meetings of the Members for any proper purpose or purposes
may be called at any time by a Manager or the holders of at least ten percent of
the Membership Interests of all Members. If not otherwise stated in or fixed in
accordance with the remaining provisions hereof, the record date for determining
Members entitled to call a special meeting is the date any Member first signs
the notice of that meeting. Only business within the purpose or purposes
described in the notice (or waiver thereof) required by this Agreement may be
conducted at a special meeting of the Members.
(f) Written or printed notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) nor more than
sixty (60) days before the date of the meeting, either personally, by mail or by
facsimile transmission, by or at the direction of the Managers or person calling
the meeting, to each Member entitled to vote at such meeting. Any such notice
shall be deemed to be delivered when hand-delivered, when transmitted by
facsimile transmission or, if mailed, when deposited in the United States mail,
addressed to the Member at his address as provided for in Section 10.3, with
postage thereon prepaid.
(g) The date on which notice of a meeting of Members is mailed or
delivered or the date on which the resolution of the Managers declaring a
distribution is adopted, as the case may be, shall be the record date for the
determination of the Members entitled to notice of or to vote at such meeting,
including any adjournment thereof, or the Members entitled to receive such
distribution.
4.2 Proxies.
A Member may vote either in person or by proxy executed in writing by
the Member. A telecopy, telegram, telex, cablegram or similar transmission by
the Member, including a photographic, photostatic, facsimile or similar
reproduction of a writing executed by the Member, shall be treated as an
execution in writing for purposes of this Section 4.2. Proxies for use at any
meeting of Members or in connection with the taking of any action by written
consent shall be filed with the Managers, before or at the time of the meeting
or execution of the written consent, as the case may be. All proxies shall be
received and taken charge of and all ballots shall be received and canvassed by
the Managers, who shall decide all questions touching upon the qualification of
voters, the validity of the proxies, and the acceptance or rejection of votes,
unless an inspector or inspectors shall have been appointed by the chairman of
the meeting, in which event such inspector or inspectors shall decide all such
questions. No proxy shall be valid after 11 months from the date of its
execution unless otherwise provided in the proxy. A proxy shall be revocable
unless the proxy form conspicuously states that the proxy is irrevocable and the
proxy is coupled with an interest. Should a proxy designate two or more persons
to act as proxies, unless that instrument shall provide to the contrary, a
majority of such persons present at any meeting at which their powers thereunder
are to be exercised shall have and may exercise all the powers of voting or
giving consents thereby conferred, or if only one be
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present, then such powers may be exercised by that one; or, if an even number
attend and a majority do not agree on any particular issue, the Company shall
not be required to recognize such proxy with respect to such issue if such proxy
does not specify how the Membership Interests that are the subject of such proxy
are to be voted with respect to such issue.
4.3 Conduct of Meetings.
All meetings of the Members shall be presided over by the chairman of
the meeting, who shall be a Manager (or representative thereof) designated by
the Managers. The chairman of any meeting of Members shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order.
4.4 Action by Written Consent or Telephone Conference.
(a) Any action required or permitted to be taken at any annual or
special meeting of Members may be taken without a meeting, without prior notice,
and without a vote, if a consent or consents in writing, setting forth the
action so taken, shall be signed by the holder or holders of not less than the
minimum Membership Interests that would be necessary to take such action at a
meeting at which the holders of all Membership Interests entitled to vote on the
action were present and voted. Every written consent shall bear the date of
signature of each Member who signs the consent. No written consent shall be
effective to take the action that is the subject to the consent unless, within
60 days after the date of the earliest dated consent delivered to the Company in
the manner required by this Section 4.4, a consent or consents signed by the
holder or holders of not less than the minimum Membership Interests that would
be necessary to take the action that is the subject of the consent are delivered
to the Company by delivery to its registered office, its principal place of
business, or the Managers. Delivery shall be by hand, facsimile transmission or
certified or registered mail, return receipt requested. Delivery to the
Company's principal place of business shall be addressed to the Managers. A
telecopy, telegram, telex, cablegram or similar transmission by a Member,
including a photographic, photostatic, facsimile or similar reproduction of a
writing signed by a Member, shall be regarded as signed by the Member for
purposes of this Section. Prompt notice of the taking of any action by Members
without a meeting by less than unanimous written consent shall be given to those
Members who did not consent in writing to the action.
(b) The record date for determining Members entitled to consent to
action in writing without a meeting shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Company by delivery to its registered office, its principal
place of business, or the Managers. Delivery shall be by hand, by facsimile
transmission, or by certified or registered mail, return receipt requested.
Delivery to the Company's principal place of business shall be addressed to the
Managers.
(c) If any action by Members is taken by written consent, any articles
or documents filed with the State Department of Assessments and Taxation as a
result of the taking of the action shall state, in lieu of any statement
required by the Act concerning any vote of
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Members, that written consent has been given in accordance with the provisions
of the Act and that any written notice required by the Act has been given.
(d) Members may participate in and hold a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such meeting shall constitute attendance and presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the action of any business on the ground that the meeting is not
lawfully called or convened.
SECTION 5
PAYMENT OBLIGATIONS OF MEMBERS
5.1 Payment For Membership Interest.
The amount paid by each Member for its Membership Interest is set
forth on Exhibit A hereto.
5.2 No Interest Upon Payments.
No Member shall be entitled to interest on its capital contributions.
5.3 Loans Not Treated as Capital Contributions.
Loans by any Member to the Company shall not be considered capital
contributions of the lending Member.
5.4 Limited Liability.
Except for the payment described in Section 5.1 hereof, no Member
shall be required under any circumstances to contribute or lend any money or
property to the Company or otherwise be liable for any debts or obligations of
the Company.
SECTION 6
DISTRIBUTIONS
6.1 Distributions.
The Company shall make such distributions as the Manager in his sole
discretion shall determine, subject to Section 4A-503 of the Act. All Members
shall share in all distributions pro rata in accordance with their relative
Membership Interests.
SECTION 7
FEDERAL AND STATE TAX MATTERS
7.1 Taxation as Corporation.
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The Members intend that the Company shall be taxed as a corporation
for federal and state income tax purposes.
SECTION 8
TERM AND TERMINATION OF THE COMPANY
8.1 Term of the Company.
The term of the Company shall commence upon filing of Articles of
Organization with the Maryland State Department of Assessments and Taxation and
shall continue until the date that is twenty (20) years from such filing, unless
sooner dissolved and terminated as provided in this Agreement.
8.2 Events of Termination.
The Company shall be dissolved upon the occurrence of any of the
following events:
(a) The unanimous determination of the Members, with or without cause,
in their sole and absolute discretion, at any time, to dissolve and terminate
the Company; or
(b) The expiration of the term of the Company as stated above.
8.3 Events Not Resulting in Termination.
The Company shall not terminate upon the occurrence of any of the
following:
(a) A Member:
(i) dies, retires, resigns, is expelled as or otherwise ceases to
be a Member;
(ii) makes an assignment for the benefit of creditors;
(iii) files a voluntary petition in bankruptcy;
(iv) is adjudged bankrupt or insolvent or has entered against the
person an order for relief in any bankruptcy or insolvency proceeding;
(v) files a petition or answer seeking for that person any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
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(vi) seeks, consents to, or acquiesces in the appointment of a
trustee for, receiver for, liquidation of the member or of all or any
substantial part of the person's properties; or
(vii) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against the person in any
proceeding described in this Section 8.3(a); or
(b) the continuation of any proceeding against a Member seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation, for 120
days after the commencement thereof, or the appointment of a trustee, receiver,
or liquidator for the Members or all of any substantial part of such Member's
properties without agreement or acquiescence, which appointment is not vacated
or stayed for 120 days or, if the appointment is stayed, for 120 days after the
expiration of the stay during which period the appointment is not vacated;
8.4 Conclusion of Affairs.
In the event of the dissolution of the Company for any reason, the
Manager shall proceed promptly to wind up the affairs of and liquidate the
Company. The Manager shall have reasonable discretion to determine the time,
manner, and terms of any sale or sales of Company property pursuant to such
liquidation having due regard to the activity and the condition and relevant
market and general financial and economic conditions.
8.5 Liquidating Distributions.
After paying or providing for the payment of all debts or liabilities
of the Company and all expenses of liquidation, and subject to the right of the
Manager to set up such reserves as he may deem reasonably necessary for any
contingent or unforeseen liabilities or obligations of the Company, the proceeds
of the liquidation and any other assets of the Company shall be distributed to
or for the benefit of the Members in proportion to their Membership Interest. No
Member shall have any right to demand or receive property other than cash upon
dissolution and termination of the Company; however, the Manager shall have the
right to distribute assets in kind, valued at the then estimated fair market
value of such assets, as a liquidating distribution to the Members. The Manager
is specifically authorized to make, and each Member shall be compelled to
accept, any such distributions of any one or more asset or assets of the Company
in kind even if the percentage of the asset distributed to it exceeds the
percentage of that asset which its Membership Interest constitutes of all
Membership Interests in the Company. The Manager is specifically authorized to
distribute to each of the Members a portion of the Property in kind.
8.6 Termination.
Within a reasonable time following the completion of the liquidation
of the Company, the Manager shall supply to each of the Members a statement
which shall set forth the assets and the liabilities of the Company as of the
date of complete liquidation and each
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Member's portion of the distributions pursuant to this Agreement. Upon
completion of the liquidation of the Company and the distribution of all Company
assets, the Company shall terminate, and the Manager shall have the authority to
execute and record a Articles of Cancellation of the Company as well as any and
all other documents required to effectuate the dissolution and termination of
the Company.
SECTION 9
ASSIGNMENTS AND THE
ADDITION, SUBSTITUTION
AND WITHDRAWAL OF MEMBERS
9.1 No Restrictions on Transfers.
Membership Interests shall be freely transferable without restriction,
subject to compliance with applicable federal or state laws.
9.2 General Assignment Provisions.
Upon transfer of a Membership Interest and receipt by the Company of
the transferee's written notice of such transfer, which shall so be deemed to be
such transferee's written agreement to be bound by this Agreement, such transfer
shall be an assignment of all of the selling Member's rights under this
Agreement, and the person who acquires such Membership Interest shall be a
Member for the purposes of this Agreement.
SECTION 10
INDEMNIFICATION
10.1 Right to Indemnification.
Subject to the limitations and conditions as provided in this Section
10, each person who was or is made a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative (hereinafter a "Proceeding"), or any appeal in such a Proceeding
or any inquiry or investigation that could lead to such a Proceeding, by reason
of the fact that he, or a person of whom he is the legal representative, is or
was a Manager or officer of the Company or while a Manager or officer of the
Company is or was serving at the request of the Company as a Manager, director,
officer, partner, venturer, proprietor, trustee, employee, agent, or similar
functionary of another foreign or domestic limited liability company,
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise shall be indemnified by the Company to the
fullest extent permitted by the Act, as the same exist or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment) against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including, without limitation,
attorneys' fees) actually incurred by such person in connection with such
Proceeding, and indemnification under this Section 10 shall
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continue as to a person who has ceased to serve in the capacity which initially
entitled such person to indemnity hereunder. The rights granted pursuant to this
Section 10 shall be deemed contract rights, and no amendment, modification or
repeal of this Section 10 shall have the effect of limiting or denying any such
rights with respect to actions taken or Proceedings arising prior to any such
amendment, modification or repeal. It is expressly acknowledged that the
indemnification provided in this Section 10 could involve indemnification for
negligence or under theories of strict liability.
10.2 Advance Payment.
The right to indemnification conferred in this Section 10 shall
include the right to be paid or reimbursed by the Company the reasonable
expenses incurred by a person of the type entitled to be indemnified under
Section 10.1 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding in advance of the final disposition of the Proceeding
and without any determination as to the person's ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred
by any such person in advance of the final disposition of a Proceeding shall be
made only upon delivery to the Company of a written affirmation by such Manager
or officer of his good faith belief that he has met the standard of conduct
necessary for indemnification under this Section 10 and a written undertaking,
by or on behalf of such person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified person is not entitled to be
indemnified under this Section 10 or otherwise.
10.3 Indemnification of Employees and Agents.
The Company, by adoption of a resolution of the Managers, may
indemnify and advance expenses to an employee or agent of the Company to the
same extent and subject to the same conditions under which it may indemnify and
advance expenses to Managers and officers under this Section 10; and the Company
may indemnify and advance expenses to persons who are not or were not Managers,
officers, employees or agents of the Company but who are or were serving at the
request of the Company as a manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in such a capacity or
arising out of his status as such a person to the same extent that it may
indemnify and advance expenses to Managers and officers under this Section 10.
10.4 Appearance as a Witness.
Notwithstanding any other provision of this Section 10, the Company
may pay or reimburse expenses incurred by a Manager or officer in connection
with his appearance as a witness or other participation in a Proceeding at a
time when he is not a named defendant or respondent in the Proceeding.
10.5 Nonexclusivity of Rights.
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The right to indemnification and the advancement and payment of
expenses conferred in this Section 10 shall not be exclusive of any other right
which a Manager, officer or other person indemnified pursuant to Section 10.3
may have or hereafter acquire under any law (common or statutory), provision of
the Articles or these Regulations, agreement, vote of Members or disinterested
Managers or otherwise.
10.6 Insurance.
The Company may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was serving as a Manager, officer,
employee or agent of the Company or is or was serving at the request of the,
Company as a Manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any expense, liability
or loss, whether or not the Company would have the power to indemnify such
person against such expense, liability or loss under this Section 10.
10.7 Member Notification.
To the extent required by law, any indemnification of or advance of
expenses to a Manager or officer in accordance with this Section 10 shall be
reported in writing to the Members with or before the notice or waiver of notice
of the next Members' meeting or with or before the next submission to Members of
a consent to action without a meeting and, in any case, within the 12-month
period immediately following the date of the indemnification or advance.
10.8 Savings Clause.
If this Section 10 or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, the Company shall nevertheless
indemnify and hold harmless each Manager, officer or any other person
indemnified pursuant to this Section 10 as to costs, charges and expenses
(including, without limitation, attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to the full extent permitted
by any applicable portion of this Section 10 that shall not have been
invalidated and to the fullest extent permitted by applicable law.
SECTION 11
ADMINISTRATIVE PROVISIONS
11.1 Principal Office.
(a) The initial principal place of business and principal office of
the Company shall be 575 Main Street, Suite 355, Laurel, Maryland 20707. The
Company may relocate the principal office and principal place of business and
have such additional offices as the Manager may deem advisable in its sole and
absolute discretion.
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(b) The Manager shall have the power, on behalf of the Company, to
designate, where required, a registered agent (or other agent for receipt of
service of process) in each state or jurisdiction in which the Company transacts
business and to designate, to the extent required, a registered office, place of
business, or mailing address, within or without that state or other
jurisdiction. The Company's initial registered agent shall be CSC Lawyers
Incorporating Service Company, whose business address is Suite 9E, 11 E. Chase
Street, Baltimore, Maryland, 21202.
11.2 Bank Accounts.
(a) Funds of the Company shall be deposited in an account or accounts
of a type, in form and name and in a bank(s) or other financial institution(s)
which are participants in federal or state insurance programs as selected by the
Manager. The Manager shall arrange for the appropriate conduct of such accounts.
Funds may be withdrawn from such accounts only for bona fide and legitimate
Company purposes and may from time to time be invested in such short-term
securities, money market funds, certificates of deposit, or other liquid or
illiquid assets as the Manager deems appropriate.
(b) Each Member acknowledges that the Manager may maintain Company
funds in account9, money market funds, certificates of deposit, other liquid
assets in excess of the insurance provided by the Federal Deposit Insurance
Corporation, or other depository insurance institutions, and that the Manager
shall not be accountable or liable for any loss of such funds resulting from
failure or insolvency of the depository institution.
11.3 Notices.
Unless otherwise provided herein, any offer, acceptance, election,
approval, consent, certification, request, waiver, notice or other communication
required or permitted to be given hereunder (hereinafter collectively referred
to as a "Notice"), shall be given to the Member to whom the Notice is to be
given at the appropriate address set forth on Exhibit A hereto or at such other
address as any Member hereafter may designate to the others in accordance with
the provisions of this Section 10.3 by U.S. Mail first class postage prepaid,
hand-delivery or facsimile transmission. In addition, the Manager and the other
Member shall be sent a copy of all such Notices, by U.S. Mail first class
postage prepaid. The date at which a Notice shall be deemed given , if sent by
U.S. Mail, shall be the date of deposit of the notice in the U.S. Mail as
aforesaid, or, if by hand-delivery or facsimile transmission, on the date of
such delivery or transmission.
SECTION 12
MISCELLANEOUS PROVISIONS
12.1 Entire Agreement.
This Agreement, including the Exhibits or other documents or schedules
attached hereto or incorporated herein by reference constitutes the entire
agreement of the Members with
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respect to the matters covered herein. This Agreement supersedes any and all
prior agreements and oral understandings among the Members with respect to such
matters.
12.2 Amendment.
Except as provided by law or otherwise set forth herein, this
Agreement may only be modified or amended by a written instrument which
evidences the unanimous approval of the Members; provided, however, that Exhibit
A hereto may be amended from time to time by the Manager to the extent required
to reflect accurately the then-current status of the information contained
thereon.
12.3 Interpretation.
Whenever the context may require, any noun or pronoun used herein
shall include the corresponding masculine, feminine or neuter forms. The
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
12.4 Severability.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions hereof are determined to be invalid
and contrary to existing or future law, such invalidity shall not impair the
operation or affect those portions of this Agreement which are valid, and this
Agreement shall remain in full force and effect and shall be construed and
enforced in all respects as if such invalid or unenforceable provision or
provisions had been omitted.
12.5 Burden and Benefit.
Except as expressly otherwise provided herein, this Agreement is
binding upon, and inures to the benefit of, the parties hereto and their
respective heirs, executors, administrators, personal and legal representatives,
successors and permitted assigns. The provisions of this Agreement are not
intended to be for the benefit of any creditor or other person (other than a
Member in its capacity as a Member) to whom any debts, liabilities or
obligations are owed by or who otherwise has any claim against the Company or
any of the Members, and no such creditor or other person shall obtain any right
under any such provisions or shall by reason of any such provisions make any
claim in respect of any debt, liability or obligation (or otherwise) against the
Company, the Manager or any of the Members.
12.6 Further Assurances.
Each Member hereby agrees that it shall hereafter execute and deliver
such further instruments, provide all information and take or forbear such
further acts and things as may be reasonably required or useful to carry out the
intent and purpose of this Agreement and as are not inconsistent with the terms
hereof.
12.7 Counterparts.
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This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together will constitute one
instrument, binding upon all parties hereto, notwithstanding that all of such
parties may not have executed the same counterpart.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed and sealed this
Agreement on the date first above written.
MEMBERS:
EMCARE HOLDINGS INC.,
a Delaware corporation
By: /s/ Gary W. Cakt
------------------------------------
Name: Gary W. Cakt
Title: Sup & CFO
EMCARE, INC.,
a Delaware corporation
By: /s/ Gary W. Cakt
------------------------------------
Name: Gary W. Cakt
Title: Sup & CFO
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EXHIBIT A
Membership Initial
Member and Address Interest Capital Contribution
- ------------------ ---------- --------------------
EMCARE HOLDINGS INC. 99% $990
1717 Main Street, Suite 5200
Dallas, Texas 75201
EMCARE, INC. 1% $ 10
1717 Main Street, Suite 5200
Dallas, Texas 75201
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