Exhibit 3.285
EMS MANAGEMENT LLC
A DELAWARE LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
Dated as of February _, 2005
THE MEMBERSHIP INTERESTS REPRESENTED BY THIS OPERATING AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR UNDER ANY OTHER
APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION
UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER
RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
OPERATING AGREEMENT
OF
EMS MANAGEMENT LLC,
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT of EMS Management LLC (this "AGREEMENT"), dated
as of February _, 2005, is adopted by, and executed and agreed to, for good and
valuable consideration, by the Members.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"ACT" means the Delaware Limited Liability Company Act and any
successor statute, as amended from time to time.
"AFFILIATE" means, with respect to a Person, any other Person that
controls, is controlled by, or is under common control with, the Person in
question; and for purposes of the foregoing, the term "control"
(including, with correlative meanings, the terms "controlled by" and
"under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of an entity, whether through the ownership of
voting securities or by trust, management agreement, partnership
agreement, contract or otherwise
"AGREEMENT" has the meaning given that term in the introductory
paragraph.
"BOOK VALUE" means, with respect to any Company property, the
Company's adjusted basis for federal income tax purposes, except as
follows:
(a) the initial Book Value of any asset contributed by a Member to
the Company shall be its gross fair market value at the time
of such contribution;
(b) the Book Value of all Company assets shall be adjusted to
equal their respective gross fair market values, as determined
by the Members, as of the following times: (i) the
distribution by the Company to a Member of more than a de
minimis amount of Company assets as consideration for all or
some of such Member's Units; (ii) the liquidation of the
Company within the meaning of Treasury Regulations Section
1.704-1(b)(2)(ii)(g); and (iii) the grant of more than a de
minimis number of Units as consideration for the provision of
services to or for the benefit of the Company; and
(c) the Book Value of any Company asset distributed to a Member
shall be the gross fair market value of such asset, as
determined by the Members, as of the date of such
distribution.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
holiday on which national banking associations in the State of Illinois or
the State of New York are closed.
"CAPITAL ACCOUNT" has the meaning given that term in Article IV
hereof.
"CAPITAL CONTRIBUTION" means the aggregate contribution by a Member
to the capital of the Company specified on Schedule A hereto, as amended
from time to time in accordance with the terms of this Agreement.
"CERTIFICATE" has the meaning given that term in Section 2.1.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, including the corresponding provisions of any successor law.
"COMPANY" means EMS Management LLC, a Delaware limited liability
company.
"COMPANY MINIMUM GAIN" has the meaning set forth for "partnership
minimum gain" in Section 1.704-2(d) of the Treasury Regulations.
"DISPOSE," "DISPOSED," "DISPOSING" or "DISPOSITION" means a sale,
assignment, transfer, exchange, mortgage, pledge, grant of a security
interest or other disposition or encumbrance (including, without
limitation, by operation of law) or the acts thereof.
"DISTRIBUTION" means a distribution made by the Company to a Member,
whether in cash, property or securities of the Company and whether by
liquidating distribution or otherwise; provided that any redemption or
repurchase by the Company of any interest in the Company shall not be
considered a Distribution.
"FISCAL YEAR" of the Company means the year ending August 31.
"INCAPACITY" or "INCAPACITATED" means (a) with respect to a natural
person, the bankruptcy, death, incompetency or insanity of such person and
(b) with respect to any other Person, the bankruptcy, liquidation,
dissolution or termination of such Person.
"INDEMNIFYING MEMBER" has the meaning given that term in Section
11.10.
"LOSSES" for any period means all items of Company loss, deduction
and expense for such period determined according to Section 4.2.
"MEMBER" means any Person executing this Agreement as of the date of
this Agreement as a member or hereafter admitted to the Company as a
member as provided in this Agreement, but does not include any Person who
has ceased to be a member of the Company.
"MEMBER MINIMUM GAIN" has the meaning set forth for "partner
nonrecourse debt minimum gain" in Treasury Regulations Section 1.704-2(i).
"MEMBER NONRECOURSE DEDUCTIONS" has the meaning set forth for
"partner nonrecourse deductions" in Treasury Regulations Section
1.704-2(i).
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Treasury
Regulations Section 1.704-2(b)(1).
"PERCENTAGE INTEREST" means, as to each Member, the percentage set
forth opposite its name on Schedule A.
"PERSON" means a natural person, partnership (whether general or
limited),
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limited liability company, trust, estate, association, corporation,
custodian, nominee or any other individual or entity in its own or any
representative capacity.
"PROFITS" for any period means all items of Company income and gain
for such period determined according to Section 4.2.
"REGULATORY ALLOCATIONS" has the meaning given that term in Section
5.4(iv).
"REQUIRED INTEREST" means one or more Members possessing a majority
of the Units owned by all Members.
"TAX MATTERS MEMBER" has the meaning given that term in Section 7.2.
"TAXABLE YEAR" means the Company's taxable year ending August 31 (or
part thereof, in the case of the Company's final taxable year), or such
other year as is determined by the Members in compliance with Section 706
of the Code.
"TREASURY REGULATIONS" means the Treasury Regulations promulgated
under the Code, as amended from time to time, including the corresponding
provisions of any successor regulations.
Other terms defined in this Agreement have the meanings so given to them.
1.2 CONSTRUCTION. Whenever the context requires, the gender of all words
used in this Agreement includes the masculine, feminine and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement, and all references to Schedules are to Schedules attached hereto,
each of which is made a part hereof for all purposes.
ARTICLE II
ORGANIZATION
2.1 FORMATION. The Company has been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the
"Certificate") under and pursuant to the Act.
2.2 NAME. The name of the Company is "EMS Management LLC," and all Company
business shall be conducted in that name or such other names that comply with
applicable law as the Members may select from time to time.
2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER OFFICES.
The registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the Company) as the Members may designate from time to time in the manner
provided by law. The registered agent of the Company in the State of Delaware
shall be the initial registered agent named in the Certificate or such other
Person or Persons as the Members may designate from time to time in the manner
provided by law. The principal office of the Company shall be at 6200 S.
Syracuse Way, Suite 200, Greenwood Village, Colorado, 80111-4734, or at such
other place as the Members may designate from time to time, which need not be in
the State of Delaware, and the Company shall maintain records there. The Company
may have such other offices as the Members may designate from time to time.
2.4 PURPOSES. The purposes of the Company are those set forth in the
Certificate and to engage in any other business or activity that now or
hereafter may be necessary,
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incidental, proper, advisable or convenient to accomplish the foregoing purposes
(including, without limitation, obtaining financing therefor) and that is not
prohibited by the Act or the laws of the jurisdictions in which the Company
engages in that business.
2.5 FOREIGN QUALIFICATION. Prior to the Company's conducting business in
any jurisdiction other than Delaware, the Members shall cause the Company to
comply, to the extent procedures are available and those matters are reasonably
within the control of the Members, with all requirements necessary to qualify
the Company as a foreign limited liability company in that jurisdiction. Each
Member shall execute, acknowledge, swear to and deliver all certificates and
other instruments conforming with this Agreement that are necessary or
appropriate to qualify, continue and terminate the Company as a foreign limited
liability company in all such jurisdictions in which the Company may conduct
business.
2.6 TERM. The term of the Company commenced on the date the Certificate
was filed with the office of the Secretary of State of Delaware and shall
continue in existence until termination and dissolution thereof as determined
under Section 10.1 of this Agreement.
2.7 NO STATE-LAW PARTNERSHIP. The Members intend that the Company not be a
partnership (including, without limitation, a limited partnership) or joint
venture, and that no Member be a partner or joint venturer of any other Member,
for any purposes other than federal and, if applicable, state tax purposes, and
this Agreement shall not be construed to suggest otherwise. The Members intend
that the Company shall be treated as a partnership for federal and, if
applicable, state income tax purposes, and each Member and the Company shall
file all tax returns and shall otherwise take all tax and financial reporting
positions in a manner consistent with such treatment.
ARTICLE III
MEMBERSHIP; PERCENTAGE INTERESTS
3.1 MEMBERS.
3.1.1 The names, residence, business or mailing addresses, Capital
Contributions and the Percentage Interests of the Members are set forth in
Schedule A, as amended from time to time in accordance with the terms of this
Agreement.
3.1.2 No Member, as such, shall be required to lend any funds to the
Company or to make any additional contribution of capital to the Company, except
as otherwise required by applicable law or by this Agreement. Any Member may,
with the consent of the other Member, make loans to the Company, and any loan by
a Member to the Company shall not be considered to be a Capital Contribution.
3.1.3 Each Member hereby represents and warrants to and acknowledges
with the Company that: (a) it is acquiring interests in the Company for
investment only and not with a view to, or for resale in connection with, any
distribution to the public or public offering thereof; (b) the interests in the
Company have not been registered under the securities laws of any jurisdiction
and cannot be disposed of unless they are subsequently registered and/or
qualified under applicable securities laws and the provisions of this Agreement
have been complied with; and (c) the execution, delivery and performance of this
Agreement does not require such Member to obtain any consent or approval that
has not been obtained and do not contravene or result in a default under any
provision of any law or regulation applicable to such Member or other governing
documents or any agreement or instrument to which such Member is a party or by
which such Member is bound.
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3.2 LIABILITY OF MEMBERS.
3.2.1 Except as otherwise required by applicable law and as
explicitly set forth in this Agreement, no Member shall have any personal
liability whatever in its capacity as a Member, whether to the Company, to any
of the Members, to the creditors of the Company or to any other third party, for
the debts, liabilities, commitments or any other obligations of the Company or
for any losses of the Company, and therefore, a Member shall be liable only to
make any payments expressly provided herein.
3.2.2 In accordance with the Act and the laws of the State of
Delaware, a member of a limited liability company may, under certain
circumstances, be required to return amounts previously distributed to such
member. It is the intent of the Members that no distribution to any Member
pursuant to Article V hereof shall be deemed a return of money or other property
paid or distributed in violation of the Act. The payment of any such money or
distribution of any such property to a Member shall be deemed to be a compromise
within the meaning of the Act, and the Member receiving any such money or
property shall not be required to return to any Person any such money or
property. However, if any court of competent jurisdiction holds that,
notwithstanding the provisions of this Agreement, any Member is obligated to
make any such payment, such obligation shall be the obligation of such Member.
ARTICLE IV
CAPITAL ACCOUNTS
4.1 ESTABLISHMENT AND DETERMINATION OF CAPITAL ACCOUNTS. A capital account
("CAPITAL ACCOUNT") shall be established for each Member. The Capital Account of
each Member shall consist of its initial Capital Contribution and shall be (a)
increased by (i) any additional Capital Contributions made by such Member
pursuant to the terms of this Agreement and (ii) such Member's share of items of
Profits allocated to such Member pursuant to Article V, (b) decreased by (i)
such Member's share of items of Losses allocated to such Member pursuant to
Article V and (ii) any Distributions to such Member of cash or the fair market
value of any other property (net of liabilities assumed by such Member and
liabilities to which such property is subject) distributed to such Member and
(c) adjusted as otherwise required by the Code and the regulations thereunder,
including but not limited to, the Rules of Treasury Regulation Section
1.704-1(b)(2)(iv). Any references in this Agreement to the Capital Account of a
Member shall be deemed to refer to such Capital Account, as the same may be
increased or decreased from time to time as set forth above.
4.2 COMPUTATION OF AMOUNTS. For purposes of computing the amount of
Profits and Losses to be reflected in Capital Accounts, the determination,
recognition and classification of each item of income, gain, loss, deduction or
expense shall be the same as its determination, recognition and classification
for federal income tax purposes; provided that:
(i) any income that is exempt from federal income tax shall be added
to such taxable income or losses;
(ii) any expenditures of the Company described in Section
705(a)(2)(B) of the Code or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(i), shall be subtracted from such taxable income or
losses;
(iii) if the Book Value of any Company property is adjusted pursuant
to the definition of Book Value in Section 1.1 hereof, the amount of such
adjustment shall be taken into account as gain or loss from the
disposition of such property;
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(iv) if property that is reflected on the books of the Company has a
Book Value that differs from the adjusted tax basis of such property,
depreciation, amortization and gain or loss with respect to such property
shall be determined by reference to such Book Value; and
(v) the computation of all items of income, gain, loss, deduction
and expense shall be made without regard to any election pursuant to
Section 754 of the Code that may be made by the Company, unless the
adjustment to basis of Company property pursuant to such election is
reflected in Capital Accounts pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m).
4.3 NEGATIVE CAPITAL ACCOUNTS. No Member shall be required to pay to the
Company or any other Member any deficit or negative balance which may exist from
time to time in such Member's Capital Account.
4.4 COMPANY CAPITAL. No Member shall be paid interest on any Capital
Contribution to the Company or on such Member's Capital Account, and no Member
shall have any right (i) to demand the return of such Member's Capital
Contribution or any other distribution from the Company (whether upon
resignation, withdrawal or otherwise), except upon dissolution of the Company
pursuant to Article X, or (ii) to cause a partition of the Company's assets.
ARTICLE V
DISTRIBUTIONS; ALLOCATIONS OF
PROFITS AND LOSSES
5.1 GENERALLY. Subject to the provision of Section 18-607 of the Act,
Distributions shall be made when and as agreed to by the Members in proportion
their respective Percentage Interests immediately prior to such Distribution.
5.2 DISTRIBUTIONS IN KIND. At any time, and from time to time, the Company
may distribute to its Members property held by the Company. In any distribution
pursuant to this Section 5.2, the property so distributed shall be distributed
among the Members in the same proportions as cash equal to the fair market value
of such property (as determined by the Members) would be distributed among the
Members pursuant to Section 5.1.
5.3 ALLOCATION OF PROFITS AND LOSSES. For each Fiscal Year of the Company,
after adjusting each Member's Capital Account for all Capital Contributions and
distributions during such Fiscal Year and all special allocations pursuant to
Section 5.4 with respect to such Fiscal Year, all Profits and Losses (other than
Profits and Losses specially allocated pursuant to Section 5.4) shall be
allocated to the Members' Capital Accounts in proportion to their respective
Percentage Interests at such time.
5.4 SPECIAL ALLOCATIONS. Notwithstanding the provisions of Section 5.3:
(a) Nonrecourse Deductions shall be allocated to the Members, pro
rata in proportion to the Percentage Interests held by each such Member.
If there is a net decrease in Company Minimum Gain during any Taxable
Year, each Member shall be specially allocated items of taxable income or
gain for such Taxable Year (and, if necessary, subsequent Taxable Years)
in an amount equal to such Member's share of the net decrease in Company
Minimum Gain, determined in accordance with Treasury Regulations Section
1.704-2(g). The items to be so allocated shall be determined in accordance
with Treasury Regulation Section 1.704-2(f)(6). This paragraph is intended
to comply with the minimum gain chargeback requirement in Treasury
Regulations Section 1.704-2(f) and shall be interpreted consistently
therewith.
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(b) Member Nonrecourse Deductions shall be allocated in the manner
required by Treasury Regulations Section 1.704-2(i). Except as otherwise
provided in Treasury Regulations Section 1.704-2(i)(4), if there is a net
decrease in Member Minimum Gain during any Taxable Year, each Member that
has a share of such Member Minimum Gain shall be specially allocated items
of taxable income or gain for such Taxable Year (and, if necessary,
subsequent Taxable Years) in an amount equal to that Member's share of the
net decrease in Member Minimum Gain. Items to be allocated pursuant to
this paragraph shall be determined in accordance with Treasury Regulations
Sections 1.704-2(i)(4) and 1.704-2(j)(2). This paragraph is intended to
comply with the minimum gain chargeback requirements in Treasury
Regulations Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(c) If any Member unexpectedly receives any adjustments, allocations
or Distributions described in Treasury Regulations Section
1.704-l(b)(2)(ii)(d)(4), (5) or (6), items of taxable income and gain
shall be specially allocated to such Member in an amount and manner
sufficient to eliminate the adjusted capital account deficit (determined
according to Treasury Regulations Section 1.704-1 (b)(2)(ii)(d)) created
by such adjustments, allocations or Distributions as quickly as possible.
This paragraph is intended to comply with the qualified income offset
requirement in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall
be interpreted consistently therewith.
(d) The allocations set forth in paragraphs (i), (ii) and (iii)
above (the "REGULATORY ALLOCATIONS") are intended to comply with certain
requirements of the Treasury Regulations under Code Section 704.
Notwithstanding any other provisions of this Article V (other than the
Regulatory Allocations), the Regulatory Allocations shall be taken into
account in allocating Profits and Losses among Members so that, to the
extent possible, the net amount of such allocations of Profits and Losses
and other items and the Regulatory Allocations (including Regulatory
Allocations that, although not yet made, are expected to be made in the
future) to each Member shall be equal to the net amount that would have
been allocated to such Member if the Regulatory Allocations had not
occurred.
5.5 AMOUNTS WITHHELD. All amounts withheld pursuant to Section 11.10 from
any Distribution to a Member shall be treated as amounts distributed to such
Member pursuant to this Article V for all purposes under this Agreement.
5.6 TAX ALLOCATIONS: CODE SECTION 704(C).
5.6.1 The income, gains, losses, deductions and expenses of the
Company shall be allocated, for federal, state and local income tax purposes,
among the Members in accordance with the allocation of corresponding items of
income, gains, losses, deductions and expenses among the Members for computing
their Capital Accounts, except that if any such allocation is not permitted by
the Code or other applicable law, the Company's subsequent income, gains,
losses, deductions and expenses shall be allocated among the Members so as to
reflect as nearly as possible the allocation set forth herein in computing their
Capital Accounts.
5.6.2 In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, deduction and expense with respect
to any property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income
tax purposes and its fair market value at the time of contribution.
5.6.3 If the Book Value of any Company asset is adjusted pursuant to
the
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definition of "Book Value" set forth in Section 1.1, subsequent allocations of
items of taxable income, gain, loss, deduction and expense with respect to such
asset shall take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Book Value in the same manner as
under Code Section 704(c).
5.6.4 Any elections or other decisions relating to such allocations
shall be made by the Members in any manner that reasonably reflects the purpose
and intent of this Agreement. Allocations pursuant to this Section 5.6 are
solely for purposes of federal, state and local taxes and shall not affect, or
in any way be taken into account in computing, any Member's Capital Account or
share of profits, losses, other items or distributions pursuant to any
provisions of this Agreement.
ARTICLE VI
MANAGEMENT
6.1 MANAGEMENT BY THE MEMBERS. Except as otherwise expressly provided
herein, or as required by any non-waivable provision of applicable law, the
business and affairs of the Company shall be managed by the consent of the
Members.
6.2 DELEGATION OF AUTHORITY AND DUTIES.
6.2.1 In managing the business and affairs of the Company and
exercising their powers, the Members may, from time to time, delegate to one or
more Persons (including any employee or officer of the Company) such authority
and duties as the Members may deem advisable. In addition, the Members may
assign titles (including, without limitation, chairman, chief executive officer,
president, vice president, secretary, assistant secretary, treasurer and
assistant treasurer) to any such persons and delegate to such individuals
certain authority and duties. Any number of titles may be held by the same
individual. Any delegation pursuant to this Section 6.2.1 may be revoked at any
time by the Members.
6.2.2 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.
ARTICLE VII
TAXES
7.1 TAX RETURNS. The Company shall cause to be prepared and filed all
necessary federal, state and local income tax returns for the Company, including
making any elections the Members may deem appropriate and in their best
interests.
7.2 TAX MATTERS MEMBER. Unless and until the Members shall otherwise
unanimously agree, AMR HoldCo, Inc. shall be the "tax matters partner" of the
Company pursuant to Section 6231(a)(7) of the Code (the "TAX MATTERS MEMBER").
(a) The Tax Matters Member is authorized to represent the Company
before the Internal Revenue Service and any other governmental agency with
jurisdiction, and to sign such consents and to enter into settlements and
other agreements with such agencies as the Members deems necessary or
advisable.
(b) Promptly following the written request of the Tax Matters
Member, the Company shall, to the fullest extent permitted by law,
reimburse and indemnify the Tax
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Matters Member for all reasonable expenses, including reasonable legal and
accounting fees, claims, liabilities, losses and damages incurred by the
Tax Matters Member in connection with any administrative or judicial
proceeding (a) with respect to the tax liability of the Company and/or (b)
with respect to the tax liability of the Members in connection with the
operations of the Company.
(c) The provisions of this Section 7.2 shall survive the dissolution
or termination of the Company or the termination of any Member's interest
in the Company and shall remain binding on the Members for as long a
period of time as is necessary to resolve with the Internal Revenue
Service any and all matters regarding the federal income taxation of the
Company or the Members.
7.3 TAX ELECTIONS. The Company shall, in its discretion, make or revoke
any elections under the Code or the Treasury Regulations issued thereunder
(either now or in the future).
ARTICLE VIII
BOOKS AND COMPANY FUNDS
8.1 MAINTENANCE OF BOOKS. The Company shall keep books and records of
account and shall keep reasonable records of the significant actions of its
Members.
8.2 COMPANY FUNDS. The Company may not commingle the Company's funds with
the funds of any Member.
ARTICLE IX
TRANSFERS
9.1 ASSIGNMENT BY MEMBERS. No Member shall sell, assign, transfer or
Dispose of, or offer to sell, assign or transfer or otherwise Dispose of, all or
any part of such Member's interest in the Company (whether voluntarily or
involuntarily) without the consent of the other Member, which consent may be
withheld in the sole discretion of such other Member.
9.2 VOID ASSIGNMENT. Any sale, exchange or other transfer by any Member of
any interests in the Company in contravention of this Agreement shall be void
and ineffectual and shall not bind or be recognized by the Company or any other
party. No purported assignee shall have any right to any profits, losses or
distributions of the Company.
ARTICLE X
DISSOLUTION, LIQUIDATION AND TERMINATION
10.1 DISSOLUTION. The Company shall be dissolved and its affairs shall be
wound up on the first to occur of the following:
(a) the unanimous vote of the Members, and
(b) the entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Act.
In the event of the expulsion, bankruptcy or dissolution of a Member, or the
occurrence of any other event that terminates the continued membership of a
Member in the Company, the remaining Member shall have the right to cause a
dissolution of the Company.
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10.2 LIQUIDATION AND TERMINATION.
10.2.1 In the event of the dissolution of the Company for any
reason, the Members shall act as liquidators or may appoint one or more Persons
as liquidators. The liquidators shall proceed promptly to wind up the affairs of
the Company. The liquidators shall have full right and unlimited discretion to
determine the time, manner, and terms of any sale or sales of Company property
pursuant to such winding up having due regard to the activity and condition of
the relevant market and general financial and economic conditions, and having
due regard for liquidators' fiduciary obligations to the Company and the
Members.
10.2.2 The proceeds received in connection with any liquidation of
the assets of the Company and any other assets of the Company shall be applied
in the following order of priority:
(a) first, in payment of all debts and liabilities of and all claims
against the Company, including expenses of winding up;
(b) then, to the setting of such reserves as the liquidators may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Company;
(c) then, the balance to the Members in accordance with their
positive Capital Account balances.
10.2.3 Distributions pursuant to Section 10.2.2 may be made in cash
or property or both, in the discretion of the liquidators; provided, however,
that any distributions of property made pursuant hereto shall be made pro rata
(based on the fair market value of such property) among the Members in
accordance with their respective positive Capital Account balances. In the event
of any distribution of property in kind hereunder, the Company shall treat such
property as having been sold at its fair market value, shall allocate the gain
or loss recognized as a result of such deemed sale in accordance with Section
5.3 hereof, and shall take such allocations into account in determining Capital
Account balances for purposes of Section 10.2.2.
10.3 DEFICIT CAPITAL ACCOUNTS. Notwithstanding anything to the contrary
contained in this Agreement, and notwithstanding any custom or rule of law to
the contrary, to the extent that the deficit, if any, in the Capital Account of
any Member results from or is attributable to deductions and losses of the
Company (including non-cash items such as depreciation), or distributions of
money pursuant to this Agreement to all Members in proportion to their
respective interests, upon dissolution of the Company such deficit shall not be
an asset of the Company and such Members shall not be obligated to contribute
such amount to the Company to bring the balance of such Member's capital account
to zero.
10.4 CANCELLATION OF CERTIFICATE. On completion of the distribution of
Company assets as provided herein, the Company shall be terminated, and the
liquidators (or such other Person or Persons as the Act may require or permit)
shall file a certificate of cancellation with the Secretary of State of
Delaware, cancel any other filings made pursuant to Section 2.5 and take such
other actions or execute and record any and all documents as may be necessary to
terminate the Company.
10.5 FAIR MARKET VALUE. For purposes of this Article X, the fair market
value of any assets of the Company shall be determined by (a) the unanimous
consent of the Members or (b) an independent appraisal.
10.6 DISTRIBUTION ON LIQUIDATION. Notwithstanding any other provision of
this
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Agreement, in the event of a liquidation, the Company shall make liquidating
distributions within the period prescribed in the Treasury Regulations under
Section 704(b) of the Code.
ARTICLE XI
GENERAL PROVISIONS
11.1 OFFSET. Whenever the Company is to pay any sum to any Member, any
amounts that Member owes to the Company may be deducted from that sum before
payment.
11.2 NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests or consents provided for or permitted to be
given under this Agreement must be in writing and must be given either by
depositing that writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering that writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request or consent given under this Agreement is
effective on receipt by the Person to receive it. All notices, requests and
consents to be sent to a Member must be sent to or made at the address given for
that Member on Schedule A, or such other address as that Member may specify by
notice to the other Members. Whenever any notice is required to be given by law,
the Certificate or this Agreement, a written waiver thereof, signed by the
Person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
11.3 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the Members and their affiliates relating to the Company and supersedes all
prior contracts or agreements with respect to the Company, whether oral or
written.
11.4 EFFECT OF WAIVER OR CONSENT. A waiver or consent, express or implied,
to or of any breach or default by any Person in the performance by that Person
of its obligations with respect to the Company is not a consent or waiver to or
of any other breach or default in the performance by that Person of the same or
any other obligations of that Person with respect to the Company. Failure on the
part of a Person to complain of any act of any Person or to declare any Person
in default with respect to the Company, irrespective of how long that failure
continues, does not constitute a waiver by that Person of its rights with
respect to that default until the applicable statute-of-limitations period has
run.
11.5 AMENDMENT OR MODIFICATION. This Agreement may be amended or modified
from time to time only by a written instrument executed and agreed to by the
Members.
11.6 BINDING EFFECT. Subject to the restrictions on Dispositions set forth
in this Agreement, this Agreement is binding on and inure to the benefit of the
Members and their respective heirs, legal representatives, successors and
assigns.
11.7 GOVERNING LAW; SEVERABILITY. THIS AGREEMENT IS GOVERNED BY AND SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and any provision
of the Certificate or any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control. If any provision of this
Agreement or the application thereof to any Person or circumstance is held
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other Persons or circumstances is not affected
thereby and that provision shall be enforced to the greatest extent permitted by
law.
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11.8 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
11.9 WAIVER OF CERTAIN RIGHTS. Each Member irrevocably waives any right it
may have to maintain any action for dissolution of the Company or for partition
of the property of the Company or for any rights to information from the Company
provided under Section 18-305 of the ACT.
11.10 INDEMNIFICATION AND REIMBURSEMENT FOR PAYMENTS ON BEHALF OF A
MEMBER. If the Company is obligated to pay any amount to a governmental agency
(or otherwise makes a payment) because of a Member's status or otherwise
specifically attributable to a Member (including, without limitation, federal
withholding taxes with respect to foreign Persons, state personal property
taxes, state unincorporated business taxes, etc.), then such Member (the
"INDEMNIFYING MEMBER") shall indemnify the Company in full for the entire amount
paid (including, without limitation, any interest, penalties and expenses
associated with such payments). The amount to be indemnified shall be charged
against the Capital Account of the Indemnifying Member, and, either:
(a) promptly upon notification of an obligation to indemnify the
Company, the Indemnifying Member shall make a cash payment to the Company
equal to the full amount to be indemnified (and the amount paid shall be
added to the Indemnifying Member's Capital Account but shall not be
treated as a Capital Contribution), or
(b) the Company shall reduce distributions which would otherwise be
made to the Indemnifying Member, until the Company has recovered the
amount to be indemnified (and the amount withheld shall not be treated as
a Capital Contribution).
11.11 NOTICE TO MEMBERS OF PROVISIONS. By executing this Agreement, each
Member acknowledges that it has actual notice of (i) all of the provisions
hereof and (ii) all of the provisions of the Certificate. 1.2
11.12 COUNTERPARTS. This Agreement may be executed in multiple
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Members have executed this Agreement as of the
date first set forth above.
MEMBERS:
AMR HOLDCO, INC.
By: /s/ Robert M. Le Blanc
-----------------------
Name: Robert M. Le Blanc
Title: President
EMCARE HOLDCO, INC.
By: /s/ Robert M. Le Blanc
----------------------
Name: Robert M. Le Blanc
Title: President
[Signature Page to Operating Agreement]
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SCHEDULE A
Capital
Members Contribution Percentage Interest
AMR HoldCo, Inc. $100.00 50%
6200 S. Syracuse Way
Suite 200
Greenwood Village, Colorado
80111-4737
EmCare Holdco, Inc. $100.00 50%
6200 S. Syracuse Way
Suite 200
Greenwood Village, Colorado
80111-4737
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