KAYE SCHOLER LLP
- ----------------
MEMORANDUM
To: Daniel Zimmerman, Esq.
From: Lynn Toby Fisher
Date: November 28, 2005
Subject: EMERGENCY MEDICAL SERVICES CORPORATION
EMERGENCY MEDICAL SERVICES L.P.
Amendment No. 4 to Registration Statement on Form S-1
(File No. 333-127115)
- ---------------------------------------------------------------------------
As a follow-up to our memorandum of earlier today, with respect to
comment 2 of Mr. Fay's letter dated November 23, 2005, the following will be
the response contained in our letter to the Staff:
Article 13 of the draft Amended and Restated Agreement of Limited
Partnership of EMS L.P. has been revised substantially and Article 7 of
Exhibit 1 has been deleted in its entirety. As a result of these changes,
the holders of LP exchangeable units will have no right to propose amendments
to the partnership agreement, will have no voting rights with respect to the
partnership or the partnership agreement, and there will be no provision for
meetings of the partners.
A new section 13.1 has been added to the partnership agreement that reads
in its entirety as follows:
"13.1 NO GENERAL VOTING RIGHTS. The LPE Partners shall have no general
voting rights with respect to the Partnership or this Agreement, and such
rights are specifically reserved to the General Partner. The right of the
LPE Partners to consent, or to withhold consent, to any action by the General
Partner shall be as expressly set forth in Section 13.3."
As a result of these changes, the holders of LP exchangeable units retain
only the right to distributions from EMS L.P. economically equivalent to
dividends paid by the general partner to holders of class B common stock. No
distributions may be made with respect to the LP exchangeable units unless
the general partner receives a distribution increased to reflect the assumed
amount of the taxes payable by the general partner as a result of that
distribution, to enable the general partner to pay those dividends to its
common stockholders. This "tax effecting" provision enables the parent to
maintain equivalent per unit/per share distributions/dividends. The LP
exchangeable unit holders will have no voting rights in EMS L.P.; their only
voting rights will be at the parent company level, exercisable through the
class B special voting stock.
Accordingly, the limited partnership agreement following the initial
public offering will not include the provisions referenced in the Staff's
letter.
As noted in response to comment 1, a copy of the form of limited
partnership agreement to be in effect upon completion of the offering will
be included as an exhibit to Amendment No. 4.
A copy of the pages containing Article 13 are attached to this memo.
13. NO GENERAL VOTING RIGHTS; AMENDMENT OF PARTNERSHIP AGREEMENT.
13.1 NO GENERAL VOTING RIGHTS. The LPE Partners shall have no general
voting rights with respect to the Partnership or this Agreement, and such
rights are specifically reserved to the General Partner. The right of the
LPE Partners to consent, or to withhold consent, to any action by the General
Partner shall be as expressly set forth in Section 13.3.
13.2 AMENDMENTS. The General Partner shall have the power to amend this
Agreement as may be required to facilitate or implement any of the following
purposes:
(i) to add to the obligations of the General Partner or surrender any
right or power granted to the General Partner or any Affiliate of the
General Partner for the benefit of the Limited Partners;
(ii) to reflect the admission, substitution, termination, or withdrawal
of Partners in accordance with this Agreement;
(iii) to set forth and reflect in the Agreement the designations, rights,
powers, duties, and preferences of the holders of any additional or
transferred Partnership Interests as contemplated by Section 5.4 or in
connection with any New Tax Guidance as contemplated by Section 5.5;
(iv) to reflect a change that is of an inconsequential nature and does
not adversely affect the Limited Partners in any material respect, or
to cure any ambiguity, correct or supplement any provision in this
Agreement not inconsistent with law or with other provisions, or make
other changes with respect to matters arising under this Agreement that
will not be inconsistent with law or with the provisions of this
Agreement; and
(v) to satisfy any requirements, conditions or guidelines contained in
any order, directive, opinion, ruling or regulation of a federal or state
agency or contained in federal or state law.
The General Partner shall provide notice to the Limited Partners when
any action under this Section 13.2 is taken.
13.3 WITHHOLDING CONSENT
Notwithstanding Section 13.2:
(a) This Agreement shall not be amended without the Consent of each
Partner adversely affected if such amendment would (i) convert a Limited
Partner's interest in the Partnership into a General Partner interest,
(ii) modify the limited liability of a Limited Partner in a manner adverse to
such Limited Partner, (iii) alter rights of the Partner (other than as a
result of the issuance of Partnership Interests) to receive distributions
pursuant to Article 5 or Exhibit I or the allocations specified in Article 6
(except as permitted pursuant to Section 4.2 and Sections 5.4 and 5.5),
(iv) alter or modify the provisions of Exhibit I in a manner adverse to such
Partner; or (v) amend this Section 13.3, and
(b) The Partnership may not enter into any merger or consolidation or
convert into any other form of business entity without the consent of each
Partner affected thereby.
* * *