Exhibit 3.5
FORM OF
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMERGENCY MEDICAL SERVICES L.P.
This Amended and Restated Agreement of Limited Partnership is entered into
and shall be effective as of December __, 2005, by and among Emergency Medical
Services Corporation, a Delaware corporation as the general partner (the
"GENERAL PARTNER"), and the Persons listed on Schedule A attached hereto as
limited partners.
NOW, THEREFORE, in consideration of the premises, the parties do hereby
agree as follows:
1. Certain Definitions.
1.1 DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
"ACT" means the Delaware Revised Uniform Limited Partnership Act.
"ADJUSTED CAPITAL ACCOUNT" means, with respect to any Partner such
Partner's Capital Account, increased for the amount such Partner is deemed
obligated to restore pursuant to (a) the penultimate sentences of Regulations
Section 1.704-2(g)(l) and 1.704-2(i)(5) and (b) Regulations Sections
1.704-1(b)(2)(ii)(c), as of the end of the Company's Fiscal Year or other
applicable period, and reduced for the items described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"AFFILIATE" means, with respect to any Person, any Person directly
or indirectly controlled by or under common control with such Person. For
purposes of this definition, "CONTROL", when used with respect to any Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise. "CONTROLLED" has the meaning correlative to the foregoing. For
purposes of this Agreement, no member of the Initial Investor Group shall be
deemed to be an "AFFILIATE" of the Company.
"AGREEMENT" means this Amended and Restated Agreement of Limited
Partnership, as it may be amended, supplemented or restated from time to time.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"CAPITAL ACCOUNTS" has the meaning set forth in Section 4.2.
"CAPITAL CONTRIBUTIONS" means the money and property contributed by
the Partners to the Partnership pursuant to the provisions of Article 3 of this
Agreement.
"CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership, as amended from time to time. Unless the context requires
otherwise, any reference to the "CERTIFICATE" shall be to the Certificate as the
same shall be in effect at the time to which such reference relates.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, including the corresponding or analogous provisions of any successor
law.
"COMPANY" means Emergency Medical Services Corporation and its
successors.
"DEPRECIATION" means, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowed or allowable for federal income tax purposes with respect to an asset
for such Fiscal Year; provided, however, that, except as otherwise provided in
Regulations Section 1.704-2, if the Gross Asset Value of an asset differs from
its adjusted basis for federal income tax purposes at the beginning of such
Fiscal Year or other period, Depreciation shall be an amount which bears the
same ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for such Fiscal Year
or other period bears to such beginning adjusted tax basis; provided, further,
that, if the adjusted basis for federal income tax purposes of an asset at the
beginning of such Fiscal Year or other period is zero, Depreciation shall be
determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the General Partner; and provided further, that,
with respect to any asset to which the remedial allocation method is applied
pursuant to Section 6.6, Depreciation with respect to such asset shall be
calculated in accordance with Regulations Section 1.704-3(d)(2).
"DIVIDEND TAX RATE" means the highest marginal combined federal and
state income tax rate imposed on dividends of corporations resident in the state
in which the Company's principal office is located, calculated taking into
account any available dividends received deduction under Section 243 of the Code
and the deductibility of state and local income taxes for federal income tax
purposes.
"EFFECTIVE TIME" means the time immediately prior to the time that
the Company issues and sells its Class A Common Stock pursuant to the
underwriting agreement for its initial public offering.
"EXCHANGEABLE UNIT PROVISIONS" means the rights, privileges,
restrictions and conditions of the LP Exchangeable Units set forth in Exhibit I
to this Agreement.
"FEDERAL", unless otherwise specified, refers to the United States.
"FISCAL YEAR" means (a) the period commencing on the date of the
formation of the Partnership and ending on December 31, 2005 and (b) any
subsequent 12-month period commencing on January 1.
"GAINS TAX RATE" means the highest marginal combined federal and
state income tax rate imposed on long-term capital gains of corporations
resident in the state in which the Company's principal office is located,
calculated taking into account the deductibility of state and local income taxes
for federal income tax purposes.
"GENERAL PARTNER" means the Company in its capacity as the general
partner of the Partnership, or its successor as general partner of the
Partnership.
"GENERAL PARTNER INTEREST" means the Partnership Interest held by
the General Partner, in its capacity as General Partner. The General Partner
Interest may be expressed as a number of Units.
"GP DIVIDEND ALLOCATION" means a fraction of which the numerator is
the GP Percentage and the denominator is the excess of (a) the sum of (i) one
and (ii) the product of (A) the Dividend Tax Rate and (B) the GP Percentage over
(b) the Dividend Tax Rate.
"GP GAINS ALLOCATION" means a fraction of which the numerator is the
GP Percentage and the denominator is the excess of (a) the sum of (i) one and
(ii) the product of (A) the Gains Tax Rate and (B) the GP Percentage over (b)
the Gains Tax Rate.
"GP INCOME ALLOCATION" means a fraction of which the numerator is
the GP Percentage and the denominator is the excess of (a) the sum of (i) one
and (ii) the product of (A) the Income Tax Rate and (B) the GP Percentage over
(b) the Income Tax Rate.
"GP PERCENTAGE" means the percentage of total Units that are GP
Units or GPL Units.
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"GP UNITS" has the meaning given to that term in Section 3.2.
"GPL UNITS" has the meaning given to that term in Section 4.3(a).
"GROSS ASSET VALUE" means, with respect to any asset of the
Partnership, such asset's adjusted basis for federal income tax purposes, except
as follows:
(a) the initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such
asset (computed without taking Section 7701(g) of the Code into account),
without reduction for liabilities, as determined by the contributing
Partner and the Partnership;
(b) if the General Partner reasonably determines that an adjustment
is necessary or appropriate to reflect the relative economic interests of
the Partners, the Gross Asset Values of all Partnership assets shall be
adjusted in accordance with Regulations Sections 1.704-1(b)(2)(iv)(f) and
(g) to equal their respective gross fair market values, without reduction
for liabilities, as reasonably determined by the General Partner, as of
the following times:
(i) a Capital Contribution (other than a de minimis Capital
Contribution) to the Partnership by a new or existing Partner as
consideration for Units; or
(ii) the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership assets as consideration for
the redemption of an interest in the Partnership; or
(iii) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); or
(iv) 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 Partnership;
(c) the Gross Asset Values of Partnership assets distributed to any
Partner shall be the gross fair market values of such assets (computed
without taking Section 7701(g) of the Code into account) without reduction
for liabilities, as reasonably determined by the General Partner as of the
date of distribution; and
(d) the Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the
extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations;
provided, however, that Gross Asset Values shall not be adjusted pursuant
to this paragraph (iv) to the extent that the General Partner reasonably
determines that an adjustment pursuant to paragraph (ii) above is
necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Net Profits and Net Losses.
"INCOME TAX RATE" means the highest marginal combined federal and
state income tax rate imposed on income (other than capital gains and
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dividends) of corporations resident in the state in which the Company's
principal office is located, calculated taking into account the deductibility of
state and local income taxes for federal income tax purposes.
"INITIAL INVESTOR GROUP" has the meaning set forth in the Company's
Certificate of Incorporation, as in effect at the Effective Time.
"LIMITED PARTNERS" means (a) those Persons listed on Schedule A
attached hereto and (b) any transferee thereof or other Person admitted as a
limited partner pursuant to the terms of this Agreement. For the avoidance of
doubt, the General Partner may also be a Limited Partner.
"LIMITED PARTNER INTEREST" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes any and all benefits to which the holder
of such a Partnership Interest may be entitled, as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partner Interest may be expressed as a
number of Units.
"LP DIVIDEND ALLOCATION" means one minus the GP Dividend Allocation.
"LP EXCHANGEABLE UNITS" means all Units of the Partnership other
than GP Units and GPL Units. For the avoidance of doubt, the LP Exchangeable
Units are the Units designated Class A Units immediately prior to the Effective
Time and for all purposes represent the same continuing Partnership Interests
before and after the Effective Time.
"LPE PARTNERS" means the holders of LP Exchangeable Units. For the
avoidance of doubt, the General Partner, in its capacity as a Limited Partner,
is not an LPE Partner.
"LP GAINS ALLOCATION" means one minus the GP Gains Allocation.
"LP INCOME ALLOCATION" means one minus the GP Income Allocation.
"MERGER" has the meaning set forth in Section 14.7(a).
"NET PROFITS" AND "NET LOSSES" mean, for each Fiscal Year of the
Partnership or other applicable period, an amount equal to the Partnership's
taxable income or loss for such year or period, as determined for federal income
tax purposes, and computed in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss or deduction required to be
separately stated pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss) with the following adjustments:
(a) any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Net Profits or Net
Losses pursuant to this definition shall be treated as an item of gross
income in determining taxable income or loss;
(b) in the event an adjustment to the Gross Asset Value of a
property which requires that the Capital Accounts be adjusted pursuant to
Regulations Sections 1.704-1(b)(2)(iv)(e), (f), (g) and (m),
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the amount of such adjustment shall be taken into account as gain or loss
from the disposition of the property for purposes of computing Net Profits
or Net Losses;
(c) gain or loss resulting from the disposition of a property shall
be computed by reference to the Gross Asset Value of the property,
notwithstanding that the adjusted tax basis of the property differs from
its Gross Asset Value;
(d) in lieu of the depreciation, amortization and other cost
recovery deductions, there shall be taken into account Depreciation in
computing such taxable income or loss;
(e) to the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) or Code Section 743(b)
is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be
taken into account in determining Capital Accounts as a result of a
distribution other than in complete liquidation of a Partner's interest in
the Partnership, the amount of such adjustment shall be treated as an item
of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases the basis of the asset) from the disposition of
the asset and shall be taken into account for purposes of computing Net
Profits or Net Losses;
(f) by treating as a deductible expense any expenditure of the
Partnership described in Section 705(a)(2)(B) of the Code (or which is
treated as a Section 705(a)(2)(B) expenditure pursuant to Regulations
Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in
computing Net Profits or Net Losses, including amounts paid or incurred to
organize the Partnership (unless an election is made pursuant to Section
709(b) of the Code) or to promote the sale of interests in the
Partnership) and by treating deductions for any losses incurred in
connection with the sale or exchange of Partnership property disallowed
pursuant to Section 267(a)(1) or 707(b) of the Code as expenditures
described in Section 705(a)(2)(B) of the Code; and
(g) notwithstanding any other provision of this definition, any
items which are specially allocated pursuant to Article 6 shall not be
taken into account in computing Net Profits or Net Losses.
"ORIGINAL PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of the Partnership effective as of February 10, 2005, as amended
from time to time and in effect at the Effective Time.
"OFFER" has the meaning set forth in Section 14.6(a).
"PARTNERS" shall mean the General Partner and the Limited Partners,
collectively, and "PARTNER" means a General Partner or a Limited Partner as the
context shall require.
"PARTNERSHIP" means the limited partnership formed under the Act and
pursuant to the Original Agreement, as it may be amended, supplemented and/or
restated, including the amendment and restatement effected by this Agreement,
and any successor thereto.
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"PARTNERSHIP INTEREST" means an ownership interest in the
Partnership representing a Capital Contribution by either a Limited Partner or
the General Partner and includes any and all benefits to which the holder of
such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Partnership Interest may be expressed as a
number of Units.
"PERCENTAGE INTERESTS" has the meaning set forth in Section 4.1.
"PERSON" means any natural person, corporation, partnership, joint
venture, trust, association or other business or legal entity.
"REGULATIONS" means the Treasury Regulations promulgated under the
Code, as amended from time to time, including the corresponding provisions of
any successor regulations.
"SECTION 368 TRANSACTION" has the meaning set forth in Section
14.7(c).
"SUCCESSOR" has the meaning set forth in Article 10 of Exhibit I.
"TRANSFER" has the meaning set forth in Section 10.1.
"UNIT" means a fractional, undivided share of the Partnership
Interests of all Partners issued pursuant to this Agreement. The number of Units
outstanding and the Percentage Interest in the Partnership represented by such
Units are set forth in Schedule A attached hereto, as such Schedule may be
amended from time to time. The Units are uncertificated securities, but the
General Partner may determine at any time that the ownership of Units shall be
evidenced by such form of certificate for Units as the General Partner adopts
from time to time. Unless otherwise indicated, a reference to Units shall be to
GP Units, GPL Units and LP Exchangeable Units.
1.2 EXHIBIT I. Capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in Exhibit I. Exhibit I is
an integral part of this Agreement.
2. FORMATION, PURPOSE, TERM.
2.1 FORMATION. The parties hereby confirm the formation of the
Partnership under the name Emergency Medical Services L.P., in accordance with
the Act and the filing of the Certificate with the Secretary of State of the
State of Delaware on December 29, 2004.
2.2 PURPOSE. The purpose of the Partnership is to engage in any
activities permitted under the Act, including, without limitation, to own and
invest in real estate and marketable securities.
2.3 PRINCIPAL OFFICE. The principal office of the Partnership shall
be located at such place as the General Partner may determine. The General
Partner shall give notice to the Limited Partners promptly of the location of
the principal office of the Partnership and of any change thereof.
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2.4 REGISTERED AGENT. The registered agent of the Partnership in
Delaware shall be Corporation Service Company.
2.5 NAMES. The name of the Partnership is Emergency Medical Services
L.P. The Partnership's business may be conducted under any other name or names
deemed advisable by the General Partner, including the name of the General
Partner, the Company or any of their Affiliates. The words "Limited
Partnership," "L.P.," "Ltd." or similar words or letters shall be included in
the Partnership's name where necessary for the purpose of complying with the
laws of any jurisdiction that so requires. The General Partner in its sole
discretion may change the name of the Partnership at any time and from time to
time and shall notify the Limited Partners of such change in the next regular
communication to the Limited Partners.
2.6 POWER OF ATTORNEY.
(a) Each Limited Partner hereby constitutes and appoints the General
Partner and its authorized officers and attorneys-in-fact and each of
those acting singly, in each case with full power of substitution, as its
true and lawful agent and attorney-in-fact, with full power and authority
in its name, place and stead to:
(i) execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (A) all certificates, documents and other
instruments (including, without limitation, this Agreement and the
Certificate of Limited Partnership and all amendments or
restatements thereof) that the General Partner deems appropriate or
necessary to form, qualify or continue the existence or
qualification of the Partnership as a limited partnership (or a
partnership in which the Limited Partners have limited liability) in
the State of Delaware and in all other jurisdictions in which the
Partnership may or plans to conduct business or own property; (B)
all instruments that the General Partner deems appropriate or
necessary to reflect any amendment, change, modification or
restatement of this Agreement in accordance with its terms; (C) all
conveyances and other instruments or documents that the General
Partner deems appropriate or necessary to reflect the dissolution
and liquidation of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a certificate of
cancellation; (D) all instruments relating to the admission,
withdrawal, removal or substitution of any Partner pursuant to this
Agreement; and (E) all certificates, documents and other instruments
relating to the determination of the rights, preferences and
privileges of Partnership Interests; and
(ii) execute, swear to, seal, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other instruments
appropriate or necessary, in the sole discretion of the General
Partner to make, evidence, give, confirm or ratify any vote,
consent, approval, agreement or other action which is made or given
by the Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole discretion of the
General Partner, to effectuate the terms or intent of this
Agreement.
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Nothing contained herein shall be construed as authorizing the
General Partner to amend this Agreement except in accordance with Article
13 or as may be otherwise expressly provided for in this Agreement.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, in recognition of the
fact that each of the Partners will be relying upon the power of the
General Partner to act as contemplated by this Agreement in any filing or
other action by it on behalf of the Partnership, and it shall survive and
not be affected by the subsequent incapacity of any Limited Partner and
the transfer of all or any portion of such Limited Partner's Units and
shall extend to such Limited Partner's heirs, successors, assigns and
personal representative.
2.7 TERM. The Partnership commenced on the date of the filing of the
original Certificate of Limited Partnership with the office of the Secretary of
State of Delaware and shall terminate as herein provided.
3. CONTRIBUTIONS.
3.1 INITIAL CONTRIBUTIONS AND OWNERSHIP GIVING EFFECT TO INITIAL
PUBLIC OFFERING.
(a) Prior to the date hereof, the Partners have made the
contributions to the Partnership set forth on Schedule A to the Original
Agreement.
(b) Schedule A attached hereto sets forth the number of Units
outstanding as of the Effective Time, and then giving effect to the
Company's issuance and sale of Class A Common Stock in its initial public
offering and the contribution of the net proceeds thereof to the
Partnership.
3.2 GENERAL PARTNER INTEREST. The 20 Units held by the General
Partner immediately prior to the Effective Time (including any Units issued with
respect thereto in connection with any stock split effected by the Company)
shall be deemed to be the "GP UNITS" and shall be the General Partnership
Interest. All other Units held by the Company shall be deemed to be Limited
Partner Interests and shall be held by the General Partner in its capacity as a
Limited Partner in the Partnership.
3.3 ISSUANCES OF ADDITIONAL INTERESTS.
(a) In connection with the General Partner's contribution of
property to the Partnership or in accordance with the provisions of
Exhibit I, the General Partner is hereby authorized to cause the
Partnership from time to time to issue to the Partners (including the
General Partner and its Affiliates) additional Units or other Partnership
Interests in one or more classes, or one or more series of any such
classes, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties, including rights,
powers and duties senior to the Limited Partner
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Interests outstanding at the Effective Time, all as shall be determined by
the General Partner in its business judgment, including, without
limitation, (i) the allocations of items of Partnership income, gain,
loss, deduction and credit to each such class or series of Partnership
Interests; (ii) the right of each such class or series of Partnership
Interests to share in Partnership distributions; and (iii) the rights of
each such class or series of Partnership Interests upon dissolution and
liquidation of the Partnership; provided, that no such additional Units or
other Partnership Interests shall be issued to the General Partner unless
either:
(i) (A)(1) the additional Partnership Interests are issued in
connection with the issuance only of Common Stock, and only GPL
Units are issued to the General Partner in a number equal to the
number of shares of Common Stock issued by the Company, or (2) the
additional Partnership Interests are issued in connection with the
grant, award of issuance of Preferred Stock or other equity
interests by the Company, which Preferred Stock or other equity
interests have designations, preferences and other rights such that
the economic interests attributable to such Preferred Stock or other
equity interests are equivalent to the designations, preferences and
other rights of the additional Partnership Interests issued to the
General Partner in accordance with this Section 3.2(a), and (B) the
Company shall make a Capital Contribution to the Partnership in an
amount equal to the proceeds raised in connection with such
issuance, or
(ii) the additional Partnership Interests are issued to all Partners
in proportion to their respective Percentage Interests.
In the event that the Partnership issues Partnership Interests
pursuant to this Section 3.3(a), the General Partner shall make such
revisions to this Agreement (without any requirement of receiving approval
of the Limited Partners) including but not limited to the revisions
described in Section 5.4, as it deems necessary to reflect the issuance of
such additional Partnership Interests and the special rights, powers and
duties associated therewith. Unless specifically set forth otherwise by
the General Partner, any Partnership Interest issued after the Effective
Time shall have the same rights, powers and duties as the Partnership
Interests issued on the Effective Time.
(b) From and after the Effective Time, the Company shall not issue
any additional Common Stock (other than Common Stock issued to Limited
Partners pursuant to Exhibit I), or rights, options, warrants or
convertible or exchangeable securities containing the right to subscribe
for or purchase Common Stock (collectively, "NEW SECURITIES"), other than
to all holders of Common Stock under circumstances in which the provisions
of Exhibit I are applicable to the LP Exchangeable Units, unless:
(i) the General Partner shall cause the Partnership to issue to the
Company Partnership Interests or rights, options, warrants or
convertible or exchangeable securities of the Partnership having
designations, preferences and other rights, all such that the
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economic interests are equivalent to those of the New Securities;
and
(ii) the Company contributes to the Partnership the proceeds from
the issuance of such New Securities and from the exercise of rights
contained in such New Securities.
Without limiting the foregoing, the Company is expressly authorized
to issue New Securities for no tangible value or for less than fair market
value, and the General Partner is expressly authorized to cause the
Partnership to issue to the Company corresponding Partnership Interests,
so long as (A) the General Partner concludes in good faith that such
issuance is in the interests of the Company and Partnership (for example,
and not by way of limitation, the issuance of Common Stock and
corresponding GPL Units pursuant to an employee stock purchase plan
providing for employee grants or purchases of Common Stock or employee
stock options that have an exercise price that is less than the fair
market value of the Common Stock, either at the time of issuance or at the
time of exercise); and (B) the Company contributes all proceeds, if any,
from such issuance and exercise to the Partnership.
For the avoidance of doubt, a GPL Unit is deemed to have such
designations, preferences and other rights such that the economic
interests of a GPL Unit are equivalent to a share of Common Stock, and for
each New Security issued by the Company that consists of a share of Common
Stock the General Partner shall cause the Partnership to issue to the
Company one GPL Unit, provided, that the Company has made the
contributions to the Partnership contemplated by clause (ii).
(c) The issuance by the Company of Preferred Stock, Common Stock or
other equity interests shall in all events be subject to the provisions of
Article 14 and Exhibit I.
3.4 CONTRIBUTION OF PROCEEDS OF ISSUANCE OF CAPITAL STOCK. In
connection with the initial public offering of Common Stock by the Company and
any other issuance of New Securities pursuant to Section 3.3, the Company shall
contribute to the Partnership any proceeds (or a portion thereof) raised in
connection with such issuance, provided, that if the proceeds actually received
by the Company are less than the gross proceeds of such issuance as a result of
any underwriter's discount or other expenses paid or incurred in connection with
such issuance, then the Company shall be deemed to have made a Capital
Contribution to the Partnership in the amount equal to the sum of the net
proceeds of such issuance plus the amount of such underwriter's discount and
other expenses paid by the Company (which discount and expense shall be treated
as an expense for the benefit of the Partnership for purposes of Section 8.3).
In the case of employee acquisitions of New Securities at a discount from fair
market value or for no value in connection with a grant of New Securities, the
amount of such discount representing compensation to the employee, as determined
by the General Partner, shall be treated as an expense of the issuance of such
New Securities.
3.5 ADDITIONAL CONTRIBUTIONS. Except as provided in Section 3.4, no
Partner shall be required to make any additional contributions to the capital of
the Partnership. Nothing contained in this Section 3.5 shall be deemed to limit
the obligations of the General Partner in respect of liabilities
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of the Partnership under this Agreement or under the Act. With the consent of
the General Partner, any Partner may make an additional contribution to the
Partnership.
4. PERCENTAGE INTERESTS; CAPITAL ACCOUNTS; UNITS.
4.1 PERCENTAGE INTERESTS. The Percentage Interest of each Partner
means its interest in the Partnership as determined by dividing the number of
Units owned by such Partner by the total number of Units then outstanding.
4.2 CAPITAL ACCOUNTS. The Partnership shall determine and maintain a
"Capital Account" for each Partner throughout the full term of the Partnership
in accordance with the provisions of Regulations Section 1.704-1(b)(2)(iv), as
such regulation may be amended from time to time. Without limiting the
foregoing, the following provisions shall apply:
(a) The Capital Account of each Partner shall be increased by (i)
the amount of such Partner's cash contributions and the initial Gross
Asset Value of property contributed to the Partnership by such Partner
(net of liabilities securing such contributed property that the
Partnership is considered to assume or take subject to under Section 752
of the Code), (ii) such Partner's share of the Partnership's Net Profits,
and (iii) the amount of any Partnership liabilities that are assumed by
such Partner other than liabilities described in Section 4.2(a)(i).
(b) The Capital Account of each Partner shall be decreased by (i)
the amount of cash distributions to such Partner and the Gross Asset Value
of property distributed to such Partner (net of liabilities assumed by
such Partner and liabilities to which such distributed property is
subject), (ii) such Partner's share of the Partnership's Net Losses, and
(iii) the amount of any liabilities of such Partner that are assumed by
the Partnership other than liabilities described in Section 4.2(b)(i).
(c) A Partner who has more than one interest in the Partnership
shall have a single Capital Account that reflects all of such interests,
regardless of the class of interests owned by such Partner (e.g., general
or limited) and regardless of the time or manner in which such interests
are acquired.
(d) Upon the transfer by a Partner of Units (i) if such transfer
does not cause a termination of the Partnership within the meaning of
Section 708(b)(1)(B) of the Code, the Capital Account of the transferor
Partner that is attributable to the transferred interest will be carried
over to the transferee Partner and, if the Partnership has a Section 754
election in effect, the Capital Account will not be adjusted to reflect
any adjustment under Section 743 of the Code; or (ii) if such transfer
causes a termination of the Partnership within the meaning of Code Section
708(b)(1)(B), the income tax consequences of such termination shall be
governed by the relevant provisions of Subchapter K of Chapter 1 of the
Code and the Regulations promulgated thereunder, and the initial Capital
Accounts of the Partners in the Partnership resulting
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from such termination (which for all other purposes continues to be the
Partnership) shall be determined in accordance with Regulation Sections
1.704-1(b)(2)(iv)(d), (e), (f), (g) and (l) under Section 704(b) of the
Code and thereafter in accordance with this Section 4.2.
4.3 UNITS.
(a) The interests of the Limited Partners in the Partnership shall
be in the form of Units issued by the Partnership, which Units shall
represent an individual undivided interest in the rights of all Partners
in capital, profits, losses and distributions of or from the Partnership.
Unless otherwise designated, all Units issued to the General Partner and
representing General Partner Interests shall be "GP Units," all Units
issued to the General Partner or its Affiliates and representing Limited
Partnership Interests shall be "GPL Units" and all other Units shall be LP
Exchangeable Units.
For the avoidance of doubt, any Units formerly designated Class B
Units or LP Exchangeable Units acquired by the Company, the General
Partner or their respective Affiliates, in connection with the Company's
initial public offering, as contemplated by Exhibit I or otherwise, shall
be deemed to have been re-designated as GPL Units immediately upon such
acquisition, and none of such Persons shall hold LP Exchangeable Units.
(b) The Units shall have the rights to distributions and allocations
as set forth in Articles 5 and 6 and the LP Exchangeable Units shall have
the additional rights, privileges, restrictions and conditions as set
forth in Exhibit I to this Agreement.
5. DISTRIBUTIONS.
5.1 DISTRIBUTIONS. Distributions by the Partnership to the Partners
shall be made at the times and in the aggregate amounts determined by the
General Partner in its sole discretion and shall be made as follows:
(a) A portion equal to the LP Dividend Allocation multiplied by
amounts that are treated, for federal income tax purposes, as dividends
received by the Partnership shall be distributed to the LPE Partners in
proportion to their respective Percentage Interests and a portion equal to
the GP Dividend Allocation multiplied by such amount shall be distributed
to the General Partner.
(b) A portion equal to the LP Gains Allocation multiplied by amounts
that are treated, for federal income tax purposes, as long-term capital
gains received by the Partnership shall be distributed to the LPE Partners
in proportion to their respective Percentage Interests and a portion equal
to the GP Gains Allocation multiplied by such amount shall be distributed
to the General Partner.
(c) Subject to the provisions of Section 5.1(e), any amounts that
are treated, for federal income tax purposes, as a return of capital and
not as income or gain shall be distributed to the Partners in proportion
to their respective Percentage Interests.
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(d) A portion equal to the LP Income Allocation multiplied by
amounts that, other than those described in Section 5.1(a), 5.1(b) and
5.1(c), are to be distributed to the Partners shall be distributed to the
LPE Partners in proportion to their respective Percentage Interests and a
portion equal to the GP Income Allocation multiplied by such amount shall
be distributed to the General Partner.
(e) In the event of the liquidation (subject to Section 5.2),
dissolution or winding-up of the Partnership, the Partnership shall
distribute to the LPE Partners only the Liquidation Amount as provided in
Section 4.1 of Exhibit I.
5.2 CAPITAL ACCOUNT LIMITATION; LIQUIDATION. Upon the liquidation of
the Partnership or of any Partner's interest in the Partnership (as both are
defined in Section 5.3), liquidation proceeds, if any, shall be distributed to
the extent of and in proportion to each Partner's positive Capital Account
balance within the meaning of Regulations Section 1.704-1(b)(2)(ii)(b), after
giving effect to all allocations to such Partner under Article 6, and the
allocation of deemed gain or loss described in clause (b) of the definition of
"Net Profits" and "Net Losses" set forth in Article 1.
5.3 CERTAIN DEFINITIONS. For purposes of this Agreement, (a) the
term "liquidation of the Partnership" shall mean either (i) a termination of the
Partnership, which shall be deemed to occur on the date upon which the
Partnership ceases to be a going concern and is continued in existence solely to
wind up its affairs, or (ii) a termination of the Partnership pursuant to
Section 708(b)(1) of the Code; and (b) the term "liquidation of a Partner's
interest in the Partnership" shall mean the termination of the Partner's entire
interest in the Partnership effected by a distribution, or a series of
distributions, by the Partnership to the Partner in redemption or cancellation
of such Partner's Units or, in the case of the General Partner, interest in the
Partnership.
5.4 REVISIONS TO REFLECT ISSUANCE OF ADDITIONAL PARTNERSHIP
INTERESTS. In the event that the Partnership issues additional Partnership
Interests to the General Partner or any Additional Limited Partner pursuant to
Article 4, or if any GPL Units are held by a Person other than the General
Partner, the General Partner shall make such revisions to this Article 5 (and
corresponding revisions to Article 6) as it deems necessary to reflect the
issuance of such additional Partnership Interests and any special rights, duties
or powers with respect thereto or to reflect distributions and allocations
attributable to GPL Units to Persons other than the General Partner.
5.5 NEW TAX GUIDANCE. Notwithstanding anything to the contrary
contained in this Agreement, the General Partner is hereby authorized to amend
this Agreement, in its sole discretion, to ensure that this Agreement complies
with (a) any rulings, regulations, notices, announcements or other guidance
regarding compensatory partnership interests issued after the Effective Time
("NEW TAX GUIDANCE") and (b) any elections the General Partner determines to be
necessary or advisable in respect of any such New Tax Guidance. Any such
amendment may include, without limitation, (i) a provision authorizing the
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General Partner, in its sole discretion, to make any election under the New Tax
Guidance, (ii) an agreement by the Partnership and all of the Partners agree to
comply with the requirements of the New Tax Guidance and any election made by
the General Partner with respect thereto, and (c) an amendment to the allocation
provisions contained in Article 6 so that such provisions comply with the New
Tax Guidance and any election made by the General Partner with respect thereto,
including, without limitation, a provision requiring "forfeiture allocations" as
appropriate. Any such amendments to this Agreement shall be binding upon all
Partners.
6. ALLOCATIONS.
6.1 GENERAL ALLOCATIONS. Except as provided in Sections 6.2, 6.3 and
6.4, Net Profits, Net Losses and credits shall be allocated among the Partners
as follows:
(a) A portion of such Net Profits equal to the LP Dividend
Allocation multiplied by amounts that are treated, for federal income tax
purposes, as dividends received by the Partnership shall be allocated to
the LPE Partners in proportion to their respective Percentage Interests
and a portion equal to the GP Dividend Allocation multiplied by such
amount shall be allocated to the General Partner.
(b) A portion of such Net Profits or Net Losses equal to the LP
Gains Allocation multiplied by amounts that are treated, for federal
income tax purposes, as long-term capital gains or losses, as the case may
be, realized by the Partnership shall be allocated to the LPE Partners in
proportion to their respective Percentage Interests and a portion equal to
the GP Gains Allocation multiplied by such amount shall be allocated to
the General Partner.
(c) A portion of such Net Profits, Net Losses or credits equal to
the LP Income Allocation multiplied by amounts that, other than those
described in Sections 5.1(a) and 5.1(b), shall be allocated to the LPE
Partners in proportion to their respective Percentage Interests and a
portion equal to the GP Income Allocation multiplied by such amount shall
be allocated to the General Partner.
6.2 ALLOCATION OF GAINS.
(a) Gain realized upon the sale or other disposition of property by
the Partnership, including deemed sales described in clause (b) of the
definition of "Net Profits" and "Net Losses" set forth in Article 1, shall
be allocated in the following order:
(i) There shall first be allocated to those Partners, if any, who
have deficit balances in their Capital Accounts immediately prior to
such sale or other disposition an amount of such gain equal to the
aggregate amount of such deficit balances, which amount shall be
allocated in the same proportion as such deficit balances; and
(ii) There shall next be allocated to each of the Partners gain in
such amounts and proportions as are necessary so that the
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positive Capital Account balances of the Partners reflect, as
closely as possible, the amounts to which they would be entitled if
all of the assets of the Partnership were distributed to the
Partners pursuant to Section 5.1.
(b) If the Partnership shall realize, upon a sale or other
disposition, gain which does not constitute long-term capital gain and to
which the provisions of Section 1231 of the Code do not apply, the
foregoing provisions of this Section 6.2 shall be successively applied to
(i) such gain, (ii) gain which is subject to the provisions of Section
1231 of the Code and (iii) long-term capital gain.
6.3 ALLOCATION OF LOSSES. Losses realized upon the sale or other
disposition of property by the Partnership, including deemed sales described in
clause (b) of the definition of "Net Profits" and "Net Losses" set forth in
Article 1, shall be allocated in the following order:
(a) There shall first be allocated to those Partners, if any, who
have positive Adjusted Capital Accounts balances an amount of such loss
necessary to reduce such positive Adjusted Capital Accounts balances to
zero, in proportion to such positive Adjusted Capital Account balances.
(b) The balance of such loss shall be allocated to the General
Partner.
6.4 SPECIAL ALLOCATIONS. Notwithstanding anything in this Agreement
to the contrary:
(a) All nonrecourse deductions (as defined in Regulations Section
1.704-2(b)(1)) shall be charged to the Capital Accounts of the Partners in
proportion to their respective Percentage Interests.
(b) No Partner shall be allocated any item of loss or deduction to
the extent said allocation will cause or increase any deficit in said
Partner's Adjusted Capital Account. If any Partner with a deficit in its
Adjusted Capital Account unexpectedly receives any adjustment, allocation
or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4),
(5) or (6), then Partnership items of income and gain shall be
specifically allocated to such Partner in an amount and manner sufficient
to eliminate the deficit in said Partner's Adjusted Capital Account
created by such adjustment, allocation or distribution as quickly as
possible. The Partners intend that the provisions set forth in this clause
will constitute a "Qualified Income Offset" as described in Regulations
Section 1.704-1(b)(2)(ii)(d).
(c) The following provisions shall be applicable beginning in the
first taxable year in which the Partnership has "nonrecourse deductions"
as defined in Regulations Section 1.704-2(b)(1):
(i) For purposes of this Section 6.4, "Minimum Gain" means the
total gain which the Partnership would realize if it sold, in a
taxable disposition, each of its assets that were subject to
nonrecourse liabilities in full satisfaction of the liabilities.
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In computing such gain, only the portion of the assets' tax bases
allocated to nonrecourse liabilities of the Partnership shall be
taken into account.
(ii) If in any Fiscal Year of the Partnership there is a net
decrease in Minimum Gain, then each Partner with a share of Minimum
Gain (as determined in accordance with Regulations Section
1.704-2(g)(1)) as of the beginning of such year shall be allocated
items of income and gain for such year (and, if necessary, for
succeeding years), equal to that Partner's share of the net decrease
in Minimum Gain (determined in accordance with Regulations Section
1.704-2(g)(2)). In allocating the income and gain pursuant to the
previous sentence, gains recognized from the disposition of
Partnership assets subject to nonrecourse liabilities of the
Partnership shall be allocated first to the extent of the decrease
in Minimum Gain attributable to the disposition of said asset.
Thereafter, any income and gain to be allocated shall consist of a
pro rata amount of other Partnership income and gain for that year.
The Partners intend that this clause (ii) will constitute a "Minimum
Gain Chargeback" as set forth in Regulations Section 1.704-2(f).
(iii) If any Partner bears the "economic risk of loss" (within
the meaning of Regulations Section 1.752-2) with respect to any
nonrecourse loan of the Partnership, then (A) the losses, deductions
or Section 705(a)(2)(B) expenditures that are attributable to such
nonrecourse loan for any Fiscal Year or other period shall be
allocated to the Partners who bear the burden of such economic risk
of loss in accordance with Regulations Section 1.704-2(i), and (B)
if in any taxable year there is a net decrease in Partner
Nonrecourse Debt Minimum Gain (as determined in accordance with
Regulations Section 1.704-2(i)(4)) attributable to such nonrecourse
loan, each Partner with a share of Partner Nonrecourse Debt Minimum
Gain (as defined in Regulations Section 1.704-2(i)(2)) attributable
to such nonrecourse loan (as determined in accordance with
Regulations Section 1.704-2(i)(5)) as of the beginning of the year
shall be allocated items of income and gain for the year (and, if
necessary, for succeeding years), equal to that Partner's share of
the net decrease in the Partner Nonrecourse Debt Minimum Gain (as
determined in accordance with Regulations Section 1.704-2(i)(4)).
6.5 REGULATORY PROVISIONS. The provisions of Section 6.4
(collectively, the "REGULATORY PROVISIONS") are intended to comply with certain
requirements of the Regulations. It is the intent of the Partners that, to the
extent possible, all allocations pursuant to the Regulatory Provisions shall be
offset either with other allocations pursuant to the Regulatory Provisions or,
if necessary, with curative allocations of other items of income, gain, loss or
deduction pursuant to this Section 6.5. Therefore, notwithstanding any other
provision of this Agreement, other than the Regulatory Provisions, allocations
pursuant to the Regulatory Provisions shall be taken into account in allocating
other items of income, gain, expense or loss among the Partners so that, to the
extent possible, the net amount of such allocations of other items and the
allocations pursuant to the Regulatory
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Provisions to each Partner are equal to the net amount that would have been
allocated to such Partner if the Regulatory Provisions were not part of this
Agreement. In applying this Section 6.5, there shall be taken into account (a)
future allocations under Section 6.4(c)(ii) that, although not yet made, are
likely to offset other allocations previously made under Section 6.4(a), and (b)
future allocations under Section 6.4(c)(iii)(B) that, although not yet made, are
likely to offset other allocations previously made under Section 6.4(c)(iii)(A).
6.6 CODE SECTION 704(c) ALLOCATIONS.
(a) Notwithstanding any other provision in this Article 6, in
accordance with Section 704(c) of the Code and the Regulations promulgated
thereunder, income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership shall, solely for tax
purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership
for federal income tax purposes and its Gross Asset Value on the date of
contribution.
(b) If, under Regulations Section 1.704-1(b)(2)(iv)(f), Partnership
property that has been revalued is properly reflected in the Capital
Accounts and on the books of the Partnership at a Gross Asset Value that
differs from the adjusted tax basis of such property, then depreciation,
depletion, amortization and gain or loss with respect to such property
shall be shared among the Partners in a manner that takes account of the
variation between the adjusted tax basis of such property and its Gross
Asset Value in the same manner as variations between the adjusted tax
basis and Gross Asset Value of property contributed to the Partnership are
taken into account (as provided in the preceding paragraph) in determining
the Partners' shares of tax items under Section 704(c) of the Code.
6.7 ALLOCATIONS FOR TAX PURPOSES ONLY. Allocations pursuant to
Section 6.6 are solely for purposes of federal, state and local taxes. As such,
they shall not affect or in any way be taken into account in computing a
Partner's Capital Account or share of profits, losses or other items of
distributions pursuant to any provision of this Agreement.
6.8 OTHER ALLOCATION RULES. Except as may otherwise be provided
herein, whenever a proportionate part of Net Profits or Net Losses of the
Partnership is credited or charged to a Partner's Capital Account for any Fiscal
Year, every item of income gain, loss or deduction entering into the computation
thereof shall be considered either credited or charged, as the case may be, on
every item of credit or tax preference related thereto and applicable to such
Fiscal Year shall be allocated to, such Capital Account in the same proportion.
Upon any change in the relative interests of the Partners in the Partnership,
whether by reason of the admission or withdrawal of a Partner, the transfer by
any Partner of all or any part of its interest, or otherwise, the Partners'
shares of all Partnership items shall be determined by reference to any method
acceptable under the Regulations under Section 706 of the Code, as determined by
the General Partner.
6.9 ALLOCATIONS IN ACCORDANCE WITH CAPITAL ACCOUNTS. The income,
gains, losses, deductions and expenses of the Partnership shall be
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allocated, for federal, state and local income tax purposes, among the Partners
in accordance with the allocation of corresponding items of income, gains,
losses, deductions and expenses among the Partnerships 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 Partners so as to reflect
as nearly as possible the allocation set forth herein in computing their Capital
Accounts.
7. STATUS OF THE LIMITED PARTNERS.
7.1 The Limited Partners shall not be bound by, or be personally
liable for, the expenses, liabilities or obligations of the Partnership.
7.2 No Limited Partner (other than the General Partner in its
capacity as such) shall take part in or interfere in any manner with the
operation, management, conduct or control of the business of the Partnership or
have any right or authority to act for or bind the Partnership.
7.3 No Limited Partner shall have the right to require partition of
the Partnership's interest in any real property or to compel any sale or
appraisal of the Partnership's assets.
7.4 RIGHTS OF LIMITED PARTNERS RELATING TO THE PARTNERSHIP. Each
Limited Partner shall have the right as to each Fiscal Year (or portion thereof)
that the Partnership is classified as a partnership for federal, state or local
income tax purposes, to obtain a copy of the Partnership's federal, state and
local income tax returns for that Fiscal Year.
8. RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNER.
8.1 MANAGEMENT. Subject to the other provisions of this Agreement,
the conduct and control of the business and affairs of the Limited Partnership
shall be vested exclusively in the General Partner, which shall have all powers
necessary or incidental to such conduct or control. It is the intention of the
Partners that the General Partner have sole responsibility for the management of
the business and affairs of the Partnership. Subject to the express provisions
of this Agreement, including Section 8.3, the General Partner shall have a
fiduciary duty as General Partner to the Limited Partners, and the General
Partner shall exercise its power and authority only in such manner as is
consistent with such fiduciary duty. The duty of the General Partner to the
Limited Partners shall be construed as if the Partnership were a corporation and
the Limited Partners were stockholders of that corporation. Notwithstanding the
provisions of this Section 8.1, if there is any conflict between the interests
of the Limited Partners and the holders of Common Stock, the Board of Directors
may, in the exercise of its business judgment, cause the Company and the General
Partner to act in the best interests of the holders of the Common Stock.
8.2 POWERS. The powers of the General Partner shall include, but not
be limited to, the following:
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(a) The General Partner may cause the Partnership to acquire, hold
and sell real and personal property (including, but not limited to, shares
of stock, bonds, general and limited partnership interests and any other
tangible or intangible interests), construct or cause the construction of
improvements upon real property, borrow money and enter into credit
agreements respecting the borrowing of money and the issuance of
promissory notes or commercial paper (whether or not supported by letters
of credit or guaranties), mortgage or pledge all or any part or parts of
the Partnership property, guarantee the indebtedness of others (including,
but not limited to, indebtedness of affiliates) and acquire, make or
invest in loans (including, but not limited to, loans of affiliates) which
may or may not be secured by real and personal property.
(b) The General Partner may cause the Partnership to employ Persons
and organizations, including Persons or organizations with whom or which
it may be associated, or which it directly or indirectly owns or controls,
to provide managerial and other services to and for any Partnership
property and the Partnership.
(c) The General Partner may cause the Partnership to sell, transfer,
convey or lease all or any part or parts of the Partnership property for
cash or securities, or any combination of cash and securities, upon such
terms and conditions as it from time to time may determine.
(d) The General Partner may cause the Partnership to acquire, lease
or manage any real or personal property at such price, for cash,
securities or other property and upon such terms as the General Partner,
in its sole discretion, deems proper.
(e) The General Partner may cause the Partnership to enter into
agreements and execute instruments in the name of the Partnership relating
to other matters on such terms as it may determine advisable and may cause
the Partnership to do any other acts which they deem necessary or
appropriate to the operation of the business and affairs of the
Partnership. The General Partner shall have the authority to bind the
Partnership in its sole discretion and without the consent of any Limited
Partner.
(f) The General Partner may determine, at any time, in its sole
discretion, to change the classification of the Partnership for federal,
state or local income tax purposes and, upon such determination, to take
such steps as it deems necessary or appropriate to effect such change. The
Limited Partners hereby agree to cooperate with, consent to, and take all
steps deemed necessary by the General Partner to effect such a change.
Any third party dealing with the Partnership may rely conclusively on the
authority of the General Partner to bind the Partnership.
8.4 REIMBURSEMENT OF THE GENERAL PARTNER AND THE COMPANY.
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(a) Except as provided in this Section 8.3 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding
distributions, payments and allocations to which it may be entitled), the
General Partner shall not be compensated for its services as general
partner of the Partnership.
(b) The General Partner shall be reimbursed on a monthly basis, or
such other basis as it may determine in its sole discretion, for all
expenses that it incurs relating to the ownership and operation of, or for
the benefit of, the Partnership (including, without limitation, (i)
expenses relating to the ownership of interest in and operation of the
Partnership or any of its subsidiaries, (ii) compensation of the Company's
officers and employees including, without limitation, payments under the
General Partner's stock incentive plans that provides for stock units, or
other phantom stock, pursuant to which employees of the General Partner
will receive payments based upon dividends on or the value of Common
Stock, (iii) director fees and expenses and (iv) all costs and expenses of
being a public company, including costs of filings with the Securities and
Exchange Commission, reports and other distributions to its stockholders).
The Partners acknowledge that all such expenses of the General Partner are
deemed to be for the benefit of the Partnership. Such reimbursement shall
be in addition to any reimbursement made as a result of indemnification
pursuant to Article 9.
(c) As set forth in Section 3.4, the Company shall be treated as
having made a Capital Contribution in the amount of all expenses that it
incurs relating to the Company's initial public offering of Common Stock.
(d) In the event that the Company shall elect to purchase from its
stockholders Common Stock for the purpose of delivering such Common Stock
to satisfy an obligation under any employee stock purchase plan adopted by
the Company, or any similar obligation or arrangement undertaken by the
Company in the future or for the purpose of retiring such Common Stock,
the purchase price paid by the Company for such Common Stock and any other
expenses incurred by the Company in connection with such purchase shall be
considered expenses of the Partnership and shall be advanced to the
Company or reimbursed to the Company, subject to the condition that: (i)
if such Common Stock subsequently is sold by the Company, the Company
shall pay to the Partnership any proceeds received by the Company for such
Common Stock; and (ii) if such Common Stock is not retransferred by the
Company within 30 days after the purchase thereof, or the Company
otherwise determines not to retransfer such Common Stock, the General
Partner shall cause the Partnership to redeem a number of Units held by
the Company, as a Limited Partner, equal to the number of shares of Common
Stock purchased by the Company (in which case such advancement or
reimbursement of expenses shall be treated as having been made as a
distribution in redemption of such number of Units held by the Company).
8.5 OTHER ACTIVITIES. The General Partner shall devote such effort
to the business of the Partnership as it, in its sole discretion, deems to be
necessary to properly conduct the business of the Partnership. The General
Partner and the Company may engage in any other business activities,
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whether or not competitive with the business of the Partnership, and neither the
Partnership nor the Limited Partners shall have any rights in respect of any
such activity. Nothing in this Agreement shall be construed to limit the right
of the General Partner, the Company or their Affiliates from engaging in any
business ventures or investments other than the Partnership.
8.6 LIABILITY OF THE GENERAL PARTNER. Notwithstanding anything to
the contrary set forth in this Agreement, the General Partner and its officers
and directors shall not be liable for monetary damages to the Partnership or any
Partners for losses sustained or liabilities incurred as a result of errors in
judgment or of any act or omission if the General Partner acted in good faith.
9. INDEMNIFICATION. Except as otherwise provided in this Agreement, the
Partnership shall indemnify, defend and hold the General Partner and its
respective agents, officers, employees, administrators, directors and successors
(collectively, the "INDEMNITEES") harmless from and against any loss, liability,
damage, cost or expense (including reasonable attorneys' fees and litigation
costs) sustained or incurred as a result of any act, decision or omission
concerning the business or activities of the Partnership or the General Partner,
provided, that the Indemnitee is not guilty of willful misconduct and was acting
in good faith within what the Indemnitee reasonably believed to be the scope of
its, his, her or their authority for a purpose which it, he, she or they
reasonably believed to be not opposed to the interests of the Partnership.
10. TRANSFER OF UNITS; WITHDRAWAL.
10.1 TRANSFER RESTRICTIONS. No Partner shall have the right or power
(a) directly or indirectly, to sell, assign, transfer, give, hypothecate,
pledge, encumber or otherwise dispose of all or any of its Units (a "TRANSFER"),
or (b) to withdraw prior to the dissolution or winding up of the Partnership, in
each case without the prior written consent of the General Partner. The term
"TRANSFER" does not include any redemption of the Partnership Interest by the
Partnership from a Limited Partner or any acquisition of Units from a Limited
Partner by the Company pursuant to Exhibit I.
The General Partner may, in its sole discretion, enter into one or
more agreements with Limited Partners that permit the Transfer of Units in
accordance with the provisions of such agreement(s).
10.2 PERMITTED TRANSFERS. The restrictions contained in Section 10.1
shall not apply with respect to (a) any Transfer of Units by a Partner to or
among its Affiliates, (b) any Transfer of Units by any Limited Partner to any
other Limited Partner or an Affiliate of a Limited Partner, (c) any Transfer of
Units to a member of the Initial Investor Group, or (d) a pledge of Units to
secure indebtedness of the Limited Partner, provided, that the transferee of
such Units, if not already a party to this Agreement, shall have agreed in
writing to become a party to this Agreement as a Limited Partner.
10.3 TRANSFER OF THE COMPANY'S GENERAL PARTNER INTEREST AND LIMITED
PARTNER INTEREST; MERGER.
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(a) The General Partner may not Transfer any of its General Partner
Interest or withdraw as General Partner, or Transfer any of its Limited
Partner Interest, or engage in a Merger, except:
(i) a Transfer of the General Partner Interest to the Company;
(ii) a Transfer of Limited Partner Interests to an Affiliate,
provided, that the transferee shall have agreed in writing to become
a party to this Agreement as a Limited Partner; or
(iii) a Transfer in connection with a Merger that is subject
to, and effected in accordance with, the provisions of Article 14
and Exhibit I.
(b) A successor to all of the General Partner Interest pursuant to
Section 10.3(a) who is proposed to be admitted as a successor General
Partner shall be admitted to the Partnership as the General Partner,
effective upon such Transfer and compliance with Section 14.3(c). Any such
transferee shall carry on the business of the Partnership without
dissolution. In each case, the admission shall be subject to the successor
General Partner executing and delivering to the Partnership an acceptance
of all of the terms and conditions of this Agreement and such other
documents or instruments as may be required to effect the admission,
including, without limitation, the Voting and Exchange Trust Agreement, if
applicable. In the case of such admission on any day other than the first
day of the Fiscal Year, all items attributable to the General Partner
Interest for such Fiscal Year shall be allocated between the transferring
General Partner and such successor.
10.4 AMENDMENT OF AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP.
For the admission to the Partnership of any Partner, the General Partner shall
take all steps necessary and appropriate under the Act to amend the records of
the Partnership and, if necessary, to prepare as soon as practical an amendment
of this Agreement (including an amendment of Schedule A) and, if required by
law, shall prepare and file an amendment to the Certificate and may for this
purpose exercise the power of attorney granted pursuant to Section 2.6.
11. BOOKS AND REPORTS.
11.1 BOOKS AND RECORDS. Appropriate books of account and records
shall be kept by the General Partner at the principal office of the Partnership
and each Partner shall at all times have access thereto. The Fiscal Year of the
Partnership shall end on December 31 unless changed by the General Partner upon
notice to the other Partners. The books of account of the Partnership shall be
kept on the accrual basis for federal income tax purposes. A copy of the balance
sheet of the Partnership as of the end of each Fiscal Year and a statement
showing the profit and loss of the Partnership for that year, prepared in
accordance with generally accepted accounting principles and, if an audit is
conducted, accompanied by the report thereon of such accounting firm, shall be
delivered to each Partner promptly after the preparation thereof.
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11.2 TAX ELECTIONS. All elections, consents or revocations of
elections and consents required or permitted to be made by the Partnership under
the Code shall be made on behalf of the Partnership by the General Partner, in
such a manner as the General Partner shall, in its sole discretion, determine.
All determinations made on behalf of the Partnership by the General Partner with
respect to the treatment of any item or its allocation for federal, state or
local tax purposes shall be binding upon all of the Partners unless the
determination is inconsistent with any express provision of this Agreement. The
General Partner shall cause the Partnership to make the election provided for
under Section 754 of the Code.
11.3 TAX MATTERS PARTNER. The General Partner is hereby designated
the "Tax Matters Partner" in accordance with Section 6231(a)(7) of the Code.
12. TERMINATION.
12.1 DISTRIBUTION OF ASSETS. Upon termination of the Partnership,
the assets of the Partnership shall be liquidated and the proceeds applied as
follows:
(a) first, to the payment in full of the Partnership's debts and
obligations (including the expenses of liquidation), other than those due
to the Partners;
(b) then, to the payment of any liabilities of the Partnership to
the Partners, other than those in respect of their contributions to the
capital of the Partnership and their share of the profits; and
(c) then, to the Partners in accordance with the provisions of
Section 5.2.
12.2 TERMINATION. The Partnership shall be terminated and wound up
on the first to occur of (a) the election by all of the Partners, (b) a decree
of judicial dissolution entered in accordance with applicable law, (c) December
__, 2095, or (d) an event of withdrawal, as defined in Section 402 of the Act or
any successor statute, occurs (including, without limitation, any of the
following by or with respect to the General Partner which constitutes an event
of withdrawal: withdrawal from the Partnership, whether by retirement,
resignation or expulsion; assignment of its entire interest in the Partnership
other than as permitted by Section 10.3; assignment for the benefit of
creditors; filing of a petition in bankruptcy; bankruptcy or insolvency;
commencement of a proceeding seeking reorganization, arrangement, dissolution or
similar relief; dissolution; or winding up), unless an election to continue the
Partnership is made pursuant to Section 12.3. No act by or in respect of a
Limited Partner (including, without limitation, those enumerated in the
parenthetical clause in the preceding sentence) shall cause the termination or
dissolution of the Partnership.
12.3 CONTINUATION OF PARTNERSHIP. Notwithstanding the fact that an
event of withdrawal described in Section 12.2(d) occurs with respect to a
General Partner, then the LPE Partners, acting by Consent of the LPE Partners
(without the approval of the General Partner or holder any of GPL Units), may
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elect in writing, within 90 days after the event of withdrawal, to continue the
Partnership, upon the same terms and conditions as are set forth in this
Agreement. If an event of withdrawal occurs with respect to the General Partner
and the LPE Partners elect to continue the Partnership in accordance with this
Section 12.3, the LPE Partners, acting by Consent of the LPE Partners (without
the approval of the General Partner or holder any of GPL Units), shall elect a
new General Partner of the continued limited partnership, and the new General
Partner shall be subject to all the rights and obligations to which the prior
General Partner was subject. No Limited Partner shall have a right to seek or
receive the return of any contribution to the Partnership except as a result of
the termination and winding up of the Partnership. In the event of any election
to continue the Partnership which requires amendment of this Agreement, the
amended agreement shall be as similar in form and substance to this Agreement as
is practicable and the continuing limited partnership shall engage in the same
business as the Partnership, employing the assets and name of the Partnership to
the extent possible.
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 Sections 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
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(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.
14. COVENANTS REGARDING LP EXCHANGEABLE UNITS.
14.1 COVENANTS OF THE COMPANY. For so long as any LP Exchangeable
Units are outstanding, the Company:
(a) will not declare or pay any dividend on Common Stock unless the
Partnership shall simultaneously declare or pay, as the case may be, an
economically equivalent distribution on the LP Exchangeable Units and the
Partnership shall have sufficient money or other assets available to
enable the due distribution and the due and punctual payment, in
accordance with applicable law, of any such distribution on the LP
Exchangeable Units, all as provided in this Agreement;
(b) shall take all such other actions as are reasonably necessary,
in cooperation with the Partnership, to ensure that the respective
declaration date, record date and payment date for a distribution on the
LP Exchangeable Units shall be the same as the declaration date, record
date and payment date for the corresponding dividend on the Common Stock;
(c) take all such actions as are reasonably necessary or desirable
to enable and permit the Partnership, in accordance with applicable law,
to pay and otherwise perform its obligations as set forth in the
Exchangeable Unit Provisions, including, without limitation, all such
actions as are necessary or desirable to enable and permit the Partnership
to cause to be delivered Common Stock to the
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holders of LP Exchangeable Units in accordance with the provisions of the
Exchangeable Unit Provisions; and
(d) not exercise its control as the General Partner of the
Partnership to initiate the voluntary liquidation, dissolution or winding
up of the Partnership (or any other distribution of the assets of the
Partnership among its Unitholders for the purpose of winding-up its
affairs), nor take any action or omit to take any action that is designed
to result in the liquidation, dissolution or winding-up of the Partnership
or any other distribution of the assets of the Partnership among its
Unitholders for the purpose of winding up its affairs.
Without limiting the foregoing, if the Partnership fails to make any
distribution on the LP Exchangeable Units as provided in this Agreement, the
Company shall be obligated to make such payment immediately and, if the Company
does not make such payment, any LPE Partner may bring an action directly against
the Company for the payment of all amounts due and payable. The provisions of
this paragraph are intended by the Company and the LPE Partners to constitute a
"full and unconditional" guarantee of the LP Exchangeable Units for purposes of
Rule 3-10(h) of Regulation S-X promulgated under the federal securities laws.
14.2 RESERVATION OF COMMON STOCK. The Company hereby represents,
warrants and covenants in favor of the Partnership that the Company has reserved
for issuance and will, at all times while any LP Exchangeable Units are
outstanding, keep available, free from pre-emptive and other rights, out of its
authorized and unissued capital stock, such number of shares of Class B Common
Stock (and shares of Class A Common Stock or other shares or securities into
which such shares of Class B Common Stock are convertible) (or other shares or
securities into which shares of Class B Common Stock may be reclassified or
changed as contemplated by Section 14.5, without duplication, (a) as is equal to
the sum of (i) the number of LP Exchangeable Units issued and outstanding from
time to time and (b) as are now and may hereafter be required to enable and
permit the Company to meet its obligations under the Voting and Exchange Trust
Agreement and under any other security or commitment pursuant to which the
Company may now or hereafter be required to issue shares of Class B Common Stock
(or such other shares or securities) and to enable and permit the Partnership to
meet its obligations hereunder and under the Exchangeable Unit Provisions.
14.3 CONTRIBUTION OF CLASS B COMMON STOCK TO THE PARTNERSHIP. In
furtherance of its obligations under Section 14.1(c) hereof, upon notice from
the Partnership of any event that requires the Partnership to cause shares of
Class B Common Stock to be delivered to any holder of LP Exchangeable Units, the
Company shall forthwith issue and deliver or cause to be delivered to the
Partnership (or as the Partnership shall direct) the requisite number of shares
of Class B Common Stock to be received by, and issued to or to the order of, the
former holder of the surrendered LP Exchangeable Units. All such shares of Class
B Common Stock shall be duly authorized and validly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or encumbrance.
The issuance and delivery of each such share of Class B Common Stock shall be
deemed to constitute a capital contribution of such share to the Partnership,
and the Partnership shall issue to the Company one GPL Unit in accordance with
Section 3.3.
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14.4 REGISTRATION OF CLASS B COMMON STOCK. If any shares of Class B
Common Stock (or other shares or securities into which shares of Class B Common
Stock may be reclassified or changed as contemplated by Section 14.5 to be
issued and delivered hereunder), require registration or qualification with or
approval of or the filing of any document, including any prospectus or similar
document or the taking of any proceeding with or the obtaining of any order,
ruling or consent from any governmental or regulatory authority under any
federal or state securities or other law or regulation or pursuant to the rules
and regulations of any securities or other regulatory authority or the
fulfillment of any other legal requirement before such shares (or such other
shares or securities) may be issued by the Company and delivered by the Company
at the direction or the Partnership, if applicable, to the holder of surrendered
LP Exchangeable Units), the Company will in good faith expeditiously take all
such actions and do all such things as are necessary or desirable to cause such
shares of Class B Common Stock (or such other shares or securities) to be and
remain duly registered, qualified or approved. The parties acknowledge that the
foregoing does not require the Company to take action in order that the shares
of Class B Common Stock (or such other shares or securities), or the shares of
Class A Common Stock issuable on conversion thereof, may be freely traded
thereafter, without further registration, qualification or approval.
14.5 ECONOMIC EQUIVALENCE. For so long as any LP Exchangeable Units
are outstanding, the Company will not take any of the following actions:
(a) reclassify or otherwise change Class B Common Stock or effect a
merger, reorganization or other transaction affecting shares of Class B
Common Stock other than in accordance with Section 14.7;
(b) issue or distribute rights, options or warrants to the holders
of all or substantially all of the outstanding shares of Common Stock
entitling them to subscribe for or to purchase shares of Common Stock (or
securities exchangeable for or convertible into or carrying rights to
acquire shares of Common Stock);
(c) issue or distribute to the holders of all or substantially all
of the outstanding Common Stock (i) shares or securities of the Company of
any class other than Class A Common Stock or Class B Common Stock (other
than shares convertible into or exchangeable for or carrying rights to
acquire Common Stock); (ii) rights, options or warrants other than those
referred to above; (iii) evidences of indebtedness of the Company; or (iv)
assets of the Company;
(d) subdivide, redivide or change the number of outstanding shares
of Common Stock into a greater number of shares of Common Stock; or
(e) reduce, combine, consolidate or change the number of outstanding
shares of Common Stock into a lesser number of shares of Common Stock;
unless, in each case, the Partnership effects the same or an economically
equivalent reclassification, change, issuance or distribution shall
-27-
simultaneously be made to, or in the rights of the holders of, the LP
Exchangeable Units. The General Partner shall determine, in good faith and in
its reasonable business judgment, with assistance of such reputable and
qualified financial advisors and/or such experts as the General Partner may
require, economic equivalence and each such determination shall be conclusive
and binding on the Company, as provided in the Exchangeable Unit Provisions.
The Company will ensure that the record date for any event referred to in
this Section 14.5, or (if no record date is applicable for such event) the
effective date for any such event, is not less than five Business Days after the
date on which such event is declared or announced by the Company (with
contemporaneous notification thereof by the Company to the Partnership).
14.6 TENDER OFFERS. For so long as any LP Exchangeable Units are
outstanding:
(a) No tender offer, share exchange offer, issuer bid, take-over bid
or similar transaction with respect to the Common Stock (an "OFFER") will
be proposed or recommended by the Company or the Board of Directors or
otherwise effected with the consent or approval of the Board of Directors
unless the holders of LP Exchangeable Units participate in such Offer to
the same extent and on an economically equivalent basis as the holders of
shares of Common Stock, without discrimination. Without limiting the
generality of the foregoing, except as may be required in order to permit
the Board of Directors to fulfill its fiduciary duties under applicable
law, neither the Company nor the Board of Directors will approve or
recommend any Offer or take any action in furtherance of an Offer unless
the holders of LP Exchangeable Units may participate in such Offer without
being required to exchange LP Exchangeable Units.
(b) In the case of an Offer or an Exclusionary Offer, the Company
will use its commercially reasonable efforts expeditiously and in good
faith to put in place procedures, or to cause the Transfer Agent to put in
place procedures, to enable holders of LP Exchangeable Units to
participate in each such Offer without being required to exchange LP
Exchangeable Units as against the Partnership (or, if so required, to
ensure that any such exchange shall be conditional upon and shall only be
effective if the Common Stock tendered or deposited under such Offer is
purchased by the offeror).
14.7 MERGERS OR SIMILAR TRANSACTIONS. For so long as any LP
Exchangeable Units are outstanding:
(a) No transaction or series of transactions (a "MERGER") (whether
by way of reorganization, consolidation, merger, transfer, sale, lease or
otherwise) whereby all or substantially all of the Company's undertaking,
property and assets would become the property of any other Person or, in
the case of a merger, of the continuing entity resulting therefrom, will
be proposed or recommended by the Company or the Board of Directors or
otherwise effected with the consent or approval of the Board of Directors
unless the holders of LP Exchangeable Units may participate in such Merger
to the same extent and on an economically equivalent basis as the holders
of shares of Common Stock, without discrimination. Without limiting the
generality of the
-28-
foregoing, except as may be required in order to permit the Board of
Directors to fulfill its fiduciary duties under applicable law, neither
the Company nor the Board of Directors will approve or recommend any
Merger or take any action in furtherance of a Merger unless the holders of
LP Exchangeable Units may participate in such Merger without being
required to exchange LP Exchangeable Units for Class B Common Stock.
(b) In the case of a Merger, the Company will use its commercially
reasonable efforts expeditiously and in good faith to put in place
procedures, or to cause the Transfer Agent to put in place procedures, to
enable holders of LP Exchangeable Units to participate in such Merger
without being required to exchange LP Exchangeable Units for Class B
Common Stock (or, if so required, to ensure that any such exchange shall
be conditional upon and shall only be effective when the Merger is
effective and the holders of Common Stock are entitled to receive the
consideration payable upon consummation of the Merger).
(c) In addition to the provisions of Sections 14.7(a) and (b), if a
Merger that is a tax-free reorganization under Section 368 of the Code (a
"SECTION 368 TRANSACTION") will be consummated when the Partnership is
classified as a partnership for federal income tax purposes, then the
Company will use its commercially reasonable efforts to structure the
Merger so that:
(i) The Partnership continues to be a subsidiary of the
Company or the Successor;
(ii) effective upon the consummation of the Merger, (x) each
LP Exchangeable Unit is exchangeable for the securities and other
consideration payable in the Merger with respect to a share of Class
B Common Stock (or, if there is not then any Class B Common Stock
outstanding, a share of Class A Common Stock), and (y) any
consideration that is deemed to be a declared and unpaid
distribution shall be distributed to holders of LP Exchangeable
Units, all in accordance with Section 14.10 and Article 8 of the
Exchangeable Unit Provisions;
(iii) the Successor complies with the provisions of Section
10.3(b); and
(iv) the Merger is on such terms and conditions so as
substantially to preserve and not to impair in any material respect
any of the rights, duties, powers and authorities of the other
parties hereunder.
14.8 COMPANY AS GENERAL PARTNER. Subject to Section 14.7, the
Company covenants and agrees that, as long as any outstanding LP Exchangeable
Units are owned by any Person other than the Company or any of its Affiliates,
the Company will be and remain the General Partner or will own all of the
capital stock of the General Partner.
14.9 FIRPTA STATUS. The Company covenants and agrees that it will
take all reasonable steps within its control necessary to ensure that it
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will not become a "United States real property holding corporation" within the
meaning of Section 897(c)(2) of the Code.
14.10 CHANGES IN CAPITAL OF THE COMPANY AND THE PARTNERSHIP. At all
times after the occurrence of any event contemplated pursuant to Sections 14.5,
14.6 or 14.7 or otherwise, as a result of which the Class B Common Stock or any
of the LP Exchangeable Units, or both, are in any way changed, this Agreement
shall forthwith be amended and modified as necessary in order that it shall
apply with full force and effect, to all new securities into which Class B
Common Stock or the LP Exchangeable Units, or both, are so changed and the
parties hereto shall execute and deliver an agreement in writing giving effect
to and evidencing such necessary amendments and modifications.
14.11 WHOLLY-OWNED SUBSIDIARIES. Nothing herein shall be construed
as preventing the merger of any wholly-owned direct or indirect subsidiary of
the Company (other than the Partnership) with or into the Company or the
winding-up, liquidation or dissolution of any wholly-owned direct or indirect
subsidiary of the Company (other than the Partnership), provided that all of the
assets of such subsidiary are transferred to the Company or another wholly-owned
direct or indirect subsidiary of the Company, or any other distribution of the
assets of any wholly-owned direct or indirect subsidiary of the Company among
its stockholders.
15. MISCELLANEOUS.
15.1 ENTIRE AGREEMENT. This Agreement represents the entire
agreement among the parties with respect to its subject matter and cannot be
changed or terminated except as provided in Article 13.
15.2 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
15.3 APPLICABLE LAW. The Partnership is formed under, and this
Agreement shall be governed by and construed in accordance with, the laws of the
State of Delaware applicable to agreements made and to be performed therein.
15.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be considered given when delivered
personally (including delivery or facsimile), mailed by registered mail (return
receipt requested) or sent by overnight courier to the parties at the
appropriate address set forth on Schedule A attached hereto or, as to the
Company, as follows (or, as to any party, at such other address as such party
may specify by notice pursuant to this provision):
If to the Company: Emergency Medical Services Corporation
6200 S. Syracuse Way
Greenwood Village, CO 80111
Attention: General Counsel
Fax: (303) 495-1466
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with a copy to: Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Attention: Joel I. Greenberg
and Lynn Toby Fisher
Fax: (212) 836-8689
15.5 HEADINGS. The headings in this Agreement are intended solely
for convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
15.6 INVALIDITY OF PROVISIONS. If any provision of this Agreement is
invalid or unenforceable, such provision shall be deemed to be modified so as to
constitute a provision conforming as nearly as possible to the original
provision while still remaining valid and enforceable, and the balance of this
Agreement shall remain in effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
GENERAL PARTNER:
EMERGENCY MEDICAL SERVICES CORPORATION
By:______________________________________
Name:
Title:
LIMITED PARTNERS:
ONEX PARTNERS LLC
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
ONEX US PRINCIPALS LP
By: Onex American Holdings GP LLC, its
General Partner
By:___________________________
Name:
EMS EXECUTIVE INVESTCO LLC
By:__________________________
Name:
Title:
[Signature Page to Amended and Restated Agreement of Limited Partnership of
Emergency Medical Services L.P.]
ONEX EMSC CO-INVEST LP
By: Onex Partners GP LP, its General
Partner
By: Onex Partners Manager LP, its Agent
By: Onex Partners Manager GP Inc., its
General Partner
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
ONEX PARTNERS LP
By: Onex Partners GP LP, its General
Partner
By: Onex Partners Manager LP, its Agent
By: Onex Partners Manager GP Inc., its
General Partner
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
[Signature Page to Amended and Restated Agreement of Limited Partnership of
Emergency Medical Services L.P.]
EXHIBIT I
TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMERGENCY MEDICAL SERVICES L.P.
PROVISIONS ATTACHING TO LP EXCHANGEABLE UNITS
ARTICLE 1
DEFINITIONS
"AGREEMENT" means the Amended and Restated Agreement of Limited
Partnership of Emergency Medical Services L.P., as it may be amended, restated
or supplemented from time to time.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which commercial banks in New York, New York are authorized or obligated by law
or executive order to close.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"CLASS A COMMON STOCK" means shares of the Company's Class A common stock,
par value $.01, and any shares into which such securities may be changed.
"CLASS B COMMON STOCK" means the shares of the Company's Class B common
stock, par value $0.01, and any shares into which such securities may be
changed. From and after a Section 368 Transaction which complied with
subparagraphs (i), (ii), (iii) and (iv) of Section 14.7(c) of the Agreement,
"CLASS B COMMON STOCK" means the securities and other consideration payable in
the Merger with respect to a share of Class B Common Stock (or, if there is not
then any Class B Common Stock outstanding, a share of Class A Common Stock).
"COMMON STOCK" means the Class A Common Stock and the Class B Common
Stock.
"CURRENT MARKET PRICE" means, in respect of a share of Common Stock on any
date, the average of the closing bid and asked prices of Class A Common Stock
during a period of 20 consecutive trading days ending not more than three
trading days before such date on the NYSE, or, if the Class A Common Stock is
not then listed on the NYSE, on such other stock exchange or automated quotation
system on which the shares of Class A Common Stock is listed or quoted, as the
case may be, as may be selected by the Board of Directors for such purpose;
provided, however, that if, in the opinion of the Board of Directors, the public
distribution or trading activity of the Class A Common Stock during such period
does not create a market which reflects the fair market value of a share of
Class A Common Stock, then the Current Market Price of a share of Common Stock
shall be determined by the Board of Directors, in good faith and in its sole
discretion, and provided further that any such selection, opinion or
determination by the Board of Directors shall be conclusive and binding.
"DISTRIBUTION AMOUNT" means an amount equal to, and in satisfaction of,
all declared and unpaid distributions on an LP Exchangeable Unit held by a
holder on any distribution record date which occurred prior to the date of
exchange of such LP Exchangeable Unit (whether upon liquidation, redemption or
exchange).
"DIVIDEND DECLARATION DATE" means the date on which the Board of Directors
declares any dividend on the Common Stock.
"EXCHANGE DATE" has the meaning set forth in Section 5.1(b) of these
Exchangeable Unit Provisions.
"EXCHANGE PRICE" has the meaning set forth in Section 5.1 of these
Exchangeable Unit Provisions.
"EXCHANGE REQUEST" has the meaning set forth in Section 5.1 of these
Exchangeable Unit Provisions.
"EXCHANGED UNITS" has the meaning set forth in Section 5.1(a) of these
Exchangeable Unit Provisions.
"GOVERNMENTAL ENTITY" means any (a) multinational, federal, state,
regional, municipal, local or other government, governmental or public
department, central bank, court, tribunal, arbitral body, commission, board,
bureau or agency, domestic or foreign, (b) any subdivision, agent, commission,
board, or authority of any of the foregoing, or (c) any quasi-governmental or
private body exercising any regulatory, expropriation or taxing authority under
or for the account of any of the foregoing.
"HOLDERS" means, when used with reference to the LP Exchangeable Units,
the holders of LP Exchangeable Units shown from time to time in the register
maintained by or on behalf of the Partnership in respect of the LP Exchangeable
Units.
"LIQUIDATION AMOUNT" has the meaning set forth in Section 4.1 of these
Exchangeable Unit Provisions.
"LIQUIDATION DATE" has the meaning set forth in Section 4.1 of these
Exchangeable Unit Provisions.
"NYSE" means the New York Stock Exchange.
"REDEMPTION DATE" means the date, if any, established by the General
Partner for the redemption by the Partnership of all but not less than all of
the outstanding LP Exchangeable Units pursuant to Article 6 of these LP
Exchangeable Unit Provisions, which date shall be no earlier than December __,
2045, unless there are outstanding fewer than 5% of the actual number of LP
Exchangeable Units outstanding (other than LP Exchangeable Units held by the
Company and its Affiliates) as of the Effective Time, as such number of Units
may be adjusted as deemed appropriate by the General Partner to give effect to
any subdivision or consolidation or combination of, or Unit distribution on, the
LP Exchangeable Units, any issue or distribution of rights to acquire LP
Exchangeable Units or securities exchangeable for or convertible into LP
Exchangeable Units, any issue or distribution of other securities or rights or
evidences of indebtedness or assets, or any other capital reorganization or
other transaction affecting the LP Exchangeable Units), in which case the
General Partner may accelerate such redemption date for the LP Exchangeable
Units to such date prior to December __, 2045, as it may determine, upon at
least 90 days' prior written notice to the holders of the LP Exchangeable Units
and the Trustee.
"TRANSFER AGENT" means the General Partner or such other Person as may
from time to time be appointed by the Partnership as the registrar and transfer
agent for the LP Exchangeable Units.
"TRUSTEE" means Onex Corporation or such other trustee chosen by a
majority of the holders of the LP Exchangeable Units and the Company, acting
reasonably, to act as trustee under the Voting and Exchange Trust Agreement, and
any successor trustee appointed under the Voting and Exchange Trust Agreement.
"VOTING AND EXCHANGE TRUST AGREEMENT" means the Voting and Exchange Trust
Agreement, dated as of ___________ ___, 2005, among the Company, the Partnership
and the Trustee.
2
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Agreement.
ARTICLE 2
DISTRIBUTIONS
2.1 AMOUNT OF DISTRIBUTIONS
Without limiting the provisions of Article 5 of the Agreement, a holder of
an LP Exchangeable Unit shall be entitled to receive, and the General Partner
shall, subject to applicable law, on each Dividend Declaration Date, declare a
distribution on each LP Exchangeable Unit:
(a) in the case of a cash dividend declared on the Common Stock, in an
amount in cash for each LP Exchangeable Unit equal to the cash dividend declared
on each share of Common Stock;
(b) in the case of a stock dividend declared on the Common Stock to be
paid in shares of Common Stock, by the issue or transfer by the Partnership of
such number of LP Exchangeable Units for each LP Exchangeable Unit as is equal
to the number of shares of Common Stock to be paid on each share of Common
Stock, unless in lieu of such Unit distribution the Partnership elects to effect
a corresponding and contemporaneous and economically equivalent (as determined
by the General Partner in accordance with Section 2.5) subdivision of the
outstanding LP Exchangeable Units; or
(c) in the case of a dividend declared on Common Stock in property other
than cash or shares of Common Stock, in such type and amount of property for
each LP Exchangeable Unit as is the same as or economically equivalent to (to be
determined by the General Partner as contemplated by Section 2.6) the type and
amount of property declared as a dividend on each share of Common Stock.
Such distributions shall be paid out of money, assets or property of the
Partnership properly applicable to the payment of distributions, or with Units
representing limited partnership interests in the Partnership, as applicable.
The holders of the LP Exchangeable Units shall not be entitled to any
distributions other than or in excess of the distributions referred to in this
Section 2.1.
2.2 PAYMENT OF DISTRIBUTIONS
The payment of any distribution contemplated by Section 2.1 shall be made
in the same manner as the corresponding dividend to be paid on the Common Stock.
2.3 RECORD DATE
The record date for the determination of the holders of LP Exchangeable
Units entitled to receive payment of, and the payment date for, any distribution
declared on the LP Exchangeable Units under Section 2.1 shall be the same dates
as the record date and payment date, respectively, for the dividend declared on
Common Stock.
2.4 ADDITIONAL DISTRIBUTIONS
If on any payment date for any distributions declared on the LP
Exchangeable Units under Section 2.1 the distributions are not paid in full on
all of the LP Exchangeable Units then outstanding, any such distributions that
remain unpaid shall be paid on a subsequent date or dates determined by the
General Partner on which the Partnership shall have sufficient funds, assets or
property properly applicable to the payment of such distributions.
3
ARTICLE 3
CERTAIN RESTRICTIONS
So long as any of the LP Exchangeable Units are outstanding, the
Partnership shall not issue any LP Exchangeable Units or any other Units of the
Partnership ranking equally with, or superior to with respect to the payment of
distributions or on any liquidation distribution, the LP Exchangeable Units
other than (a) by way of Unit distributions to the holders of such LP
Exchangeable Units and (b) the issuance of GPL Units to the General Partner
pursuant to Section 3.3 of the Agreement.
ARTICLE 4
DISTRIBUTION ON LIQUIDATION
4.1 AMOUNT OF DISTRIBUTION
In the event of the liquidation, dissolution or winding-up of the
Partnership or any other distribution of the assets of the Partnership among its
Unitholders for the purpose of winding up its affairs, a holder of LP
Exchangeable Units shall be entitled, subject to applicable law, to receive from
the assets of the Partnership in respect of each LP Exchangeable Unit held by
such holder on the effective date (the "LIQUIDATION DATE") of such liquidation,
dissolution or winding-up, an amount per Unit (the "LIQUIDATION AMOUNT") equal
to the sum of (i) one share of Class B Common Stock plus (ii) an amount equal to
all declared and unpaid distributions on each such LP Exchangeable Unit held by
such holder on any distribution record date which occurred prior to the
Liquidation Date.
4.2 DELIVERY OF DISTRIBUTION
On or promptly after the Liquidation Date, the Partnership shall
automatically, and without any action on the part of the holders of LP
Exchangeable Units, deliver or cause to be delivered to the holders of the LP
Exchangeable Units the Liquidation Amount for each such LP Exchangeable Unit.
Payment of the total Liquidation Amount for such LP Exchangeable Units shall be
made by delivering to each holder, at the address of the holder recorded in the
register of the Partnership for the LP Exchangeable Units or by holding for
pick-up by the holder at the principal executive office of the Company on behalf
of the Partnership, certificates representing shares of Class B Common Stock
(which shares shall be duly issued as fully paid and non-assessable and shall be
free and clear of any lien, claim or encumbrance) and a check for the balance,
if any, of the total Liquidation Amount (less any amounts withheld pursuant to
Article 9). On and after the Liquidation Date, the holders of the LP
Exchangeable Units shall cease to be holders of such LP Exchangeable Units and
shall not be entitled to exercise any of the rights of holders in respect such
LP Exchangeable Units, other than the right to receive their proportionate part
of the total Liquidation Amount in accordance with the foregoing provisions.
4.3 NO ADDITIONAL DISTRIBUTIONS
After the Partnership has satisfied its obligations to pay the holders of
the LP Exchangeable Units the Liquidation Amount per LP Exchangeable Unit
pursuant to Sections 4.1 and 4.2 of these Exchangeable Unit Provisions, such
holders shall not be entitled to share in any further distribution of the assets
of the Partnership.
ARTICLE 5
EXCHANGE OF LP EXCHANGEABLE UNITS
5.1 EXCHANGE PRICE
A holder of LP Exchangeable Units shall be entitled at any time, and
otherwise upon compliance with the provisions of this Article 5, to require the
Partnership to exchange any or all of the LP Exchangeable Units registered in
the name of such holder for (i) one share of Class B Common Stock for each LP
Exchangeable Unit presented and surrendered by the holder, plus (ii) on the
designated
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payment date therefor, the full amount of all declared and unpaid distributions
on any such LP Exchangeable Unit held by such holder on any distribution record
date which occurred prior to the Exchange Date (together, the "EXCHANGE PRICE").
To effect such exchange, the holder shall provide written notice to the
Partnership of such holder's desire to have the Partnership exchange same (the
"EXCHANGE REQUEST") in the form of Schedule I hereto or in such other form as
may be acceptable to the Partnership:
(a) specifying that the holder desires to have all or any number specified
therein of the LP Exchangeable Units (the "EXCHANGED UNITS") exchanged by the
Partnership; and
(b) stating the Business Day on which the holder desires to have the
Partnership exchange the Exchanged Units (the "EXCHANGE DATE"), provided, that
the Exchange Date shall be not less than two Business Days nor more than ten
Business Days after the date on which the Exchange Request is received by the
Partnership, and, further provided, that, in the event that no such Business Day
is specified by the holder in the Exchange Request, the Exchange Date shall be
deemed to be the 10th Business Day after the date on which the Exchange Request
is received by the Partnership.
Notwithstanding the provisions of clause (b), in the event of an Offer or
a Merger, the Partnership will use its commercially reasonable efforts,
expeditiously and in good faith, to put in place procedures to ensure that, if
holders of LP Exchangeable Units are required to exchange such LP Exchangeable
Units to participate in the Offer or Merger, that any such exchange shall be
conditional upon, and shall only be effective if, the shares of Class B Common
Stock tendered or deposited under such Offer are purchased by the Offeror or the
holders thereof are entitled to receive the consideration payable upon
consummation of the Merger, as applicable.
5.2 EFFECTIVE TIME
Upon receipt by the Partnership in the manner specified in Section 5.1 of
an Exchange Request, and provided that the Exchange Request is not revoked by
the holder in the manner specified in Section 5.6, the Partnership shall
exchange the Exchanged Units effective at the close of business on the Exchange
Date and shall deliver or cause to be delivered to such holder the total
Exchange Price less any amount withheld pursuant to Article 9. If the Exchange
Date is a record date for a dividend on the Common Stock, and therefore a record
date for a distribution on the Exchanged Units, the Partnership shall effect the
exchange in a manner so that such distribution is made with respect to the
Exchanged Units and that no dividend shall be payable on the corresponding
Common Stock.
5.3 DELIVERY OF CLASS B COMMON STOCK
The Partnership shall deliver or cause the Transfer Agent to deliver to
the relevant holder, at the address of the holder recorded in the register of
the Partnership for the LP Exchangeable Units or at the address specified in the
holder's Exchange Request, or by holding for pick-up by the holder at the
principal executive office of the Company or at any office of the Transfer Agent
as may be specified by the Partnership by notice to the holders of LP
Exchangeable Units, certificates representing the shares of Class B Common Stock
(which shares shall be duly issued as fully paid and non-assessable and shall be
free and clear of any lien, claim or encumbrance) registered in the name of the
holder or in such other name as the holder may request, and, if applicable and
on or before the payment date therefor, a check representing the aggregate
Distribution Amount, in payment of the total Exchange Price, in each case, less
any amounts withheld pursuant to Article 9, and such delivery of such
certificates and check on behalf of the Partnership or by the Transfer Agent
shall be deemed to be payment of and shall satisfy and discharge all liability
for the total Exchange Price, to the extent that the same is represented by such
share certificates and check (plus any tax deducted and withheld therefrom and
remitted to the proper tax authority).
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5.4 TERMINATION OF RIGHTS
On and after the close of business on the Exchange Date, the holder of the
Exchanged Units shall cease to be a holder of such Exchanged Units and shall not
be entitled to exercise any of the rights of a holder in respect to such
Exchanged Units, other than the right to receive the total Exchange Price (and
the payment of any Distribution Amount as and when such amount is payable). On
and after the close of business on the Exchange Date, provided that payment of
the total Exchange Price and the Distribution Amount has been made in accordance
with the foregoing provisions, the holder of the Exchanged Units so redeemed by
the Partnership shall thereafter be considered and deemed for all purposes to be
a holder of the shares of Class B Common Stock delivered to it.
5.5 WITHDRAWAL OF EXCHANGE REQUEST
A holder of Exchanged Units may, by notice in writing given by the holder
to the Partnership before the close of business on the Business Day immediately
preceding the Exchange Date, withdraw its Exchange Request, in which event such
Exchange Request shall be null and void.
ARTICLE 6
REDEMPTION OF LP EXCHANGEABLE UNITS BY THE PARTNERSHIP
6.1 REDEMPTION
Subject to applicable law, on the Redemption Date the Partnership shall
redeem all but not less than all of the then outstanding LP Exchangeable Units
for an amount per Unit equal to the Exchange Price.
6.2 NOTICE OF REDEMPTION
In any case of a redemption of LP Exchangeable Units under this Article 6,
the Partnership shall, at least 60 days before the Redemption Date, send or
cause to be sent to each holder of LP Exchangeable Units a notice in writing of
the redemption by the Partnership.
6.3 DELIVERY OF REDEMPTION PRICE
On or after the Redemption Date, the Partnership shall automatically, and
without any action on the part of the holders of the LP Exchangeable Units,
deliver or cause to be delivered to the holders of the LP Exchangeable Units to
be redeemed, the Exchange Price for each such LP Exchangeable Unit. Payment of
the total Exchange Price for such LP Exchangeable Units shall be made by
delivery to each holder, at the address of the holder recorded in the register
of the Partnership or by holding for pick-up by the holder at the principal
executive office of the Company, on behalf of the Partnership, of certificates
representing shares of Class B Common Stock (which shares shall be duly issued
as fully paid and non-assessable and shall be free and clear of any lien, claim
or encumbrance) and, if applicable and on or before the payment date therefor, a
check in payment of any Distribution Amount, in each case, less any amounts
withheld pursuant to Article 9. On and after the Redemption Date, the holders of
the LP Exchangeable Units called for redemption shall cease to be holders of
such LP Exchangeable Units and shall not be entitled to exercise any of the
rights of holders in respect to such LP Exchangeable Units, other than the right
to receive their total Exchange Price and unless payment of the total Exchange
Price for such LP Exchangeable Units shall not be made in accordance with the
foregoing provisions, in which case the rights of the holders shall remain
unaffected until the total Exchange Price has been paid in the manner provided
above.
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ARTICLE 7
[INTENTIONALLY OMITTED]
ARTICLE 8
PROVISIONS IN RESPECT OF CERTAIN MERGERS
If the Company, at any time after the Effective Time, consummates a
Section 368 Transaction whereby all or substantially all of its undertaking,
property and assets would become property of the continuing corporation or other
entity resulting therefrom (such other Person or continuing corporation (or, in
the event of a merger or similar transaction pursuant to which holders of Common
Stock are entitled to receive shares or other ownership interest in the capital
of any corporation or other legal entity other than such other Person or
continuing corporation, then such corporation or other legal entity in which
holders of shares in the capital of the Company are entitled to receive an
interest) is herein called the "SUCCESSOR") then, provided that the Successor is
bound, or has agreed to be bound, by the provisions of the Voting and Exchange
Trust Agreement and to assume the obligations of the Company thereunder to the
satisfaction of the General Partner, all references in these Exchangeable Unit
Provisions and the Agreement:
(a) to the Common Stock shall be deemed to be references to the securities
of the Successor which has assumed the obligations of the Company,
(b) to declared and unpaid distributions on an LP Exchangeable Unit shall
include the amount of any consideration other than the securities of the
Successor payable in respect of one share of Common Stock in such transaction,
with a distribution date that is the date such consideration is paid to holders
of Common Stock, and
(c) to the Company shall be to the Successor,
in each case without amendment to these Exchangeable Unit Provisions or the
Agreement or any further action whatsoever. For greater certainty, if a
transaction described in this Article 8 results in holders of LP Exchangeable
Units being entitled to exchange their LP Exchangeable Units for shares of a
Successor in a different ratio than that set out in these Exchangeable Unit
Provisions, then these Exchangeable Unit Provisions shall be deemed to be
amended to refer to such different ratio(s).
ARTICLE 9
WITHHOLDING RIGHTS
The Partnership, the Company and the Transfer Agent (in each case, the
"PAYER") shall be entitled to deduct and withhold from any distribution or
consideration otherwise payable to any holder of LP Exchangeable Units ("PAYEE")
such amounts as the Payer is required to deduct and withhold with respect to
such payment under the United States Internal Revenue Code of 1986 or any
provision of state, local or foreign tax law, in each case, as amended or
succeeded. To the extent that amounts are so withheld, such withheld amounts
shall be treated for all purposes as having been paid to Payee in respect of
which such deduction and withholding was made, provided that such withheld
amounts are actually remitted to the appropriate taxing authority. To the extent
that the amount so required or entitled to be deducted or withheld from any
payment to a Payee exceeds the cash portion of the consideration otherwise
payable to the Payee, the Payer is hereby authorized to sell or otherwise
dispose of such portion of the consideration as is necessary to provide
sufficient funds to the Payer to enable it to comply with such deduction or
withholding requirement or entitlement and the Payer shall notify the holder
thereof and remit any unapplied balance of the net proceeds of such sale,
provided however that nothing in this Article 9 shall reduce the Partnership's
obligations under Section 2.2.
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ARTICLE 10
DELIVERY OF FORMS
The Partnership shall be entitled to require any holder of an LP
Exchangeable Unit to deliver to the Partnership an Internal Revenue Service Form
W-8BEN (or other applicable W-8 form), or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such holder claiming
eligibility for a reduced rate of or exemption from withholding on dividends
under the income tax treaty between the United States and Canada, or any
successor treaty.
ARTICLE 11
CONVERSION OF LP EXCHANGEABLE UNITS
11.1 DEFINITIONS
As used in this Article 11, the following terms have the following
meaning:
(a) "CONVERSION PERIOD" means the period of time commencing on the eighth
day after the Offer Date and terminating on the Expiration Date;
(b) "CONVERTED UNITS" means shares of Class A Common Stock resulting from
the exchange of LP Exchangeable Units into shares of Class A Common Stock
pursuant to Section 11.2;
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated form time to time thereunder;
(d) "EXCLUSIONARY OFFER" means an offer to purchase shares of Class A
Common Stock that:
(i) must, by reason of applicable securities laws (including Rule
14d-10 under the Exchange Act or any successor provisions) or the requirements
of a stock exchange on which shares of Class A Common Stock are listed, be open
to all or substantially all holders of shares of Class A Common Stock; and
(ii) is not made concurrently with a Qualifying Class B Offer, and
for the purposes of this definition, the varying of any term of the offer for
shares of Class A Common Stock shall be deemed to constitute the making of a new
offer unless an identical variation concurrently is made to the corresponding
offer to purchase shares of Class B Common Stock or shares of Class B Common
Stock and LP Exchangeable Units;
(e) "EXPIRATION DATE" means the last date upon which holders of shares of
Class A Common Stock may accept an Exclusionary Offer;
(f) "OFFER DATE" means the date on which an Exclusionary Offer is made;
(g) "OFFEROR" means a Person that makes an offer to purchase shares of
Class A Common Stock (the "BIDDER"), and includes any associate or affiliate of
the bidder or any person or company that is disclosed or required to be
disclosed in the offering document relating to such offer to be acting jointly
or in concert with the bidder;
(h) "QUALIFYING CLASS B OFFER" means an offer to purchase shares of Class
B Common Stock and LP Exchangeable Units that is identical to a concurrent offer
to purchase shares of Class A Common Stock in terms of price per share and
percentage of outstanding shares to be purchased (exclusive of shares owned
immediately prior to the offer to the Offeror) and in all other respects (except
with respect to the conditions that may be attached to the offer for shares of
Class A Common Stock), and having no conditions thereto other than the right not
to purchase and pay for shares of Class B Common Stock or
8
Class B Common Stock and LP Exchangeable Units tendered if no shares of Class A
Common Stock are purchased pursuant to the offer for shares of Class A Common
Stock; and
(i) "TRANSFER AGENT" means the transfer agent from time to time for the
shares of LP Exchangeable Units.
11.2 CLASS A EXCHANGE RIGHTS
Subject to Section 11.5, if an Exclusionary Offer is made, each
outstanding LP Exchangeable Unit shall be exchangeable for one share of Class A
Common Stock at the option of the holder thereof during the Conversion Period.
The exchange right provided for in this Section 11.2 shall be exercised by
notice in writing given to the Transfer Agent, and such notice shall be executed
by the Person registered on the books of the Partnership as the holder of the LP
Exchangeable Units and shall specify the number of LP Exchangeable Units which
the holder desires to have exchanged. The holder shall pay any governmental or
other tax imposed on or in respect of such exchange. Upon receipt by the
Transfer Agent of such notice, the Partnership shall issue or cause to be issued
a share certificate representing fully-paid shares of Class A Common Stock as
prescribed above and in accordance with Section 11.4.
11.3 NOTICE OF ELECTION
An election by a holder of LP Exchangeable Units to exercise the exchange
right provided for in Section 11.2 shall not be valid unless accompanied by (i)
an Exchange Request as provided in Section 5.1 requesting the Partnership to
exchange the holder's Converted Units; and (ii) irrevocable elections by such
holder (A) to tender Class A Common Stock represented by the Converted Units
into the Exclusionary Offer (subject to such holder's right to subsequently
withdraw the shares from the offer in accordance with the terms thereof and
applicable law); and (B) in respect of any shares as to which such holder
exercises his or its right of withdrawal from the Exclusionary Offer or which
are not otherwise ultimately purchased under the Exclusionary Offer, to have
such Converted Units deemed to have been converted back into LP Exchangeable
Units; and (C) to appoint the Transfer Agent or the transfer agent of the
Company, as the case may be, as agent of such holder for the purpose of holding
and tendering certificates representing such shares of Class A Common Stock
represented by the Converted Units in accordance with Section 11.4. In the case
of an Exclusionary Offer for shares of Class A Common Stock only, the holder of
LP Exchangeable Units shall send a copy of the foregoing to the transfer agent
of the Company. Any such election shall provide that the conversion of Converted
Units back into LP Exchangeable Units pursuant to such election in respect of
which the holder exercises his or its right of withdrawal from the Exclusionary
Offer shall become effective at the time such right of withdrawal is exercised.
If the right of withdrawal is not exercised, any conversion into LP Exchangeable
Units pursuant to such election shall become effective:
(a) in respect of an Exclusionary Offer which is completed, immediately
following the time by which the Offeror is required under applicable securities
laws to purchase and pay for all shares to be acquired by the Offeror under the
Exclusionary Offer; and
(b) in respect of an Exclusionary Offer which is abandoned or withdrawn,
at the time at which the Exclusionary Offer is abandoned or withdrawn.
11.4 DELIVERY OF CONSIDERATION OR CERTIFICATES
No stock certificates representing shares of Class A Common Stock
corresponding to the Converted Units shall be delivered to or to the order of
the holders of the shares before such shares are tendered into the Exclusionary
Offer; the Transfer Agent or the transfer agent of the Company, on behalf of the
holders of the Converted Units, shall tender pursuant to the Exclusionary Offer
pursuant to the notice described in Section 11.3(ii)(C) a certificate or
certificates representing shares of Class A Common Stock corresponding to the
Converted Units. Upon completion of the Exclusionary Offer, the Transfer Agent
shall deliver or cause to be delivered to the holders entitled thereto all
consideration paid by the
9
Offeror pursuant to the Exclusionary Offer in respect of shares of Class A
Common Stock corresponding to the Converted Units. If Converted Units are
converted into LP Exchangeable Units in accordance with the election required in
Section 11.3, the Transfer Agent shall record in the Partnership Unit register
the LP Exchangeable Units resulting from the conversion. The Partnership shall
make all arrangements with the Transfer Agent necessary or desirable to give
effect to this Section 11.4.
11.5 EFFECTIVENESS OF CONVERSION
The Partnership and the Transfer Agent will use their commercially
reasonable efforts expeditiously and in good faith to put in place procedures or
to cause the Transfer Agent to put in place procedures to ensure, that if a
holder elects to exercise the conversion right in Section 11.2 and an exchange
and conversion of the Converted Units pursuant to Section 11.3 is required to
participate in the Exclusionary Offer, that any such exchange and conversion
shall be conditional upon and shall only be effective if the Class A Common
Stock tendered or deposited under such Offer are purchased by the Offeror.
ARTICLE 12
NO FRACTIONAL SHARES
A holder of LP Exchangeable Units shall not be entitled to any fraction of
a share of Class B Common Stock or Class A Common Stock upon the liquidation,
exchange or redemption of such holder's LP Exchangeable Units pursuant to
Article 4, 5 or 6 or upon a conversion of such holder's LP Exchangeable Units
pursuant to Article 11, and no certificates representing any such fractional
interest shall be issued, and such holder otherwise entitled to a fractional
interest will receive for such fractional interest from the Partnership on the
designated payment date a cash payment equal to such fractional interest
multiplied by the Current Market Price.
* * *
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SCHEDULE I
TO APPENDIX I
EXCHANGE REQUEST
To Emergency Medical Services L.P. ("THE PARTNERSHIP"):
This notice is given pursuant to Article 5 or 6 of the provisions (the
"EXCHANGEABLE UNIT PROVISIONS") attaching to the LP Exchangeable Units of the
Partnership represented by this certificate and all capitalized words and
expressions used in this notice that are defined in the Exchangeable Unit
Provisions have the meanings ascribed to such words and expressions in such
Exchangeable Unit Provisions.
The undersigned hereby notifies the Partnership that the undersigned
desires to have the Partnership exchange or redeem in accordance with Article 5
or 6 of the Exchangeable Unit Provisions:
all LP Exchangeable Units owned by the undersigned; or
_________________ LP Exchangeable Units owned by the undersigned.
The undersigned hereby notifies the Partnership that the Exchange Date
shall be ___________________
NOTE: The Exchange Date must be a Business Day and must not be less than
two Business Days nor more than 10 Business Days after the date upon
which this notice is received by the Partnership. If no such
Business Day is specified above, the Exchange Date shall be deemed
to be the 10th Business Day after the date on which this notice is
received by the Partnership.
This Exchange Request may be revoked and withdrawn by the undersigned only
by notice in writing given to the Partnership at any time before the close of
business on the Business Day immediately preceding the Exchange Date.
The undersigned acknowledges that if, as a result of solvency provisions
of applicable law, the Partnership is unable to redeem all Exchanged Units, the
undersigned will be deemed to have exercised the Exchange Right (as defined in
the Voting and Exchange Trust Agreement) so as to require the Company to
purchase the unredeemed Exchanged Units.
The undersigned hereby represents and warrants to the Partnership that the
undersigned has good and valid title to the LP Exchangeable Units to be acquired
by the Partnership, free and clear of all liens, claims and encumbrances.
_________________ _____________________________
(Date) (Signature of Unitholder)
- - Please check box if the securities and any check(s) resulting from the
exchange of the Exchanged Units are to be held for pick-up by the
Unitholder from the Transfer Agent, failing which the securities and any
check(s) will be mailed to the last address of the Unitholder as it
appears on the register.
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NOTE: This panel must be completed and this notice, together with such
additional documents as the Transfer Agent may require, must be
deposited with the Transfer Agent. The securities and any check(s)
resulting from the Exchange of the Exchanged Units will be issued
and registered in, and made payable to, respectively, the name of
the Unitholder as it appears on the register of the Partnership and
the securities and any check(s) resulting from such Exchange will be
delivered to such Unitholder as indicated above, unless the form
appearing immediately below is duly completed.
If this Exchange Request is for less than all of the LP Exchangeable
Units owned by the signatory hereto, the the Partnership Unit
register shall reflect such Unitholders ownership of its remaining
LP Exchangeable Units.
Date: ____________________________
Name of Person in Whose Name Securities or Check(s)Are to be Registered, Issued
or Delivered (please print):____________________________________________________
Signature of Unitholder: _______________________________________________________
Address: _______________________________________________________________________
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