EXHIBIT 3.4
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMERGENCY MEDICAL SERVICES L.P.
This Agreement of Limited Partnership is entered into and shall be
effective as of February 10, 2005, by and among Emergency Medical Services
Corporation, a Delaware corporation as a 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. 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).
"CAPITAL ACCOUNTS" has the meaning set forth in Section 4.2.
"CAPITAL CONTRIBUTIONS" means the money and property contributed by
the Partners to the Limited Partnership pursuant to the provisions of Section 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.
"CLASS A UNITS" means all Units of the Partnership other than Class
B Units.
"CLASS B UNITS" has the meaning given to that term in Section 4.4.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, including the corresponding provisions of any successor law.
"COMPANY" means Emergency Medical Services L.P.
"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).
"FISCAL YEAR" means (a) the period commencing on the date hereof and
ending on August 31, 2005 and (b) any subsequent 12-month period commencing on
January 1.
"GENERAL PARTNER" has the meaning given that term in the first
paragraph of this Agreement.
"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.
"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.
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"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), 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.
"PARTNERS" shall mean the General Partner and the Limited Partners,
collectively, and "PARTNER" shall mean a General Partner or a Limited Partner
as the context shall require.
"PARTNERSHIP" means the limited partnership formed by the execution
of this Agreement and known as Emergency Medical Services L.P.
"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.
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"REGULATIONS" means the Treasury Regulations promulgated under the
Code, as amended from time to time, including the corresponding provisions of
any successor regulations.
"UNITS" means the units of each Limited Partner representing such
Limited Partner's interest in the income, gains, losses, deductions and expenses
of the Partnership as set forth on Schedule A attached hereto, as amended from
time to time in accordance with the terms of this Agreement. Unless otherwise
indicated, a reference to Units shall be to both Class A Units and Class B
Units.
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. Promptly upon execution and delivery of this Agreement, the General
Partner shall cause a restated Certificate, if required by the Act, to be filed
or recorded in all appropriate public offices.
2.2 PURPOSE; LIMITATIONS. 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.
2.4 REGISTERED AGENT. The registered agent of the Partnership in
Delaware shall be Corporation Service Company.
2.5 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. On or prior to the date hereof, the
Partners have made the contributions to the Partnership set forth on Schedule A
attached hereto.
3.2 ADDITIONAL CONTRIBUTIONS. No Partner shall be required to make
any additional contributions to the capital of the Partnership. Nothing
contained in this Section 3.2 shall be deemed to limit the obligations of the
General Partner in respect of liabilities 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 (a) of the General
Partner shall be 0.001 percent and (b) of each Limited Partner, the product of
(i) 0.999 and (ii) the percentage of outstanding Units owned by such Limited
Partner.
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
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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 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. 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 Limited Partners
in capital, profits, losses and distributions of or from the Partnership. Unless
otherwise designated, all Units shall be Class A Units.
4.4 CLASS B UNITS. The General Partner is hereby authorized to issue
additional interests in the Partnership to employees, consultants, contractors
and other parties who perform services for or on behalf of the Partnership on
the terms and conditions set forth in this Section 4.4. The General Partner is
further authorized to issue to employees, consultants, contractors and other
parties who perform services for or on behalf of the Partnership options or
other rights to acquire such Units at some time in the future. The interests in
the Partnership issued pursuant to this Section 4.4 shall be designated as
"Class B Units."
(a) The Partnership shall designate the number of Class B Units
issued hereunder, and shall revise Schedule A attached hereto to reflect
the issuance of such Units, and the name and address of the holder
thereof. The aggregate Percentages Interests of all outstanding Class B
Units at any time shall not exceed 15 percent.
(b) Holders of the Class B Units shall not be entitled to any vote
on any matter requiring the vote of the Limited Partners hereunder.
(c) Except as expressly provided herein, Class B Units shall be
identical in their terms to Class A Units and each Class A Unit and Class
B Unit shall be entitled to equal shares of distribution and allocations
as provided herein.
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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 and absolute discretion and shall be made to the
Partners in accordance with their respective Percentage Interests.
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, (i) the
term "liquidation of the Partnership" shall mean either (a) 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 (b) a termination of the Partnership pursuant to Section
708(b)(1) of the Code; and (ii) 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.
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
in accordance with their respective Percentage Interests.
6.2 ALLOCATIONS 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:
(b) 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.
(c) There shall next be allocated to each of the Partners gain in
such amounts and proportions as are necessary so that the positive Capital
Account balances of the Partners are in proportion to their respective
Percentage Interests.
(d) Any remaining gain shall be allocated among the Partners
accordance with their respective Percentage Interests.
(e) 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.
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(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. 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)).
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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 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 The income, gains, losses, deductions and expenses of the
Partnership shall be 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
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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 The Limited Partners shall not take part in or interfere in any
manner with the 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.
8. RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNER.
8.1 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. Notwithstanding any contrary provision
elsewhere contained in this Agreement, 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.
8.2 The powers of the General Partner shall include, but not be
limited to, the following:
(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.
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(f) If at any time in contemplation of, or in connection with, an
initial public offering of the equity interests of the Partnership (or a
successor), the General Partner determines, in its sole discretion, to
change the classification of the Partnership for federal, state or local
income tax purposes, the General Partner shall take such steps as it deems
necessary or appropriate to effect such change or convert the Partnership
into a corporation. 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.
8.3 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 may engage in any
other business activities, 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.
8.4 All funds of the Partnership shall be deposited in the
Partnership name in such account or accounts as shall be designated by the
General Partner. All withdrawals therefrom shall be made only by such Person or
Persons as the General Partner may designate from time to time.
8.5 All decisions made by the General Partners (if more than one)
shall be made unanimously, provided that the General Partners may delegate to
one General Partner the authority to make any decision provided for under this
Agreement.
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 gross negligence or 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
No Limited 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, 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 Partners. The General Partner may, in its sole
and absolute 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).
11. BOOKS AND REPORTS.
11.1 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 August 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.
-10-
11.2 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 The General Partner is hereby designated the "Tax Matters
Partner" in accordance with Section 6231(a)(7) of the Code.
12. TERMINATION.
12.1 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 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, or (c) 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; 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 Notwithstanding the fact that an event of withdrawal described
in Section 12.2(c) occurs with respect to a General Partner then, if there is a
remaining General Partner, such remaining General Partner, or if there is no
remaining General Partner, then the Limited Partners, acting by consent of the
Limited Partners holding a majority of the Class A Units, may 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 remaining General
Partner elects to continue the Partnership, such remaining General Partner shall
be the sole General Partner and shall be subject to all the rights and
obligations to which the prior General Partner was subject. If an event of
withdrawal occurs with respect to the General Partner and the Limited Partners
elect to continue the Partnership in accordance with this Section 12.3, the
Limited Partners, acting by consent of the Limited Partners holding a majority
of the Class A 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.
-11-
13. MISCELLANEOUS.
13.1 This Agreement represents the entire agreement among the
parties with respect to its subject matter and cannot be changed or terminated
except by an instrument in writing signed by the General Partners and Limited
Partners holding more than 50% of the Class A Units outstanding. If,
notwithstanding the provisions of Section 8.1, the General Partner, in its sole
discretion, seeks the consent of the Limited Partners to any action, such
consent shall require only an instrument or instruments in writing signed by
Limited Partners holding more than 50% of the Class A Units outstanding.
13.2 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.
13.3 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.
13.4 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 at such other address as a
party may specify by notice pursuant to this provision).
13.5 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.
13.6 If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect.
[Signature Pages Follow]
-12-
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: /s/ Xxxxxx X. Xx Xxxxx
--------------------------------------
Name: Xxxxxx X. Xx Xxxxx
Title: President
LIMITED PARTNERS:
ONEX AMERICAN HOLDINGS II LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
ONEX US PRINCIPALS LP
By: Onex American Holdings GP LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Representative
EMS EXECUTIVE INVESTCO LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
[Signature Page to 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: /s/ Xxxxxx X. Xx Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xx Xxxxx
Title: Managing Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
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: /s/ Xxxxxx X. Xx Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xx Xxxxx
Title: Managing Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: As of February 10, 2005
LIMITED PARTNER:
/s/ Xxxxx Xxxxxxxx LLC
-----------------------------------------
Name: Xxxxxx Xxxx, Manager
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: As of February 10, 2005
LIMITED PARTNER:
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 9, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 9, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 9, 2005
LIMITED PARTNER:
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 8, 2005
LIMITED PARTNER:
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 9, 2005
LIMITED PARTNER:
/s/ Dighton Packard
------------------------------
Name: Dighton Packard
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxx Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 8, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 8, 2005
LIMITED PARTNER:
/s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx Xxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: February 10, 2005
LIMITED PARTNER:
/s/ Xxxxxxx X. Xxxxxx MD
------------------------------
Name: Xxxxxxx X. Xxxxxx MD
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: March 10, 2005
LIMITED PARTNER:
/s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: April 22, 2005
LIMITED PARTNER:
/s/ XXXXXX X. XXXXXXX
_____________________
Name: Xxxxxx X. Xxxxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned.
Dated: June 30, 2005
LIMITED PARTNER:
/s/ XXXXXXX X. XXXXX
_____________________
Name: Xxxxxxx X. Xxxxx
[Signature Page to Agreement of Limited Partnership of Emergency Medical
Services L.P.]
As of June 30, 2005
Schedule A
Partners and Capital Contributions
Number of Units (1)/Class
Emergency Medical Services Corporation, $ 200 20 Class A Units
General Partner
0000 X. Xxxxxxxx Xxx - Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000-0000
Onex American Holdings II LLC, limited partner $ 91,547,980 9,154,798 Class A Units
000 Xxxxxx Xx.
Xxxxxx, XX 00000
Onex US Principals LP, limited partner $ 2,384,941 238,494 Class A Units
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
EMS Executive Investco LLC, limited partner $ 5,272,259 527,226 Class A Units
000 Xxxxxx Xx.
Xxxxxx, XX 00000
Onex Partners LP, limited partner $114,844,820 11,484,482 Class A Units
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxx LLC (Xxxxxx Xxxx), limited partner $ 750,000 75,000 Class A Units
0000 Xxxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Xxxxxx X. Xxxxxxx, limited partner $ 200,000 20,000 Class A Xxxxx
00 Xxxxx Xx.
Xxxx, XX 00000
Xxxxx X. Xxxxxxxx, limited partner $ 100,000 10,000 Class B Units
0000 Xxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx, limited partner $ 130,000 13,000 Class B Xxxxx
00 X. Xxxxxx Xx.
[_____________]
Xxxxx X. Xxxxxxx, limited partner $ 50,000 5,000 Class B Units
0000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxxx, limited partner $ 50,000 5,000 Class B Units
0000 X. Xxxxxxx Xxxx Xxxx - #00 DEF
Xxxxxxx, XX 00000
--------------
(1) The capital contribution per class A Unit and class B unit is $10.00.
A-1
As of June 30, 2005
Xxxxx X. Xxxxx, limited partner $ 100,000 10,000 Class B Units
00000 X. Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxxx, limited partner $ 75,000 7,500 Class B Units
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxx X. Xxxxxx, limited partner $ 500,000 50,000 Class B Units
0000 Xxxxxxxx Xx.
Xxxx Xxxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxxx, limited partner $ 3,000,000 300,000 Class B Units
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Dighton Packard, limited partner $ 225,000 22,500 Class B Units
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxxxx, limited partner $ 125,000 12,500 Class B Units
0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx, limited partner $ 75,000 7,500 Class B Units
0000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxx, Xx., limited partner $ 100,000 10,000 Class B Units
000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx Xxxx, limited partner $ 225,000 22,500 Class B Units
000 Xxxxx Xx.
Xxxxxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx MD, limited partner $ 100,000 10,000 Class B Units
0000 Xxxxxxxxxxx Xxx.
Xxxxxxxxxxxx, XX 00000
Xxxxx X. Xxxxx $ 750,000 75,000 Class B Xxxxx
00 Xxxxx Xxxx Xx.
Newtown, CT 06470
Xxxxxx X. Xxxxxxx $ 250,000 25,000 Class B Units
00000 Xxxx Xxxx Xx.
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx $ 250,000 25,000 Class B Units
0000 Xxxx Xxxxx Xx. Xx.
Xxxxxx, Xxxxxxx 00000
A-2
