<PAGE>
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
<PAGE>
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.
-2-
<PAGE>
"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.
-3-
<PAGE>
"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
-4-
<PAGE>
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.
-5-
<PAGE>
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.
-6-
<PAGE>
(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
