Exhibit 4.11
VOTING AND EXCHANGE TRUST
AGREEMENT
Voting and Exchange Trust
Agreement (this
“ Agreement ” ), dated as of December 20,
2005, among Emergency Medical Services Corporation, a Delaware
corporation (the “ Company ”), Emergency
Medical Services L.P., a Delaware limited partnership (“
EMS LP ”), and Onex Corporation, a corporation
existing under the laws of Canada (the “
Trustee ”).
EMS LP is effecting a reorganization
pursuant to which, among other things, class A units representing
limited partnership interests in EMS LP will be designated
“LP Exchangeable Units”, exchangeable at the option of
the holder for shares of the class B common stock of the
Company.
The parties desire to enter into
this Agreement so that, by providing instructions to the Trustee,
the holders of the LP Exchangeable Units will be able to exercise
essentially the same voting rights with respect to the Company as
they would have if they exchanged the LP Exchangeable Units for
shares of Class B Common Stock.
NOW THEREFORE
, the parties hereto agree as
follows:
ARTICLE 1.
DEFINITIONS AND
INTERPRETATION
1.1 Definitions
In this Agreement, the following
terms shall have the following meanings:
“ Agreement
” has the meaning set forth in the recitals.
“ Agreement of Limited
Partnership ” means the Agreement of Limited
Partnership, dated as of February 10, 2005, as amended and
restated on December 20, 2005, among EMSC, Inc. (f/k/a
Emergency Medical Services Corporation) and the Persons listed on
Schedule A thereto.
“ Automatic Exchange
Rights ” means the benefit of the obligation of the
Company to effect the automatic exchange of LP Exchangeable Units
for shares of Class B Common Stock pursuant to
Section 5.12.
“ Beneficiaries
” means the registered holders from time to time of LP
Exchangeable Units.
“ Beneficiary
Votes ” has the meaning set forth in
Section 4.2.
“ Class B Special Voting
Share ” means the one share of Class B Special Voting
Stock of the Company, par value $0.01, which entitles the holder of
record to the number of votes per share attaching to one share of
Class B Common Stock for each one LP Exchangeable Unit
outstanding from time to time, which share is to be issued to,
deposited with, and voted by, the Trustee as described
herein.
“ Company
” has the meaning set forth in the recitals.
“ Conversion
Notice ” has the meaning set forth in
Section 4.5(b).
“ EMS LP ”
has the meaning set forth in the recitals.
“ Exchange Right
” has the meaning set forth in Section 5.1.
“ Exchanged
Units ” has the meaning set forth in
Section 5.7.
“ Indemnified
Parties ” has the meaning set forth in
Section 9.1.
1
“ Insolvency
Event ” means the institution by EMS LP of any
proceeding to be adjudicated a bankrupt or insolvent or to be wound
up, or the consent of EMS LP to the institution of bankruptcy,
insolvency or winding-up proceedings against it, or the filing of a
petition, answer or consent seeking dissolution or winding-up under
any bankruptcy, insolvency or analogous laws, including without
limitation the U.S. Bankruptcy Code, and the failure by EMS LP to
contest in good faith any such proceedings commenced in respect of
EMS LP within 30 days of becoming aware thereof, or the consent by
EMS LP to the filing of any such petition or to the appointment of
a receiver, or the making by EMS LP of a general assignment for the
benefit of creditors, or the admission in writing by EMS LP of its
inability to pay its debts generally as they become due, or EMS LP
not being permitted, pursuant to solvency requirements of
applicable law, to redeem any Exchanged Units pursuant to
Section 5.5 of the Exchangeable Unit Provisions.
“ Liquidation
Event ” has the meaning set forth in
Section 5.12(b).
“ Liquidation Event
Effective Date ” has the meaning set forth in
Section 5.12(c).
“ List ”
has the meaning set forth in Section 4.6.
“ Officer’s
Certificate ” means, with respect to the Company or
EMS LP, as the case may be, a certificate signed by any officer or
director of the Company or of the general partner of EMS LP, as the
case may be.
“ Stockholder
Consent ” has the meaning set forth in
Section 4.2.
“ Stockholder
Meeting ” has the meaning set forth in
Section 4.2.
“ Trust Estate
” means the Class B Special Voting Share, any other
securities, the Exchange Right, the Automatic Exchange Rights and
any money or other property which may be held by the Trustee from
time to time pursuant to this Agreement.
“ Trustee
” means the Onex Corporation and, subject to the provisions
of Article 10, includes any successor trustee.
“ Voting Rights
” means the voting rights attached to the Class B
Special Voting Share.
Capitalized terms used herein and
not defined shall have the respective meanings set forth in the
Agreement of Limited Partnership, including Exhibit I
thereto.
ARTICLE 2.
PURPOSE OF
AGREEMENT
The purpose of this Agreement is to
create the Trust for the benefit of the Beneficiaries, as herein
provided. The Company hereby issues to, deposits with, and
transfers to the Trustee, the Class B Special Voting Share to
be hereafter held of record by the Trustee as trustee for and on
behalf of, and for the use and benefit of, the Beneficiaries and in
accordance with the provisions of this Agreement. The Trustee will
(a) hold and administer the assets of the Trust, comprised of
the Class B Special Voting Share, in order to enable the
Trustee to exercise the Voting Rights and (b) hold the
Exchange Right and the Automatic Exchange Rights in order to enable
the Trustee to exercise such rights, in each case as trustee for
and on behalf of the Beneficiaries as provided in this
Agreement.
2
ARTICLE 3.
CLASS B SPECIAL VOTING
SHARE
3.1 Issue and Ownership of the
Class B Special Voting Share
The Company hereby acknowledges
receipt from the Trustee, as trustee for and on behalf of the
Beneficiaries, of $1.00 and other good and valuable consideration
in exchange for the issuance of the Class B Special Voting
Share by the Company to the Trustee. During the term of the Trust
and subject to the terms and conditions of this Agreement, the
Trustee shall have control and the exclusive administration of the
Class B Special Voting Share and shall be entitled to exercise
all of the rights and powers of an owner with respect to the
Class B Special Voting Share, provided that the Trustee
shall:
(a) hold the Class B Special
Voting Share and the all rights related thereto as trustee solely
for the use and benefit of the Beneficiaries in accordance with the
provisions of this Agreement; and
(b) except as specifically
authorized by this Agreement, have no power or authority to sell,
transfer, vote or otherwise deal in or with the Class B
Special Voting Share and the Class B Special Voting Share
shall not be used or disposed of by the Trustee for any purpose
other than the purposes for which this Trust is created pursuant to
this Agreement.
3.2 Beneficiary
Notification
EMS LP will notify each Beneficiary
of its right to instruct the Trustee with respect to the exercise
of the Voting Rights in respect of the LP Exchangeable Units of
each Beneficiary.
ARTICLE 4.
EXERCISE OF VOTING
RIGHTS
4.1 Voting Rights
The Trustee, as the holder of record
of the Class B Special Voting Share, shall be entitled to all
of the Voting Rights, including the right to vote in person or by
proxy the Class B Special Voting Share on any matters,
questions, proposals or propositions whatsoever that may properly
come before the stockholders of the Company at a Stockholder
Meeting or in connection with a Stockholder Consent. Subject to
Section 7.13, the Voting Rights shall be and remain vested in
and exercised by the Trustee as follows:
(a) the Trustee shall exercise the
Voting Rights only on the basis of instructions received pursuant
to this Article 4 from Beneficiaries entitled to instruct the
Trustee as to the voting thereof at the time at which the
Stockholder Meeting is held or a Stockholder Consent is sought;
and
(b) to the extent that no
instructions are received from a Beneficiary with respect to the
Voting Rights to which such Beneficiary is entitled, the Trustee
shall not exercise or permit the exercise of such Voting
Rights.
4.2 Number of
Votes
With respect to all meetings of
stockholders of the Company at which holders of Class B Common
Stock are or, if outstanding, would be entitled to vote (each, a
“ Stockholder Meeting ”) and with respect
to all written consents sought by the Company from its
stockholders, including the holders of Class B Common Stock (each,
a “ Stockholder Consent ”), each
Beneficiary shall be entitled to instruct the Trustee to cast and
exercise, in the manner instructed, that number of votes comprised
in the Voting Rights for each LP Exchangeable Unit which is equal
to that number of votes which would attach to the Class B Common
Stock receivable upon the exchange of the LP Exchangeable Units
(i) corresponding to such Class B Special Voting Share
and (ii) owned of record by such Beneficiary on the record
date
3
established by the Company or by applicable law
for such Stockholder Meeting or Stockholder Consent, as the case
may be (the “ Beneficiary Votes ”), in
respect of each matter to be voted on at such Stockholder Meeting
or in connection with such Stockholder Consent. In the case only of
a vote of Class B Common Stock, voting separately as a class, the
Trustee shall only exercise Voting Rights with respect to the
Class B Special Voting Share corresponding in that event to
the Class B Common Stock, and each Beneficiary shall be entitled to
instruct the Trustee to cast and exercise on such class vote that
number of votes comprised in the Voting Rights which is equal to
the number of LP Exchangeable Units owned of record by such
Beneficiary.
4.3 Notices to
Beneficiaries
With respect to notices and other
communications in connection with each Stockholder Meeting and
Stockholder Consent, the Trustee will use its reasonable efforts to
mail or cause to be mailed promptly (or otherwise communicate in
the same manner as the Company utilizes in communication to
stockholders of the Company and provided such manner of
communication is reasonably available to the Trustee) to each of
the Beneficiaries named in the List referred to in
Section 4.6, such notice or other communication regarding any
notice or other communication the Trustee receives from the Company
to its stockholders, together with:
(a) a copy of such notice received
by the Trustee and any related materials, including without
limitation, any proxy or information statement, to be provided to
stockholders of the Company;
(b) a statement that such
Beneficiary is entitled to instruct the Trustee as to the exercise
of the Beneficiary Votes with respect to such Stockholder Meeting
or Stockholder Consent or, pursuant to Section 4.7, to attend
such Stockholder Meeting and to exercise personally the Beneficiary
Votes;
(c) a statement as to the manner in
which such instructions may be given to the Trustee, including an
express indication that instructions may be given to the Trustee to
give:
(i) a proxy to such Beneficiary or
his designee to exercise personally the Beneficiary Votes;
or
(ii) a proxy to a designated agent
or other representative of the management of the Company to
exercise such Beneficiary Votes;
(d) a statement that if no such
instructions are received from the Beneficiary, the Beneficiary
Votes to which such Beneficiary is entitled will not be
exercised;
(e) a form of direction whereby the
Beneficiary may so direct and instruct the Trustee as contemplated
herein; and
(f) a statement of the time and date
by which such instructions must be received by the Trustee in order
to be binding upon it, which in the case of a Stockholder Meeting
shall not be later than the close of business on the second
Business Day prior to such meeting, and of the method for revoking
or amending such instructions.
The materials referred to in this
Section 4.3 are to be provided to the Trustee by the Company
and the materials referred to in Sections 4.3(c), 4.3(e) and 4.3(f)
shall be subject to reasonable comment by the Trustee in a timely
manner. The Company shall ensure that the materials to be provided
to the Trustee are provided in time sufficient to permit the
Trustee to comment as mentioned above and to send all materials to
each Beneficiary at the same time as such materials are first sent
to the stockholders of the Company. The Company agrees not to
communicate with the stockholders of the Company with respect to
the materials referred to in this Section 4.3 otherwise than
by mail unless such method of communication is also reasonably
available to the Trustee for communication with the
Beneficiaries.
4
For the purpose of determining
Beneficiary Votes to which a Beneficiary is entitled in respect of
any Stockholder Meeting or Stockholder Consent, the number of LP
Exchangeable Units owned of record by the Beneficiary shall be
determined at the close of business on the record date established
by the Company or by applicable law for purposes of determining
stockholders entitled to vote at such Stockholder Meeting. The
Company will notify the Trustee of any decision of the Board of
Directors with respect to the calling of any Stockholder Meeting
and shall provide all necessary information and materials to the
Trustee in each case promptly and in any event in sufficient time
to enable the Trustee to perform its obligations contemplated by
this Section 4.3.
4.4 Copies of Stockholder
Information
The Company will deliver to the
Trustee a copy of all proxy materials (including notices of the
Stockholder Meetings but excluding proxies to vote Common Stock),
information statements, reports, including without limitation, all
interim and annual financial statements, and other written
communications that, in each case, are to be distributed from time
to time to holders of Common Stock in quantities and time
sufficient to enable the Trustee to send such materials to each
Beneficiary at the same time such materials are first sent to
holders of Common Stock. The Trustee will mail or otherwise send to
each Beneficiary, at the expense of the Company, copies of all such
materials (and such materials will be specifically directed to the
Beneficiaries or to the Trustee for the benefit of the
Beneficiaries by the Company) received by the Trustee from the
Company contemporaneously with the distribution by the Company of
such materials to holders of Common Stock. The Trustee and the
Company, as applicable, will also make available for inspection by
any Beneficiary at (i) the Trustee’s principal office in
Toronto, Canada and (ii) the Company’s principal
executive office in the United States, all proxy materials,
information statements, reports and other written communications
that are:
(a) received by the Trustee as the
registered holder of the Class B Special Voting Share and made
available by the Company generally to the holders of Common Stock;
or
(b) specifically directed to the
Beneficiaries or to the Trustee for the benefit of the
Beneficiaries by the Company.
4.5 Other
Materials
(a) As soon as reasonably
practicable after receipt by the Company or stockholders of the
Company of any material distributed by or on behalf of a third
party to the stockholders of the Company generally, including
without limitation, dissident proxy and information circulars,
tender and exchange offer circulars (and all material related
thereto), the Company shall use its reasonable efforts to obtain
and deliver to the Trustee copies thereof in sufficient quantities
so as to enable the Trustee to forward such material to each
Beneficiary as soon as possible thereafter, unless the same has
been provided directly to Beneficiaries by such third party. As
soon as reasonably practicable after receipt thereof, the Trustee
will mail or otherwise send to each Beneficiary, at the
Company’s expense, copies of all such materials received by
the Trustee from the Company. The Trustee and the Company, as
applicable, will also make available for inspection by any
Beneficiary at (i) the Trustee’s principal office in
Toronto, Canada and (ii) the Company’s principal
executive office in the United States, a copy of all such
material.
(b) As soon as reasonably
practicable after receipt by the Trustee of notice that the
conversion right set out in Section 11.2 of the Exchangeable
Unit Provisions has come into effect, the Trustee shall use its
reasonable efforts promptly to send to EMS LP and to each of the
Beneficiaries of the LP Exchangeable Units named in the List
referred to in Section 4.6, a notice (the “
Conversion Notice ”) advising such
Beneficiaries that they are entitled to convert their LP
Exchangeable Units into shares of Class A Common Stock and the
reasons therefor. The Conversion Notice shall include:
(i) a description of the procedure
to be followed to effect the conversion of LP Exchangeable Units
into shares of Class A Common Stock;
5
(ii) the information set forth in
Section 11.3 of the Exchangeable Unit Provisions;
(iii) a copy of the Exclusionary
Offer and all other material received from the Company in respect
of such offer;
(iv) a form of notice to be given by
the relevant Beneficiaries to EMS LP pursuant to Section 11.2
of the Exchangeable Unit Provisions; and
(v) details of the arrangements and
procedures put in place by the Company and EMS LP.
4.6 List of Persons Entitled to
Vote
EMS LP shall, (a) prior to each
annual and special Stockholder Meeting or obtaining any Stockholder
Consent from the stockholders of the Company and (b) promptly
upon request of the Trustee in writing, prepare or cause to be
prepared a list of the names and addresses of the Beneficiaries of
the LP Exchangeable Units (the “ List ”),
such list to be arranged in alphabetical order and indicating the
number of LP Exchangeable Units held of record by each such
Beneficiary, as of the close of business on the date specified by
the Trustee in such request or, in the case of a List prepared in
connection with a Stockholder Meeting or a Stockholder Consent, as
of the close of business on the record date established by the
Company. The List shall be delivered to the Trustee promptly after
receipt by EMS LP of such request or the record date for such
meeting or obtaining consent, as the case may be, and in any event
within sufficient time as to permit the Trustee to perform its
obligations under this Agreement. The Company agrees to give EMS LP
notice (with a copy to the Trustee) of any Stockholder Meeting or
Stockholder Consent, together with the record dates therefor, at
least two days prior to the date of such meeting or consent so as
to enable EMS LP to perform its obligations under this
Section 4.6.
4.7 Entitlement to Direct
Votes
Any Beneficiary named in a List
prepared in connection with any Stockholder Meeting or Stockholder
Consent will be entitled (a) to instruct the Trustee in the
manner described in Section 4.3 with respect to the exercise
of the Beneficiary Votes to which such Beneficiary is entitled or
(b) to attend such meeting and personally exercise thereat, as
the proxy of the Trustee, the Beneficiary Votes to which such
Beneficiary is entitled.
4.8 Voting by Trustee and
Attendance of Trustee Representative at Meeting
(a) In connection with each
Stockholder Meeting and Stockholder Consent, the Trustee shall
exercise, either in person or by proxy, in accordance with the
written instructions received from a Beneficiary pursuant to
Section 4.3, the Beneficiary Votes as to which such
Beneficiary is entitled to direct the vote (or any lesser number
thereof as may be set forth in the instructions); provided ,
however , that such instructions are received by the Trustee
from the Beneficiary prior to the time and date fixed by the
Trustee for receipt of such instruction in the notice given by the
Trustee to the Beneficiary pursuant to Section 4.3.
(b) The Trustee shall cause a
representative who is empowered by it to sign and deliver, on
behalf of the Trustee, proxies for Voting Rights to attend each
Stockholder Meeting. Upon submission by a Beneficiary (or its
designee) of identification satisfactory to the Trustee’s
representative, and at the Beneficiary’s request, such
representative shall sign and deliver to such Beneficiary (or its
designee) a proxy to exercise personally the Beneficiary Votes as
to which such Beneficiary is otherwise entitled hereunder to direct
the vote, if such Beneficiary either (i) has not previously
given the Trustee instructions pursuant to Section 4.3 in
respect of such meeting or (ii) submits to such representative
written revocation of any such previous instructions. At such
meeting, the Beneficiary exercising such Beneficiary Votes shall
have the same rights as the Trustee with respect to any matter, to
speak at the meeting in favor or against it, to vote by way of
ballot at the meeting and to vote at such meeting by way of a show
of hands.
6
4.9 Distribution of Written
Materials
Any written materials distributed by
the Trustee pursuant to this Agreement shall be sent by mail (or
otherwise communicated in the same manner as the Company utilizes
in communications to the stockholders of the Company and provided
such manner of communications is reasonably available to the
Trustee) to each Beneficiary of the LP Exchangeable Units at its
address as shown on the register of EMS LP. The Company agrees not
to communicate with the stockholders of the Company with respect to
such written materials other than by mail unless such method of
communication is also reasonably available to the Trustee for
communication with the Beneficiaries. EMS LP shall provide or cause
to be provided to the Trustee for purposes of communication, on a
timely basis and without charge or other expense:
(a) a current List; and
(b) upon the request of the Trustee,
mailing labels to enable the Trustee to carry out its duties under
this Agreement.
Notwithstanding the foregoing, upon
the request of the Trustee, the Company shall cause all written
materials to be distributed to the Beneficiaries on behalf of the
Trustee.
4.10 Termination of Voting
Rights
All of the rights of a Beneficiary
with respect to the Beneficiary Votes exercisable in respect of the
LP Exchangeable Units held by such Beneficiary, including the right
to instruct the Trustee as to the voting of or to vote personally
such Beneficiary Votes, shall be deemed to be surrendered by the
Beneficiary to the Company and such Beneficiary Votes and the
Voting Rights represented thereby shall cease immediately upon:
(a) the delivery by a Beneficiary to the Trustee of a copy of
the Exchange Notice delivered to the Company in connection with the
exercise by such Beneficiary of the Exchange Right or the
occurrence of the automatic exchange of LP Exchangeable Units for
Class B Common Stock, as specified in Article 5 (unless, in
either case, the Company shall not have delivered the requisite
shares of Class B Common Stock issuable in exchange therefor
to the Beneficiary; (b) the exchange of LP Exchangeable Units
pursuant to Article 5 of the Exchangeable Unit Provisions; or
(c) the effective date of the liquidation, dissolution or
winding-up of EMS LP pursuant to Article 4 of the Exchangeable
Unit Provisions.
4.11 Exercise of Other
Rights
Upon the request of a Beneficiary,
the Trustee shall exercise on behalf of such Beneficiary any other
rights attaching to the LP Exchangeable Units, including the right
to (a) submit nominations to the Board of Directors and
(b) propose business for consideration at a Stockholder
Meeting.
ARTICLE 5.
EXCHANGE RIGHT AND AUTOMATIC
EXCHANGE
5.1 Grant and Exercise of the
Exchange Right
The Company hereby grants to the
Trustee as trustee for and on behalf of, and for the use and
benefit of, the Beneficiaries the right (the “ Exchange
Right ”), upon the occurrence and during the
continuance of an Insolvency Event, to require the Company to
exchange for each or any Beneficiary all or any part of the LP
Exchangeable Units held by the Beneficiary and the Automatic
Exchange Rights, all in accordance with the provisions of this
Agreement. The Company hereby acknowledges receipt from the Trustee
as trustee for and on behalf of the Beneficiaries of good and
valuable consideration for the grant of the Exchange Right and the
Automatic Exchange Rights by the Company to the Trustee.
During
7
the term of the Trust and subject to the terms
and conditions of this Agreement, the Trustee shall possess and be
vested with all rights in respect of the Exchange Right and the
Automatic Exchange Rights and shall be entitled to exercise all of
the rights and powers of an owner with respect to the Exchange
Right and the Automatic Exchange Rights, provided that the Trustee
shall:
(a) hold the Exchange Right and the
Automatic Exchange Rights as trustee solely for the use and benefit
of the Beneficiaries in accordance with the provisions of this
Agreement; and
(b) except as specifically
authorized by this Agreement, have no power or authority to
exercise or otherwise deal in or with the Exchange Right or the
Automatic Exchange Rights, and the Trustee shall not exercise any
such rights for any purpose other than the purposes for which the
Trust is created pursuant to this Agreement.
The obligations of the Company to
issue Class B Common Stock pursuant to the Exchange Right or the
Automatic Exchange Rights are subject to all applicable laws and
regulatory and stock exchange requirements.
5.2 Beneficiary
Notification
EMS LP will notify the Beneficiaries
of:
(a) their right to instruct the
Trustee with respect to the exercise of the Exchange Right in
respect of the LP Exchangeable Units held by a Beneficiary;
and
(b) the Automatic Exchange
Rights.
5.3 General Exercise of Exchange
Right
The Exchange Right shall be and
remain vested in and exercisable by the Trustee. Subject to
Section 7.13, the Trustee shall exercise the Exchange Right
only on the basis of instructions received pursuant to this Article
5 from Beneficiaries entitled to instruct the Trustee as to the
exercise thereof. To the extent that no instructions are received
from a Beneficiary with respect to the Exchange Right, the Trustee
shall not exercise or permit the exercise of the Exchange
Right.
5.4 Exchange Price
The exchange price payable by the
Company for each LP Exchangeable Unit to be exchanged by the
Company under the Exchange Right shall be an amount per Unit equal
to (a) one share of Class B Common Stock, plus
(b) to the extent not paid by EMS LP on the designated payment
date therefor, an additional amount equal to and in satisfaction of
the full amount of 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 closing of the exchange.
The exchange price for each such LP Exchangeable Unit so exchanged
may be satisfied only by the Company issuing and delivering to the
Trustee, on behalf of the relevant Beneficiary, one share of
Class B Common Stock and, on the applicable payment date
therefor, a check for the balance, if any, of the exchange price
without interest (less any amounts withheld pursuant to
Section 5.13). Upon payment by the Company of such exchange
price, the relevant Beneficiary shall cease to have any right to be
paid any amount in respect of declared and unpaid distributions on
each such LP Exchangeable Unit by EMS LP.
5.5 Exercise
Instructions
Subject to the terms and conditions
herein set forth, a Beneficiary shall be entitled, upon the
occurrence and during the continuance of an Insolvency Event, to
instruct the Trustee to exercise the Exchange Right with respect to
all or any part of the LP Exchangeable Units in the name of such
Beneficiary on the books of EMS LP. To cause the exercise of the
Exchange Right by the Trustee, the
8
Beneficiary shall deliver, in person or by
certified or registered mail, to the Trustee, at its principal
office in Toronto, Canada, or to the Company, at its principal
executive office in the United States, or at such other places as
the Trustee may from time to time designate by written notice to
the Beneficiaries: (a) a duly completed form of notice of
exercise of the Exchange Right, stating (i) that the
Beneficiary thereby instructs the Trustee to exercise the Exchange
Right so as to require the Company to purchase from the Beneficiary
the number of LP Exchangeable Units specified therein,
(ii) that such Beneficiary has good title to and owns all such
LP Exchangeable Units to be acquired by the Company free and clear
of all liens, claims and encumbrances and (iii) the names in
which the certificates representing Class B Common Stock issuable
in connection with the exercise of the Exchange Right are to be
issued; and (b) payment (or evidence satisfactory to the
Trustee, EMS LP and the Company of payment) of the taxes, if any,
payable as contemplated by Section 5.8 of this Agreement,
together with such other documents and instruments as may be
required to effect a transfer of LP Exchangeable Units under the
Delaware Revised Uniform Limited Partnership Act and the Agreement
of Limited Partnership and such additional documents and
instruments as the Trustee, EMS LP and the Company may reasonably
require.
5.6 Delivery of Class B Common
Stock; Effect of Exercise
Promptly after the receipt of a duly
completed form of notice of exercise of the Exchange Right (and
payment of taxes, if any, payable as contemplated by
Section 5.8 or evidence thereof), together with such documents
and instruments of transfer, the Trustee shall notify the Company
and EMS LP of its receipt of the same, which notice to the Company
and EMS LP shall constitute exercise of the Exchange Right by the
Trustee on behalf of the holder of such LP Exchangeable Units, and
the Company shall promptly thereafter deliver or cause to be
delivered to the Trustee, for delivery to the Beneficiary of such
LP Exchangeable Units (or to such other person as directed by the
Beneficiary), the number of shares of Class B Common Stock issuable
in connection with the exercise of the Exchange Right, and on the
applicable payment date a check for the balance, if any, of the
total exchange price therefor without interest (less any amounts
withheld pursuant to Section 5.13); provided ,
however , that no such delivery shall be made unless and
until the Beneficiary requesting the same shall have paid (or
provided evidence satisfactory to the Trustee, EMS LP and the
Company of the payment of) the taxes, if any, payable as
contemplated by Section 5.8 of this Agreement. Immediately
upon the giving of notice by the Trustee to the Company and EMS LP
of the exercise of the Exchange Right as provided in this
Section 5.6, the closing of the transaction of exchange
contemplated by the Exchange Right shall be deemed to have occurred
and the holder of such LP Exchangeable Units shall be deemed to
have transferred to the Company all of such holder’s right,
title and interest in and to such LP Exchangeable Units and the
related interest in the Trust Estate free and clear of any lien,
claim or encumbrance and shall cease to be a holder of such LP
Exchangeable Units and shall not be entitled to exercise any of the
rights of a Beneficiary in respect thereof, other than the right to
receive his pro rata share of the total exchange price therefor,
unless the requisite number of shares of Class B Common Stock are
not yet allocated, issued and delivered by the Company to the
Trustee within five Business Days of the date of the giving of such
notice by the Trustee or the balance of the exchange price, if any,
is not paid by the Company on the applicable payment date therefor,
in which case the rights of the Beneficiary shall remain unaffected
until such shares of Class B Common Stock are so allocated, issued
and delivered, and the balance of the exchange price, if any, has
been paid, by the Company. Upon delivery by the Company to the
Trustee of such shares of Class B Common Stock, and the balance of
the exchange price, if any, the Trustee shall deliver shares of
Class B Common Stock to such Beneficiary (or to such other Persons,
if any, properly designated by such Beneficiary). Concurrently with
such Beneficiary ceasing to be a holder of LP Exchangeable Units,
the Beneficiary shall be cons
