Exhibit 10.1
AGREEMENT OF LIMITED PARTNERSHIP
OF
PARIS HEALTH SERVICES LTD.
A FLORIDA LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") 4f PARIS HEALTH
SERVICES LTD., a Florida a Limited Partnership, ("Partnership"), is made and
entered into effective as of this 4 day of February, 2002, by and among E"Z
AUTH. MANAGEMENT CO., a Florida Corporation, ("E-Z"), ("General Partner"), and
HFE, LTD., a Florida Limited Partnership ("HFE"), XXXXXXX FAMILY LIMITED
PARTNERSHIP, a Florida Limited Partnership ("Xxxxxxx"), LEXSYS SOFTWARE CORP., a
Florida corporation ("Lexsys"), HBOA HOLDINGS, INC., a Florida corporation,
("HBOAJ XXXXX X XXXXXXXX ("Xxxxxxxx"), MIDGARD LTD., a British Virgin Island
Company, ('Midgard"), XXXXXX XXXXXX ("Thirer"), FANOMINA LTD., a Florida Limited
Partnership ("Fanomina"), XXXX & XXXX PRIVATE CLIENT TRUST II, a Texas
Investment Trust ("Trust"), AMERSHAM MANAGEMENT, LIMITED, a B.V.I. Corporation,
("AML"), (hereinafter all referred to as the "Limited Partners"). The General
Partner and the Limited Partners are hereinafter collectively referred to as the
"Partners."
WHEREAS, HFE, Lexsys, Xxxxxxx and HBOA have developed the Paris Process
through their substantial efforts and expense; and
WHEREAS, the Paris process has potentially great value; and
WHEREAS, HFE, Lexsys and HBOA have transferred to the Partnership
certain of their rights, title and interest in and to the Paris Process (as
described in the Paris Background Material previously received by all the
Partners and in other collateral documents) in return for their Subscription to
Partnership interest and subject to a Licensing Agreement by and between Lexsys
and Partnership; and
WHEREAS, Trust has agreed to contribute the sum of $750,000 to the
Partnership in return for its Subscription to Partnership interest; and
WHEREAS, Midgard, Carvalho, Thirer, Fanomina and AML have been involved
with the Paris Process and kept informed as to all aspects of the Paris Project
and its development.
WHEREAS, the Partners wish to form this Partnership to further develop
and market for their mutual benefit the Paris Process as described in the
Background Material previously received by all of the Partners; and
WHEREAS, the Partners agree that the Partnership may engage in any
activity
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necessary or incidental to the accomplishment of developing and marketing the
Paris Process.
WHEREAS, the Partners hereto are desirous of forming a Florida limited
partnership upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth herein, the parties hereto have agreed as follows:
ARTICLE I
ELEMENTS OF THE PARTNERSHIP
1.01 Formation; Purpose. The Partners hereby form this Partnership
pursuant to this Agreement and the provisions of the Florida Revised Uniform
Limited Partnership Act (1996), (the "Act") as may be amended from time to time.
The primary purpose for which the Partnership is formed is to further develop
and market the Paris Process. The Partnership may engage in any activity
necessary to, in connection with, or incidental to the accomplishment of the
foregoing purpose.
1.02 Name. Principal Place of Business and Agent for Service of Process
The name of the Partnership is Paris Health Services Ltd., and its office and
principal place of business shall initially be located at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and shall thereafter be located
at such other place or places as the General Partner may from time to time
determine. The Partnership shall at all times maintain in Florida both an
office, at which shall be kept records required by Section 6.01 of this
Agreement, and an Agent for Service of Process to be designated on the
Certificate of Limited Partnership on file with the Office of the Secretary of
State of the State of Florida, as such Certificate may be amended from time to
time.
1.03 TERM OF PARTNERSHIP. The term of the Partnership shall commence on
the date of the filing of the original Certificate of Limited Partnership in the
Office of the Secretary of State of the State of Florida and shall continue
until the earlier of
(a) Seventy-five (75) years from the date of commencement of
Partnership activities; or February 1, 2077.
(b) The occurrence of a Dissolving Event as set forth in Section
9.01 of this Agreement.
ARTICLE II
MANAGEMENT OF THE PARTNERSHIP
2.01 Rights and Powers of the General Partner. The General Partner
shall
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have full and complete charge of all affairs of the Partnership, and the
management and control of the Partnership's business shall rest exclusively with
the General Partner, subject to the terms and conditions of this Agreement. The
General Partner shall not be required to devote all of its time and business
efforts to the affairs of the Partnership but shall devote so much time and
attention to the Partnership as is reasonably necessary and advisable to manage
the affairs of the Partnership to the Partnership's best advantage. Except to
the extent otherwise provided herein, the General Partner shall possess all
rights and powers of a general Partner as provided by law which, by way of
illustration, but not by way of limitation, shall include the right and power:
(a) To execute any and all agreements, contracts, documents,
certifications and instruments necessary or convenient in
connection with the management of the Partnership;
(b) To engage in any kind of activity and to perform and carry
out contracts of any kind necessary to or in connection with or
incidental to the accomplishment of the purpose of the
Partnership as may be lawfully carried on or performed under the
laws of the State of Florida;
(c) To acquire, by purchase, lease, option, or otherwise, any
real, personal, or mixed property or any interest therein, which
may be necessary, convenient, or incidental to the accomplishment
of the purposes of the Partnership;
(d) To sell, assign, exchange, lease, or otherwise transfer all
or part of the Partnership property;
(e) To construct, repair, renovate, rehabilitate, demolish, or
reconstruct the Partnership property;
(f) To borrow money required for the business and affairs of the
Partnership, and to issue evidences of indebtedness necessary,
convenient, or incidental to the accomplishment of the purposes
of the Partnership, and to pledge or otherwise encumber or
subject to security interests, all or any part of the Partnership
property;
(g) To lend its funds or make guarantees of obligations of others
upon such terms as the General Partner shall determine;
(h) To invest the capital contributions of the Partners and
reinvest the proceeds from the sale of any Partnership property
in such investments and upon such terms as the General Partner
shall determine;
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(i) To prepay in whole or in part, refinance, increase, modify,
or extend any indebtedness affecting the Partnership property,
and in connection therewith to execute any extension or renewal
of any indebtedness encumbering any Partnership property;
(j) To place record title to, or the right to use, Partnership
property in the name or names of a nominee or nominees for any
purpose convenient or beneficial to the Partnership;
(k) To purchase contracts of liability, casualty, and other
insurance deemed necessary, appropriate, or convenient for the
protection of the Partnership property or affairs of the
Partnership or for any purpose convenient or beneficial to the
Partnership;
(i) To employ any persons (including the General Partner) or
entities (including any entities in which any Partner has an
interest) in the development, management or operation of the
Partnership's property and business and on such terms and for
such compensation as the General Partner may determine in his
sole discretion;
(m) To retain counsel, accountants, financial advisors, and other
professional personnel;
(n) To enter into, make and perform such contracts, agreements
and other undertakings, and do such other acts as the General
Partner deems necessary or advisable, or as may be incidental to
or necessary for the conduct of the business of the Partnership;
(o) To file federal, state, and local tax returns on behalf of
the Partnership and make such elections as are required or
permitted under federal, state, or local tax laws including, but
not limited to, elections under Section 754 of the Internal
Revenue Code of 1986, as amended ("Code");
(p) To invest funds of the Partnership in all forms of property;
(q) To designate the depository or depositories in which all bank
accounts of the Partnership shall be kept and the person or
persons upon whose signature or signatures withdrawals therefrom
shall be made;
(r) To prosecute, defend, settle, compromise, or submit to
arbitration, any suits, actions, or claims at law or in equity to
which the Partnership is a party or by which the Partnership is
affected, to confess a judgment against the Partnership, and to
satisfy out of Partnership funds any judgment, decree,
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or decision of any court, board, agency, or authority having
jurisdiction, or any settlement of any suit, action, or claim;
(s) To admit additional Limited Partners;
(t) To elect to dissolve the Partnership; and
(u) To engage in such other activities and incur such other
expenses as may in its judgment be necessary or appropriate for
the furtherance of the Partnership's purposes, and to execute,
acknowledge, and deliver any and all instruments necessary to the
foregoing.
The General Partner may also be a Limited Partner and to such extent shall be
treated in all respects as a Limited Partner. At the time of the execution of
this Agreement, E-Z is both the General Partner and a Limited Partner.
2.02 INDEMNIFICATION. Except in the case of gross negligence or willful
misconduct, neither the General Partner nor its officers, directors, employees,
managers, agents, shareholders, members or partners or any person that serves at
the specific request of the General Partner as a partner, member, officer,
director, employee or agent of any other entity (in each case, an "Indemnitee")
shall be liable, responsible or held accountable to any other Partner or to the
Partnership for any losses, damages or expenses resulting from of arising out of
any act or the failure to act by an Indemnitee, provided the Indemnitee
reasonably believed such action or inaction to be in furtherance of the best
interests of the Partnership. The Partnership shall, to the fullest extent
permitted by law, indemnify and hold harmless any Indemnitee (and their
respective heirs and legal and personal representatives) who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Partnership or any
Partners), by reason of any actions or omissions or alleged acts or omissions
arising out of such Indemnities activities either on behalf of the Partnership
or in furtherance of the interests of the Partnership, if such activities were
performed in good faith either on behalf of the Partnership or in furtherance of
the interests of the Partnership and in a manner reasonably believed by such
Indemnitee to be within the scope of the authority conferred by this Agreement
or by law or by the consent of the Partners, against losses, damages or expenses
for which such Indemnitee has not otherwise been reimbursed (including
reasonable attorneys' fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred by such Indemnitee in connection with such
action, suit or proceeding Expenses incurred by an Indemnitee in defending a
civil or criminal action, suit or proceeding shall be paid by the Partnership in
advance of the final disposition of such action, suit or proceeding as
authorized by the Partnership in the specific action if:
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(a) The action relates to the performance of duties or services
on behalf of the Partnership;
(b) The legal action is initiated by a third party who is not a
Limited Partner; and
(c) The Partnership receives an undertaking by or on behalf of
the person indemnified to repay such amount to the Partnership
unless it shall ultimately be determined that such person is
entitled to be indemnified by the Partnership as authorized
herein.
The indemnification authorized by this Section 2.02 shall include the
payment of reasonable attorneys' fees and costs and other expenses incurred in
settling or defending any claims, threatened action, or finally adjudicated
legal proceedings. The indemnification provided herein shall survive the removal
or withdrawal of the General Partner and shall be in addition to any
indemnification provided by applicable law.
2.03 Powers and Duties of the Limited Partner.
(a) The Limited Partners shall not:
(i) Participate in the control of the business affairs of the
Partnership within the meaning of Section 620., Florida Statutes,
or any successor legislation;
(ii) Transact any business on behalf of the Partnership; or
(iii) Have any power or authority to bind or obligate the
Partnership.
2.04 Partnership Expenses. The Partnership shall pay all of its
expenses, including administrative expenses which expenses shall be billed
directly to the Partnership; provided, however, that the General Partner shall
be reimbursed for all out-of-pocket expenses incurred by it on behalf of the
Partnership.
2.05 Compensation of General Partner. The General Partner shall be
entitled to receive a monthly management fee payable on the 15th of each month
for its services rendered to the Partnership in an amount equal to 10% of the
Gross Revenues received by the Partnership during the preceding monthly period.
Gross Revenues for the purposes of this paragraph shall be deemed to be all
revenues generated by the Partnership less returns, refunds and/or allowances.
From the General Partner's 10% of Gross Revenues as defined herein, the General
Partner shall be responsible to pay all compensation due to Officers and Members
of the Board of Directors of the General Partner. In any event,
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the General Partner agrees that the General Partner shall not be entitled to
receive during any partnership fiscal year in which the partnership has not been
profitable, compensation in excess of $150,000.
2.06 Tax Matters Partner. The General Partner shall be the "Tax Matters
Partner" for purposes of Sections 6221 through 6233, inclusive, of the Internal
Revenue Code of 1986, as amended ("Code") to manage the administrative tax
proceedings conducted at the Partnership level by the Internal Revenue Service
with respect to Partnership matters. The Tax Matters Partner shall keep each
Partner informed of all administrative and judicial proceedings for the
adjustment at the level of Partnership items in accordance with and in the
manner provided by the Treasury Regulations. The expenses of such administrative
proceedings undertaken by the Tax Matters Partner shall be paid for out of
Partnership assets. Each Partner (other than the Tax Matters Partner) who elects
to participate in such proceedings shall be responsible for any expenses
incurred by the Partner in connection with such participation. In addition, the
cost of any adjustments to a Partner's tax return shall be borne solely by the
affected Partner.
ARTICLE III
PARTNERSHIP INTERESTS AND CAPITAL
3.01 Partnership Interests. The term "Partnership Interests" shall
mean the entire ownership interest of a Partner in the Partnership at any
particular time, including the right of such Partner to any and all
distributions, allocations and other benefits to which such Partner may be
entitled as provided in this Agreement and under Florida law, together with the
obligations of such Partner to comply with all of the terms and provisions of
this Agreement and applicable Florida law. Each Partner's partnership interest
shall be set forth as follows:
General Partner Partnership Interest
--------------- --------------------
E-Z Auth. Management Co. 1.000%
Limited Partners
----------------
HFE, Inc. 5.000%
Xxxxxxx Family Limited Partnership 30.000%
Lexsys Software Corp. 20.242%
HBOA Holdings, Inc. 17.992%
Xxxxx X. Xxxxxxxx 3.141
Xxxxxx Xxxxxx 1.000%
Midgard Ltd. 2.000%
Fanomina Ltd. 2.750%
Xxxx & Xxxx Private Client Trust II 15.000%
Amersham Management, Limited 1.875%
--------
Total: 100.000%
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3.02 Initial Capital Contributions. The Partners hereby confirm that
as part of their initial capital contribution to the Partnership they have
contributed, or will contribute upon execution of this Agreement, cash and/or
other property or services in exchange for their respective Partnership
Interests as set forth on Schedule "A" hereto.
3.03 Additional Capital Contributions. No Partner shall be required to
make any additional capital contributions to the Partnership.
3.04 Interest. No interest shall be paid on the initial capital
contributions or on any additional capital contributions to the Partnership with
the exception of 3.08.
3.05 Return of Capital Contributions: No Partition. None of the
Partners, either General or Limited, shall be entitled to a return of the
capital contributions made by any of them until the full and complete winding-up
and liquidation of the business and affairs of the Partnership inclusive of a
sale of the assets of the Partnership. None of the Partners shall have the right
to bring any action for partition against the Partnership with respect to its
property, or to demand and receive property other than cash in return for his or
her contribution. However, the General Partner may, in his sole discretion, make
distributions of property other than cash to any or all of the Partners to the
extent such distributions are permitted hereunder.
3.06 Capital Accounts.
(a) An individual Capital Account shall be maintained for each
Partner throughout the term of the Partnership in accordance with
the following provisions:
(i) Each Partner's Capital Account shall be credited with
(increased by):
(aa) The amount of money contributed by that
Partner to the Partnership;
(bb) The fair market value of any property
contributed by that Partner to the Partnership
(net of liabilities secured by such contributed
property that the Partnership is considered to
assume or take subject to under Code Section 752);
(cc) That Partner's allocated share of the
Partnership's Net Profits; and
(dd) Any other adjustments required under Treasury
Regulations Section 1.704-1 (b); and
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(ii) Each Partner's Capital account shall be debited with
(decreased by):
(aa) The amount of money distributed to that
Partner by the Partnership;
(bb) The fair market value of any property
distributed to that Partner by the Partnership
(net of liabilities secured by such distributed
property that such Partner is considered to
assumed or take subject to under Code section
752);
(cc) That Partner's attacated share of the
Partnership's Net Losses; and
(dd) Any other adjustments required under Treasury
Regulations Section 1.704-1 (b).
(b) In the event any interest in the Partnership is
transferred in accordance with the terms of this Agreement,
the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred
interest.
(c) The foregoing provisions and the other provisions of
this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Treasury Regulations
Section 1.704-1 (b), and shall be interpreted and applied in
a manner consistent with such regulations. In the event the
General Partner determines that it is necessary to modify
the manner in which the Capital Accounts, or any debits or
credits thereto, are computed in order to comply with such
Regulations, the General Partner shall make such appropriate
modifications. The General Partner shall also make any
appropriate modifications in the event unanticipated events
might otherwise cause this Agreement not to comply with
Treasury Regulations Section 1.704 - (b).
3.07 Loans by the Partners. None of the Partners shall be required to
make loans to the Partnership. The Partners may, however, lend funds to the
Partnership with the consent of the General Partner, and upon such terms and
conditions as agreed to by the General Partner and the Partner making the loan.
A loan made by a Partner shall not be deemed to be a capital contribution for
any purpose whatsoever.
3.08 Preferred Distribution. The Partners do hereby agree that for the
two (2) years commencing February 1, 2002 through January 1, 2004, that the
Partnership
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will pay to Trust a minimum of $75,000 per year, which shall be paid at the rate
of $6250 per month commencing the month ending February 28, 2002, and continuing
on the 28th day of each month thereafter for 23 months. The Partnership shall
place in escrow with attorney Xxxxxxx X. Xxxxxxxxx the amount of $75,000 which
will represent the first 12 months of said interest payments. Once the Trust is
paid its initial investment plus 10% per annum or prorata portion at that time,
any further obligations to pay interest cease. Any monies remaining in escrow at
that time will be released to the Partnership.
ARTICLE IV
ALLOCATION OF NET PROFITS AND NET LOSSES
4.01 "Net Profits or Net Losses" Defined. "Net Profits or Net Losses"
shall mean the taxable income or loss of the Partnership for federal income tax
purposes, determined as of the close of the Partnership's fiscal year,
including, without limitation, each item of Partnership income, gain, loss,
deduction or credit.
4.02 Allocation of Net Profits or Net Losses. Except as otherwise
provided in Section 4.03, below, Net Profits or Net Losses shall be allocated
among the Partners in accordance with their respective Partnership Interests.
4.03 Code Section 704 (chi Allocations. To the extent required under
code Section 704 (c) and the Treasury Regulations 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 into account the difference, if any, between the tax basis of the
property to the Partnership and its fair market value at the time of
contribution to the Partnership.
ARTICLE V
DISTRIBUTIONS OF PROFITS
5.01 "Net Profits" Defined. Net Profits shall mean all cash received
from operations by the Partnership, less all cash disbursements from operations
made by the Partnership in the current year (not including distributions made to
Partners in their capacity as such) after deducting such reserves as the General
Partner shall deem reasonably necessary. Any such reserves deducted shall be
considered Profits upon subsequent distribution.
5.02 Distributions of Profits.
(a) Except as set forth in paragraph 5.02(b), Net Profits during
any taxable year of the Partnership shall be distributed
yearly to the Partners in accordance with their respective
percentage share of Partnership Interests. The General
Partner may retain on behalf of the
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Partnership all or any portion of the Net Profits during any
taxable year for working capital reserves or other needs of
the Partnership's business as determined in the sole
discretion of the General Partner, but in no event shall the
General Partner distribute less than 80% of the Net Profits
earned during any calendar year.
(b) The Partners agree that, until Trust has received from the
Partnership distributions of Profits equaling $750,000 that
Trust shall be entitled to 50% of the Net Profit
distributions made to Partners instead of a 15% distribution
based on Trust's 15% ownership of Partnership interests. The
remaining Net Profits available for distribution after
payment of the 50% to Trust shall be paid to the remaining
Partners in accordance with their respective percentage
share of Partnership Interests. After Trust has received the
$750,000 all Partners shall then receive distributions in
accordance with their respective percentage share of
Partnership Interests.
5.03 Limitation on Distributions. No Partner may receive a distribution
from the Partnership if, after giving effect to the distribution, the total
liabilities of the Partnership (other than liabilities to Partners on account of
their Partnership Interests) would exceed the fair value of the Partnership's
assets.
ARTICLE VI
ACCOUNTING AND RECORD KEEPING
6.01 Records to be Kept. The General Partner shall cause to be kept at
the principal office of the Partnership all of the following:
(a) A current list of the full names and last known business
addresses of each Partner, separately identifying the General
Partner and the Limited Partners;
(b) A copy of the certificate of limited partnership and all
certificates of amendment thereto, together with executed copies
of any powers of attorney pursuant to which any certificate has
been executed;
(c) Copies of the Partnership's federal, state, and local income
tax returns and reports, if any, for the three most recent taxable
years; and
(d) Copies of the original Limited Partnership Agreement of the
Partnership and all amendments thereto.
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6.02 Access to Records. Each Limited Partner has the right, upon
reasonable request, to inspect and copy during normal business hours any of the
Partnership records required to be maintained by Section 6.01 and to obtain from
the General Partner, promptly after becoming available, a copy of the
Partnership's federal, state, and local income tax or information returns for
each year.
6.03 Tax Information. The General Partner shall send to each of the
Limited Partners within ninety (90) days after the end of each taxable year such
information as is necessary to complete federal and state-income tax returns,
information returns or annual reports.
6.04 Fiscal Year. The Partnership shall operate on a calendar year, or
some other fiscal year as adopted by the General Partner, subject to compliance
with federal income tax laws.
6.05 Accounting Elections. The Partnership shall use the method of
accounting as determined by the General Partner, subject to compliance with
federal income tax laws. All elections required or permitted to be made by the
Partnership under the Code shall be made by the General Partner in his sole
discretion.
6.06 Bank Accounts, Funds and Properties. The funds of the Partnership
shall be deposited in such bank or banks as the General Partner shall deem
appropriate. Such funds shall be withdrawn only by the General Partner or its
duly authorized agent(s).
6.07 Adjustment of Tax Basis. The Partnership may, in the sole
discretion of the General Partner, elect, pursuant to Section 754 of the Code;
to adjust the basis of the Partnership property as allowed by Code Sections 734
(b) and 743 (b). This election, if made, will be filed with the Partnership
information income tax return for the first taxable year to which the election
applies.
6.08 Reserves. Subject to Section 5.02(a), the Partnership shall
maintain reserves for working capital and/or contingencies in such amounts as
the General Partner, in his sole discretion, deems necessary or appropriate.
ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS
7.01 Interests Not Transferable.
(a) Except as otherwise set forth in this Article and Article
7.03, Partnership Interests may not be transferred, assigned,
pledged or otherwise
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hypothecated without the consent of the General Partner, which
consent may not be unreasonably withheld. Notwithstanding
anything else herein, the General Partner, in its sole and
absolute discretion, may condition its consent upon receipt of an
opinion of counsel satisfactory in form and substance to the
General Partner to the effect that the proposed transfer,
assignment, pledge or other hypothecation will not (i) violate
any Federal securities laws or state securities laws or "blue
sky" laws, (ii) cause the Partnership to loose its status as a
partnership for Federal income tax purposes or otherwise
adversely affect the Partnership's status under applicable
Federal income tax laws or regulations (iii) cause the
Partnership to become subject to the Investment Company Act of
1940,.as amended, or (iv) cause the General Partner to become
subject to the Investment Advisers Act of 1940, as amended. Any
such transfer, assignment, pledge or other encumbrance in
violation of this Agreement shall be null and void, and neither
the Partnership nor any of the Partners shall have any obligation
to recognize any such transfer, assignment, pledge or other
encumbrance. If a Limited Partners Partnership Interest is
offered for sale, the other Limited Partners shall have the first
right and option to purchase their pro rata Share of the Selling
Limited Partner's Partnership Interests (based on their
respective percentage ownership of Partnership Interests).
(b) Partnership Interests may be transferred by a Limited Partner
that is a partnership to its partners, by a Limited Partner that
is a limited partnership to its limited partners, by a Limited
Partner that is a corporation to its shareholders, by a Limited
Partner that is a limited liability company to its members and by
a Limited Partner that is a trust to its beneficiaries without
the consent of the General Partner so long as the General partner
is notified of any such transfer within ten (10) days prior to
such transfer and, if requested by the General Partner, the
transferor delivers to the General Partner the opinion described
in 7.01 (a) above.
7.02 Death of an Individual Limited Partner.
Upon the death of an individual Limited Partner (?Deceased Limited
Partner'), the personal representative(s) of his estate shall be obligated to
give written notice of the Deceased Limited Partner's death ("Notice of Limited
Partner's Death") to the other Limited Partners ("Surviving Limited Partners").
If a deceased Limited Partner's Partnership Interest is offered for sale, the
Surviving Limited Partners shall have the first right and option to purchase
their pro rata share of the Deceased Limited Partner's Partnership Interests
(based on their percentage ownership of Partnership Interests).
7.03 Substituted Partners. No assignee of all or any portion of a
Partnership Interest shall have the right to become a substituted Partner in
place of his assignor, unless the prior written consent of the General Partner
to such substitution shall be
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obtained, as provided in Section 7.01, and the assignor and assignee shall have
executed such documents and/or instruments as required by the General Partner in
connection therewith.
ARTICLE VIll
WITHDRAWAL OF GENERAL PARTNER
8.01 Withdrawal of General Partner. The General Partner shall cease to
be the General Partner of the Partnership (and shall hereinafter be referred to
a the "Withdrawing General Partner") if such General Partner voluntarily
withdraws from the Partnership. In addition, the General Partner shall
immediately cease to be the General Partner of the Partnership upon the
occurrence of one or more of the following events:
(a) The General Partner makes an assignment for the benefit of
creditors;
(b) The General Partner files a voluntary petition in bankruptcy;
(c) The General Partner is adjudged bankrupt or insolvent or has
entered against him an order for any relief in any bankruptcy or
insolvency proceeding;
(d) The General Partner files a voluntary petition or answer
seeking for himself any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
statute, law or regulation;
(e) The General Partner files an answer or other pleading
admitting or failing to contest the material allegations of a
petition filed against them, or fails to file an answer to such
petition within the required time frame, in any proceeding for
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law
or regulation;
(f) The General Partner seeks, consents to, or acquiesces in the
appointment of a trustee, receiver or liquidator of the General
Partner or of all or any substantial part of their properties, or
any such action is taken without their consent or acquiescence;
8.02 Effect of Withdrawal of the General Partner. If the General
Partner ceases to be the General Partner of the Partnership as provided in
Section 8.01 hereof, the Partnership shall dissolve pursuant to Article IX
hereof unless:
(a) At the time there is at least one other General Partner; or
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(b) If there are no other remaining General Partners, all of the
Limited Partners agree in writing, within ninety (90) days after
the withdrawal of the General Partner, to continue the business of
the Partnership and to admit one or more successor General
Partners, in which case
(i) The Partnership shall continue until the end of the term
for which it is formed, or until the subsequent withdrawal of
the Successor General Partner(s) pursuant to Section 8.01, in
which event all remaining Partners shall again elect whether
they wish to continue the Partnership operations;
(ii) The Withdrawing General Partner or his successor in
interest, to the extent such party is a Limited Partner,
shall remain as a Limited Partner of the Partnership and
shall not be entitled to the return of his Capital Account
until the dissolution of the Partnership in accordance with
Section 9.01 hereof; and
(iii) All necessary steps shall be taken to amend the
Certificate of Limited Partnership to reflect the change in
the general partner.
8.03 Liability of Withdrawing General Partner. Except as otherwise
provided herein, the Withdrawing General Partner shall remain liable for all
obligations and liabilities incurred by him prior to the time he ceases to be
General Partner of the Partnership. The withdrawing General Partner, however,
shall be free of any obligation or liability incurred on account of the
activities of the Partnership from and after the date he ceases to be General
Partner of the Partnership.
8.04 Withdrawal of Limited Partners. No Limited Partner shall be
entitled to voluntarily withdraw from the Partnership except upon the
dissolution and liquidation of the Partnership in accordance with Article IX
hereof.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.01 Dissolving Events. The Partnership shall be liquidated and
dissolved in the manner hereinafter provided upon the happening of any of the
following events (referred to herein as "Dissolving Events"):
(a) A dissolution of the Partnership pursuant to Section 8.02
hereof;
(b) The unanimous written election of the General Partners to
dissolve the Partnership; or
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(c) The expiration of the term of the Partnership as provided in
Section 1.03 (a) hereof.
9.02 EFFECT OF DISSOLVING EVENT.
(a) Following the occurrence of a Dissolving Event, the
Partnership's activities shall be strictly limited to winding up
its affairs by selling the Partnership property in an orderly
manner (so as to avoid the loss normally associated with forced
sales), and applying the proceeds of such sale, together with
other funds held by the Partnership, first, to satisfy the
Partnership's outstanding unpaid obligations and the expenses of
liquidation. The Partnership's net assets, after satisfaction of
its liabilities and expenses (referred to herein as the
"Liquidation Proceeds"), shall be distributed first to the Trust
(to the extent the Trust has not received a full return of its
$750,000 capital contribution up to the amount of Trust's capital
contribution, then, to the Partners pro rata (inclusive of the
Trust) in accordance with their relative positive Capital Account
balances, as determined after taking into account all Capital
Account adjustments for the Partnership taxable year during which
such liquidation occurs, by the end of such taxable year (or, if
later, within ninety (90) days after the date of such
liquidation).
(b) The Partnership agrees that in the event that either all of
the Partnership's interests, or the Partnership's entire business
or assets should be sold for a sum less than $10,000,000, then in
that event, the Partners agree that the Trust shall in addition to
its pro rata share of the net sale proceeds receive the sum of
$375,000.
(c) Subject to Section 5.02(b) all income, gain and loss
recognized by the Partnership after the date of a Dissolving Event
shall continue to be allocated among the Partners according to the
provisions of Article IV hereof.
(d) The General Partner shall have exclusive authority and
responsibility for liquidating the Partnership in the manner
provided for herein, provided, however, that if there is no
remaining General Partner, the Limited Partners shall appoint a
liquidator (who need not be a Partner) who shall be vested with
the same authority and responsibility to liquidate the Partnership
as would have been held by the General Partner.
9.03 DATE OF TERMINATION. The Partnership shall be terminated when all
Liquidation Proceeds have been applied in the manner prescribed hereinabove and
all know Partnership liabilities have been satisfied.
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9.04 Waiver of Right to Decree of Dissolution. The parties hereby agree
that irreparable damage would be caused to the goodwill and reputation of the
Partnership if any Limited Partner should bring an action in court to dissolve
the Partnership. Accordingly, each Limited Partner hereby waives and renounces
its, his or her right to seek a judicial dissolution of the Partnership or to
seek the appointment by the court of a liquidator for the Partnership.
ARTICLE X
POWER OF ATTORNEY
10.01 Appointment of General Partner. Each Limited Partner, by the
execution of this Agreement, hereby irrevocably constitutes and appoints the
General Partner, as his or her true and lawful -attorney-in-fact, with full
power and authority in his or her name, place and xxxxx to execute, acknowledge,
deliver, swear to, file and record at the appropriate public offices such
documents as may be necessary or appropriate to carry out the provisions of this
Agreement, including, but not limited to:
(a) All fictitious or assumed name certificates and all documents
relating to the qualification of the Partnership to do business in
Florida, required or permitted to be filed on behalf of the
Partnership;
(b) All documents required in connection with any Partnership
transaction entered into consistent with this Agreement;
(c) All instruments which may be required or permitted by law to
be filed on behalf of the Partnership and which are not
inconsistent with this Agreement;
(d) All amendments to the Agreement which (i) are of a technical
nature, (ii) do not adversely affect the rights of the Partners
hereunder, and (iii) may be required to be made by law; and
(e) All documents which may be required to effect the dissolution
of the Partnership pursuant to this Agreement.
10.02 Power Coupled with an Interest. The power of attorney granted
pursuant to Section 10.01 shall be deemed to be a power coupled with an
interest, and shall survive the death, legal incapacity, or insolvency of a
Limited Partner or the delivery of an assignment of a Partnership Interest
hereunder.
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ARTICLE XI
NOTICES
All notices, requests and other communications provided for herein
shall be in writing and, unless otherwise specified in this Agreement, shall be
forwarded by first-class mail, postage prepaid, and shall be conclusively deemed
to have been received by the party to whom addressed three business days after
the same are deposited in the United States Mail. Such notices shall be
addressed to the address then indicated on the list maintained pursuant to
Section 6.01 (a) of the Agreement.
ARTICLE XII
DISPUTES AND ARBITRATION
Any dispute or controversy arising under, out of, in connection with or
in relation to this Agreement and any amendments thereof, or the breach thereof,
or in connection with the dissolution of the Partnership, shall be determined
and settled by arbitration to be held in Fort Lauderdale, Florida, in accordance
with the rules then applicable of the American Arbitration Association. Any
award rendered therein shall be final and binding on each and all of the
Partners, and judgment may be entered thereon in the Circuit Court of Broward
County, Florida.
ARTICLE XIII
MISCELLANEOUS
13.01 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
13.02 Further Assurances. The parties hereto agree that they will
execute and deliver such further instruments and documents as may be required or
appropriate to carry out the intent and purpose of this Agreement.
13.03 No Waiver. No failure on the part of any Partner to exercise and
no delay in exercising any right, power of remedy shall be construed as a waiver
thereof; nor shall any single or partial exercise of any right, power or remedy
preclude any other or further exercise thereof or of any other right, power or
remedy.
13.04 Captions. Any titles or captions of articles or paragraphs
contained in this Agreement are for convenience only and shall not be deemed
part of the context of this Agreement. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular of
plural, as the identification of the person or persons may require.
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13.05 Binding Effects. Except as otherwise herein provided, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, executors, administrators, successors and all persons hereafter
having or holding an interest in this Partnership, whether as assignees,
substituted Limited Partners or otherwise.
13.06 Amendment. This Agreement may be amended by the General Partner,
except that the General Partner may not amend this Agreement to alter the right
of the Limited Partners to receive a return of capital, allocations or
distributions or to change any Partner's Percentage Interest, without the
unanimous consent of the Limited Partners who are adversely affected by said
amendment.
13.07 Entire Agreement. This Agreement contains the entire
understanding and agreement among the parties hereto with respect to the subject
matter herein discussed and supersedes all agreements relating to the subject
matter addressed herein, and there are no prior representations, agreements,
arrangements or understandings, oral or written, between or among the parties
hereto relating to the subject matter of this Agreement which are not fully
expressed herein.
13.08 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida and, unless expressly or by
necessary implication contravened by any provisions hereof, the provisions of
the Florida Revised Uniform Limited Partnership Act (1996) shall apply.
13.09 Legal Advice. The Partners have been advised to obtain
independent counsel to represent their percentage interests in connection with
the formation and structuring of the partnership, and that they have been
further advised to obtain professional advise with respect to the possible
income tax consequences and securities law relating to the Partnership.
13.10 Counterparts and Execution. This Agreement may be executed in
multiple counterparts, all of which shall constitute one Agreement,
notwithstanding that all of the parties are not signatories to the original or
to the same counterpart, to be effective as of the day and year hereinabove set
forth.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
GENERAL PARTNER
E-Z AUTH. MANAGEMENT CO.
/s/ Xxxxx Xxxxxx By:/s/ Xxxxxxx Xxxxxxx
---------------------------- --------------------------------
Witness President of the General Partner
--------------------------------
Xxxxx Xxxxxx
----------------------------
Print Witness Name
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/s/ Xxxxxx Xxxxxxxxx [ILLEGIBLE]
---------------------------- -----------------------------------
Witness
Xxxxxx Xxxxxxxxx [ILLEGIBLE]
---------------------------- -----------------------------------
Print Witness Name
LIMITED PARTNERS:
HFE, LTD.
/s/ Xxxxx Xxxxxx By:/s/ Xxxxxxx Xxxxxxx
---------------------------- --------------------------------
Witness President of the General Partner
--------------------------------
Xxxxx Xxxxxx
----------------------------
Print Witness Name
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Witness
Xxxxxx Xxxxxxxxx
----------------------------
Print Witness Name
XXXXXXX FAMILY LIMITED
PARTNERSHIP
/s/ Xxxxx Xxxxxx By:/s/ Xxxxxxx Xxxxxxx
---------------------------- --------------------------------
Witness President of the General Partner
--------------------------------
Xxxxx Xxxxxx
----------------------------
Print Witness Name
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Witness
Xxxxxx Xxxxxxxxx
----------------------------
Print Witness Name
LEXSYS SOFTWARE CORP.
/s/ Xxxxx Xxxxxx By:/s/ [ILLEGIBLE]
---------------------------- --------------------------------
Witness CFO
--------------------------------
Xxxxx Xxxxxx
----------------------------
Print Witness Name
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Witness
Xxxxxx Xxxxxxxxx
----------------------------
Print Witness Name
20
HBOA HOLDINGS, INC.
/s/ Xxxxx Xxxxxx By:/s/ Xxxx X. Xxxxxxx
---------------------------- --------------------------------
Witness
Xxxxx Xxxxxx
----------------------------
Print Witness Name
/s/ Xxxxxx Xxxxxxxxx
----------------------------
Witness
Xxxxxx Xxxxxxxxx
----------------------------
Print Witness Name
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxx By:/s/ XXXXX X. XXXXXXXX
---------------------------- --------------------------------
Witness
Xxxxx X. Xxxx
----------------------------
Print Witness Name
/s/ Xxxxx X. Xxxxx
----------------------------
Witness
Xxxxx X. Xxxxx
----------------------------
Print Witness Name
MIDGARD LTD.
/s/ Xxxxxxxx Xxxxxxx By:/s/ [ILLEGIBLE], President
---------------------------- --------------------------------
Witness
Xxxxxxxx Xxxxxxx
----------------------------
Print Witness Name
/s/ Xxxxx X. Xxxxxxxx
----------------------------
Witness
Xxxxx X. Xxxxxxxx
----------------------------
Print Witness Name
XXXXXX XXXXXX
/s/ Xxxxx X. Xxxx By:/s/ XXXXXX XXXXXX
---------------------------- ---------------------------------
Witness
Xxxxx X. Xxxx
----------------------------
Print Witness Name
/s/ Xxxxx X. Xxxxx
----------------------------
Witness
Xxxxx X. Xxxxx
----------------------------
Print Witness Name
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FANOMINAL LTD.
/s/ Xxxxx X. Xxxx By:/s/ [ILLEGIBLE]
---------------------------- ---------------------------------
Witness President of its General
Partner Lexig & Associates, Inc.
Xxxxx X. Xxxx
----------------------------
Print Witness Name
/s/ Xxxxx X. Xxxxx
----------------------------
Witness
Xxxxx X. Xxxxx
----------------------------
Print Witness Name
XXXX & XXXX PRIVATE CLIENT
TRUST II
By:/s/
---------------------------- ---------------------------------
Witness Power of Attorney in Fact
----------------------------
Print Witness Name
----------------------------
Witness
----------------------------
Print Witness Name
AMERSHAM MANAGEMENT LIMITED
/S/ [ILLEGIBLE] By:/s/
---------------------------- ---------------------------------
Witness
Xxxxxx Xxxxxxxxx
----------------------------
Print Witness Name
Xxxxx Xxxxxx
----------------------------
Witness
/s/ Xxxxx Xxxxxx
----------------------------
Print Witness Name
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