EXHIBIT 5
XXXXX ACQUISITION PARTNERS
GENERAL PARTNERSHIP AGREEMENT
THIS GENERAL PARTNERSHIP AGREEMENT, is made as of October 20,
1998, among Xxxxx Acquisition Group, L.P., a Delaware limited partnership (the
"Managing General Partner"), and Xxxxxx Capital, L.L.C., a Delaware limited
liability company ("Xxxxxx Capital") (either of which is referred to herein as a
"Partner" or collectively as "Partners").
R E C I T A L S:
The Partners desire to form Xxxxx Acquisition Partners (the
"Partnership") pursuant to this General Partnership Agreement (the "Agreement")
for the purposes set forth herein.
A G R E E M E N T S:
NOW THEREFORE, in consideration of the mutual covenants set
forth in this Agreement, the parties hereto hereby agree to form the Partnership
under the Act upon the following terms and conditions:
ARTICLE I
Definitions
In addition to the terms defined elsewhere in this Agreement,
when used in this Agreement the following terms have the following meanings:
Section 1.1 Accounting Period. "Accounting Period" has the
meaning set forth in Section 5.2(b) hereof.
Section 1.2 Act. "Act" means the Texas Revised Uniform
Partnership Act, as amended.
Section 1.3 Affiliate. "Affiliate" means, with respect to a
specified Person, any Person that directly or indirectly through one or more
intermediaries, alone or through an affiliated group, controls, is controlled
by, or is under common control with, such specified Person.
Section 1.4 Bankruptcy. "Bankruptcy" means with respect to a
Person: (i) the commencement against such Person of a proceeding for any relief
under any bankruptcy or insolvency law, or any law relating to the relief of
debtors, readjustment of indebtedness, reorganization, arrangement, composition,
or extension of debts, provided such proceeding shall not have been dismissed,
nullified, stayed (but only so long as such stay shall continue in force), or
otherwise rendered ineffective within 90 days after the commencement of such
proceeding; (ii) the commencement by such Person of a proceeding for any relief
under any bankruptcy or insolvency law, or any law relating to the relief of
debtors, readjustment of indebtedness, reorganization, arrangement, composition,
or extension of debts; (iii) a decree or order of a court of competent
jurisdiction (a) for the appointment of a receiver, liquidator, or trustee or
assignee in bankruptcy, (b) declaring the insolvency of such Person or of a
substantial part of such Person's property, or (c) for the winding up or
liquidation of the affairs of such Person, which decree or order remains in
force undischarged and unstayed for a period of 90 days; or (iv) a general
assignment by such Person for the benefit of creditors or the admission by such
Person in writing of its inability to pay its debts generally as they become
due.
Section 1.5 Capital Contribution. "Capital Contribution" means
the investment of cash or readily marketable securities in the Partnership.
Section 1.6 Capital Withdrawal. "Capital Withdrawal" means a
withdrawal from a Partner's Capital Account.
Section 1.7 Closing Capital Account. "Closing Capital Account"
has the meaning set forth in Section 4.2.
Section 1.8 Code. "Code" means the Internal Revenue Code of
1986, as from time to time amended.
Section 1.9 Fiscal Year. "Fiscal Year" means the calendar
year.
Section 1.10 Investments. "Investments" has the meaning set
forth in Section 2.4 hereof.
Section 1.11 Net Assets. "Net Assets" means the value of the
assets of the Partnership minus its liabilities, determined as of the close of
business in Irving, Texas on the date of determination.
Section 1.12 Opening Capital Account. "Opening Capital
Account" has the meaning set forth in Section 4.1 hereof.
Section 1.13 Partnership Percentage. "Partnership Percentage"
means, with respect to each Partner for each Accounting Period, the Opening
Capital Account of such Partner for such Accounting Period, divided by the sum
of the Opening Capital Accounts of all Partners for such Accounting Period. The
sum of the Partnership Percentages shall at all times equal 100 percent.
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Section 1.14 Person. "Person" means any natural person,
corporation, firm, joint venture, partnership, trust, unincorporated
organization, government or any department, political subdivision or agency of a
government.
Section 1.15 Securities Act. "Securities Act" means the
Securities Act of 1933, as amended.
Section 1.16 Security. "Security" means any publicly traded or
non-publicly traded, domestic or foreign: (i) general or limited partnership
interest; (ii) share of capital stock; (iii) share of beneficial interest;(iv)
bond, note, debenture (whether subordinated, convertible or otherwise), trust
receipt or certificate, loan, participation, account or note receivable, trade
acceptance, contract or other claim, letter of credit, executory contract
(including any notional principal contract), instrument or evidence of
indebtedness; and/or (v) certificate of deposit or commercial paper.
Section 1.17 Treasury Regulations. "Treasury Regulations"
means the regulations promulgated by the Department of the Treasury under the
Code, as from time to time amended.
Section 1.18 Valuation Date. "Valuation Date" means, with
respect to any Accounting Period, the last day of such Accounting Period.
ARTICLE II
Organization
Section 2.1. Formation of Partnership. Commencing on the
effective date of this Agreement, the Partnership shall be organized and formed
as a general partnership pursuant to the Act and this Agreement. The parties
hereto agree to execute or cause to be executed all such documents, and to do or
cause to be done all such filings and other acts necessary (or, in the judgment
of the Managing General Partner, appropriate) to comply with the applicable laws
of the State of Texas and any jurisdiction in which the Partnership conducts its
business.
Section 2.2. Name. The business of the Partnership shall be
conducted under the name "Xxxxx Acquisition Partners" or under such other name
as the Managing General Partner may from time to time determine.
Section 2.3. Registered Office; Principal Place of Business.
The name of the Partnership's registered agent for service of process in the
State of Texas is Xxxxxxx Capital Group, a Texas Corporation and the address of
the Partnership's registered office and Principal Office in the State of Texas
is 125 East Xxxx Xxxxxxxxx Freeway -- Xxxxx 000, Xxxxxx, Xxxxx 00000. The
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Managing General Partner may from time to time, upon written notice to all the
Partners, change the registered agent or registered office, change the location
of the Partnership's principal place of business, or establish additional places
of business at such locations as the Managing General Partner from time to time
may determine.
Section 2.4. Purposes and Powers. The Partnership is organized
for the purpose of making a substantial investment in, influencing and/or
acquiring control of a publicly-held corporation, through investments and
trading in Securities (collectively, "Investments"). In furtherance of these
purposes and without limitation, the Partnership is authorized to:
(a) Organize and/or invest in one or more joint ventures,
partnerships (limited or general), corporations, limited liability companies,
mutual funds or other entities; provided, however, that the principal activity
or activities of such entities shall be one or more of the activities enumerated
in subsection (b) hereof;
(b) Purchase, hold, sell, write, exchange, transfer, mortgage,
pledge, and otherwise invest and trade in Securities and other Investments, and
the proceeds therefrom, whether or not venture capital, whether within or
without the United States, and whether or not hedged;
(c) Exercise all rights, powers, privileges, and other
incidents of ownership or possession with respect to Securities, other
Investments and any other assets of the Partnership;
(d) Acquire a long position or a short position with respect
to any Security or other Investment and make purchases or sales increasing,
decreasing, or liquidating such position or changing from a long position to a
short position or from a short position to a long position, without any
limitation as to the frequency of such fluctuation in such positions or as to
the frequency of the changes in the nature of such positions;
(e) Invest or deposit Partnership funds, pending investment or
distribution to Partners, in one or more checking or savings accounts, money
market mutual funds, or other taxable or nontaxable investments;
(f) Acquire Securities and other Investments on margin; borrow
or raise moneys and obtain letters of credit; lend money to any person; issue,
accept, endorse, and execute promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or nonnegotiable instruments
and evidences of indebtedness (including promissory notes or other evidences of
indebtedness which pay interest measured by reference to Partnership profits or
to any index) from time to time without limitation as to amount or manner and
time of repayment; and secure the payment of such or other obligations of the
Partnership by mortgage upon, or hypothecation or pledge of, all or part of the
property of the Partnership whether at the time owned or thereafter acquired;
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(g) Acquire Securities which may not be resold in the absence
of an effective registration statement relating thereto under the Securities Act
or under an exemption from such registration requirements, and to hold such
Securities for investment;
(h) Enter into custodian agreements with banks or securities
brokerage firms, open, maintain, and close bank and brokerage accounts, and draw
checks or other orders for the payment of money or the delivery of instruments;
(i) Purchase, invest and trade in "control" and block
positions;
(j) Enter into agreements with brokerage firms, advisors,
banks and dealers (whether or not affiliated with the Partnership or the
Managing General Partner), open, maintain and close accounts in connection with
such agreements, and draw checks or other orders for the payment of money or the
delivery of instruments;
(k) Delegate discretionary and other authority to manage
Partnership accounts to one or more persons, in the Managing General Partner's
sole and absolute discretion;
(l) Pursue proxy solicitations and any litigation in pursuing
the Partnership's objectives;
(m) Engage independent attorneys, accountants, advisors,
consultants, or such other persons as the Managing General Partner may deem
necessary or advisable;
(n) Maintain for the conduct of Partnership affairs one or
more offices within or without the State of Texas and in connection therewith
rent or acquire office space, engage personnel, and do such other acts as may be
advisable or necessary in connection with such offices and personnel; and
(o) Enter into, make and perform all contracts and other
undertakings, and engage in all other activities and transactions, as the
Managing General Partner may deem necessary, advisable, or appropriate for
carrying out the purposes of the Partnership.
Section 2.5. Term. The Partnership shall continue in existence
until December 31, 2003, unless sooner dissolved as provided in Section 9.1.
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ARTICLE III
Capital Contributions;
Admission of Partners
Section 3.1. Capital Contributions of the Partners.
(a) The Managing General Partner shall maintain in the records
of the Partnership a schedule setting forth the name, address, and Capital
Contributions of each Partner. Each of the Partners shall make equal Capital
Contributions to Partnership. No Capital Contributions shall be required by any
Partner in excess of $7,500,000.
(b) An individual capital account ("Capital Account") shall be
established and maintained for each Partner. A Partner shall not be entitled to
earn interest on its Capital Account or to receive any distribution from the
Partnership, except as specifically provided herein.
Section 3.2. Form and Timing of Contributions. All amounts to
be contributed by a Partner under this Article III shall be paid in immediately
available funds (or, in the reasonable discretion of the Managing General
Partner, in readily marketable securities) at the office of the Partnership or
at such other location as may be reasonably requested by the Managing General
Partner at such times as shall be mutually agreed to by the Partners.
ARTICLE IV
Capital Accounts;
Allocations
Section 4.1. Opening Capital Accounts. An Opening Capital
Account shall be established for each Partner on the books of the Partnership as
of the first day of each Accounting Period. A Partner's Opening Capital Account
as of the first day of the Accounting Period in which such Partner is admitted
to the Partnership shall be the amount of such Partner's initial Capital
Contribution made as of such date (net of organizational charges). A Partner's
Opening Capital Account as of the beginning of each Accounting Period after the
Accounting Period in which such Partner is admitted to the Partnership shall be
an amount equal to the Closing Capital Account of such Partner as of the end of
the immediately preceding Accounting Period, decreased by the amount of any
Capital Withdrawals or distributions made by or to the Partner as of the end of
the preceding Accounting Period and increased by any additional Capital
Contribution made by such Partner effective as of the beginning of such
Accounting Period.
Section 4.2. Closing Capital Accounts. The Closing Capital
Account of each Partner as of the end of each Accounting Period shall be
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determined by adjusting the Opening Capital Account of such Partner for such
Accounting Period in the following manner: any increase or decrease in the Net
Assets of the Partnership (Net Assets, determined as set forth herein) for the
Accounting Period shall be credited or debited (as the case may be) to the
individual Opening Capital Accounts of all the Partners, including the Managing
General Partner, in proportion to their respective Partnership Percentages.
ARTICLE V
Records and Accounting; Reports
Section 5.1. Records and Accounting. The Managing General
Partner shall maintain complete and accurate records and books of account of the
business of the Partnership at the Partnership's principal office. Each Partner
or its duly authorized representative will have the right to inspect and copy
such books and records upon reasonable notice at all reasonable times during
normal business hours for any noncommercial, equitable purpose; provided,
however, that each Partner agrees that it will not disclose (and will require
its representative to forebear from disclosing) to third parties any information
of a proprietary nature which is obtained upon any such inspection.
Section 5.2. Fiscal Year; Accounting Period; Accounting
Methods.
(a) The Fiscal Year of the Partnership shall end on December
31.
(b) An Accounting Period (i) shall begin on the day after the
close of the preceding Accounting Period (or, if there was no preceding
Accounting Period, at the commencement of operations) and (ii) shall end on the
earlier of the close of each Fiscal Year, the effective date of any Capital
Withdrawal by a Partner, the day preceding the effective date of any Capital
Contribution to the Partnership, or such other date determined by the Managing
General Partner.
(c) The Partnership shall keep its books and records in
accordance with the provisions of this Agreement under the accrual method of
accounting and, as to matters not specifically covered in this Agreement, in
accordance with generally accepted accounting principles. All matters concerning
accounting practices not specifically and expressly provided for by the terms of
this Agreement shall be determined by the Managing General Partner in good
faith. Each such determination shall be final and conclusive as to all the
Partners.
Section 5.3. Expense Accruals.
For purposes of determining the amount of the Partnership's
liabilities, the Managing General Partner may, in its reasonable discretion,
treat estimates of expenses that are incurred on a regular or recurring basis
over yearly or other periods as accruing in equal proportions over any such
period.
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Section 5.4. Net Assets.
(a) The Net Assets of the Partnership shall be determined as
of each Valuation Date.
(b) The assets of the Partnership as of any date shall be
deemed to include: (i) all cash on hand or on deposit, including any interest
accrued thereon; (ii) all bills, demand notes, and accounts receivable
(including proceeds of Securities and other Investments sold but not delivered);
(iii) all Securities and other Investments owned or contracted for by the
Partnership; (iv) all stock dividends, cash dividends, and cash distributions
receivable by the Partnership (provided that the Partnership may make
adjustments with regard to fluctuations in the market value of Securities caused
by trading ex-dividend, ex-rights, or by similar practices); (v) all interest
accrued on Securities and other Investments owned by the Partnership, except to
the extent that the same is included or reflected in the valuation of such
Security; (vi) all interests in other partnerships, trusts, companies, mutual
funds, and other entities; and (vii) all other assets of every kind and nature,
including prepaid expenses.
(c) The liabilities of the Partnership as of any date shall be
deemed to include: (i) all outstanding loans, bills and accounts payable; (ii)
all accrued or payable fees and expenses; (iii) the current market value of all
short sale obligations; and (iv) all other liabilities.
Section 5.5. Tax Returns.
(a) The Managing General Partner will cause federal, state,
and local income tax returns for the Partnership to be prepared and timely filed
(subject to the Managing General Partner's discretion to obtain extensions) with
the appropriate authorities.
(b) As soon as reasonably practicable after the end of each
Fiscal Year, the Managing General Partner shall cause to be delivered to each
Person who was a Partner at any time during such Fiscal Year such tax
information and schedules as shall be necessary for the preparation by each such
Person of its federal and state income tax returns. While the Managing General
Partner will attempt to make tax information available on a timely basis, each
Partner acknowledges and agrees that the Partnership's tax returns may be
delayed so that it may be necessary for the Partners to obtain extensions for
the filing of their own tax returns. Furthermore, each Partner agrees that the
Managing General Partner shall not be responsible for tax reporting errors or
delays on the part of partnerships or other entities in which the Partnership
invests.
(c) The Managing General Partner is hereby appointed the "Tax
Matters Partner" of the Partnership for all purposes pursuant to Sections
6221-6231 of the Code.
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ARTICLE VI
Withdrawals and Distributions
Section 6.1. Capital Withdrawals. A Partner may withdrawal
from such Partner's Capital Account upon notice to the other Partner and, in
such event, the Partnership shall be dissolved and distributions shall be made
in accordance with Section 6.2(c).
Section 6.2. Distributions.
(a) Cash Flow. The General Partner shall, as expeditiously as
possible after the end of each fiscal quarter of the Partnership, make
distributions of net cash flow (gross revenue less operating expenses), if any,
to the Partners pro rata in accordance with their Percentage Interests.
(b) Proceeds Available Upon Dissolution. Upon the dissolution
and winding up of the Partnership, any proceeds from the sale of securities and
all other assets of the Partnership, after (i) making payment of or provisions
for payment of all liabilities and obligations of the Partnership (other than in
regard to any loans permitted to be made by any Partner) and (ii) the setting up
of such reserves as the person required by law to wind up the Partnership's
affairs may reasonably deem necessary for any contingent liabilities or
obligations of the Partnership (provided, however, that to the extent such
reserves are subsequently determined to be no longer necessary they shall be
distributed as set forth in this Section 6.2) shall be distributed, as
expeditiously as possible, to the Partners pro rata in proportion to their
Percentage Interests.
(c) Distributions In-Kind. Upon the dissolution and
termination of the Partnership, the Managing General Partner shall distribute
the Partnership assets in cash or, in the discretion of the Managing General
Partner, in kind subject to a proportioned share of Partnership liabilities. In
the event of a distribution in kind each Partner shall be entitled to receive
separately that number of each different kind and class of Securities held by
the Partnership equal to the product of (a) such Partner's Percentage Interest
(expressed as a decimal) and (b) the total number of such Securities owned by
the Partnership. In each such distribution each partner shall be treated the
same.
ARTICLE VII
Management
Section 7.1. Authority of the Managing General Partner. The
management and operation of the Partnership shall be vested exclusively in the
Managing General Partner. The Managing General Partner shall have the authority
and power on behalf and in the name of the Partnership to perform all acts and
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enter into and perform all contracts and other undertakings which it may deem
necessary, advisable, or incidental to the purposes of the Partnership set forth
in Section 2.4.
Section 7.1A Limitations on Authority. Without the written
consent of Xxxxxx Capital and, anything in this Agreement to the contrary
notwithstanding, the Managing General Partner shall have no authority to:
(a) Do any act in contravention of this Agreement;
(b) Do any act which would make it impossible to carry on the
ordinary business of the Partnership;
(c) Confess a judgment against the Partnership;
(d) Execute and deliver any general assignment for the benefit of the
creditors of the Partnership;
(e) Possess Partnership property or assign the rights of the
Partnership in specific property for other than a Partnership
purpose;
(f) Admit a person as a partner;
(g) Change the location of the Partnership's bank or brokerage
accounts;
(h) Create, incur, assume, refinance or otherwise become liable with
respect to any obligation for borrowed money (including
guarantees of the indebtedness or other obligations of any person
or of any subsidiary or affiliate of the Partnership), issue any
bonds, debentures, notes or other evidence of indebtedness;
(i) Lend money to any person;
(j) Hire any employee for the Partnership; or
(k) Enter into any transaction between the Partnership and a Partner
(or an Affiliate such Partner).
Section 7.1B Limitations on Compensation. The Managing General
Partner shall have no authority to pay for any services performed by the
Managing General Partner or its Affiliates nor shall the Managing General
Partner or its Affiliates receive any salary, fees, commissions, sums, profits,
distributions, rebates or give-ups in connection with the Partnership's
activities, nor shall any Managing General Partner or its Affiliates participate
in reciprocal business arrangements which shall circumvent this prohibition.
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Section 7.2. Activities of the Managing General Partner and
Affiliates.
(a) Although nothing herein shall require the Managing General
Partner, its principals or its respective Affiliates (collectively, "Managing
General Partner Parties") to devote full time or any material proportion of his
or its time to the Partnership, the Managing General Partner hereby agree to use
its reasonable best efforts in connection with the purposes and objectives of
the Partnership and to devote to such purposes and objectives such of their time
and activity (and the time and activity of its employees) during normal business
days and hours as it in its discretion shall deem necessary for the management
of the affairs of the Partnership; provided, however, that nothing contained in
this Section shall preclude any Managing General Partner Party from: (i) acting,
consistent with the foregoing, as a director, stockholder, officer, or employee
of any corporation, a trustee of any trust, a partner of any other partnership,
or an administrative official of any other business or governmental entity,
regardless of whether the Partnership invests in or has dealings with such
corporation, trust, partnership, or other entity; (ii) receiving compensation
for services rendered thereto, or participating in profits derived from
investments in, any such corporation, trust, partnership or other entity; or
(iii) from investing in any Securities or other Investments or property for his
or its own account or for the account of others. Any Managing General Partner
Party may become a director or officer of a company pursued by the Partnership.
(b) The foregoing competing activities and conflicts of
interest are explicitly acknowledged and consented to by each Partner.
Section 7.3 Expenses. The Partnership will pay all its own
investment and administrative expenses (as reasonably determined by the Managing
General Partner) incurred in the Partnership's business, including but not
limited to: (i) all investment expenses relating to securities and other
investment transactions (such as interest on borrowed money, brokerage
commissions, "bid-ask" spreads, xxxx-ups and other transactional charges,
interest expense (if any) and commitment fees (if any), custodial and clearing
fees, withholding taxes (if any), securities registration fees (if any), finders
fees (if any) and fees of any persons (other than the Managing General Partner)
performing valuations or appraisals of securities, and acquisition and due
diligence expenses including litigation and proxy expenses, as well as travel,
food and lodging; (ii) any premiums for errors or omissions insurance and
insurance protecting the Partnership, its Partners and officers, employees and
agents of its Partners from liabilities to third parties in connection with the
Partnership's affairs; (iii) outside legal, accounting, consulting, auditing and
tax preparation expenses; (iv) costs of printing and mailing reports; and (v)
any extraordinary expenses of the Partnership (such as taxes or expenses in
connection with litigation, whether threatened or actual). However, the
following costs and expenses are not paid by the Partnership: all costs and
expenses incurred by the Managing General Partner and directly attributable to
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salaries, rent and maintaining the offices of the Partnership, all of which
shall be borne by the Managing General Partner without any reimbursement.
Section 7.4. Exculpation. No Managing General Partner Party
and no employee or agent of the Managing General Partner shall be liable to the
Partnership or any other Partner for: (i) any claims, costs, expenses, damages
or losses arising out of the performance of its duties under this Agreement
other than those directly attributable to its own fraud, breach of fiduciary
duty, breach of this Agreement, willful misconduct or gross negligence; (ii)
failure to obtain the lowest negotiated brokerage commission rates, or to
combine or arrange orders so as to obtain the lowest brokerage commission rates
with respect to any transaction on behalf of the Partnership, or for failure to
recapture, directly or indirectly, any brokerage commissions for the benefit of
the Partnership; (iii) failure to obtain the lowest "bid-ask" spreads or
advisory or consulting rates available; or (iv) claims, costs, expenses, damages
or losses due to circumstances beyond its control, including but not limited to,
the bankruptcy, insolvency or suspension of normal business activities of any
bank, brokerage firm or transfer agent holding assets of the Partnership, or due
to the negligence, dishonesty, bad faith or misfeasance of any manager with whom
the Partnership invests, any Affiliate of any partnership or other entity in
which the Partnership invests, or any employee, broker or other agent of the
Partnership.
The Managing General Partner Parties and any Affiliate or
employee of the Managing General Partner shall be entitled to rely on the advice
of legal counsel, accountants, or other independent experts experienced in the
matter at issue, and any act or omission of any Managing General Partner Party,
Affiliate, or employee pursuant to such advice shall in no event subject such
Person to liability to the Partnership or any Partner.
No exculpation shall be permitted hereunder for any violation
of federal or state securities law or any other intentional or criminal
wrongdoing.
Section 7.5. Indemnification. To the maximum extent permitted
by law, the Partnership shall indemnify any Person, including the General
Partners, as well as employees or agents of the Managing General Partner, 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) by reason of any acts, omissions or alleged acts or omissions by
such Person on behalf of the Partnership, against losses, costs and expenses for
which such Person has not otherwise been reimbursed (including attorneys' fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred in connection with such action, suit or proceeding, so long as such act
or omission was not done fraudulently or in bad faith or as a result of willful
misconduct or gross negligence or, with respect to any criminal action or
proceeding, such Person had no reasonable cause to believe its conduct was
unlawful, or constitutes a breach of fiduciary duty or a breach of this
Agreement.
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No indemnification shall be made by the Partnership for any
intentional violation of federal or state securities law or any other
intentional or criminal wrongdoing.
Section 7.5A Losses and Liabilities of the Partnership. The
Partners agree to be liable for the Capital Contributions required to be made by
them to the Partnership, and for any non-tax losses or liabilities incurred by
the Partnership in proportion to their then existing Percentage Interests. Each
Partner agrees to indemnify and save harmless the other Partner to the extent
that any Partner bears a disproportionate share of any such losses or
liabilities of the Partnership. Notwithstanding the above, no Partner shall be
indemnified and held harmless by the other Partners to the extent that such
losses or liabilities arise from fraud, gross negligence, breach of fiduciary
duty, breach of this agreement or dishonest conduct on the part of such Partner.
Section 7.6. Reliance by Third Parties. No Person shall be
required to inquire into the authority of a Managing General Partner to bind the
Partnership. In addition, persons dealing with the Partnership shall be entitled
to rely on a certification by either Managing General Partner with regard to the
authority of any other person to act on behalf of the Partnership in any matter.
Section 7.7. Registration of Assets. Any assets owned by the
Partnership may be registered in the Partnership's name, in the name of a
nominee, or in a "street name." Any corporation, brokerage firm or transfer
agent called upon to transfer any assets to or from the name of the Partnership
shall be entitled to rely upon instructions or assignments signed or purporting
to be signed by either Managing General Partner or its agents without inquiry as
to the authority of the person signing or purporting to sign such instruction or
assignment or as to the validity of any transfer to or from the name of the
Partnership.
ARTICLE VIII
Assignments
Section 8.1. Assignments Only Permitted with Partner Consent.
(a) No Partner may assign (which term shall include, for
purposes of this Article VIII, any sale, gift, pledge, hypothecation or other
disposition or transfer, whether voluntary or involuntary or by operation of
law) any or all of its Partnership Interest without the advance written consent
of the other Partner. Any assignee to whom the other Partner has so consented
shall become a substitute Partner.
(b) If a Partner assigns its entire Partnership Interest, such
Partner will, upon the effective date of such assignment, cease to be a Partner
for all purposes but will not be relieved of any obligations it may have had
under this Agreement before the date of such assignment.
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(c) Any purported assignment of a Partnership Interest of a
Partner in violation of the provisions of this Agreement is void.
ARTICLE IX
Dissolution and Termination of the Partnership
Section 9.1. Dissolution. The Partnership shall dissolve and
wind up its affairs upon the earliest to occur of the following events:
(a) The expiration of the term of the Partnership under
Section 2.5;
(b) Withdrawal of a Partner's entire Capital Account;
(c) An event which makes it unlawful for the Partnership
business to be continued; or
(d) Written notice by either Partner;
(e) Upon the sale of all assets of the Partnership;
(f) Upon the Bankruptcy or receivership of the Partnership or
a Partner; or
(g) Any other event which, under the Act, requires the
dissolution of the Partnership and the winding up of its business and affairs.
Section 9.2. Liquidation and Distribution.
(a) Upon the dissolution of the Partnership under the
circumstances described in Section 9.1, the Managing General Partner the assets
of the Partnership shall be distributed as provided in Section 6.2(c).
Section 9.3. Termination. Each Partner shall be furnished with
a statement which shall set forth the assets and liabilities of the Partnership
as of the date of dissolution. Upon compliance with the distribution plan set
forth in Section 9.2, the Partners shall cease to be such, and the Managing
General Partner or the liquidating trustee shall execute, acknowledge and cause
to be filed a certificate of cancellation of the Partnership. Upon completion of
the dissolution, winding up, liquidation and distribution of the liquidation
proceeds, the Partnership shall terminate.
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ARTICLE X
Miscellaneous Provisions
Section 10.1. Amendments.
(a) This Agreement may be amended from time to time by the
Managing General Partner, without the consent of any Partner: to make any
changes required, in the judgment of the Managing General Partner, to comply
with applicable law. Any other amendment to this Agreement shall require the
written consent of all Partners.
Section 10.2. Signatures. Each Partner shall become a party
hereto by signing such number of counterpart signature pages to this Agreement.
Section 10.3. Notices and Addresses. All notices required to
be given under this Agreement shall be in writing and shall be mailed by
certified or registered mail, hand delivered, or delivered by next business day
courier. Any notice to be sent to the Partnership shall be mailed to the
principal place of business of the Partnership or at such other address as the
Managing General Partner may specify in a notice sent to all of the Partners.
All notices to Partners shall be mailed or delivered to the Partners at such
address as a Partner may notify the Partnership of in writing. Notices shall be
effective on the date three days after the date of mailing or, if hand delivered
or delivered by next day business courier, on the date of delivery.
Section 10.4. Confidentiality. Except as required to be
disclosed by court order or otherwise under applicable law, or except after
obtaining the advance written consent of the Managing General Partner, each
Partner shall keep confidential all information regarding the Partnership
acquisition target.
Section 10.5 GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY AND
TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10.6. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Partners, the indemnified parties
hereunder and their respective legal representatives and successors and
permitted assigns.
Section 10.7. Modifications To Be In Writing. This Agreement
constitutes the entire understanding of the parties hereto and no amendment,
modification or alteration will be binding unless the same be in writing and
adopted in accordance with the provisions of Section 10.2.
Section 10.8. Validity and Severability. If any provision of
this Agreement is held invalid or unenforceable, such decision shall not affect
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the validity or enforceability of any other provision of this Agreement, all of
which other provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this General
Partnership Agreement as of the date first above written.
MANAGING GENERAL PARTNER GENERAL PARTNER
XXXXX ACQUISITION GROUP, X.X. XXXXXX CAPITAL, L.L.C.
By: XXXXXXX CAPITAL GROUP, By: XXXXXX FAMILY
a Texas Corporation, the PARTNERSHIP NEVADA, L.P.,
General Partner Managing Member
By: Xxxxxx General Partner
(Nevada), Inc.,
general partner
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------- ---------------------------
Xxxxxx X. Xxxxxxx, President Title: Vice President
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