AGREEMENT OF LIMITED PARTNERSHIP OF
1888 LIMITED PARTNERSHIP
DATED AS OF SEPTEMBER 14, 1995
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is
made as of this 14th day of September, 1995, by and among Xxxxx
X. Xxxxx, Xxxxx X. Xxxxx and Xxxxxx Xxxxxxxxxxx, XX, as general
partners (the "General Partners") and the limited partners (the
"Limited Partners") set forth on Exhibit A annexed hereto and all
other Persons who subsequently become Partners in accordance with
the terms of this Agreement.
W I T N E S S E T H
ARTICLE 1. - ORGANIZATION OF THE PARTNERSHIP
Section 1.1. Formation and Name of Partnership. The
undersigned parties do hereby form a limited partnership under
the name of 1888 Limited Partnership, pursuant to the Revised
Uniform Limited Partnership Act of the State of Connecticut.
Following the execution of this Agreement, the General Partners
shall promptly file a certificate of limited partnership with the
Secretary of the State of Connecticut.
Section 1.2. Principal Office and Place of Business.
The mailing address and principal office and place of business of
the Partnership shall be in care of Day, Xxxxx & Xxxxxx, Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
Section 1.3. Agent for Service of Process. The name
and address of the agent for service of process for the
Partnership is Xxxxxx X. Xxxxxxxx, with a business address in
care of Day, Xxxxx & Xxxxxx, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 and a residence address of 00 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
Section 1.4. Business Purposes and Property
Definition. The business of the Partnership shall be (a) to
acquire, hold, vote, manage, transfer, sell and otherwise deal
with the shares of Common Stock of First of Michigan Capital
Corporation, a Delaware corporation (the "Stock") contributed by
the Partners, together with any other stock obtained by the
Partnership, (b) investment in one or more assets of any type,
including, without limitation, purchasing, selling and otherwise
dealing with such investments, and (c) all such other business
incidental to and not inconsistent with the general purposes set
forth in (a) and (b) above.
Section 1.5. Termination of the Partnership. The
term of the Partnership shall end on the first to occur of (a)
December 31, 2035, (b) the final sale or other disposition of the
assets of the Partnership, (c) the date the Partners unanimously
decide to terminate the Partnership, or (d) an event of
dissolution as set forth in Section 11.1.
ARTICLE 2. - DEFINITIONS
"Agreement" means this Agreement, as it may be amended
from time to time, which Agreement shall supersede any prior oral
or written agreements among the Partners.
"Capital Account" means the account established for
each Partner and maintained in accordance with the principles set
forth in the Treasury Regulations under Code Section 704, which
shall generally be credited with the Capital Contributions of
each Partner plus the Partner's distributive share of the
Partnership Income and decreased by the Partner's share of
Partnership distributions and the Partner's distributive share of
Partnership Losses.
"Capital Contributions" means the total amount of cash
and the fair market value of any other property at any given time
contributed to the Partnership by each Partner as an Initial
Capital Contribution or an Additional Capital Contribution. Any
reference in this Agreement to the Capital Contribution of a then
Partner shall include a Capital Contribution previously made by
any prior Partner with respect to the Partnership Interest of
such then Partner.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Fair Market Value" means fair market value as
determined by the parties, or, if the parties cannot make such a
determination, by an accountant selected by the parties. Any
dispute between the parties concerning a determination of Fair
Market Value shall be determined by an arbitrator selected by the
parties, or, if the parties cannot agree on an arbitrator, by an
arbitrator appointed by the American Arbitration Association.
"General Partners" means Xxxxx X. Xxxxx, Xxxxx X. Xxxxx
and Xxxxxx Xxxxxxxxxxx, XX, in their capacity as General
Partners, or any Person who becomes a General Partner as provided
herein in each such Person's capacity as a General Partner.
"Income and Loss(es)" means taxable income or loss plus
income exempt from federal income tax as determined in accordance
with the accounting methods followed by the Partnership for
federal income tax purposes, adjusted to reflect book-tax
disparities as required by Treasury Regulations ^U1.704-
1(b)(2)(iv)(g).
"Limited Partner" means the Persons listed as limited
partners on Schedule A hereto, or any Person who becomes a
Limited Partner as provided herein, in each such Person's
capacity as a Limited Partner.
"Partner" means any General Partner or Limited Partner.
"Partnership" means the Limited Partnership governed by
this Agreement as said Partnership may from time to time be
constituted and amended.
"Partnership Act" means the Revised Uniform Limited
Partnership Act of the State of Connecticut, as the same may be
amended from time to time.
"Partnership Interest" means the percentage interest of
any Partner in the Partnership initially set forth in Exhibit A
and adjusted due to subsequent transfers, if any.
"Partnership Minimum Gain" means the aggregate of the
amount of Income, if any, with respect to each nonrecourse
liability of the Partnership, that would be realized by the
Partnership if it disposed of (in a taxable transaction) the
property subject to the liability in full satisfaction thereof,
determined pursuant to Treasury Regulations ^U 1.704-2(d).
"Person" means any individual, partnership,
corporation, trust or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of
such Person where the context so permits.
"Restoration Amount" means the amount of any
unconditional obligation of the Partner to contribute additional
amounts to the capital of the Partnership in the future, provided
such obligation is required to be satisfied no later than the end
of the Partnership taxable year in which such Partner's interest
is liquidated (or, if later, within ninety (90) days of such
liquidation).
"Stock" shall have the meaning set forth in Section 1.4
herein.
"Two-Thirds in Interest" means sixty-six and two-
thirds percent (66 2/3%) of the percentage interests of the
General Partners (excluding for calculation purposes any
percentage interest held by a General Partner in his capacity as
Limited Partner).
ARTICLE 3. - CAPITAL CONTRIBUTIONS
Section 3.1. Initial Capital Contributions. Upon
execution of this Agreement, each of the Partners shall have
contributed the number of shares of Stock set forth opposite his
name on Exhibit A hereto. The Partners agree that such Stock has
a Fair Market Value of $8.75 per share. These contributions
shall constitute the initial amount of each Partner's Capital
Contribution.
Section 3.2. Additional Capital Contributions. No
Partner shall be obligated to make any Additional Capital
Contributions. No interest shall be paid on any Capital
Contribution by any Partner.
Section 3.3. Partner Loans. A Partner may loan money
to and transact business with the Partnership on market-rate
terms and conditions that are consistent with good business
practice.
Section 3.4. Return of Capital Contributions. Except
as expressly provided in this Agreement, a Partner may demand the
return of the Partner's Capital Contribution only at the end of
the term of the Partnership and only to the extent that
Partnership assets are available therefor after payment of
Partnership liabilities.
Section 3.5. Limited Partners' Liability. The
liability of the Limited Partners to the Partnership shall be
limited to the amount of their Capital Contributions. The
Limited Partners shall not have any further personal liability in
respect of the liabilities or the obligations of the Partnership,
nor shall the Limited Partners be personally liable for any
obligations of the Partnership, except as may be provided in the
Partnership Act.
ARTICLE 4. - ALLOCATIONS
Section 4.1. General. The Income and Loss of the
Partnership shall be allocated among the Partners in proportion
to their Partnership Interests.
Section 4.2. Special Allocations. Notwithstanding
any other provision of this Article 4, certain items of Income,
Loss and deduction shall be allocated as follows:
(a) Minimum Gain Chargeback. If there is a net
decrease in the amount of Partnership Minimum Gain during a
calendar year, each Partner will be allocated, before any other
allocation is made under this Article 4, items of Income for such
year (and, if necessary, subsequent years) in proportion to, and
to the extent of, an amount equal to that Partner's share of the
net decrease in Partnership Minimum Gain (within the meaning of
Treasury Regulations ^U 1.704-2(g)(2)). This provision is meant
to satisfy the minimum gain chargeback requirement contained in
Treasury Regulations ^U 1.704-2(f), and shall be interpreted
consistently therewith.
(b) Qualified Income Offset. Notwithstanding any
other provision of this Agreement to the contrary:
(1) A Partner shall not be allocated Losses (or
items thereof) if such allocation would cause or increase a
deficit balance in such Partner's Capital Account as of the
end of the calendar year to which such allocation relates in
excess of such Partner's share of Partnership Minimum Gain
as of the close of such year (determined pursuant to
Treasury Regulations 1.704-2(g)) and such Partner's
Restoration Amount. Such excess deficit balance in a
Partner's Capital Account shall be referred to as the
"Excess Deficit Balance". Any such Excess Deficit Balance
that otherwise would have been allocated to such Partner but
for this Section 4.2(b)(1) shall be reallocated to the
General Partners.
(2) In determining the extent to which a loss
allocation under the terms of this Agreement causes or
increases an Excess Deficit Balance, such Partner's Capital
Account shall be reduced for (i) adjustments that, as of the
end of such calendar year, reasonably are expected to be
made under Treasury Regulations ^U 1.704-1(b)(2)(iv)(k) for
depletion allowances, (ii) allocations of loss or deduction
that, as of the end of such calendar year, reasonably are
expected to be made to such Partner pursuant to Sections
704(e)(2) and 706(d) of the Code or Treasury Regulations ^U
1.751-1(b)(2)(ii), and (iii) distributions that, as of the
end of such calendar year, reasonably are expected to be
made to such Partner to the extent they exceed offsetting
increases to such Partner's Capital Account that reasonably
are expected to occur during (or prior to) the calendar
years in which such distributions reasonably are expected to
be made (other than increases pursuant to Section 4.2(a)).
(3) Notwithstanding (1) above, in the event that
any Partner unexpectedly receives an adjustment, allocation
or distribution described in Treasury Regulations ^U 1.704-
1(b)(2)(ii)(d)(4), (5) or (6), such Partner will be
subsequently allocated items of Income in an amount and
manner sufficient to eliminate any Excess Deficit Balance of
such Partner as quickly as possible.
(c) Other Special Allocations. The Partners shall
make such other special allocations of items of Income and Loss
as are required to comply with the rules set forth in Treasury
Regulations ^U 1.704-2.
(d) Minimum Allocation to General Partner.
Notwithstanding anything to the contrary other than subsections
(a), (b) and (c) above, the General Partners shall be allocated
at least 1% of all items of Income and Loss.
(e) Offsetting Allocations. In the event that Income
or Loss is allocated to one or more Partners pursuant to
subsections (a), (b), (c) or (d) above, subsequent Income or Loss
will first be allocated (subject to the provisions of subsections
(a), (b), (c) and (d)) to the Partners in a manner designed to
result in each Partner having a Capital Account balance equal to
what it would have been had the original allocation of Income or
Loss pursuant to subsection (a), (b), (c) or (d) not occurred.
(f) Section 704(c) Allocations. Income or Loss
attributable to contributed property will be allocated among the
Partners as required by Code Section 704(c) for tax purposes, but
shall not affect the Capital Accounts except as required by
Treasury Regulations ^U 1.704-1(b)(2)(iv).
Section 4.3. Tax Allocations. Allocations of taxable
income and loss shall generally be made in accordance with
allocations of Income and Loss as described above, with
allocations of items reflecting book-tax disparities being made
in a manner consistent with the principals of Section 704(c) of
the Code.
ARTICLE 5. - DISTRIBUTIONS
Section 5.1. General. Except as provided in Section
11.3, any cash available for distribution, as determined by the
General Partners, shall be distributed to the Partners in
accordance with their Partnership Interests.
Section 5.2. Source of Distributions. Each Partner
shall look solely to the assets of the Partnership for all
distributions with respect to the Partnership and the Partner's
Capital Contribution thereto and shall have no recourse therefor
(upon dissolution or otherwise) against the other Partners. No
Partner shall have any right to demand or receive property other
than cash upon dissolution and termination of the Partnership.
ARTICLE 6. - POWERS OF THE PARTNERS
Section 6.1. The General Partners. The General
Partners shall have exclusive control of the business of the
Partnership and shall have all the rights and powers of a general
partner in a partnership without limited partners. Except as
otherwise required under this Agreement, all actions taken on
behalf of the Partnership shall be determined by the vote or
consent of Two-Thirds in Interest of the General Partners.
Notwithstanding the foregoing, no third party need question the
authority of any General Partner acting alone to bind and act for
the Partnership, except as otherwise provided under the
Partnership Act.
Section 6.2. Exculpation. No Partner shall be liable
to the Partnership or to any Partner for any loss in connection
with the affairs of the Partnership so long as the Partner is not
guilty of gross negligence or willful misconduct.
Section 6.3. Indemnification. The Partnership shall
indemnify, defend, save harmless and pay all judgments and claims
against any Partner arising from any liability or damage incurred
by reason of any actions, inactions or decisions of such Partner
that are within the scope of the authority provided hereunder or
are taken upon advice of counsel, provided that the same were not
the result of gross negligence or willful misconduct.
Section 6.4. Duties. Each of the General Partners
shall devote so much of his time and attention to the business
and affairs of the Partnership as is reasonably necessary and
proper to further the purposes of the Partnership.
Section 6.5. Compensation. The General Partners
shall not be entitled to any compensation for services rendered
to the Partnership. The General Partners shall be reimbursed for
reasonable and necessary expenses incurred on behalf of the
Partnership.
Section 6.6. The Limited Partners. The Limited
Partners shall not participate in any way in the control or
management of the business of the Partnership. The Limited
Partners are not agents of the Partnership and do not have
authority to act for, or bind, the Partnership in any matter.
ARTICLE 7. - CONFLICTS OF INTEREST
Each Partner may engage independently or with others in
other business ventures of every nature and description and
neither the Partnership nor any Partner shall have any rights in
and to such independent ventures or the income or profits derived
therefrom.
ARTICLE 8. - ACCOUNTING PROVISIONS
Section 8.1. Records. The books of the Partnership
shall be kept at the principal place of business of the
Partnership and shall be open to inspection and copying by the
Partners or their duly authorized representatives at all
reasonable times.
Section 8.2. Bank Accounts. All funds of the
Partnership shall be deposited in the Partnership name in such
bank accounts as shall be designated by the General Partners.
Section 8.3. Fiscal Year. The fiscal year of the
Partnership shall be the calendar year.
Section 8.4. Tax Matters Partner. The General
Partners shall designate one of the General Partners as the Tax
Matters Partner for federal income tax purposes. Such Tax
Matters Partner may be removed as such by vote of the other
General Partners.
ARTICLE 9. - SUCCESSOR PARTNERS
A Partner may not assign or transfer all or any part of
his Partnership Interest to any Person without the written
consent of the General Partners, except that a transferee who
acquires its interest by will or under the laws of descent and
distribution shall be admitted to the Partnership as a Limited
Partner. Any assignment or transfer permitted by the preceding
sentence shall be accomplished by the execution of a document in
the form set forth as Exhibit B. Any Partnership Interest
assigned or transferred by a General Partner, including any
assignment or transfer by operation of law or by reason of death
of the General Partner, shall automatically be converted into a
Limited Partner Partnership Interest.
ARTICLE 10. - INDEMNIFICATION
Subject to Section 6.3, any Partner who violates any of
the terms, provisions or conditions of this Agreement, in
addition to being subject to the other remedies, liabilities and
obligations that may be imposed upon such Partner therefor, shall
save the other Partners harmless from any and all claims,
damages, demands and actions that may arise out of or by reason
of such violation.
ARTICLE 11. - DISSOLUTION AND LIQUIDATION OF THE PARTNERSHIP
Section 11.1. Events of Dissolution. Upon the
happening of any of the following events (but under no other
circumstance), the Partnership shall be dissolved:
(a) execution of an assignment of all or substantially
all of the property and business of a General Partner for the
benefit of creditors;
(b) filing of a voluntary petition under any
bankruptcy or insolvency law by a General Partner;
(c) adjudication of a General Partner as bankrupt or
insolvent under any bankruptcy or insolvency laws;
(d) appointment of a receiver for, or liquidation of
the property or business of, a General Partner;
(e) the withdrawal, death or other inability of a
General Partner to continue in such capacity; or
(f) the expiration of the term of the Partnership
under Section 1.5.
Section 11.2. Upon the occurrence of an Event of
Dissolution, other than pursuant to Section 11.1(f), if there
remains a General Partner or General Partners (the "Remaining
General Partners") to whom subsections (a) through (e) of Section
11.1 are not applicable, such Remaining General Partners may
elect to continue the Partnership within 90 days after the
occurrence of such event.
Section 11.3. Accounting. Upon the dissolution of the
Partnership in accordance with the provisions of this Agreement,
the Remaining General Partners, or the Limited Partners if there
are no Remaining General Partners (the "Dissolution Partners")
shall immediately commence the winding up and termination of the
Partnership and its business, and a notice of dissolution or
cancellation shall be filed. No further business shall be done
by the Partnership and no further obligations shall be incurred
on its behalf except for the purpose of carrying out the winding
up, liquidation and termination of the Partnership. The proceeds
from liquidation of Partnership assets shall be distributed and
applied as set forth in Section 11.3.
Section 11.4. Distribution Upon Dissolution. Upon the
dissolution of the Partnership, the Dissolution Partners shall
liquidate the Partnership's assets, and apply and distribute the
proceeds, in accordance with the following:
(a) Sale of Assets. All of the assets of the
Partnership may be sold at the discretion of the Dissolution
Partners and any Income or Loss realized upon such sales shall be
allocated to the respective Partners' Capital Accounts in
accordance with Article 4. Any assets which are not sold shall
be valued at Fair Market Value and such value shall be used to
determine the potential Income or Loss thereon which shall then
be allocated to the Partners' Capital Accounts in accordance with
Article 4 as if such Income or Loss had actually been realized.
(b) Priority of Liquidation Distribution. The
proceeds of liquidation and any unliquidated Partnership assets
shall be distributed in the order of priority established by the
Partnership Act. Any amounts available for distribution to the
Partners shall be distributed in proportion to the positive
balances of their Capital Accounts.
tri Timing of Dissolution. The Partnership shall be
dissolved when all assets of the Partnership shall have been
disposed of and the net proceeds, after satisfaction of
liabilities to creditors, shall have been distributed among the
Partners as aforesaid.
ARTICLE 12. - GENERAL PROVISIONS
Section 12.1. Applicable Law. This Agreement shall be
governed, construed and interpreted in accordance with the laws
of the State of Connecticut.
Section 12.2. Amendments. This Agreement may be
changed, modified or amended at any time, and from time to time,
by a written document signed by all of the Partners; provided,
however, that the General Partners may amend Exhibit A to reflect
any transfers of Partnership Interests.
Section 12.3 Captions. All paragraph titles or
captions contained in this Agreement are for convenience only and
shall not be deemed part of this Agreement.
Section 12.4 Gender and Number. All nouns, pronouns
and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the context
may require.
Section 12.5 Counterparts. This Agreement may be
executed upon an original and one or more duplicate originals,
all of which taken together shall constitute one agreement.
Section 12.6 Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon all parties and
their respective successors, heirs, devises, assigns and legal
representatives.
Section 12.7 Entire Agreement. This Agreement
constitutes the entire agreement between the parties and
supersedes all prior oral and written understandings between the
parties.
Section 12.8 Severability. If any part of this
Agreement, or the application thereof to any Person or
circumstance, is for any reason held invalid or unenforceable, it
shall be deemed severable and the validity of the remainder of
this Agreement or the applications of such provision to other
Persons or circumstances shall not be affected thereby.
Section 12.9 Lists. Any list of one or more items
preceded by the words "include" or "including" shall not be
deemed to be limited to the stated items but shall be deemed to
be without limitation.
Section 12.10 Waiver of Partition. Each Partner
waives all rights at law or equity to require or obtain a
partition of all or any portion of the Partnership's property, or
any interest therein.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
GENERAL PARTNERS:
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxxxx, XX
Xxxxxx Xxxxxxxxxxx, XX
LIMITED PARTNERS:
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxxxx, XX
Xxxxxx Xxxxxxxxxxx, XX
AGREEMENT OF LIMITED PARTNERSHIP OF
1888 LIMITED PARTNERSHIP
Exhibit A
Initial
Capital
General Partners Percentage Interest Contribution
Xxxxx X. Xxxxx 1% 6,576 shares of Stock
Suite 2750
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxx 1% 6,576 shares of Stock
Suite 2750
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxxxxxx, XX 1% 6,576 shares of Stock
Suite 2750
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Limited Partners
Xxxxx X. Xxxxx 36.1510% 237,716 shares of Stock
Suite 2750
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxx 30.4244% 200,060 shares of Stock
Xxxxx 0000
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxxxxxx, XX 30.4244% 200,060 shares of Stock
Suite 2750
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Total 100.0000% 657,564 shares of Stock
AGREEMENT OF LIMITED PARTNERSHIP OF
1888 LIMITED PARTNERSHIP
Exhibit B
Assignment of Partnership Interest
The undersigned hereby assigns a %
Partnership Interest in 1888 Limited Partnership, effective as of
the date hereof.
Dated:
The undersigned hereby agrees to be bound by all of the
terms of the Agreement of Limited Partnership of 1888 Limited
Partnership as in effect on the date hereof.
Dated:
1888 Limited Partnership hereby consents to the above
assignee becoming a substitute Limited Partner.
By: A General Partner
Dated:
