Exhibit 3.1
-----------
THE XXXXX FINANCIAL COMPANIES, L.L.L.P.
TWELFTH
AMENDED AND RESTATED
AGREEMENT OF REGISTERED
LIMITED LIABILITY LIMITED PARTNERSHIP
Dated as of June 15, 2001
INDEX
-----
ARTICLE ONE DEFINED TERMS.........................................................................................3
ARTICLE TWO CONTINUATION, NAME AND OFFICE, PURPOSES, TERM AND DISSOLUTION,
REGISTERED AGENT, PARTNER LIST...........................................................................8
2.1 Continuation.........................................................................................8
2.2 Name, Place of Business and Office...................................................................8
2.3 Purposes.............................................................................................8
2.4 Term and Dissolution.................................................................................9
2.5 Registered Office and Agent..........................................................................9
2.6 Amendment to Certificate of Limited Partnership......................................................9
ARTICLE THREE PARTNERS AND CAPITAL................................................................................9
3.1 General Partners.....................................................................................9
3.2 Admission of Additional General Partners............................................................10
3.3 Limiteds and Contained Payments to Limited Partners.................................................10
3.4 Admission of Limiteds...............................................................................10
3.5 Partnership Capital.................................................................................11
3.6 Liability of Limiteds...............................................................................11
3.7 Participation in Partnership Business by Limiteds...................................................11
3.8 Priority Among Limiteds.............................................................................11
ARTICLE FOUR RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNERS...................................................11
4.1 Authorized Acts; Management and Control.............................................................11
4.2 Restrictions on Authority of the Managing Partner and Executive Committee...........................13
4.3 Removal or Dismissal of Certain Partners............................................................13
4.4 Executive Committee.................................................................................13
4.5 Guaranteed Draw; Time and Effort; Independent Activities............................................15
4.6 Duties and Obligations of the Managing Partner......................................................16
4.7 Liability for Acts and Omissions; Indemnification...................................................16
4.8 Dealing with an Affiliate...........................................................................17
4.9 General Partners' Responsibility....................................................................17
4.10 Responsibilities of Partnership Leaders............................................................17
ARTICLE FIVE MEETINGS AND VOTING OF PARTNERS.....................................................................18
5.1 Meetings of General Partners; Voting at Such Meetings...............................................18
5.2 Percentage of Voting Power for Partnership Decisions................................................18
5.3 Robert's Rules to Govern............................................................................18
5.4 Consent of General Partners in Lieu of a Meeting....................................................18
ARTICLE SIX EVENT OF WITHDRAWAL OF A PARTNER AND CONVERSION OF CLASS II SUBORDINATED LIMITED
PARTNER CAPITAL TO CLASS I SUBORDINATED LIMITED PARTNER CAPITAL.........................................20
6.1 Voluntary Event of Withdrawal.......................................................................20
6.2 Withdrawal Upon Request.............................................................................20
i
6.3 Return of Capital and Purchase of Interest..........................................................20
6.4 Death of a Limited..................................................................................22
6.5 Death or Disability of a General Partner............................................................22
6.6 General Partner Interest - 56th Birthday............................................................24
6.7 Restriction on Capital Contribution Return..........................................................24
6.8 Liability of a Withdrawn General Partner............................................................25
6.9 Effect of Event of Withdrawal.......................................................................25
6.10 Conversion from Class II to Class I Subordinated Limited Partner...................................25
ARTICLE SEVEN TRANSFERABILITY OF PARTNER INTERESTS...............................................................26
7.1 Restrictions on Transfer............................................................................26
7.2 Substituted Limited Partners........................................................................26
ARTICLE EIGHT DISTRIBUTIONS AND ALLOCATIONS; LIABILITY OF GENERAL PARTNERS.......................................27
8.1 Distribution of Net Income..........................................................................27
8.2 Distributions Upon Dissolution......................................................................29
8.3 Distribution of Frozen Appreciation Amount..........................................................29
8.4 Sale of Assets to Third Party.......................................................................30
8.5 Other Sales or Dispositions to Third Party..........................................................31
8.6 Allocation of Profits and Losses for Tax Purposes...................................................31
8.7 Liability of General Partners.......................................................................33
ARTICLE NINE BOOKS, RECORDS AND REPORTS, ACCOUNTING, TAX ELECTIONS, ETC..........................................33
9.1 Books, Records and Reports..........................................................................33
9.2 Bank Accounts.......................................................................................34
9.3 Depreciation and Elections..........................................................................34
9.4 Fiscal Year.........................................................................................34
ARTICLE TEN MEDIATION/ARBITRATION................................................................................35
10.1 Mediation/Arbitration..............................................................................35
10.2 Forum Selection....................................................................................36
10.3 Statute of Limitations.............................................................................37
10.4 Other Agreements...................................................................................37
ARTICLE ELEVEN GENERAL PROVISIONS................................................................................37
11.1 Appointment of Attorneys-in-Fact...................................................................37
11.2 Word Meanings......................................................................................38
11.3 Binding Provisions.................................................................................38
11.4 Applicable Law.....................................................................................39
11.5 Counterparts.......................................................................................39
11.6 Entire Agreement...................................................................................39
11.7 Separability of Provisions.........................................................................39
11.8 Representations....................................................................................39
11.9 Section Titles.....................................................................................39
11.10 Partition.........................................................................................39
ii
11.11 No Third Party Beneficiaries......................................................................40
11.12 Amendments........................................................................................40
11.13 Revocable Trusts..................................................................................40
iii
THE XXXXX FINANCIAL COMPANIES, L.L.L.P.
(a Missouri Registered Limited Liability Limited Partnership)
TWELFTH
AMENDED AND RESTATED
AGREEMENT OF REGISTERED
LIMITED LIABILITY LIMITED PARTNERSHIP
THIS TWELFTH AMENDED AND RESTATED AGREEMENT OF REGISTERED LIMITED
LIABILITY LIMITED PARTNERSHIP of The Xxxxx Financial Companies, L.L.L.P.
entered into as of this 15th day of June, 2001, by and among Xxxx X.
Xxxxxxxx as General Partner, and Xxxx X. Xxxxxxxx as the Attorney-In-Fact
for all of the other General Partners, all of the Limited Partners, all of
the Class I Subordinated Limited Partners (none at the date of this
Agreement) and all of the Class II Subordinated Limited Partners (formerly
referred to as the "Subordinated Limited Partners").
W I T N E S S E T H:
WHEREAS, the Partnership was formed as a limited partnership under
the Missouri Revised Uniform Limited Partnership Act pursuant to an
Agreement and Certificate of Limited Partnership dated June 5, 1987;
WHEREAS, the Partnership filed on July 15, 1987 its Amended
and Restated Agreement and Certificate of Limited Partnership dated
July 15, 1987 (the "Restated Agreement");
WHEREAS, the Partnership filed on August 28, 1987,
November 16, 1987, August 5, 1988, August 29, 1988, January 31, 1989,
March 21, 1989 and August 10, 1989 its Amendments Xx. 0, 0, 0, 0, 0, 0 and 7
respectively, to its Restated Agreement;
WHEREAS, the Partnership filed on June 22, 1989 its Partner List
as of May 31, 1989;
WHEREAS, the Restated Agreement as amended is hereinafter referred
to as the "First Restated Agreement";
WHEREAS, the First Restated Agreement was amended and restated
in its entirety pursuant to a Second Amended and Restated Agreement and
Certificate of Limited Partnership dated as of January 31, 1990 (the
"Second Restated Agreement");
WHEREAS, the Missouri Revised Uniform Limited Partnership Act was
amended in August of 1990 and no longer requires certain information in
certificates of limited partnership (filed with the Secretary of State) and
now requires corresponding amendments to be made to agreements of limited
partnership;
WHEREAS, the Partnership desired that the aforesaid Second
Restated Agreement become two separate documents, namely a Third Amended and
Restated Agreement of Limited Partnership (the "Third Restated Agreement")
and a separate restated Certificate of Limited Partnership;
WHEREAS, the Second Restated Agreement was amended and restated
in its entirety pursuant to said Third Restated Agreement dated as of
January 31, 1991;
WHEREAS, the Third Restated Agreement was amended and restated
in its entirety pursuant to the Fourth Amended and Restated Agreement of
Limited Partnership (the "Fourth Restated Agreement") dated as of
January 1, 1993;
WHEREAS, the Fourth Restated Agreement was amended and restated in
its entirety pursuant to the Fifth Amended and Restated Agreement of Limited
Partnership (the "Fifth Restated Agreement") dated as of May 24, 1993;
WHEREAS, the Fifth Restated Agreement was amended and restated in
its entirety pursuant to the Sixth Amended and Restated Agreement of Limited
Partnership (the "Sixth Restated Agreement") dated as of October 1, 1993;
WHEREAS, the Sixth Restated Agreement was amended and restated
in its entirety pursuant to the Seventh Amended and Restated Agreement
of Limited Partnership (the "Seventh Restated Agreement") dated as of
August 31, 1996;
WHEREAS, the Seventh Restated Agreement was amended and restated
in its entirety to register the Partnership as a registered limited
liability partnership pursuant to the Eighth Amended and Restated Agreement
of Limited Partnership (the "Eighth Restated Agreement") dated as of
November 1, 1996;
WHEREAS, the Partnership filed as of February 26, 1998 an
Amendment to the Certificate of Limited Partnership changing the
Partnership's name from The Xxxxx Financial Companies, L.P., LLP to The
Xxxxx Financial Companies, L.L.L.P.;
WHEREAS, the Eighth Restated Agreement was amended and restated in
its entirety pursuant to the Ninth Amended and Restated Agreement of
Registered Limited Liability Limited Partnership (the "Ninth Restated
Agreement") dated as of April 1, 1998; and
WHEREAS, the Ninth Restated Agreement was amended and restated in
its entirety pursuant to the Tenth Amended and Restated Agreement of
Registered Limited Liability Limited Partnership (the "Tenth Restated
Agreement") dated as of February 25, 1999; and
WHEREAS, the Tenth Restated Agreement was amended and restated in
its entirety pursuant to the Eleventh Amended and Restated Agreement of
Registered Limited Liability Limited Partnership (the "Eleventh Restated
Agreement") dated as of May 23, 2000; and
2
WHEREAS, the parties now desire to amend and restate said Eleventh
Restated Agreement in its entirety pursuant to this Twelfth Amended and
Restated Agreement of Registered Limited Liability Limited Partnership.
NOW, THEREFORE, pursuant to the terms, covenants and conditions
set forth herein and the mutual promises contained herein, the parties
hereto agree as follows:
ARTICLE ONE
DEFINED TERMS
-------------
The defined terms used in this Agreement shall have the meanings
specified below:
"Affiliate" of a specified person (the "Specified Person") means
---------
any Person (a) who directly or indirectly controls, is controlled by, or is
under common control with the Specified Person; (b) who owns or controls
ten percent (10%) or more of the Specified Person's outstanding voting
securities or equity interests; (c) in whom such Specified Person owns or
controls ten percent (10%) or more of the outstanding voting securities or
equity interests; (d) who is a director, partner, manager, executive officer
or trustee of the Specified Person; (e) in whom the Specified Person is a
director, partner, manager, executive officer or trustee; or (f) who has any
relationship with the Specified Person by blood, marriage or adoption, not
more remote than first cousin.
"Agreement" means this Twelfth Amended and Restated Agreement of
---------
Registered Limited Liability Limited Partnership, as amended from time to
time.
"Capital Account" means an account established by the Partnership
---------------
and maintained for each Partner, for federal income tax purposes, which
account shall be credited with:
(i) the amount of the Partner's Capital Contributions; and
(ii) the amount of Partnership income (including income exempt
from federal income tax) and gain (or items thereof) allocated to the
Partner pursuant to Article Eight hereof;
and which shall be debited by:
(iii) the amount of Partnership losses and deductions (or items
thereof) allocated to the Partner pursuant to Article Eight hereof;
(iv) the amount of Partnership expenditures described in
Treasury Regulations Section 1.704-1(b)(2)(iv)(i) allocable to the
Partner in the same proportion as that in which the Partner bears the
economic burden of those expenditures; and
3
(v) the amount of all distributions to the Partner pursuant
to Article Eight hereof.
In addition, the Capital Account of each Partner shall be adjusted
as necessary to comply with Treasury Regulations Section 1.704-1(b)(2)(iv).
In the event the Managing Partner shall determine that it is prudent to
modify the manner in which the Capital Accounts or any debits or credits
thereto are completed in order to comply with such regulations, the Managing
Partner may amend this Agreement to reflect such modification, provided that
it is not likely to have a material effect on the amounts distributable to
the Partners pursuant to Article Eight upon dissolution of the Partnership.
If any Partner would otherwise have a negative balance in his
Capital Account, the amount of any such negative balance shall be reduced
(but not in excess of such negative balance) by the amount of such Partner's
share of Partnership Minimum Gain (determined in accordance with Treasury
Regulations Section 1.704-1(b)(4)(iv)(f)) after taking into account all
increases and decreases to such Partnership Minimum Gain during the taxable
year.
In the event that the Partnership is deemed to be terminated for
federal income tax purposes due to the sale or exchange of fifty percent
(50%) or more of the Partnership interests within a twelve (12) month
period, appropriate adjustment shall be made to the Capital Accounts to
reflect such termination as required by the Internal Revenue Code and
applicable Treasury Regulations.
In the event that interests in the Partnership are sold, exchanged
or otherwise transferred, and the transfer is recognized under Article Six
or Article Seven hereof, or by operation of law, the Capital Account of the
transferee will equal the Capital Account of the transferor immediately
before the transfer. However, if such a sale or exchange, either alone or in
combination with other sales or exchanges within a twelve-month period
results in a transfer of fifty percent (50%) or more of the Partnership
interests causing a termination of the Partnership for federal income tax
purposes, the adjustment required by the immediately preceding paragraph
shall be made.
"Capital Contribution" means the total amount of cash or property
--------------------
contributed as equity to the Partnership by each Partner pursuant to the
terms of this Agreement. The Capital Contributions of the Partners have been
previously set forth on exhibits to this Agreement. From the date hereof,
the Capital Contributions of the Partners shall be reflected in the books
and records of the Partnership.
"Certificate of Limited Partnership" means the document, as
----------------------------------
amended or restated from time to time, filed as a certificate of limited
partnership under the Missouri Limited Partnership Act.
4
"Class I Subordinated Limited Partners" means those persons whose
-------------------------------------
names are set forth in the books and records of the Partnership as Class I
Subordinated Limited Partners, and any other person who becomes a Class I
Subordinated Limited Partner of the Partnership as provided herein.
"Class II Subordinated Limited Partners" means those persons whose
--------------------------------------
names are set forth in the books and records of the Partnership as Class II
Subordinated Limited Partners, and any other person who becomes a Class II
Subordinated Limited Partner of the Partnership as provided herein.
"Dispute" shall have the meaning set forth in Section 10.1A.
-------
"EDJ" shall have the meaning set forth in Section 2.3.
---
"Event of Withdrawal" means, as to a General Partner, the
-------------------
occurrence of death, adjudication of mental incompetence, bankruptcy,
dissolution, or voluntary or involuntary withdrawal or removal from the
Partnership or any other event of withdrawal set forth in the Missouri
Limited Partnership Act.
"Frozen Appreciation Amount" means each General Partner's share of
--------------------------
the unrealized appreciation of certain real estate (the "Real Estate") owned
by EDJ Leasing Co. on the date such General Partner contributes his general
partnership interest in EDJ Leasing Co. to the Partnership plus such General
Partner's share of the unrealized appreciation of all stock exchange seats
(the "Exchange Seats") owned by or for the benefit of Xxxxxx X. Xxxxx & Co.,
L.P. on the date such General Partner contributes his general partnership
interest in Xxxxxx X. Xxxxx & Co., L.P. to the Partnership. The Frozen
Appreciation Amount shall be maintained in the books and the records of the
Partnership. The Real Estate currently consists of the land and improvements
located at 000 Xxxxxxxx Xxxxxxx, 000 Xxxxxxxx Xxxxxxx, 000 Xxxxxxxx Xxxxxxx,
000 Xxxxxxxx Xxxxxxx, 000 Xxxxxxxx Xxxxxxx, 9 American Industrial Dr. and
00 Xxxxxxxx Xxxxxxxxxx Xx., all in St. Louis County, Missouri. The Exchange
Seats consists of one (1) seat on the New York Stock Exchange, one (1) seat
on the American Stock Exchange and one (1) seat on the Chicago Stock Exchange
or any such seats on successor exchanges. Each year, as of December 31,
if in the opinion of the Managing Partner there has been a material
diminution in the value of the Real Estate, the Partnership shall appraise
(to the extent not previously sold) the Real Estate and the shares of
unrealized appreciation shall be appropriately and proportionately adjusted
for each General Partner on the books of the Partnership. On each Valuation
Date, if needed for the purpose of making a calculation for purposes of this
Agreement, the Partnership shall appraise (to the extent not previously
sold) the Exchange Seats and the shares of unrealized appreciation shall be
appropriately and proportionately adjusted for each General Partner on the
books of the Partnership. The unrealized appreciation per each separate
tract of Real Estate and per each separate Exchange Seat as set forth on the
books of the Partnership may never exceed the amount used in making the
original calculation even if a given appraised value later exceeds such
amount. When, as and if a given tract of Real Estate or Exchange Seat is
sold, the unrealized appreciation then attributable to such tract of Real
Estate or Exchange Seat shall no longer be included in the calculation of
the Frozen Appreciation Amount on the books of the Partnership.
5
"General Partners" means those persons whose names are set forth
----------------
in the books and records of the Partnership as being General Partners, and
any other Person who becomes a successor or additional General Partner of
the Partnership as provided herein.
"General Partner's Adjusted Capital Contribution" means the
-----------------------------------------------
Capital Contribution of the General Partner plus all Net Income thereafter
allocated to the account of the General Partner minus (a) all Net Loss
thereafter allocated to the account of the General Partner, and (b) any cash
or property thereafter distributed to (or for the benefit of) the General
Partner. Payments of salaries, bonuses or expenses to a General Partner by
the Partnership shall not affect such General Partner's Adjusted Capital
Contribution.
"General Partner Interest" means a General Partner's entire
------------------------
ownership interest in the Partnership.
"General Partner Percentage" means a percentage determined by
--------------------------
dividing a General Partner's Adjusted Capital Contribution by the Adjusted
Capital Contributions of all of the General Partners.
"Grantors" shall have the meaning set forth in Section 11.13.
--------
"Internal Revenue Code" means the Internal Revenue Code of 1986,
---------------------
as amended from time to time.
"Limited Partner Withdrawal Notice" shall have the meaning set
---------------------------------
forth in Section 6.1B.
"Limited Partners" means those persons whose names are set forth
----------------
in the books and records of the Partnership as being Limited Partners, and
any other person who becomes a Limited Partner of the Partnership as
provided herein.
"Limiteds" means those persons whose names are set forth in the
--------
books and records of the Partnership as being the Limited Partners, Class I
Subordinated Limited Partners and the Class II Subordinated Limited
Partners, and any other person who becomes a Limited of the Partnership as
provided herein.
"Mandatory Withdrawal Notice" shall have the meaning set forth in
---------------------------
Section 6.2.
"Missouri Limited Partnership Act" means the Missouri Revised
--------------------------------
Uniform Limited Partnership Act, as amended from time to time.
"Missouri Partnership Act" means the Missouri Uniform Partnership
------------------------
Law, as amended from time to time.
"NASD" shall have the meaning set forth in Section 10.1E.
----
6
"Net Income or Net Loss" means, with respect to any fiscal period,
----------------------
the net income or the net loss of the Partnership, determined in accordance
with generally accepted accounting principles; provided, however, there
shall be excluded from such net income or net loss (after deduction of the
guaranteed payments required by Section 3.3B hereof and the bonus
compensation provided for in Section 4.1B(v) hereof) any unrealized gains or
losses on securities or rights or options to acquire securities held by the
Partnership (or by any entity whose financial statements are consolidated
with the financial statements of the Partnership) as (a) a hedge against
fixed rate borrowings or (b) as long term passive investments (usually
minority interests) (in the case of both (a) and (b), as opposed to other
securities held by the Partnership [or by any entity whose financial
statements are consolidated with the financial statements of the
Partnership] as inventory for resale in the ordinary course of business).
"Notice" means a writing, containing the information required by
------
this Agreement to be communicated to a party, delivered personally or sent
by U.S. mail, postage prepaid, to such party at the last known address of
such party as shown on the records of the Partnership, the date of personal
delivery or the date of mailing thereof being deemed the date of receipt
thereof.
"Partner" means any General Partner or Limited.
-------
"Partnership" means the limited partnership (originally formed as
-----------
a limited partnership which is now registered as a registered limited
liability limited partnership) continued by this Agreement by the parties
hereto, as said limited partnership may from time to time be constituted.
"Partnership Minimum Gain" means, for Partnership tax purposes, as
------------------------
set forth in Treasury Regulations Section 1.704-1(b)(4)(iv)(c), the amount
of gain, if any, that would be realized by the Partnership if it were to
sell or dispose of (in a taxable transaction) property subject to a
non-recourse liability of the Partnership, in full satisfaction of such
liability.
"Party" shall have the meaning set forth in Section 10.1A.
-----
"Person" means a natural person, partnership, limited partnership
------
(domestic or foreign), limited liability partnership, limited liability
limited partnership, limited liability company, trust, estate, association
or corporation.
"Premium" shall have the meaning set forth in Section 8.4D.
-------
"Price" shall have the meaning set forth in Section 6.3A.
-----
"Proceeds of Liquidation" shall have the meaning set forth in
-----------------------
Section 8.2A.
"Profits and Losses For Tax Purposes" means, for Partnership
-----------------------------------
accounting and tax purposes, the various items set forth in Section 702(a)
of the Internal Revenue Code and all applicable regulations or any successor
law, and shall include, but not be limited to, each item of income, gain,
deduction, loss, preference or credit.
7
"Reduced Amount" shall have the meaning set forth in
--------------
Section 8.1A(iii).
"Requested Withdrawal Amount" shall have the meaning set forth in
---------------------------
Section 6.3G.
"Retiring Interest" shall have the meaning set forth in
-----------------
Section 6.6.
"Sale" shall have the meaning set forth in Section 8.4A.
----
"Treasury Rate" shall have the meaning set forth in
-------------
Section 8.1A(ii).
"Trusts" shall have the meaning set forth in Section 11.13.
------
"Withdrawal Notice" shall have the meaning set forth in
-----------------
Section 6.3G.
"Valuation Date" means as of the last Friday of each month except
--------------
for the month of December in which case it means as of the last day of the
month.
ARTICLE TWO
CONTINUATION, NAME AND OFFICE, PURPOSES,
----------------------------------------
TERM AND DISSOLUTION,
---------------------
REGISTERED AGENT, PARTNER LIST
------------------------------
2.1 Continuation.
------------
The parties hereto hereby continue the Partnership as a registered
limited liability limited partnership pursuant to the provisions of the
Missouri Limited Partnership Act and the Missouri Partnership Act.
2.2 Name, Place of Business and Office.
----------------------------------
The Partnership shall be conducted under the name of "The Xxxxx
Financial Companies, L.L.L.P.". The principal office and place of business
shall be 00000 Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000. The General
Partners may at any time change the location of such principal office.
Notice of any such change shall be given to the Partners on or before the
date of any such change.
2.3 Purposes.
--------
The purposes of the Partnership shall be to act as a limited
partner in Xxxxxx X. Xxxxx & Co., L.P., ("EDJ") to act as a general partner,
limited partner, guarantor, stockholder or holding partnership for any other
limited partnership, general partnership, limited liability partnership,
limited liability limited partnership, limited liability company,
corporation or other entity and to engage in such other activities as
may be approved by the General Partners.
8
2.4 Term and Dissolution.
--------------------
A. The Partnership shall continue in full force and effect
until December 31, 2199, or until dissolution prior thereto upon the
happening of any of the following events:
(i) The sale of all of the assets of the Partnership;
(ii) An Event of Withdrawal of a General Partner if no General
Partner remains; or
(iii) The dissolution of the Partnership by the General Partners.
B. Upon dissolution of the Partnership, the General Partners
shall cause the cancellation of the Partnership's Certificate of Limited
Partnership, liquidate the Partnership's assets and apply and distribute the
proceeds thereof in accordance with Section 8.2 hereof.
2.5 Registered Office and Agent.
---------------------------
The name and address of the Registered Agent and Registered Office
for service of process on the Partnership are as set forth in the
Certificate of Limited Partnership.
2.6 Amendment to Certificate of Limited Partnership.
-----------------------------------------------
The Certificate of Limited Partnership shall be amended within
thirty days of the admission or withdrawal of a General Partner.
ARTICLE THREE
PARTNERS AND CAPITAL
--------------------
3.1 General Partners.
----------------
A. The name, last known mailing address and current Capital
Contribution of each General Partner are reflected in the books and records
of the Partnership.
B. Any General Partner, in addition to being a General
Partner, may also become a Limited by complying with the provisions of
Section 3.4 hereof. In such event, said General Partner shall have all the
rights and powers and be subject to all the restrictions of a General
Partner, except that, in respect to his Capital Contribution as a Limited,
he shall have the rights against the other Partners which he would have had
if he were not also a General Partner.
C. From time to time, the Managing Partner may allow one
or more General Partners to increase their Capital Contributions. Such
increased Capital Contributions shall be made in such amount and manner and
at such time as determined by the Managing Partner and the General Partner's
Percentages shall be appropriately adjusted and transferred. All such
changes shall be reflected in the books and records of the Partnership.
9
3.2 Admission of Additional General Partners.
----------------------------------------
A. The Managing Partner may at any time designate additional
General Partners with such interest in the Partnership as the Managing
Partner and such additional General Partners may agree upon. The additional
General Partner shall make his Capital Contribution to the Partnership in
such manner and at such time as determined by the Managing Partner and the
General Partner Percentages shall be appropriately adjusted and transferred.
All such changes shall be reflected in the books and records of the
Partnership. The Managing Partner may admit additional General Partners to
the Partnership at any time without the consent of any current General
Partner or Limited.
B. Each additional General Partner shall agree, as a condition
to becoming an additional General Partner, to be bound by the terms and
provisions of this Agreement and any other agreement (including cash
subordination agreements) as deemed appropriate by the Managing Partner.
3.3 Limiteds and Contained Payments to Limited Partners.
---------------------------------------------------
A. There shall be three classes of Limiteds, namely,
Limited Partners, Class I Subordinated Limited Partners and Class II
Subordinated Limited Partners. The name, last known mailing address and
current Capital Contribution of each Limited Partner, Class I Subordinated
Limited Partner and Class II Subordinated Limited Partner are reflected in
the books and records of the Partnership.
B. Each Limited Partner shall be paid 7-1/2% per annum, on
the principal amount of his Capital Contribution. Such payments shall be made
yearly or more frequently, as determined by the Managing Partner. All such
payments shall be treated as guaranteed payments.
3.4 Admission of Limiteds.
---------------------
A. The Managing Partner is authorized to admit to the
Partnership Limiteds who may be admitted as Limited Partners, Class I
Subordinated Limited Partners or as Class II Subordinated Limited Partners, at
the discretion of the Managing Partner.
B. The Capital Contributions of the Limiteds shall be made
in such manner and at such time as determined by the Managing Partner. All such
changes shall be reflected in the books and records of the Partnership.
C. Each Limited shall agree, as a condition to becoming a Limited,
to be bound by the terms and provisions of this Agreement and any other
agreements (including cash subordination agreements) as deemed appropriate
by the Managing Partner.
10
3.5 Partnership Capital.
-------------------
A. The total capital of the Partnership shall be the aggregate
amount of the Capital Contributions of the Partners as provided for herein.
B. Except as provided herein, or as otherwise determined by
the Managing Partner, no Partner shall be paid interest on any Capital
Contribution to the Partnership.
C. Except as otherwise provided herein, prior to dissolution
of the Partnership, no Partner shall have the right to demand the return of
his Capital Contribution. No Partner shall have the right to demand and
receive property other than cash in return for his Capital Contribution.
D. The General Partners shall have no personal liability for
the repayment of the Capital Contribution of any Limited.
3.6 Liability of Limiteds.
---------------------
A Limited shall only be liable to make the payment of his Capital
Contribution. Except as provided in the Missouri Limited Partnership Act, no
Limited shall be liable for any obligations of the Partnership. After his
Capital Contributions shall be paid to the Partnership, no Limited shall be
required to make any further Capital Contribution or lend any funds to the
Partnership, except as otherwise expressly provided in this Agreement.
3.7 Participation in Partnership Business by Limiteds.
-------------------------------------------------
No Limited (except one who may also be a General Partner, and then
only in his capacity as a General Partner) shall participate in or have any
control over the Partnership business (except as required by law) or shall
have any authority or right to act for or bind the partnership. The Limiteds
hereby consent to the exercise by the Managing Partner and the General
Partners of the powers conferred on them by this Agreement.
3.8 Priority Among Limiteds.
-----------------------
Priorities as between classes of Limiteds as to distributions are
set forth in Article Eight hereof.
ARTICLE FOUR
RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNERS
-------------------------------------------------
4.1 Authorized Acts; Management and Control.
---------------------------------------
A. Subject to the other provisions set forth below, the General
Partners have the exclusive right to manage the business of the Partnership
and are hereby authorized to take any action (including, but not limited to,
the acts authorized by Section 4.1C below) of any kind and to do anything
and everything in accordance with the provisions of this Agreement.
11
B. Xxxx X. Xxxxxxxx is hereby designated by the General
Partners as the Managing Partner of the Partnership. As the Managing Partner
he shall serve as Chairman of the Executive Committee. As Managing Partner,
he shall have the absolute right (subject to Section 4.4C hereof) to manage
the business of the Partnership on behalf of the General Partners and is
hereby authorized to take on behalf of the Partnership and the General
Partners any action (including, but not limited to, the acts authorized by
Section 4.1C below) of any kind and to do anything and everything in
accordance with the provisions of this Agreement. The Managing Partner shall
have all the rights, powers and duties usually vested in the managing
partner of a partnership including the administration of this Partnership's
business and the determination of its business policies and he shall control
the management and conduct of all of the business transacted by the
Partnership. In particular, but not in limitation of the foregoing, the
Managing Partner for, in the name and on behalf of, the Partnership and the
General Partners is hereby specifically authorized (i) to admit to the
Partnership any General Partner or Limited; (ii) to dismiss (in accordance
with Section 6.2 hereof) from the Partnership any General Partner or
Limited; (iii) to determine the General Partner's Adjusted Capital
Contribution (and the related General Partner Percentage) that each General
Partner (including the Managing Partner) shall be entitled to maintain;
(iv) to determine the guaranteed draw (described in Section 4.5A hereof) to
be paid to each General Partner (which guaranteed draw shall be set forth on
a list to be maintained in the Managing Partner's office which list shall be
available for inspection by the General Partners); (v) to determine the
amount, if any, of bonus compensation (in addition to the funds provided for
in Section 8.1A(iv) to be paid to one or more Partners to assist such
Partner(s) in maintaining or making initial or additional Capital
Contributions to the Partnership, provided, however, such aggregate bonus
compensation in any calendar year shall not exceed $1,500,000; (vi) to
determine the amount, if any, of the Capital Contribution that each General
Partner or Limited shall be entitled to maintain; (vii) to determine all
amounts, if any, to be distributed to the Limiteds pursuant to Section 8.5
hereof; (viii) to convey title to any assets of the Partnership; and (ix) to
execute all documents (including, but not limited to, any loan documents or
guarantees) on behalf of the Partnership and (x) to sign on behalf of the
Partnership and each of its Partners, all documents and forms required by
(A) any domestic or foreign jurisdiction where the Partnership is engaged in
business so as to qualify as a registered limited liability limited
partnership or comparable entity and (B) any governmental agency requiring
the Partnership to appoint a registered agent and/or office for service of
process in such jurisdictions.
C. The General Partners for, in the name and on behalf of, the
Partnership are hereby authorized to take any and all actions, and to engage
in any kind of activity and to perform and carry out all functions of any
kind necessary to, or in connection with, the business of the Partnership
(including but not limited to): (i) executing any instruments on behalf of
the Partnership; (ii) acquiring or selling assets of the Partnership;
(iii) entering into loans, guarantees in connection with the business of the
Partnership; (iv) acting as a partner or shareholder of, or adviser to, any
other organization; (v) contributing capital, as a limited partner or as a
general partner, or purchasing other securities in or otherwise investing in
EDJ or any other limited partnership, general partnership, corporation or
other entity and taking all actions required as a partner, shareholder or
investor in any such entity.
D. The special authority granted herein to the Managing Partner
shall not be construed to restrict the authority of any General Partner to
act as the agent of the Partnership and
12
to execute instruments in the Partnership name for the purpose of carrying
on the ordinary business of the Partnership.
E. The Managing Partner may delegate to any General Partner
the authority from time to time to execute documents or otherwise exercise
the authority of the Managing Partner, but such authority shall not include
the authority to increase the capital or change the business policies of the
Partnership unless such authority is expressly and specifically granted in
writing to such General Partner.
F. Whenever authority is herein conferred upon the Managing
Partner or the General Partners, any person, other than a General Partner,
dealing with the Partnership may rely conclusively upon the authority and
signature of the Managing Partner or any one other General Partner to
exercise such authority without determining that such Managing Partner or
such General Partner is acting with the approval of the other General
Partners. In addition, third parties dealing with the Partnership may rely
upon the certification of the Managing Partner or any other General Partner
as to the continued existence of the Partnership, the identity of its
current Partners and the authority of any Partner to execute any document.
4.2 Restrictions on Authority of the Managing Partner and
-----------------------------------------------------
Executive Committee.
-------------------
In the event that a meeting of General Partners is called by the
General Partners in accordance with Section 5.1 hereof to vote upon the
removal of the Managing Partner or an Executive Committee member, neither
the Managing Partner nor the Executive Committee shall from the time of
notice of such meeting until after adjournment thereof: (i) change the
General Partner Percentage of any General Partner or (ii) admit or dismiss
any General Partner as a Partner.
4.3 Removal or Dismissal of Certain Partners.
----------------------------------------
The Managing Partner may be removed from such office and any
General Partner may be dismissed as a General Partner (in accordance with
Section 6.2 hereof) by a vote of General Partners holding a majority of the
General Partner Percentages in the Partnership.
4.4 Executive Committee.
-------------------
A. An Executive Committee is hereby created consisting of the
Managing Partner and five (5) to nine (9) additional General Partners, the
number thereof to be determined from time to time by the Managing Partner.
There shall be maintained in the office of the General Counsel of the
Partnership a list, certified by the Managing Partner as being true and
correct, of the General Partners, who in addition to the Managing Partner,
constitute the current Executive Committee of the Partnership. Among the
purposes of the Executive Committee is to provide counsel and advice to the
Managing Partner in discharging his functions.
B. Each member of the Executive Committee shall have one vote.
13
C. Upon the majority vote of the Executive Committee, the
Executive Committee may override any determination made by the Managing
Partner as to (i) the General Partner's Adjusted Capital Contribution (and
the related General Partner Percentage) that each General Partner (including
the Managing Partner) shall be entitled to maintain, (ii) the admission of a
new General Partner and (iii) the dismissal of a General Partner.
D. Upon the majority vote of the Executive Committee, the
Managing Partner may be removed from his office as the Managing Partner.
E. At any time during which there is no Managing Partner the
Executive Committee shall succeed to all of the powers and duties of the
Managing Partner.
F. Upon the majority vote of the Executive Committee, a new
Managing Partner shall be elected whenever the office of the Managing
Partner is vacant. Such vote shall be taken within two (2) weeks after such
office becomes vacant.
G. If the Executive Committee believes that the office of the
Managing Partner may become vacant, for any reason whatsoever, including,
but not limited, to retirement or resignation of the current Managing
Partner, then the Executive Committee may establish procedures (as it shall
determine appropriate, in its sole discretion) to review potential
candidates and then to choose from such candidates the person to be the new
Managing Partner when the office of the Managing Partner becomes vacant.
H. The Managing Partner shall have the right to appoint and
dismiss any member of the Executive Committee; provided however that the
Managing Partner shall not have the right to dismiss any member of the
Executive Committee or increase or decrease the number of General Partners
on the Executive Committee from the time Notice is given of a meeting of the
Executive Committee until the adjournment thereof if the purpose of such
meeting is to vote upon one or more of the matters set forth in Sections
4.4C or 4.4D hereof.
I. By a vote of the General Partners holding a majority of
the General Partner Percentages in the Partnership, the General Partners may
remove any Executive Committee member from his position as an Executive
Committee member and elect in his place a new Executive Committee member.
J. If the General Partners remove any Executive Committee
member from his position as an Executive Committee member, the Managing
Partner may not appoint such removed Executive Committee member to the
Executive Committee for a period of six (6) months thereafter. Any Executive
Committee member elected to the Executive Committee by a vote of the General
Partners may not be dismissed as an Executive Committee member by the
Managing Partner.
K. A meeting of the Executive Committee shall be held (i) at
any time on call of the Managing Partner after one (1) day's Notice has been
delivered to the Executive
14
Committee members or (ii) on at least ten (10) day's Notice in advance to
the Executive Committee members, jointly signed by any two (2) Executive
Committee members, specifying the date, place, hour and purpose of the
meeting.
4.5 Guaranteed Draw; Time and Effort; Independent Activities.
--------------------------------------------------------
A. Each General Partner shall receive a guaranteed draw for
his services as determined by the Managing Partner in his sole discretion.
Such guaranteed draw shall be treated by the Partnership as a guaranteed
payment. Such guaranteed draw shall be reduced by any net commissions earned
by any such General Partner (and paid to such General Partner by EDJ) who is
principally engaged in the sale of securities to the public. If any such
General Partner who is principally engaged in the sale of securities to the
public at EDJ incurs any reasonable expenses through usual and ordinary
means of generating the sales upon which such General Partner is entitled to
receive commissions from EDJ, then such General Partner must personally and
individually pay, without reimbursement from the Partnership or from EDJ,
such expense but such General Partner shall be entitled to deduct such
expenses on his personal income tax return, all as permitted by the Internal
Revenue Code.
B. Each General Partner shall devote his entire time, energy,
skill and ability to the duties of operating the Partnership and the
entities it owns. General Partners shall not engage in outside business
activities without the prior written consent of the Managing Partner. Each
General Partner agrees not to use the name or property of the Partnership or
any entity it owns for his own private business, nor for any purpose
whatsoever except those that may be incidental to the conduct and management
of the Partnership, nor shall any General Partner use the name of the
Partnership or any entity it owns for the use or accommodation of any other
person. No General Partner shall incur any obligation in the name of the
Partnership or transfer Partnership property except in connection with
Partnership business.
C. Each General Partner agrees that he will not, without the
written consent of the Managing Partner (i) become a guarantor or surety for
any person, firm or corporation; (ii) in the name of the Partnership or
any entity it owns or in his own name buy or sell stocks, securities or
commodities on margin, either for the account of the Partnership or for his
own account; or (iii) pledge or hypothecate any of the property of the
Partnership or any entity it owns for any purpose whatsoever.
D. Each General Partner shall submit, upon request by the
Managing Partner, a copy of any of his current personal income tax returns
(for any time period during which such Partner was a Partner of the
Partnership) for inspection by independent accountants selected by the
Managing Partner. In addition, each General Partner agrees, if requested by
the Managing Partner, to have such General Partner's income tax returns
prepared by an entity (which could be the Partnership itself or independent
accountants) selected by such General Partner and acceptable to the Managing
Partner.
E. Each Partner is expected, and it is regarded as such
Partner's duty, to supplement expenses reimbursable to such Partner by the
Partnership by additional expenditures of such Partner's personal funds
in the furtherance of the Partnership's business which expenditures such
Partner shall be entitled to deduct on his personal income tax return, all
as
15
permitted by the Internal Revenue Code. In this connection, as deemed
appropriate under the circumstances, such additional expenditures have
included in the past and shall include in the future, but shall not
be limited to (a) subscribing to professional and business journals,
(b) maintaining active memberships in professional associations, other
associations, luncheon clubs and other clubs where the Partner will have an
opportunity to further the development of, and to maintain the Partnership's
relationship with, its customers, (c) providing space, facilities and
telephone equipment in the Partner's home in order that the Partner may work
on the Partnership's business while at home, (d) purchasing necessary
supplies, books, furniture, computers, fax machines, car telephones
and other items, (e) providing for transportation to customers' offices,
(f) entertaining customers and prospective customers and (g) continuing the
Partner's business-related education, including attendance at seminars and
obtaining advanced educational degrees.
F. In the event any Partner becomes a party in any lawsuit,
arbitration or other similar proceeding, such Partner agrees to notify
promptly the Managing Partner of such event.
4.6 Duties and Obligations of the Managing Partner.
----------------------------------------------
A. The Managing Partner shall prepare (or cause to be
prepared) and file such amendments to this Agreement or any certificate of
limited partnership or any certificate of limited liability partnership as
are required by law or as he deems necessary to cause this Agreement or any
certificate of limited partnership or any certificate of limited liability
partnership to reflect accurately the agreement of the Partners, the
identity of the Limiteds or the General Partners and the amounts of their
respective Capital Contributions.
B. The Managing Partner shall prepare (or cause to be
prepared) and file such tax returns and other documents, as are required by
law or as he deems necessary, for the operation of the Partnership. In
addition, in his discretion, the Managing Partner may prepare (or cause to
be prepared) and file composite tax returns in various states for all
electing non-resident partners (otherwise not required to file a state
income tax return in such state) of those states and cause to be paid out of
their draw accounts (or any other of their funds being held by the
Partnership) the amount of tax attributable to each such non-resident
partner and/or to withhold from distributions of profits, if necessary, all
such tax amounts for current and former partners of the Partnership and if
reimbursement for such taxes to the Partnership is needed from a former
Partner, then each Partner hereby agrees that he will if he is then a former
Partner reimburse the Partnership for such tax expense and/or if the
Partnership currently then holds any funds belonging to such former Partner,
then such tax expense may be offset against such funds being held by the
Partnership.
4.7 Liability for Acts and Omissions; Indemnification.
-------------------------------------------------
Neither the Managing Partner nor any General Partner shall be
liable, responsible or accountable in damages or otherwise to any of the
Partners for, and the Partnership shall indemnify and save harmless the
Managing Partner and any General Partner from any loss or damage incurred by
reason of, any act or omission performed or omitted by him in good faith on
16
behalf of the Partnership and in a manner reasonably believed by him to be
within the scope of the authority granted to him by this Agreement and in
the best interests of the Partnership, provided that the Managing Partner or
the General Partner shall not have been guilty of gross negligence or gross
misconduct with respect to such acts or omissions and, further, provided
that the satisfaction of any indemnification and any saving harmless shall
be paid out of and limited to Partnership assets and no Partner shall have
any personal liability on account thereof.
4.8 Dealing with an Affiliate.
-------------------------
The Managing Partner may for, in the name of and on behalf of, the
Partnership enter into such agreements, contracts or the like with any
Affiliate of any General Partner or with any General Partner, in an
independent capacity, as distinguished from his capacity (if any) as a
Partner, to undertake and carry out the business of the Partnership as if
such Affiliate or General Partner were an independent contractor; and the
Managing Partner may obligate the Partnership to pay reasonable compensation
for and on account of any such services.
4.9 General Partners' Responsibility.
--------------------------------
Each General Partner shall be responsible and accountable to the
Partnership's customers and clients for the rendering of such General
Partner's services. No other General Partner, regardless of title or
position with the Partnership shall (a) be responsible, liable or
accountable to the Partnership's customers and clients for any other
Partner's rendering of services to the Partnership's customers or clients or
(b) have the right or obligation of direct supervision and control (except
as otherwise mandated by the Securities Exchange Act of 1934, as amended,
the rules and regulations promulgated thereunder and comparable state
securities laws) of another Partner while such other Partner is rendering
services on behalf of the Partnership.
4.10 Responsibilities of Partnership Leaders.
---------------------------------------
The Partnership's officers and committees, including, but not
limited to, the Managing Partner, any member of the Executive Committee (or
any other member of any other committee of the Partnership), any
chairperson, any departmental manager, and any other departmental or
Partnership leader (regardless of title), and the Executive Committee (taken
as a whole), shall not have, solely by reason of being such an officer or
committee or acting (or omitting to act) in such capacity, (a) any
responsibility, liability or accountability for any Partner's rendering of
services to the Partnership's customers and clients or (b) the right or
obligation of direct supervision and control of a Partner while such Partner
is rendering services on behalf of the Partnership.
17
ARTICLE FIVE
MEETINGS AND VOTING OF PARTNERS
-------------------------------
5.1 Meetings of General Partners; Voting at Such Meetings.
-----------------------------------------------------
A. A meeting of General Partners shall be held (i) on the call
of the Managing Partner after five (5) days Notice thereof has been
delivered to the General Partners, or (ii) on at least 10 days Notice in
advance to the General Partners, jointly signed by any five (5) General
Partners, specifying the date, place, hour and purposes of the meeting.
B. Except as otherwise expressly provided, at any meeting of
the General Partners, each General Partner shall have voting power equal to
his General Partner Percentage at the time of the meeting. A quorum for any
purpose at any meeting of the General Partners shall exist if General
Partners then holding more than 50% of the voting power of all General
Partners are present or voting by proxy. Any General Partner may vote on any
matter if not present in person, by general or specific written proxy given
to another General Partner. No proxy shall be valid after two (2) months
from the date of its execution. General Partners may participate in any
meeting by means of conference telephone or similar communications equipment
whereby all persons participating in such meeting can hear each other.
Participation in a meeting in this manner shall constitute presence in
person at the meeting.
C. Unless otherwise permitted by the Managing Partner, the
only matters to be voted upon by the General Partners at any meeting of the
General Partners shall be those matters set forth in Sections 4.3 and 4.4
hereof.
5.2 Percentage of Voting Power for Partnership Decisions.
----------------------------------------------------
A. Except as otherwise specifically provided in this
Agreement, the affirmative vote of more than 50% of the voting power of all
General Partners shall determine all issues at any meeting of the General
Partners.
B. Any percentage of voting power of the General Partners
required by this Agreement shall relate to the percentage of the total
voting power of all General Partners entitled to vote on the issue and not
to a percentage of the voting power of the General Partners present at a
meeting.
5.3 Robert's Rules to Govern.
------------------------
Except as otherwise specifically provided in this Agreement, all
matters of parliamentary procedure at meetings of the General Partners shall
be governed by Robert's Rule of order Revised. The Managing Partner may
appoint a parliamentarian.
5.4 Consent of General Partners in Lieu of a Meeting.
------------------------------------------------
A. Notwithstanding anything to the contrary contained in this
Agreement, any action required or permitted by this Agreement to be taken at
any meeting of the General Partners may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by Partners having not less than the
minimum voting power that would be necessary to authorize or take such
action at a meeting of the Partners.
18
B. Prompt Notice of the taking of any action pursuant to this
Section 5.4 by less than unanimous written consent of the General Partners
shall be given to those General Partners who have not consented in writing.
19
ARTICLE SIX
EVENT OF WITHDRAWAL OF A PARTNER AND CONVERSION OF CLASS II
-----------------------------------------------------------
SUBORDINATED LIMITED PARTNER CAPITAL TO CLASS I
-----------------------------------------------
SUBORDINATED LIMITED PARTNER CAPITAL
------------------------------------
6.1 Voluntary Event of Withdrawal.
-----------------------------
A. Any General Partner shall have the right to retire or
voluntarily withdraw from the Partnership upon 30 days prior written notice
to the Managing Partner. In the event that there is only one General
Partner, he shall give notice to the Limiteds of his intent to withdraw from
the Partnership at least 30 days prior to the date of withdrawal.
B. Any Limited shall have the right to retire or voluntarily
withdraw from the Partnership effective immediately upon written notice to
the Managing Partner (a "Limited Partner Voluntary Withdrawal Notice").
6.2 Withdrawal Upon Request.
-----------------------
The Managing Partner or any number of General Partners holding in
the aggregate a majority of the General Partner Percentages, may request in
writing that any Partner withdraw from the Partnership (a "Mandatory
Withdrawal Notice"), and each Partner agrees that he will so withdraw within
30 days of the receipt of such request.
6.3 Return of Capital and Purchase of Interest.
------------------------------------------
A. In the event of any withdrawal by a General Partner from
the Partnership pursuant to Section 6.1 or 6.2 hereof or in the event a
General Partner wishes to withdraw some of his Capital Contribution as a
General Partner, the Managing Partner may designate all or some of the
remaining General Partners, to purchase the General Partner Interest
(including Frozen Appreciation Amount) of the withdrawing General Partner,
subject to the approval of the Managing Partner. Such purchases shall be
consummated (retroactively as of the actual date of his withdrawal) within
60 days after the actual date of such withdrawal. The price (the "Price") of
the General Partner Interest of the withdrawing General Partner shall be the
value (as shown on the books of the Partnership) of his Frozen Appreciation
Amount plus the value of such General Partner's Adjusted Capital
Contribution, calculated as of the previous Valuation Date if such
withdrawal takes place on or prior to the 15th day of a month or calculated
as of the next Valuation Date if such withdrawal takes place on or after the
16th day of a month. Goodwill, if any, and the Partnership name shall not be
deemed assets or as having any property value in making the foregoing
calculation.
B. Unless otherwise determined by the Managing Partner, the
Price to be received by the withdrawing General Partner shall be delivered
by the withdrawing General Partner to the Partnership and shall
(retroactively as of the actual date of his withdrawal) be the Capital
Contribution of such former General Partner as that of a Class II
Subordinated Limited Partner and such General Partner shall thereupon become
or continue to remain a Class II Subordinated Limited Partner as to such
Capital Contribution.
20
C. Unless otherwise determined by the Managing Partner, any
General Partner Interest (including Frozen Appreciation Amount) not
purchased by the remaining General Partners within such 60 day period shall
be converted (retroactively as of the actual date of his withdrawal) so as
to become the Capital Contribution of such former General Partner as that of
a Class II Subordinated Limited Partner and such General Partner shall
thereupon become or continue to remain a Class II Subordinated Limited
Partner as to such Capital Contribution.
D. A withdrawing General Partner shall have no right to
become a Limited or to require the conversion of his General Partner
Interest (or Price, if applicable) to the Capital Contribution of a Class II
Subordinated Limited Partner. The Managing Partner may determine to have the
Partnership redeem such General Partner's Interest. In addition the Managing
Partner has the right to cause the Partnership to redeem the Capital
Contribution of a Class II Subordinated Limited Partner at any time.
E. Upon the withdrawal of a General Partner, the General
Partner Percentages of the remaining General Partners shall be recalculated
(as of the actual date of withdrawal) on the same relative basis so as to
aggregate 100% (and the related General Partner Adjusted Capital
Contributions shall also be appropriately adjusted).
F. In addition, any withdrawing General Partner shall receive
(within 75 days after the actual date of his withdrawal) his pro rata share
of any cash distributions to which he is entitled as set forth in Section
8.1 hereof, calculated as of the previous Valuation Date if such withdrawal
takes place on or prior to the 15th day of a month or calculated as of the
next Valuation Date if such withdrawal takes place on or after the 16th day
of a month.
G. In the event a Class II Subordinated Limited Partner
desires to withdraw all or any part of such Class II Subordinated Limited
Partner's Capital Contribution, then such Class II Subordinated Limited
Partner shall give written notice ("Withdrawal Notice") to the Managing
Partner of the amount of Capital Contribution that such Class II
Subordinated Limited Partner wishes to withdraw from the Partnership (the
"Requested Withdrawal Amount"). The Requested Withdrawal Amount shall be
paid (subject to the provisions of Section 6.7 hereof) to such Class II
Subordinated Limited Partner in four (4) equal installments with the first
installment being paid on the last business day of the month following the
month in which the Managing Partner receives the Withdrawal Notice, with the
balance of the Requested Withdrawal Amount being paid in three (3) equal
installments on the 12th, 24th and 36th month anniversary of the first
installment payment. Until the Requested Withdrawal Amount has been fully
paid to such Class II Subordinated Limited Partner the unreturned portion
thereof shall continue for all purposes to be subject to all provisions of
this Agreement including, without limitation, Article Eight and Section 6.7.
The Managing Partner, in his sole discretion, may cause the Partnership to
accelerate the return of the Requested Withdrawal Amount with respect to the
entire Requested Withdrawal Amount or accelerate the payment of any or all
installments thereof with respect to any Class II Subordinated Limited
Partner.
H. In the event of any withdrawal by a Limited Partner from
the Partnership, pursuant to Sections 6.1 or 6.2 hereof, the Limited
Partner's Capital Contribution (subject to the
21
provisions of Section 6.7 hereof) shall be paid in three (3) equal
installments with the first installment being paid on the last business day
of the month following the month in which (a) the Managing Partner receives
the Limited Partner Voluntary Withdrawal Notice, or (b) the Limited Partner
receives a Mandatory Withdrawal Notice, with the balance of the Capital
Contribution being paid in two equal installments on the 1st and 2nd
anniversary of the first installment payment. In addition, such Limited
Partner shall receive (within 75 days after the actual date of his
withdrawal) his pro rata share of any cash distributions to which he was
entitled as set forth in Section 8.1 hereof, calculated as of the previous
Valuation Date if such withdrawal takes place on or prior to the 15th day of
a month or calculated as of the next Valuation Date if such withdrawal takes
place on or after the 16th day of a month. Until a Limited Partner's Capital
Contribution is fully returned to him, the unreturned portion thereof shall
continue for all purposes to be subject to all provisions of this Agreement,
including without limitation, Article Eight and Section 6.7 and such Limited
Partner shall continue to receive all sums due him pursuant to Section 3.3B
hereof. The Managing Partner, in his sole discretion, may cause the
Partnership to accelerate the return of a Limited Partner's Capital
Contribution or accelerate the payment of any or all installments thereof.
6.4 Death of a Limited.
------------------
In the event of the death of any Limited, the Capital Contribution
of such deceased Limited shall be returned (subject to the provisions of
Section 6.7 hereof) to his estate within six (6) months after the actual
date of death of the Limited. The provisions of Section 6.3G shall not be
applicable to the Capital Contribution of a deceased Class II Subordinated
Limited Partner or to the Capital Contribution of a deceased Class I
Subordinated Limited Partner and Section 6.3H shall not be applicable to the
Capital Contribution of a deceased Limited Partner. In addition such
Limited's estate shall receive (within 75 days after the actual date of
death of the Limited) the Limited's pro rata share of any cash distributions
to which such deceased Limited was entitled as set forth in Section 8.1
hereof, calculated as of the previous Valuation Date if such withdrawal
takes place on or prior to the 15th day of a month or calculated as of the
next Valuation Date if such withdrawal takes place on or after the 16th day
of a month. Until a deceased Limited's Capital Contribution is returned to
his estate, his estate shall continue to receive all sums which would have
been due to such Limited pursuant to Section 3.3B hereof. As stated herein,
all such payments shall be made to the estate of the deceased Limited unless
the Partnership has received evidence, satisfactory to the Partnership, in
its sole discretion, that such payments should be made to some other entity
or person.
6.5 Death or Disability of a General Partner.
----------------------------------------
A. In the event of the death of a General Partner, the interest
of the deceased General Partner in the Partnership shall terminate as of
such date. The Managing Partner may designate all or some of the remaining
General Partners to purchase the General Partner Interest (including Frozen
Appreciation Amount) of the deceased General Partner, subject to the
approval of the Managing Partner. Such purchases shall be consummated within
60 days after the date of death of such General Partner. The price of the
General Partner Interest of the deceased General Partner shall be the value
(as shown on the books of the Partnership) of his Frozen Appreciation Amount
plus the value of such General Partner's Adjusted Capital Contribution,
calculated as of
22
the previous Valuation Date if such death took place on or prior to the
15th day of a month or calculated as of the next Valuation Date if such
death took place on or after the 16th day of a month. Goodwill, if any,
and the Partnership name shall not be deemed assets or as having any
property value in making the foregoing calculation. In addition, the
deceased General Partner shall receive (within 75 days after the date of his
death) his pro rata share of any cash distributions to which he is entitled
as set forth in Section 8.1 hereof, calculated as of the previous Valuation
Date if such death took place on or prior to the 15th day of a month or
calculated as of the next Valuation Date if such death took place on or
after the 16th day of a month. Any General Partner Interest (including
Frozen Appreciation Amount) not purchased by the remaining General Partners
within such 60 day period shall be converted (as of the date of his death)
to the Capital Contribution of a Class II Subordinated Limited Partner and
shall be redeemed (subject to the provisions of Section 6.7 hereof) by the
Partnership within six (6) months thereafter, the specific date to be
determined by the Managing Partner. The provisions of Section 6.3G shall not
be applicable to the Capital Contribution of such deceased Class II
Subordinated Limited Partner. Upon the conversion of a General Partner's
Interest to that of a Class II Subordinated Limited Partner, the General
Partner Percentages of the remaining General Partners shall be recalculated
(as of the actual date of withdrawal) on the same relative basis so as to
aggregate 100% (and the related General Partner Adjusted Capital
Contributions shall also be adjusted). All payments made pursuant to this
Section 6.5A shall be made to the estate of the deceased General Partner,
unless the Partnership has received evidence, satisfactory to the
Partnership, in its sole discretion, that such payments should be made to
some other entity or person.
B. In the event of full or partial disability (as determined
in the absolute discretion of the Managing Partner) of a General Partner
under age 65 due to illness, accident, or injury, such General Partner shall
be entitled to receive his normal share of Partnership Net Income
notwithstanding his inability to perform his normal work functions, for a
period of up to six (6) full months following the date he suffered the
disability. If the disability continues for a period greater than six (6)
months but less than one (1) year, then during such period of time the
disabled General Partner shall be entitled to receive one-half (1/2) of his
normal share of Partnership Net Income. If the disability continues for a
period greater than one (1) year in length, then the disabled General
Partner must terminate his status as a General Partner, unless otherwise
directed by the Managing Partner. In event of termination, the General
Partner Interest (including his Frozen Appreciation Amount) of the disabled
General Partner shall be treated in the same manner as that of a deceased
General Partner pursuant to Section 6.5A hereof, provided that all such
payments required by this Section 6.5B shall be made to the disabled General
Partner.
23
6.6 General Partner Interest - 56th Birthday.
----------------------------------------
A General Partner shall not acquire any additional General Partner
Interest after he reaches his 56th birthday. His General Partner Interest
(including his Frozen Appreciation Amount) as it exists on his 56th birthday
is his "Retiring Interest." On the first business day of the calendar year
following the year in which a General Partner's 56th birthday falls and on
the first business day of each subsequent calendar year, the General Partner
shall sell 1/10th of this Retiring Interest to all or some of the other
General Partners, as designated by the Managing Partner, who have not
attained 56 years of age and who are willing to purchase such additional
interest. The sale price of the Retiring Interest shall be determined in the
same manner as set forth in Section 6.5A hereof, with the Valuation Date
being the first business day of the appropriate calendar year. Upon payment
of the sales price to the selling General Partner by the purchasing General
Partner, the books of the Partnership shall be adjusted as of the effective
date of sale to show the appropriate reductions and increases in the General
Partner Adjusted Capital Contributions (and related General Partner
Percentages) of the selling and purchasing General Partners. A General
Partner can request that such purchased portion be converted (retroactively
as of the first calendar day of the appropriate year) so as to become the
Capital Contribution of a Class II Subordinated Limited Partner and if such
request is approved by the Managing Partner, then such portion of the
retiring interest be so converted. If any portion of a Retiring Interest is
not purchased by the other General Partners, then such General Partner can
request that such unpurchased portion be converted (retroactively as the
first calendar day of the appropriate year) so as to become the Capital
Contribution of a Class II Subordinated Limited Partner and if such request
is approved by the Managing Partner, then such portion of the Retiring
Interest shall be so converted, otherwise such portion of the Retiring
Interest shall be redeemed by the Partnership, subject to Section 6.7
hereof. Notwithstanding any other provisions of this Section to the
contrary, the Managing Partner may exempt any General Partner from the
application of this Section or modify the terms of the sale of any Retiring
Interest as he deems advisable.
6.7 Restriction on Capital Contribution Return.
------------------------------------------
It is understood and agreed that the Capital Contributions of the
Partners to the Partnership will be used, in part, by the Partnership as
part of the Partnership's capital contribution to EDJ, a brokerage firm
(which is regulated by the Securities and Exchange Commission and the New
York Stock Exchange and other regulatory agencies), and that in order for
the Partnership to return to any Partner his Capital Contribution (or any
part thereof), the Partnership will have to obtain such funds from EDJ.
Therefore, notwithstanding any other provision contained in this Agreement
to the contrary, without the written consent of the Managing Partner, no
Partner shall have returned to him (under any provision of this Agreement)
his Capital Contribution or his General Partner's Adjusted Capital
Contribution, if after giving effect thereto, the Partnership or any
Affiliate thereof (including, but not limited to, EDJ) would, if such
payment had been made directly by EDJ, be in violation of (i) any rule of
the New York Stock Exchange Inc., (ii) any rule issued under the Securities
Exchange Act of 1934, any agreement (cash subordination or otherwise) which
has been entered into by the Partnership or any Affiliate thereof
(including, but not limited to, EDJ), (iii) any agreement (including, but
not limited to, loan agreements) which has been entered into by the
Partnership or any Affiliate thereof (including, but not limited to, EDJ) or
(iv) any other law, rule or regulation to which the
24
Partnership or any Affiliate thereof (including, but not limited to, EDJ) is
subject. In the event there is returned to any Partner all or any portion of
his Capital Contribution or his General Partner's Adjusted Capital
Contribution and because of such return the Partnership or any Affiliate
thereof (including, but not limited to, EDJ) violated any of the
aforementioned rules, agreements or regulations, then such Partner hereby
irrevocably agrees (whether or not such Partner had any knowledge or notice
of such facts at the time of such return) to repay to the Partnership, its
successors or assigns, the sum so returned to such Partner to be held by the
Partnership pursuant to the provisions hereof as if such return had never
been made; provided, however, that any suit for the recovery of any such
return must be commenced within two years of the date of such return.
6.8 Liability of a Withdrawn General Partner.
----------------------------------------
If on the Event of Withdrawal of a General Partner the business of
the Partnership shall continue, the General Partner who shall have withdrawn
shall be and remain liable for all obligations and liabilities incurred by
him as General Partner prior to such Event of Withdrawal, but he shall be
free of any obligation or liability incurred on account of the activities of
the Partnership from and after the time of such Event of Withdrawal.
6.9 Effect of Event of Withdrawal.
-----------------------------
Upon the withdrawal (by reason of death or otherwise) of a Partner
the Partnership shall not dissolve and the business of the Partnership shall
be continued by the remaining General Partners.
6.10 Conversion from Class II to Class I Subordinated Limited
--------------------------------------------------------
Partner.
-------
A. In the event a Class II Subordinated Limited Partner has
exercised his right pursuant to Section 6.3G, then such Class II
Subordinated Limited Partner may request, in writing to the Managing Partner
(subject to the other provisions of this Section 6.10), that his Requested
Withdrawal Amount be converted to the Capital Contribution of Class I
Subordinated Limited Partner and thereafter such Class II Subordinated
Limited Partner shall, with respect to such converted amount, be a Class I
Subordinated Limited Partner.
B. No such conversion shall be permitted unless the
Partnership has had Net Income for each of the three (3) proceeding calendar
months (for which the Partnership has prepared financial statements) prior
to such written request. If a conversion is requested but is not permitted
due to the preceding sentence, then such request will be honored (unless
withdrawn) as soon as the conditions set forth in the preceding sentence are
met by the Partnership.
C. The Requested Withdraw Amount of a Class I Subordinated
Limited shall be paid to such Class I Subordinated Limited Partner in
accordance with the time-table, procedures and restrictions set forth in
Section 6.3G which applied to such Requested Withdrawal Amount prior to the
conversion referred to in this Section 6.10A.
25
D. On and after the date of conversion of the Requested
Withdrawal Amount to the Capital Contribution of a Class I Subordinated
Limited Partner, such Requested Withdrawal Amount shall receive Net Income
from the Partnership in accordance with Section 8.1A(ii) hereof.
E. A Class I Subordinated Limited Partner shall have no right
to request the reconversion of his Class I Capital Contribution to the
Capital Contribution of a Class II Subordinated Partner.
ARTICLE SEVEN
TRANSFERABILITY OF PARTNER INTERESTS
------------------------------------
7.1 Restrictions on Transfer.
------------------------
A. Each Partner agrees that he will not sell, pledge,
exchange, transfer or assign his interest in the Partnership to any Person
without the express written consent of the Managing Partner.
B. Each Partner agrees that he will not sell or exchange any
of his interest in the Partnership if the interest sought to be sold or
exchanged, when added to the total of all other Partner interests sold or
exchanged within the period of 12 consecutive months prior thereto, would,
in the opinion of counsel for the Partnership, result in the Partnership
being considered to have been terminated within the meaning of Section 708
of the Internal Revenue Code (or any successor statute).
C. Each Limited agrees that he will not sell, exchange,
transfer or assign any of his interest in the Partnership unless, if
required by the Partnership, the Partnership has received an opinion of
counsel, satisfactory to the Partnership, that such transfer or assignment
may be effected without registration of the Limited's interest under the
Securities Act of 1933 or under any applicable state securities law.
D. Except as otherwise expressly provided in this Agreement,
the death or withdrawal of a Partner shall terminate (as of such date) all
his interest in the Partnership and neither the estate of a deceased Partner
nor any other third party shall become or have any rights as a Partner.
E. Any sale, exchange, assignment or other transfer in
contravention of any of the provisions of this Section 7.1 shall be void and
ineffectual and shall not bind or be recognized by the Partnership.
7.2 Substituted Limited Partners.
----------------------------
No Limited shall have a power to grant the right to become a
substituted Limited to an assignee of any part of such Limited's Partnership
Interest.
26
ARTICLE EIGHT
DISTRIBUTIONS AND ALLOCATIONS; LIABILITY OF GENERAL PARTNERS
------------------------------------------------------------
8.1 Distribution of Net Income.
--------------------------
A. All Net Income, if any, of the Partnership for each calendar
year shall be distributed in the following order of priority:
(i) Each Limited Partner shall be paid at least
annually (with respect to such Limited Partner's Capital
Contribution), from time to time, a total amount of cash equal to
the product of Net Income times a percentage, calculated annually,
which shall equal the product of the following three factors:
(a) one-fourth of one percent (.0025) multiplied by (b) the quotient
of $1,900,000 divided by the sum of the General Partners' Adjusted
Capital Contributions multiplied by (c) the quotient of the total
Capital Contribution of the respective Limited Partner divided by
$25,000. This calculation of percentage of participation shall be
made at the end of each calendar year and used in distributing
Net Income earned during the following year. Notwithstanding the
foregoing, for the year 1987 each Limited Partner shall be paid
(with respect to such Limited Partner's Capital Contribution) a
total amount of cash equal to the product of Net Income times a
percentage which shall equal the product of the following three
factors: (a) one-fourth of one percent (.0025) multiplied by
(b) the quotient of $1,900,000 divided by $24,251,182 multiplied
by (c) the quotient of the total Capital Contribution of the
respective Limited Partner divided by $25,000.
(ii) Each Class I Subordinated Limited Partner shall
be paid within 30 days after the end of each calendar quarter (on
a non-cumulative basis) an amount of cash equal to 25% of the
product of (a) the one year Constant Maturity Treasury Rate as
currently disclosed in the Federal Reserve Statistical Released
H.15 (the "Treasury Rate") plus 150 basis points times (b) the
current Capital Contribution of the Class I Subordinated Limited
Partner. The applicable Treasury Xxxx Rate shall be the Treasury
Xxxx Rate as stated for the week ended just prior to or on the
last business day of the preceding calendar year; provided however
that no such payment shall be made to any Class I Subordinated
Limited Partner if for the prior calendar quarter the Partnership
did not have Net Income sufficient to pay the full amount due all
Class I Subordinated Limited Partners pursuant to this Section
8.1A(ii). If any payment is not made, as herein above provided,
the Partnership shall never be required to make such missed
payment in the future. No payment made pursuant to this Section
8.1A(ii) shall be considered a guaranteed payment.
(iii) Each Class II Subordinated Limited Partner
shall be paid, from time to time, a total amount of cash in each
year equal to the product of (a) the then remaining Net Income
times (b) a percentage derived by the following formula: (x) 50%
of the Capital Contribution of the Class II Subordinated
27
Limited Partner (excluding any undistributed Net Income allocated
to the Class II Subordinated Limited Partner) divided by (y) the
sum of (aa) 50% of the Capital Contributions of all the Class II
Subordinated Limited Partners plus (bb) the Adjusted Capital
Contributions of the General Partners (less any Net Income
allocated to the General Partners which is not scheduled to be
retained by the Partnership). In the event the Capital
Contribution of a Class II Subordinated Limited Partner has been
reduced by the operation of Section 8.1B hereof (the "Reduced
Amount"), then each Class II Subordinated Limited Partner shall
have right to make additional cash Capital Contributions to the
Partnership from any cash to be distributed to such Class II
Subordinated Limited Partner pursuant to this Section 8.1A(ii) up
to the Reduced Amount.
(iv) There shall be set apart up to 8% of the
remaining Net Income. Of such 8%, if any is set apart, there shall
be distributed 62.5% thereof among the General Partners on the
basis of individual merit as determined by the Managing Partner.
Of such 8%, if any is set apart, there shall be distributed 37.5%
thereof among the General Partners on the basis of individual need
as determined by the Managing Partner.
(v) It is intended that a sum equal to 30% of the
remaining Net Income will be retained by the Partnership as
capital and shall be credited monthly to the Adjusted Capital
Contributions of the General Partners in a proportion equal to
their then respective General Partner Percentages. Such amount
shall not be withdrawn by the General Partners. Notwithstanding
the foregoing, the decision of whether to make this retention of
capital in accordance with this Section or whether to vary the
amount of capital to be retained in any given year, is vested in
the Managing Partner, and it is agreed that his decision in this
matter shall be final.
(vi) The balance of the Net Income remaining, if any,
shall be distributed among the General Partners in proportions to
their General Partner Percentages.
B. In any year in which there is a Net Loss and the
Partnership is not dissolved and liquidated in accordance with Section 8.2
hereof, such Net Loss, on the books of the Partnership, shall be borne by
the Class II Subordinated Limited Partners to the extent as set forth in the
formula described in Section 8.1A(iii) hereof and the balance shall be borne
by the General Partners in proportion to their respective General Partner
Percentages. Any such Net Losses borne by the Class II Subordinated Limited
Partners shall only be applied against and reduce their respective Capital
Contributions. The total amount of all such Net Losses to be borne by the
Class II Subordinated Limited Partners may never exceed the total amount of
the Capital Contributions of the Class II Subordinated Limited Partners as
shown on the books of the Partnership.
C. Notwithstanding the foregoing, where losses are caused
by the willful neglect or default, the gross negligent conduct, or the
intentional negligent conduct of any Partner, those losses shall be borne
solely and made good by the Partner so causing the loss. This Section 8.1C
is for the benefit of the Partners and no other person shall have any rights
hereunder.
D. Notwithstanding any other provision of this Agreement to
the contrary, the aggregate interest of the General Partners in each
material item of Partnership income, gain, loss,
28
deduction, preference or credit shall be equal to at least one percent (1%)
of each such item at all times during the existence of the Partnership.
8.2 Distributions Upon Dissolution.
------------------------------
A. Upon the dissolution of the Partnership as a result of the
occurrence of any of the events set forth in Section 2.4 hereof, the
Managing Partner shall proceed to liquidate the Partnership, and the
proceeds of liquidation (the "Proceeds of Liquidation") shall be applied and
distributed in the following order of priority:
(i) To the payment of debts and liabilities of the
Partnership, including the expenses of liquidation, but expressly
excluding all Capital Contributions of all Partners (General Partners,
Class I Subordinated Limited Partners, Class II Subordinated Limited
Partners and Limited Partners), the return of all of such Capital
Contributions are provided for below and all of which is equity
capital of the Partnership.
(ii) To the payment of any accrued but unpaid amounts due under
Section 8.1 hereof.
(iii) To the repayment of the Capital Contributions of the
Limited Partners.
(iv) To the repayment of the Capital Contributions of the
Class I Subordinated Limited Partners
(v) To the repayment of the Capital Contributions of the
Class II Subordinated Limited Partners.
(vi) To the repayment of the General Partners' Adjusted Capital
Contributions.
(vii) The balance of the Proceeds of Liquidation, if any,
shall be distributed to the General Partners in proportion to their
respective General Partner Percentages.
B. Notwithstanding the foregoing, in the event the Managing
Partner shall determine that an immediate sale of part or all of the
Partnership assets would cause undue loss to the Partners, the Managing
Partner, in order to avoid such loss, may, after having given Notice to all
the Limiteds, either defer liquidation of, and withhold from distribution
for a reasonable time, any assets of the Partnership except those necessary
to satisfy the Partnership debts and obligations, or distribute the assets
to the Partners in kind.
C. Net Income generated by transactions in connection with the
dissolution and liquidation of the Partnership shall be distributed in
accordance with Section 8.1A hereof.
8.3 Distribution of Frozen Appreciation Amount.
------------------------------------------
Notwithstanding the provisions of Section 8.1 or 8.2 hereof, in
the event any tract of Real Estate or any Exchange Seat or Xxxxxx X. Xxxxx &
Co., L.P. or EDJ Leasing Co., L.P. is
29
sold, then there shall be distributed from the net proceeds of such sale
(prior to making any distributions pursuant to the provisions of Section 8.1
or 8.2 hereof) to each General Partner an amount equal to his Frozen
Appreciation Amount with respect to such tract of Real Estate or Exchange
Seat. The balance of any proceeds resulting from any such sale shall then be
distributed in accordance with Sections 8.1 or 8.2 hereof or shall otherwise
be used or retained by the Partnership as provided herein.
8.4 Sale of Assets to Third Party.
-----------------------------
A. In the event the Partnership shall sell or otherwise
dispose of, at one time, all, or substantially all, of its assets (a "Sale")
to any one Person or to any one Person and its Affiliates and the
Partnership is thereafter liquidated within 180 days, then the provisions of
Section 8.3 and this Section 8.4 shall be applicable with respect to the
order of priority of distribution of the Proceeds of Liquidation.
B. For the purposes of this Section 8.4 the term
"substantially all" shall be deemed to mean assets of the Partnership or of
any of its significant subsidiaries representing 80% or more of the net book
value of all of the Partnership's assets (or such significant subsidiary's
assets) determined as of the end of the most recently completed fiscal year.
C. Prior to making any payments to the General Partners
pursuant to Section 8.2A(vii) hereof (but after making all other payments
required by Section 8.2A and all payments required by Section 8.3 hereof)
the Partnership shall distribute: (i) to the Limited Partners a percentage
of the Premium (as hereinafter defined) equal to the same percentage of the
Net Income of the Partnership which the Limited Partners shall receive
(pursuant to Section 8.1A hereof) from the Partnership for the current
fiscal year of the Partnership; and (ii) to the Class II Subordinated
Limited Partners an amount equal to the product of the Premium (remaining
after the payment required by Section 8.4C(i) hereof) times a fraction the
numerator of which is the total Capital Contributions of the Class II
Subordinated Limited Partners (on the date of the Sale) and the denominator
of which is (X) the total Capital Contributions of the Class II Subordinated
Limited Partners (on the date of the Sale) plus (Y) the total of the
Adjusted Capital Contributions of the General Partners (on the date of the
Sale). No payments shall be made or are intended to be made to Class I
Subordinated Limited Partners pursuant to this Section 8.4C.
D. "Premium" means the Proceeds of Liquidation remaining
after the payment of the items set forth in Sections 8.2A(i), (ii), (iii),
(iv), (v) and (vi) hereof.
E. Any amounts payable to the Limited Partners and the
Class II Subordinated Limited Partners pursuant to this Section 8.4 shall be
disbursed pro-rata to the Limited Partners and the Class II Subordinated
Limited Partners based on their Capital Contributions on the date of the
Sale.
F. Neither the Partnership nor the General Partners shall
have any obligation to cause a Sale to occur.
30
8.5 Other Sales or Dispositions to Third Party.
------------------------------------------
In the event the Partnership or any of its significant
subsidiaries, in a transaction (dealing with all or substantially all of the
business of the Partnership or such significant subsidiary) not covered by
Section 8.4 hereof (but similar in scope to such a transaction), sells
assets, merges or has a public offering, it is hereby stated that it is the
intention of the General Partners that the Limited Partners and the Class II
Subordinated Limited Partners shall share in any "profit" or "premium"
recognized from such transaction. Because it is impossible at this time to
foresee all possible factual situations that may occur with respect to a
given transaction, it is equally impossible to determine a fair, just and
equitable formula at this time to distribute a portion of such "profit" or
"premium" to the Limited Partners and the Class II Subordinated Limited
Partners. It is stated, however, at this time, as a matter of policy of the
Partnership that it is the intention of the General Partners to allow the
Limited Partners and the Class II Subordinated Limited Partners to share a
portion of such "profit" or "premium" (assuming any "profit" or "premium" is
also actually distributed to the General Partners) in a fair, just and
equitable manner in such amount, if any, as determined in the sole and
absolute discretion of the Managing Partner at the time of such transaction.
In making such determination of such amount, if any, the Managing Partner
shall not be bound by the formula set forth in Section 8.4 hereof. Neither
the Partnership nor the General Partners shall have any obligation, however,
to cause such transaction to occur and no Limited Partners and the Class II
Subordinated Limited Partners shall have any right to bring any cause of
action against the Partnership or its General Partners by reason of any
statement made in this Section 8.5. No payments shall be made or are
intended to be made to Class I Subordinated Limited Partners pursuant to
this Section 8.5.
8.6 Allocation of Profits and Losses for Tax Purposes.
-------------------------------------------------
A. Except as provided in Sections 8.6B, C or D hereof, all
Profits And Losses For Tax Purposes of the Partnership shall be allocated as
follows:
(i) In any calendar year in which the Partnership has a net
profit for tax purposes, to the Partners with each Partner sharing
therein in the proportion that Net Income distributed to the Partner
and/or credited to the Adjusted Capital Contribution of the Partner
bears to all Net Income of the Partnership for the calendar year.
(ii) In any calendar year in which the Partnership has a
net loss for tax purposes, first to the Class II Subordinated Limited
Partners with each Class II Subordinated Limited Partner bearing an
amount of loss to the extent set forth in the formula described in
Section 8.1A(ii) hereof; provided, however, that the total amount of
losses allocated to a Class II Subordinated Limited Partner shall not
reduce such Partner's Capital Account below zero (determined after
taking into account all prior or contemporaneous cash distributions
and all prior or contemporaneous allocations of income, gain, loss,
deduction or credit and as determined at the close of the taxable year
in respect of which such loss or deduction is to be allocated); and
any remaining losses shall be allocated to the General Partners in
proportion to their respective General Partner percentages.
31
B. The Managing Partner is authorized to allocate Profits
and Losses For Tax Purposes arising in any calendar year differently than
otherwise provided for in this Section 8.6 to the extent that the Managing
Partner determines, in his discretion, that such modifications are
appropriate to cause the allocations to comply with the principles of
Section 704 of the Internal Revenue Code and such modifications are in the
overall best interests of the Partners. Any allocation made pursuant to this
Section 8.6B shall be deemed to be a complete substitute for any allocation
otherwise provided for in this Article Eight and no amendment of this
Agreement or approval of any Partner shall be required.
C. Notwithstanding any other provisions of this Agreement to
the contrary, if the amount of any Partnership Minimum Gain at the end of
any taxable year is less than the amount of such Partnership Minimum Gain at
the beginning of such taxable year, there shall be allocated to any Partner
having a negative Capital Account at the end of such taxable year
(determined after taking into account any adjustments, allocations and
distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6)) gross income and gain (in respect of
the current taxable year and any future taxable year) in an amount
sufficient to eliminate such negative Capital Account in compliance with
Treasury Regulations Section 1.704-1(b)(4)(iv)(e). Such allocation of gross
income and gain shall be made prior to any other allocation of profits and
losses for tax purposes. Any such allocation of gross income or gain
pursuant to this Section 8.6C shall be in proportion with such negative
Capital Accounts of the Partners and such allocations of gross income and
gain shall be taken into account, to the extent feasible, in computing
subsequent allocations of Profits and Losses For Tax Purposes of the
Partnership so that the net amount of all items allocated pursuant to each
Partner pursuant to this Article Eight shall, to the extent possible, be
equal to the net amount that would have been allocated to each such Partner
pursuant to the provisions of this Article Eight if the allocations made
pursuant to the first sentence of this Section 8.6C had not occurred.
D. Notwithstanding any other provisions of this Agreement to
the contrary, except as provided in Section 8.6C hereof, if any Limited
Partner or Class I Subordinated Limited Partner or Class II Subordinated
Limited Partner receives any adjustment, allocations, or distributions
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or
(6) that reduces such Partner's Capital Account below zero or increases the
negative balance in such Partner's Capital Account, gross income and gain
shall be allocated to such Partner in an amount and manner sufficient to
eliminate any negative balance in his Capital Account created by such
adjustments, allocations, or distributions as quickly as possible in
accordance with Treasury Regulations Section 1.704-1(b)(2)(ii)(d). Any such
allocation of gross income or gain pursuant to this Section 8.6D shall be in
proportion with such negative Capital Accounts of such Partners. Any
allocations of items of gross income or gain pursuant to this Section 8.6D
shall (i) not duplicate any allocations of gross income or gain made
pursuant to Section 8.6C hereof, and (ii) be taken into account, to the
extent feasible, in computing subsequent allocations of Profits and Losses
For Tax Purposes of the Partnership, so that the net amount of all items
allocated to each Limited Partner, Class I Subordinated Limited Partner and
Class II Subordinated Limited Partner pursuant to this Article Eight shall,
to the extent possible, be equal to the net amount that would have been
allocated to each such Partner pursuant to the provisions of this Article
Eight if such adjustments, allocations or distributions had not occurred.
32
E. If and to the extent upon dissolution of the Partnership
pursuant to Section 2.4 hereof the allocations under Section 8.6A are
inconsistent with the following provision, then such allocations shall be
adjusted to conform to the following provision: income and gain (whether
ordinary income, gain under Section 1231 of the Internal Revenue Code, or
capital gain) from disposition of all remaining Partnership assets shall be
allocated among the Partners so that the positive balance of each Partner's
Capital Account is equal to the cash to be distributed to such Partner
pursuant to Article 8.2 determined after all Capital Accounts have been
adjusted to reflect the allocations of Profits and Losses For Tax Purposes
of the Partnership and cash distributions made pursuant to Section 8.1
hereof.
8.7 Liability of General Partners.
-----------------------------
No General Partner shall be liable or accountable, directly or
indirectly (including by way of indemnification, contribution, assessment or
otherwise), for any debts, obligations or liabilities of, or chargeable to,
the Partnership or each other, whether arising in tort, contract, or
otherwise, which are created, incurred or assumed by the Partnership (or
owing to creditors or Partners during liquidation of the Partnership) while
the Partnership is a registered limited liability limited partnership.
ARTICLE NINE
BOOKS, RECORDS AND REPORTS,
---------------------------
ACCOUNTING, TAX ELECTIONS, ETC.
-------------------------------
9.1 Books, Records and Reports.
--------------------------
A. Proper and complete records and books of account shall be
kept (or caused to be kept) by the Managing Partner in which shall be
entered all transactions and other matters relative to the Partnership's
business. The Partnership's books and records shall be prepared in
accordance with generally accepted accounting principles, consistently
applied. The books and records shall at all times be maintained at the
principal office of the Partnership and shall be open for examination and
inspection by the Partners or by their duly authorized representatives
during reasonable business hours. In particular, the following books and
records shall be kept:
(i) a current list and a past list of the full name and
last known mailing address of each Partner, specifying the General
Partners and the Limited Partners, the Class I Subordinated Limited
Partners and the Class II Subordinated Limited Partners, in alphabetical
order, including the date of admission or withdrawal of each Partner. To
the extent provided by the Missouri Limited Partnership Act, these lists
shall be provided to the Secretary of State of Missouri, without cost,
upon his written request;
(ii) 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;
33
(iii) copies of the Partnership's federal, state and local
income tax returns and reports, if any, for the three most recent fiscal
years; and
(iv) copies of any written Partnership Agreements in effect
and any financial statements of the Partnership for the three most recent
years.
B. The Managing Partner shall have prepared at least annually,
at the Partnership's expense, financial statements (balance sheet, statement
of income or loss, partners' equity, and changes in financial position)
prepared in accordance with generally accepted accounting principles which
shall fairly reflect the Partnership's financial position at the date shown
and its results of operations for the period indicated. Copies of such
statements and report shall be made available to the Partners annually.
C. The Managing Partner shall have prepared at least annually,
at the Partnership's expense, a report containing Partnership information
necessary in the preparation of the Partners' federal income tax returns.
Copies of such report shall be distributed to each Partner as promptly as
possible.
9.2 Bank Accounts.
-------------
The bank accounts of the Partnership shall be maintained in such
banking institutions as the Managing Partner shall determine, and
withdrawals shall be made only in the regular course of Partnership business
on such signature or signatures as the Managing Partner may determine.
9.3 Depreciation and Elections.
--------------------------
A. All elections required or permitted to be made by the
Partnership under the Internal Revenue Code shall be made by the Managing
Partner.
B. Notwithstanding anything to the contrary in this
Section 9.3, the Managing Partner shall not be responsible for initiating
any change in accounting methods from the methods initially chosen.
C. The Managing Partner is hereby designated as the "Tax
Matters Partner" under Section 6231(a)(7) of the Internal Revenue Code.
9.4 Fiscal Year.
-----------
The fiscal year of the Partnership shall be the calendar year for
tax purposes.
34
ARTICLE TEN
-----------
MEDIATION/ARBITRATION
---------------------
THIS AGREEMENT CONTAINS THE FOLLOWING
BINDING ARBITRATION PROVISIONS WHICH MAY BE ENFORCED
BY THE PARTNERSHIP AND THE PARTNERS
10.1 Mediation/Arbitration.
---------------------
A. Any controversy, claim or dispute between the Partnership
and any Partner or former Partner or between Partners and/or former Partners
(individually a "Party" and collectively the "Parties"), including, but not
limited to, any controversy, claim or dispute arising out of or relating to
any provision of this Agreement or the breach, termination or validity
thereof or any breach of an actual or implied contract of employment between
the Partnership and a Party, or any claim of unjust or tortious discharge
(including any claim of fraud, negligence, or intentional or negligent
infliction of emotional distress) or any document or agreement or policy of
the Partnership (including, but not limited to, Partnership benefit and
retirement plans, Partnership office manuals, Partnership affirmative action
plans and Partnership policies), equal opportunity employer plans and
policies or any claims or violations arising under the Civil Rights Act of
1964, as amended and effective November 21, 1991, including amendment to 42
U.S.C. 2000e et seq., 42 U.S.C. 1981, the Age Discrimination in Employment
-- ----
Act, 29 U.S.C. 621 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C.
-- ----
201 et seq., the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., or of
-- ---- -- ----
the Missouri Human Rights Act, 213.010 R.S. Mo. et seq., the Missouri
-- ----
Workers Compensation statute or any violation of the Missouri Service Letter
Statute, 290.140 R.S. Mo., or any other relevant federal, state, or local
statutes or ordinances, also including without limitation, the application,
interpretation, performance or enforcement of any right, obligation or
fiduciary duty under this Agreement or such other documents and agreements
whether arising before or after the date of this Agreement (collectively, a
"Dispute") as to which a Party otherwise would have the right to pursue
litigation will be resolved as provided for in this Article Ten, which shall
be the sole and exclusive procedures for the resolution of any Dispute. This
Article Ten shall survive termination of the partnership relationship
established by the Agreement. These procedures are for the settlement of
Disputes only and are not to be used for disagreements concerning
Partnership policy, organization or practice management. Nothing contained
in this Section 10.1 is intended to expand any substantive rights any Party
may have under other Sections of this Agreement, and any action of the
Partnership taken by a vote of the Partners or the Executive Committee or by
the action of the Managing Partner, when taken in accordance with the terms
of this Agreement, shall be final, binding and conclusive as so provided in
this Agreement. The Parties intend that the foregoing provisions shall
encompass any other statutory and common law rights, obligations or duties,
whether or not specifically referred to herein, of a similar or dissimilar
nature, which are or may be granted to any Party hereto, by the laws of any
state or country in which any Party resides or engages in the business of
the Partnership.
B. If any Party has a Dispute with any other Party, then
(if discussions among the Parties have failed) such Party and the other
Party may have the Dispute mediated by one person chosen by agreement of
such Parties. The mediator, after consultation with the Parties, will
determine the mediation procedures to be followed. The fees and expenses of
the mediator shall be paid by the Partnership. If no mutual agreement can be
reached to mediate or upon the identity of the mediator, then the Dispute
will be settled by binding arbitration under the procedures set forth below.
35
C. All Disputes that cannot be resolved by mediation will be
settled by binding arbitration under the procedures set forth below.
D. Any Party may, if mediation has failed to resolve the
Dispute (or if the Parties fail to agree on a mediator), commence
arbitration by written notice to the other Party. Thereafter, arbitration
shall be conducted in the manner described in Section 10.1F.
E. Except as provided in Section 10.1B arbitration, under
the Arbitration Code of the National Association of Securities Dealers, Inc.
(the "NASD"), shall be the exclusive remedy for any Dispute. Any Party may
apply to the Exclusive Venues (as defined in Section 10.2) for injunctive,
specific enforcement or other relief in aid of the arbitration proceedings
or to enforce judgment of the award in such arbitration proceeding, but not
otherwise. Any award issued by the arbitrators pursuant to these provisions
may be entered and enforced in the Exclusive Venues and any other
appropriate jurisdiction.
F. The Parties agree among themselves that the arbitration
proceedings shall be conducted as follows:
(i) All proceedings conducted shall be deemed private and
confidential and shall not be disclosed to the public by either the
arbitrators or the Parties to the arbitration. The Parties acknowledge
that the Partnership's administrative offices and the books and
records (including accounting data) of the Partnership are all located
in the St. Louis, Missouri metropolitan area, and, accordingly, the
Parties agree to request that the arbitration proceedings and hearings
shall be held in the St. Louis, Missouri metropolitan area (unless
otherwise agreed by the Parties or decided by the arbitrators).
(ii) The exclusive award for any Dispute shall be recovery
of compensatory damages (that is, damages which compensate a party for
actual damages suffered), and each Partner hereby waives any and all
other forms of damages including multiple, punitive or exemplary
damages, damages for emotional distress, mental anguish or suffering
and consequential damages.
(iii) The applicable substantive law of Missouri or the
United States (notwithstanding that a Party to a Dispute may be a
resident of another state or country), as the case may be, shall be
used in rendering any award. Such award shall be final and binding on
all Parties and may be entered as a judgment, under seal, and enforced
in the appropriate jurisdiction.
10.2 Forum Selection.
---------------
If any court or tribunal of competent jurisdiction shall refuse to
enforce Section 10.1 or determine a matter is not a Dispute, then, and only
then, shall the alternative provisions of this Section 10.2 be applicable.
The Partners acknowledge that the Partnership's administrative offices and
the books and records (including accounting data) of the Partnership are all
located in the St. Louis, Missouri metropolitan area and, accordingly, the
Partners agree that it would be more convenient for, and in the best mutual
joint interest of, the Partners and the
36
Partnership that, in the event of a Dispute, venue for litigation shall be
laid exclusively in the Circuit Court of the County of St. Louis, Missouri
or in the United States District Court for the Eastern District of Missouri.
Such Circuit Court and United States District Court are together referred to
as the "Exclusive Venues" for litigation. The Partnership and each Partner
agree not to institute any litigation except in the Exclusive Venues and
further agree that specific enforcement of this covenant with respect to
Exclusive Venues may be awarded to the Partnership and each Partner by means
of all available legal or equitable remedies, including, without limitation,
a temporary restraining order. The Partnership and each Partner hereby
submit to the personal jurisdiction of the Exclusive Venues and waive any
requirement for setting bond for a temporary restraining order. The Firm and
each Partner hereby waive any right it or such Partner may have to a jury
trial in any litigation brought in accordance with this Agreement.
10.3 Statute of Limitations.
----------------------
The statute of limitations of the State of Missouri applicable to
the commencement of a lawsuit shall apply to the commencement of an
arbitration hereunder, except no defenses shall be available based upon the
passage of time during any mediation conducted pursuant to this Article Ten.
10.4 Other Agreements.
----------------
Notwithstanding anything to the contrary contained in any other
document or agreement requiring arbitration, including, but not limited to,
Form U-4, signed by any Party, the Parties agree that if the matter in
controversy is, in whole or in part, a Dispute, then the provisions of this
Article shall control such arbitration.
ARTICLE ELEVEN
GENERAL PROVISIONS
------------------
11.1 Appointment of Attorneys-in-Fact.
--------------------------------
A. Each Partner, by the execution hereof, hereby irrevocably
constitutes and appoints Xxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxx, and the then
Managing Partner (at any time the Managing Partner is not Xxxx X. Xxxxxxxx),
his true and lawful attorney-in-fact, and each of them, with full power and
authority in his name, place and xxxxx, to execute or acknowledge (on behalf
of such Partner and/or the Partnership) under oath, deliver, 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:
(i) All certificates and other instruments (including this
Agreement or any certificate of limited partnership or certificate of
limited liability partnership and any amendment thereof) which the
Managing Partner deems appropriate to qualify or continue the
Partnership as a registered limited liability limited partnership
under the Missouri Limited Partnership Act and the Missouri
Partnership Act (or a partnership in
37
which the Partners will have limited liability comparable to that
provided by the Missouri Limited Partnership Act and the Missouri
Partnership Act) or under the laws of any other jurisdiction in which
the Partnership may conduct business;
(ii) All amendments to this Agreement or any certificate of
limited partnership or any certificate of limited liability
partnership which are required to be filed or which the Managing
Partner deems to be advisable to file;
(iii) All instruments which the Managing Partner deems
appropriate to reflect a change or modification of the Partnership in
accordance with the terms of this Agreement;
(iv) All conveyances and other instruments which the Managing
Partner deems appropriate to reflect the dissolution and termination
of the Partnership; and
(v) All other instruments, documents or contracts
(including, without limiting the foregoing, any deed, lease, mortgage,
note, xxxx of sale, contract, trust agreement, guarantee, partnership
agreement, indenture, underwriting agreement or any instrument or
documentation which may be required to be filed (or which the Managing
Partner deems advisable to file) by the Partnership under the laws of
any state or by any governmental agency) requisite to carrying out the
intent and purpose of this Agreement and the business of the
Partnership and its Affiliates.
B. The appointment by all Limited Partners of Xxxx X. Xxxxxxxx,
Xxxxxxxx X. Xxxxx, and the then Managing Partner (at any time the Managing
Partner is not Xxxx X. Xxxxxxxx), as attorney-in-fact, and each of them,
shall be deemed to be a power coupled with an interest in recognition of the
fact that each of the Partners under this Agreement will be relying upon the
power of Xxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxx, and the then Managing Partner
(at any time the Managing Partner is not Xxxx X. Xxxxxxxx), and each of
them, to act as contemplated by this Agreement in any filing and other
action by them on behalf of the Partnership. The foregoing power of attorney
shall survive the death, disability or incompetency of a Partner or the
assignment by any Partner of the whole or any part of its interest
hereunder.
11.2 Word Meanings.
-------------
The words such as "herein", "hereinafter", "hereof", and
"hereunder" refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise
requires. The singular shall include the plural and the masculine gender
shall include the feminine and neuter, and vice versa, unless the context
----------
otherwise requires.
11.3 Binding Provisions.
------------------
The covenants and agreements contained herein shall be binding
upon, and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the respective parties hereto.
38
11.4 Applicable Law.
--------------
This Agreement shall be construed and enforced in accordance with
the laws of the State of Missouri.
11.5 Counterparts.
------------
This Agreement may be executed in several counterparts, all of
which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties have not signed the same counterpart,
except that no counterpart shall be binding unless signed by the Managing
Partner.
11.6 Entire Agreement.
----------------
This Agreement contains the entire agreement between the parties
and supersedes all prior writings or representations.
11.7 Separability of Provisions.
--------------------------
Each provision of this Agreement shall be considered separable and
if for any reason any provision or provisions hereby are determined to be
invalid or unenforceable such validity or unenforceability shall not impair
the operation of or affect any other portion of this Agreement and this
Agreement shall be construed in all respects as if such invalid or
unenforceable provision was omitted.
11.8 Representations.
---------------
Each person who becomes a Limited hereunder does hereby represent
and warrant by the signing of a counterpart of this Agreement or an
amendment to this Agreement that the Partnership interest acquired by him
was acquired for his own account, for investment only, not for the interest
of any other person and not for resale to other persons or for further
distribution. The Managing Partner has not made and hereby makes no
warranties or representations other than those specifically set forth in
this Agreement.
11.9 Section Titles.
--------------
Paragraph titles are for descriptive purposes only and shall not
control or alter the meaning of this Agreement as set forth in the text.
11.10 Partition.
---------
The Partners agree that the Partnership's assets are not and will
not be suitable for partition. Accordingly, each of the Partners hereby
irrevocably waives any and all right he may have to maintain any action for
partition of any of the Partnership's assets.
39
11.11 No Third Party Beneficiaries.
----------------------------
This Agreement is made solely and specifically for the benefit of
the Partners and their respective successors and permitted assigns, and no
other person whatsoever shall have any rights, interests or claims hereunder
or be entitled to any benefits hereunder or on account of this Agreement as
a third party beneficiary or otherwise.
11.12 Amendments.
----------
In addition to the amendments otherwise authorized herein, this
Agreement may be amended, from time to time, without the consent or approval
of (and without prior notice to) any Limited, by the Managing Partner or by
the affirmative vote of General Partners holding an aggregate of at least a
majority of the total General Partner Percentages. In particular, but
without limiting the foregoing, the interests of the Limited Partners and
the Class II Subordinated Limited Partners in the Net Income or the Proceeds
of Liquidation of the Partnership or in any other allocation or distribution
to be received by them from the Partnership pursuant to Article Eight hereof
or otherwise may be reduced or increased or otherwise modified in accordance
with this Section 11.12 without the consent or approval of (and without
prior notice to) any Limited.
11.13 Revocable Trusts.
----------------
Notwithstanding anything to the contrary herein contained, it is
recognized that certain of the Partners are not persons but are revocable
trusts ("Trusts"), the grantors of which ("Grantors"), except for the
transfer of their partnership interests to (or the designation of) such
Trusts created by them, would be the Partners. Thus, when used herein the
phrases "General Partner", "Limited Partner", "Limited", "Partner", "Class I
Subordinated Limited Partner" or "Class II Subordinated Limited Partner"
shall be deemed, when the context hereof so requires (such as, without
limiting the generality of the foregoing, death, disability or withdrawal of
a Partner, gross negligent conduct of a General Partner, a General Partner
receiving a guaranteed draw for services rendered, General Partner required
submission of tax returns, sale by a General Partner of Retiring Interests
after his 56th birthday) to be a reference to the Grantor of such Trust. In
addition, to the extent that any General Partner has obligations or
liabilities imposed upon such General Partner pursuant to this Agreement,
then, if such General Partner is a Trust, such General Partner, by such
General Partner's signature hereto (and the Grantor of such Trust by such
Grantor's signature hereto), hereby agrees that said obligations and
liabilities are also obligations and liabilities of such Grantor.
40
IN WITNESS WHEREOF, the undersigned has executed this Twelfth
Amended and Restated Agreement of Registered Limited Liability Limited
Partnership effective as of the day and year first above written.
THIS AGREEMENT CONTAINS THE FOLLOWING
BINDING ARBITRATION PROVISIONS WHICH MAY BE ENFORCED
BY THE PARTNERSHIP AND THE PARTNERS
GENERAL PARTNER:
---------------------------------------------
GENERAL PARTNERS AS SHOWN IN
THE BOOKS AND RECORDS OF THE
PARTNERSHIP*
LIMITED PARTNERS AS SHOWN IN THE
BOOKS AND RECORDS OF THE PARTNERSHIP*
CLASS II SUBORDINATED LIMITED PARTNERS
AS SHOWN IN THE BOOKS AND RECORDS OF
THE PARTNERSHIP*
*By:
-----------------------------------------
Attorney-In-Fact
Note: At the time of the signing of this Agreement there are no Class I
Subordinated Limited Partners.
41
