AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AMENDMENT
NO. 1
TO
THE
AGREEMENT AND PLAN OF MERGER
Amendment
No. 1, dated as of January 26, 2006 (this “Amendment”),
to
the Agreement and Plan of Merger, dated as of October 9, 2005 , among Lincoln
National Corporation, an Indiana corporation (“Lincoln”),
Quartz Corporation, a North Carolina corporation and a direct wholly owned
subsidiary of Lincoln (“Merger
Sub”),
Jefferson-Pilot Corporation, a North Carolina corporation (“Jefferson-Pilot”),
and
Lincoln JP Holdings, L.P., an Indiana limited partnership (“Quartz
Partnership”).
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Agreement and Plan of Merger, dated as of October 9, 2005
among
Lincoln, Merger Sub and Jefferson-Pilot (as amended from time to time, the
“Agreement”).
WHEREAS,
the
Agreement contemplates a business combination transaction between Merger
Sub and
Jefferson-Pilot by means of a merger of Jefferson-Pilot with and into Merger
Sub;
WHEREAS,
Section
1.8 of the Agreement permits Lincoln, with the consent of Jefferson-Pilot,
to
change the method of effecting the business combination contemplated by the
Agreement, subject to the terms of Section 1.8 of the Agreement;
and
WHEREAS,
Section
7.3 of the Agreement permits the parties to amend the Agreement by an instrument
in writing signed by each of the parties to the Agreement.
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants set forth herein and for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, and intending to be legally bound, the parties hereby
agree
as follows:
1. Addition
of Quartz Partnership.
The
parties hereby acknowledge and agree that Quartz Partnership is a party to
the
Agreement as of the date hereof by virtue of this Amendment.
2. Amendment
to Preamble.
The
preamble of the Agreement is hereby amended by replacing the first parenthetical
therein with the following text:
“(as
amended from time to time, this “Agreement”)”.
The
preamble of the Agreement is further amended by adding immediately after
the
words “(“Merger Sub”),” the following text:
“Lincoln
JP Holdings, L.P.,
an
Indiana limited partnership and a direct and indirect wholly-owned subsidiary
of
Lincoln (the “Quartz
Partnership”),”.
3. Amendment
to Recitals.
The
recitals of the Agreement are hereby amended by replacing the words “Merger Sub”
in the first recital with the phrase “Quartz Partnership” and
replacing the phrase “the parties hereto” in the fourth recital with the phrase
“Lincoln and Jefferson-Pilot”.
4. Amendment
to Section 1.1.
Section
1.1 of the Agreement is hereby amended by replacing the text thereof with
the
following text:
“Effective
Time of the Merger.
Subject
to the provisions of this Agreement, the requirements of § 55-11-10 of the North
Carolina Business Corporation Act (the “NCBCA”)
and
§
23-16-3-13 of the Indiana Revised Uniform Limited Partnership Act (the
“IRULPA”),
articles
of merger (the “Articles
of Merger”)
shall
be duly prepared and executed by Quartz Partnership and thereafter delivered
to
the Secretary of State of the State of North Carolina for filing pursuant
to the
NCBCA. The Merger shall become effective upon the filing of the Articles
of
Merger with the Secretary of State of the State of North Carolina, or at
such
time thereafter as is provided in the Articles of Merger (the “Effective
Time”).”
5. Amendment
to Section 1.3.
Section
1.3 of the Agreement is hereby amended by replacing the text thereof with
the
following text:
“Effects
of the Merger.
At the
Effective Time, Jefferson-Pilot shall be merged with and into Quartz
Partnership, the separate legal existence of Jefferson-Pilot shall cease
and
Quartz Partnership will continue as the surviving entity (the “Surviving
Entity”)
in the
Merger and will succeed to and assume all of the rights, privileges, immunities,
properties, powers and franchises of Jefferson-Pilot. The general partner
of the
Surviving Entity is Lincoln JP Company, LLC at ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇-▇▇▇▇, and the sole limited partner of the Surviving Entity is Lincoln.
The
Merger will have the effects set forth in the NCBCA, the IRULPA and this
Agreement.”
The
Agreement is further amended by replacing all uses of the term “Surviving
Corporation” with the term “Surviving Entity”.
6. Amendment
to Section 1.4.
Section
1.4 of the Agreement is hereby deleted in its entirety and replaced by the
phrase “Intentionally Deleted”.
7. Amendment
to Section 1.5.
Section
1.5 of the Agreement is hereby amended by replacing the text thereof with
the
following text:
“Certificate
of Limited Partnership and Partnership Agreement of the Surviving
Entity.
The
certificate of limited partnership of Quartz Partnership as in effect
immediately prior to the Effective Time (the “Quartz
Partnership Certificate”),
as
set forth in Exhibit 1.5(c), shall be the certificate of limited partnership
of
the Surviving Entity. The limited partnership agreement of Quartz Partnership
(the “Quartz
Partnership Agreement”),
as
set forth in Exhibit 1.5(d), shall be the limited partnership agreement of
the
Surviving Entity after completion of the transactions contemplated by this
Agreement, until thereafter amended as provided by applicable law or
therein.”
2
8. Amendment
to Section 1.6.
Section
1.6 of the Agreement is hereby deleted in its entirety and replaced with
the
phrase “Intentionally Deleted”.
9. Amendment
to Section 2.1(g).
Section
2.1(g) of the Agreement is hereby amended by replacing the first sentence
thereof with the following text:
“All
Cash
Elections and Stock Elections shall be made on a form designed for that purpose
and mutually acceptable to Lincoln and Jefferson-Pilot (a “Form
of Election”)
and
mailed to holders of record of shares of Jefferson-Pilot Common Stock who
are
holders on the record date for the Jefferson-Pilot Shareholders Meeting (the
“Election
Form Record Date”),
such
Form of Election to be mailed together with the Joint Proxy Statement /
Prospectus or
at such
other time as Lincoln and Jefferson-Pilot may agree.”
10. Amendment
to Section 2.1(h).
Section
2.1(h) of the Agreement is hereby amended by replacing the second and third
sentences thereof with the following text:
“The
“Election
Deadline”
shall
be 5:00 p.m. New York City time on March 28, 2006; provided, that in the
event
Lincoln and Jefferson-Pilot reasonably agree on or prior to March 27, 2006
(or,
in the event the Election Deadline has been extended, on or prior to the
Business Day immediately preceding such extended Election Deadline) that
the
earliest date on which Closing could reasonably be expected to occur is after
April 3, 2006 (or, in the event the Election Deadline has been extended,
the
date which is four Business Days following such extended Election Deadline),
then the Election Deadline shall be such other date as Lincoln and
Jefferson-Pilot reasonably agree is the fourth Business Day immediately
preceding the earliest date on which Closing could reasonably be expected
to
occur. The Election Deadline shall be included in the Form of Election. Lincoln
and Jefferson-Pilot agree to reserve in the Form of Election the right to
extend
the Election Deadline by joint press release issued not later than the Business
Day prior to the Election Deadline (or, in the event the Election Deadline
has
been extended, the Business Day prior to such extended Election
Deadline).”
11. Addition
of Section 3.4.
Article
3 is hereby amended by inserting a new Section 3.4 (after Section 3.3) as
follows:
“3.4.
Representations
and Warranties of Quartz Partnership:
Lincoln
and Quartz Partnership represent and warrant to Jefferson-Pilot as
follows:
(i)
True
and complete copies of the constituent documents of Quartz Partnership, each
as
in effect as of the date of the first amendment of this Agreement, have
previously been made available to Jefferson-Pilot.
(ii)
As
of the date of the first amendment of this Agreement, Lincoln JP Company,
LLC
owns a 0.1% general partnership interest in Quartz Partnership, Lincoln owns
a
99.9% limited partnership interest in Quartz Partnership and a total of 100%
of
the membership interests in Lincoln JP Company, LLC, and no other person
owns a
partnership interest, general or limited, in Quartz Partnership
3
or
a membership interest in Lincoln JP Company,
LLC or any right in or right to acquire any partnership interest, general
or
limited, in Quartz Partnership or a membership interest in Lincoln JP Company,
LLC. Quartz Partnership was formed by Lincoln solely for the purpose of
effecting the Merger and the other transactions contemplated by this Agreement.
Except as contemplated by this Agreement, Quartz Partnership does not hold
and
has not held any material assets or incurred any material liabilities, and
has
not carried on any business activities other than in connection with the
Merger
and the other transactions contemplated by this Agreement.
(iii)
Quartz Partnership has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by all necessary
partnership action. This Agreement has been duly executed and delivered by
Quartz Partnership and constitutes a valid and binding obligation of Quartz
Partnership enforceable against Quartz Partnership in accordance with its
terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equitable principles.”
(iv)
Quartz Partnership has taken all actions necessary to ensure that the
restrictions in Article 9 and 9A of the NCBCA will not apply to Quartz
Partnership during the pendency of this Agreement.
(v)
No
election has been made for Quartz Partnership (since its formation) pursuant
to
Treasury Regulation Section 301.7701-3 to treat Quartz Partnership as an
association or a partnership for Federal income tax purposes.
(vi)
No
election has been made for Lincoln JP Company, LLC (since its formation)
pursuant to Treasury Regulation Section 301.7701-3 to treat Lincoln JP Company,
LLC as an association or a partnership for Federal income tax
purposes.”
12. Amendment
to Section 5.6(a).
Section
5.6(a) of the Agreement is hereby amended by (i) inserting the words “or as
Lincoln and Jefferson-Pilot otherwise agree,” in the first sentence after
“Except as provided in Section 5.6(b),”, (ii) replacing in the second
parenthetical thereof the word “up” with the word “down,” and (iii) replacing
the third parenthetical with the following text: “(rounding up to the sixth
decimal place)”.
13. Amendment
to Section 6.2(c).
Section
6.2(c)
of the Agreement is hereby amended by replacing the phrase “the parties hereto”
in the first sentence with the phrase “Lincoln and
Jefferson-Pilot”.
14. Amendment
to Section 6.3(a).
Section
6.3(a) of the Agreement is hereby amended by replacing the text thereof with
the
following text
4
“Representations
and Warranties.
The
representations and warranties of Lincoln and Quartz Partnership set forth
in
this Agreement, disregarding all qualifications and exceptions therein relating
to materiality or Material Adverse Effect, shall be true and correct as of
the
date of this Agreement (or, in the case of Quartz Partnership and
representations and warranties of Lincoln in Section 3.4 of this Agreement,
the
date of the first amendment of this Agreement) and (except to the extent
such
representations and warranties speak as of an earlier date) as of the Closing
Date as though made on and as of the Closing Date, subject to such exceptions
as
do not have, and would not reasonably be expected to have, individually or
in
the aggregate, a Material Adverse Effect on Lincoln, and Jefferson-Pilot
shall
have received a certificate signed on behalf of Lincoln by the Chairman and
Chief Executive Officer and by the Chief Financial Officer of Lincoln to
such
effect.”
15. Amendment
to Section 6.3(c).
Section
6.3(c)
of the Agreement is hereby amended by replacing the phrase “the parties hereto”
in the first sentence with the phrase “Lincoln and
Jefferson-Pilot”.
16. Removal
of Exhibits.
The
Agreement is hereby amended by removing Exhibit 1.5(a) and Exhibit 1.5(b)
of the
Agreement.
17. Addition
of Exhibits.The
Agreement is hereby amended by adding Exhibit
A
of this
Amendment as Exhibit 1.5(c) of the Agreement and by adding Exhibit
B
of this
Amendment as Exhibit 1.5(d) of the Agreement.
18. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of Indiana (without giving effect to choice of law principles
thereof).
19. Miscellaneous.
| (a) |
Except
as expressly amended and supplemented hereby, the Agreement remains
in
full force and effect.
|
| (b) |
All
references in the Merger Agreement to the “Agreement” shall be deemed to
be the Merger Agreement as amended by this
Amendment.
|
| (c) |
This
Amendment may be executed by Lincoln, Merger Sub, Quartz Partnership
and
Jefferson-Pilot in multiple counterparts, each of which shall be
considered one and the same agreement and shall become effective
when one
counterpart has been signed by each of the parties and delivered
to the
other party, it being understood that both parties need not sign
the same
counterpart. Such counterpart executions may be transmitted to
the parties
by facsimile and such facsimile execution shall have the full force
and
effect of an original signature.
|
[Remainder
of this page intentionally left blank]
5
IN
WITNESS WHEREOF, Lincoln, Merger Sub, Quartz Partnership and Jefferson-Pilot
have caused this Amendment to the Agreement to be signed by their respective
officers thereunto duly authorized, all as of the date first set forth
above.
LINCOLN
NATIONAL CORPORATION
By:
/s/
▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇
▇. ▇▇▇▇▇▇
Title:
Chairman and Chief Executive Officer
QUARTZ
CORPORATION
By:/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
President
LINCOLN
JP HOLDINGS, L.P.
By:
Lincoln JP Company, LLC, its general partner
By:
Lincoln National Corporation, its sole member
By:
/s/
▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇
▇. ▇▇▇▇▇▇
Title:
Chairman and Chief Executive Officer
JEFFERSON-PILOT
CORPORATION
By:/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
President and Chief Executive Officer
6
Exhibit
A
Exhibit
1.5(c) to the Agreement
Certificate
of Limited Partnership of Quartz Partnership
CERTIFICATE
OF LIMITED PARTNERSHIP
OF
LINCOLN
JP HOLDINGS, L.P.
ARTICLE
I
Name
The
name
of the Limited Partnership is “Lincoln JP Holdings, L.P.”.
ARTICLE
II
Limited
Partnership’s Office
The
address of the Limited Partnership’s office is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE
III
Registered
Agent
The
address of the registered agent of the Limited Partnership in Indiana is
▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The name of the registered
agent
for the Limited Partnership at such office is Corporation Service
Company.
ARTICLE
IV
General
Partner
The
name
and business address of the Limited Partnership’s general partner are as
follows:
|
Name
|
Address
|
|
Lincoln
JP Company, LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
ARTICLE
V
Dissolution
of Limited Partnership
The
Limited Partnership shall continue in full force and effect until December
31,
2999, unless dissolved at an earlier date upon the happening of any event
set
forth in the Limited Partnership Agreement.
GENERAL
PARTNER:
Lincoln
JP Company, LLC
By:
Lincoln National Corporation, its sole member
By:
/s/
▇▇▇▇▇▇▇ Cooperberg_____________
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Second
Vice President
Exhibit
B
Exhibit
1.5(d) to the Agreement
Limited
Partnership Agreement of Quartz Partnership
LIMITED
PARTNERSHIP AGREEMENT
OF
LINCOLN
JP HOLDINGS, L.P.
THIS
LIMITED PARTNERSHIP AGREEMENT (this “Agreement”), made and entered into
effective as of the 20th day of January 2006, by and between Lincoln JP Company,
LLC, an Indiana limited liability company (the “General Partner”), and Lincoln
National Corporation, an Indiana corporation (the “Limited Partner”)
(collectively, the “Partners”);
WITNESSETH
THAT:
WHEREAS,
the General Partner has caused Lincoln JP Holdings, L.P. (the “Partnership”) to
be formed as a limited partnership pursuant to the Act (as hereinafter defined);
and
WHEREAS,
the Partners desire to adopt this Limited Partnership Agreement as set forth
herein;
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual promises,
covenants and agreements set forth below, the parties hereto agree as
follows:
ARTICLE
I
BUSINESS
PURPOSES AND OFFICES
1.1. Business
Purpose.
The
purposes for which the Partnership is formed shall be limited to the
following:
To
acquire by merger, own and operate the businesses of Jefferson-Pilot
Corporation, a North Carolina corporation, and all activities necessary,
incidental or appropriate in connection thereto.
Nothing
contained herein shall be construed to authorize any business or activity
of any
nature which is not permitted to be conducted or carried on by a limited
partnership organized and existing under the Act or under the applicable
statutes of any state in which the Partnership shall conduct its
business.
1.2 Registered
Office and Registered Agent.
The
Partnership’s registered office in the State of Indiana and the registered agent
at that office shall be as set forth in the Certificate. The General Partner
may, at its discretion, change the Partnership’s registered office or registered
agent in Indiana, provided that the appropriate form of notice is filed with
the
Indiana Secretary of State.
1.3 Other
Offices.
The
Partnership may have other offices at such other places within or without
Indiana as the General Partner may determine.
ARTICLE
II
DEFINITIONS
2.1 Terms
Defined Herein.
As used
herein, the following terms shall have the following meanings, unless the
context otherwise specifies:
“Act”
means
the Revised Uniform Limited Partnership Act, Ind. Code § 23-16-1-1 et seq.,
as amended from time.
“Additional
Partner”
means
a
Partner admitted to the Partnership pursuant to Section 7.1 or Article
IX.
“Agreement”
means
this Limited Partnership Agreement, as amended and restated and in effect
from
time to time.
“Available
Cash”
means
the aggregate amount of cash on hand or in bank, money market or similar
accounts of the Partnership from time to time derived from income which the
General Partner determines is available for distribution to the Partners,
after
taking into account any amount required or appropriate to maintain a reasonable
amount of Reserves.
“Bankruptcy”,
with
respect to any Person, means the entry of an order for relief against such
Person under the Federal Bankruptcy Code or the insolvency of such Person
under
any state insolvency act.
“Capital
Contribution”,
with
respect to a Partner, means the total amount of cash and the Fair Value of
property to be contributed by such Partner to the capital of the Partnership.
The initial Capital Contribution of each Partner is set forth on Schedule
A
attached
hereto.
“Certificate”
means
the Partnership’s Certificate of Limited Partnership as filed with the Indiana
Secretary of State, as amended from time to time.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time, or
corresponding provisions of future laws.
“Distributions”
means
any distributions by the Partnership to the Partners of Available Cash,
Liquidation Distributions or other amounts.
“Fair
Value”
of
an
asset means its fair market value.
“General
Partner”
means
any Person designated as a General Partner in Schedule
A
or any
Person who becomes a General Partner as provided herein.
“Interest”
refers
to all of a Partner’s rights and interests in the Partnership in the Partner’s
2
capacity
as a Partner, all as provided in the
Certificate, this Agreement and the Act, including, without limitation, such
Partner’s interest in the total capital, profits and losses of the
Partnership.
“Limited
Partner”
means
any Person designated as a Limited Partner in Schedule
A
or any
Person who becomes a Limited Partner as provided herein.
“Liquidation”
shall
have the meaning set forth in Treasury Regulation § 1.704-1(b)(2)(ii)(g) and any
amendatory or successor Section of such Regulation.
“Liquidation
Distribution”
means
the distribution of the Partnership’s Property upon an event of Liquidation
pursuant to the terms set forth in Section 4.2.
“Partner”
or
“Partners”
means
any General Partner or the Limited Partner, and any Additional
Partner(s).
“Partnership”
means
Lincoln JP Holding, L.P., a limited partnership formed in accordance with
the
Act.
“Percentage
Interest,”
means
the portion or share from time to time which a Partner shares in the
Partnership’s Distributions. The initial Percentage Interests of the Partners
are set forth on Schedule
A
attached
hereto. Schedule
A
shall be
amended from time to time to reflect any changes in such Percentage Interests
of
the Partners.
“Person”
means
an individual, partnership, limited partnership, limited liability company,
corporation, cooperative, trust or other entity.
“Property”
means
all properties and assets in which the Partnership may have an interest or
own
from time to time.
“Remaining
Partner”
or
“Remaining
Partners,”
as
applicable, means each of the other Partners who or which own an Interest
at a
time when a Partner undergoes a Termination Event.
“Reserves”
means
amounts set aside from time to time by the General Partner pursuant to Section
4.3
“Schedule”
means
one of the Schedules annexed hereto as amended from time to time and as so
amended at the time of reference thereto.
“Termination
Event”
means
removal of a General Partner, Bankruptcy of a General Partner, or dissolution
of
a General Partner or the occurrence of any other event which terminates the
continued partnership of a General Partner pursuant to the Act.
“Transfer”
means
(i) when used as a verb, to give, sell, exchange, assign, pledge, hypothecate,
bequeath, devise or otherwise dispose of or encumber, and (ii) when used
as a
noun,
the
nouns corresponding to such verbs, in either case voluntarily or involuntarily,
by
3
operation
of law or otherwise.
2.2 Other
Definitional Provisions.
(a) As
used
in this Agreement, accounting terms not defined in this Agreement, and
accounting terms partly defined to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles.
(b) Words
of
the masculine gender shall be deemed to include the feminine or neuter genders,
and vice versa, where applicable. Words of the singular number shall be deemed
to include the plural number, and vice versa, where applicable.
ARTICLE
III
CAPITAL
CONTRIBUTIONS AND LOANS
3.1 Capital
Contributions.
Simultaneously with the execution of this Agreement, each Partner has
contributed to the Partnership the amounts set forth on Schedule
A.
Each
Partner agrees that as of the date of this Agreement (after the foregoing
Capital Contribution) he or it owns the Percentage Interest in the Partnership
set forth on Schedule
A
attached
hereto. The Percentage Interest of the Partner may not be changed or altered
except pursuant to the terms and conditions of this Agreement.
3.2 Capital
Withdrawal Rights, Interest and Priority.
Except
as expressly provided in this Agreement, no Partner shall be entitled to
(i)
withdraw or reduce such Partner’s Capital Account, (ii) receive any
Distributions from the Partnership, or (iii) demand or receive property other
than cash in return for such Partner’s Capital Contribution.
3.3 Loans
by Partners.
Any
loans by Partners shall be on such terms and conditions as may be approved
by
the General Partner. Loans by any Partner to the Partnership shall not be
considered as contributions to the capital of the Partnership.
ARTICLE
IV
DISTRIBUTIONS
4.1 Non-Liquidation
Cash Distributions.
The
amount, if any, of Available Cash shall be reasonably determined by the General
Partner from time to time and shall be distributed to the Partners at such
times
and in such amounts as reasonably determined by the General Partner, in
proportion to the Partners’ respective Percentage Interests.
4.2 Liquidation
Distributions.
In the
event of a Liquidation, the Partnership’s Property shall be allocated, paid
and/or distributed in the following order of priority:
(a) To
the
payment of debts and liabilities of the Partnership (including to Partners
to
the extent otherwise permitted by law) and the expenses of liquidation;
then
4
(b) To
the
setting up of such Reserves as the Person required or authorized by law to
wind
up the Partnership’s affairs may reasonably deem necessary or appropriate for
any disputed, contingent or unforeseen liabilities or obligations of the
Partnership; then
(c) To
the
Partners in accordance with their Respective Percentage Interests.
All
such
Liquidation Distributions shall be made no later than the end of the taxable
year during which such Liquidation takes place or, if later, within 90 days
after the date of such Liquidation.
4.3 Reserves.
The
General Partner shall have the right to establish, maintain, and expend such
reserves to provide for working capital, future maintenance, repair or
replacement of the Property, debt service, future investments and such other
purposes as the General Partner may deem necessary or advisable.
4.4 Disregarded
Entity. The
Partnership is intended to be a disregarded entity under Treasury Regulation
§
1.7701-3 and Revenue Ruling 2004-77, and the Partners hereby acknowledge
that
this Agreement does not contain any provisions relating to the allocation
of
income, losses, deductions or credits to the Partners.
ARTICLE
V
GENERAL
PARTNERS; PARTNERSHIP BUSINESS
5.1 General
Partner’s Authority.
Except
as otherwise specifically set forth in this Agreement, (a) the business and
affairs of the Partnership shall be managed by the General Partner, and (b)
the
General Partner shall have full, exclusive and complete power and discretion,
without the need for consent or approval of any other Partner, to make all
decisions and to do all things which it deems necessary or desirable on behalf
of the Partnership. Without limiting the generality of the foregoing, the
General Partner, acting singly, shall have the sole and exclusive authority,
for
and on behalf of the Partnership, to (x) borrow money (and to pledge any
real,
personal or other property of the Partnership as collateral therefor), (y)
to
purchase or otherwise acquire any real estate, and (z) negotiate, execute,
deliver, file and cause the Partnership to perform, any and all agreements,
documents, instruments and certificates necessary to consummate the foregoing,
all on terms and conditions acceptable to the General Partner.
5.2 Management
of Partnership Business. The
General Partner shall devote such amount of its time and services, and the
time
and services of its employees and agents, as, in its discretion, it deems
necessary to the proper conduct of such business affairs. Any party may rely
on
any action taken by the General Partner as having been a duly authorized
act of
the Partnership. The General Partner shall consider the interests of the
Partnership’s creditors in connection with all Partnership actions.
5
5.3.
Effect
of Bankruptcy of the Limited Partner.
The
bankruptcy, dissolution, or liquidation of the Limited Partner shall not
cause
the termination or dissolution of the Partnership and the business of the
Partnership shall continue. Upon any such occurrence, the trustee or other
representative of the Limited Partner shall have all the rights of such Limited
Partner for the purpose of settling or managing its estate or property, subject
to satisfying conditions precedent to the admission of an assignee as a
substitute Limited Partner. The transfer by such trustee or representative
of
any Partnership Interest shall be subject to all of the restrictions hereunder
to which such transfer would have been subject if such transfer had been
made by
the Limited Partner.
5.4 Business
Control.
The
Limited Partner shall not participate in or have any control over the
Partnership business, except as specifically set forth in this Agreement
or as
required by law. The Limited Partner hereby consents to the exercise by the
General Partner of the powers conferred upon it by this Agreement and to
the
employment, when, if in the discretion of the General Partner, the same is
deemed necessary or advisable, of such employees, agents, attorneys or other
professionals as the General Partner may determine (notwithstanding that
any
parties to this Agreement may have an interest in, or be one of, such employees,
agents, attorneys or other professionals). The Limited Partner shall not
have
any authority or right to act for or bind the Partnership.
5.5 Transfer
or Withdrawal by General Partner.
Without
the consent of the Limited Partner, the General Partner may not Transfer,
sell
or assign its Interest in the Partnership. Any Transfer of an Interest or
any
portion thereof of a General Partner without the consent required under this
Section 5.5 shall be treated as a withdrawal of such General
Partner.
5.6 Admission
of Additional General Partners.
One or
more additional General Partners may only be admitted to the Partnership
with
the unanimous consent of all of the Partners.
ARTICLE
VI
LIMITED
PARTNER
6.1 Authority
of Limited Partner.
The
Limited Partner shall have no authority (a) to take part in the management
or
control of the Partnership or of its business or affairs or (b) to act for
or
bind the Partnership in any matter.
ARTICLE
VII
TERM
AND DISSOLUTION
7.1 Events
Causing Dissolution.
The
Partnership shall continue in full force and effect until December 31, 2999,
except that the Partnership shall be dissolved prior to such date upon the
happening of any of the following events:
(a) the
sale
or other disposition of all or substantially all of the assets of the
6
Partnership;
(b) the
unanimous vote of the Partners to dissolve;
(c) the
happening of any event, other than a withdrawal of a General Partner, that
causes a dissolution of the Partnership under the Act;
(d) the
happening of a Termination Event with respect to a General Partner or any
other
event causing a dissolution of the Partnership under the provisions of the
Act,
unless the business of the Partnership is continued by the consent of all
of the
Remaining Partner(s); or
(e) the
withdrawal of a General Partner, unless (i) at the time of such withdrawal
there
is at least one remaining General Partner and all remaining General Partners
agree to continue the business of the Partnership (which continuation of
the
business of the Partnership is hereby authorized) or (ii) within ninety (90)
days after such withdrawal all remaining Partners agree in writing to continue
the business of the Partnership and agree in writing to the appointment of
one
(1) or more additional General Partners, if necessary or desired.
In
any
case in which a sole Remaining Partner shall consent to the continuation
of the
business of the Partnership pursuant to this Section 7.1, such Remaining
Partner
may admit one or more additional Partners (an “Additional Partner”) without
obtaining the consent of the Partner with respect to whom the Termination
Event
shall have occurred if, but for this sentence of Section 7.1, such Remaining
Partner would otherwise have been the sole Partner of the Partnership after
such
Termination Event. Any such Additional Partner admitted pursuant to this
Section
7.1 shall, as a condition of such admission, execute an instrument accepting,
adopting, and agreeing to be bound by the terms and conditions of this
Agreement.
7.2 Effect
of Dissolution.
Except
as otherwise provided in this Agreement, upon the dissolution of the
Partnership, the General Partner shall take such actions as may be required
pursuant to the Act and shall proceed to wind up, liquidate and terminate
the
business and affairs of the Partnership. In connection with such winding
up, the
General Partner shall have the authority to (a) liquidate and reduce to cash
(to
the extent necessary or appropriate) the assets of the Partnership as promptly
as is consistent with obtaining a Fair Value therefor, (b) apply and distribute
the proceeds of such liquidation and any remaining assets in accordance with
the
provisions of Section 7.3 below, and (c) do any and all acts and things
authorized by, and in accordance with, the Act and other applicable laws
for the
purpose of winding up and liquidation.
7.3 Application
of Proceeds.
Upon
the dissolution and liquidation of the Partnership, the assets of the
Partnership shall be applied and distributed in the order of priority set
forth
in Section 4.2.
7
ARTICLE
VIII
ACCOUNTING
AND BANK ACCOUNTS
8.1 Fiscal
Year and Accounting Method.
The
fiscal year and taxable year of the Partnership shall end on December 31
of each
year, unless a different year is required by the Code. The accrual method
of
accounting shall be used by the Partnership.
8.2 Books
and Records.
At all
times during the existence of the Partnership, the Partnership shall cause
to be
maintained full and accurate books of account, which shall reflect all
Partnership transactions and be appropriate and adequate for the Partnership’s
business. The Partnership shall conduct business in its own name; hold itself
out as a separate entity; hold its assets in its own name; and maintain books
and records separate from any other entity. The books and records of the
Partnership shall be maintained at the offices of the Partnership where the
General Partner performs its primary duties hereunder. Copies of such books
and
records shall be provided from time to time to each of the Partners upon
reason-able written request. In addition, each Partner (or such Partner’s
designated representative) shall have the right during ordinary business
hours
and upon reasonable notice to inspect and copy (at such Partner’s own expense)
all books and records of the Partnership.
8.3 Negotiable
Instruments, Deeds, Contracts and Shares.
All
checks, drafts, notes, bonds, bills of exchange and orders for the payment
of
money, deeds, mortgages made by the Partnership and other material written
contracts of the Partnership shall be signed by any officer or any Person
authorized by the General Partner from time to time.
ARTICLE
IX
MISCELLANEOUS
9.1 Title
to Assets.
Title
to the Property and all other assets acquired by the Partnership shall be
held
in the name of the Partnership. No Partner shall individually have any ownership
interest or rights in the Property or any other assets of the Partnership,
except indirectly by virtue of such Partner’s ownership of an Interest. No
Partner shall have any right to seek or obtain a partition of the Property
or
other assets of the Partnership, nor shall any Partner have the right to
any
specific assets of the Partnership upon the liquidation of or any distribution
from the Partnership.
9.2 Nature
of Interest in the Partnership.
A
Partner’s Interest shall be personal property for all purposes.
9.3 No
Third Party Rights.
None of
the provisions contained in this Agreement shall be for the benefit of or
enforceable by any third parties, including creditors of the
Partnership.
9.4 Investments
Representations.
Each
Partner represents and warrants that the Partner is purchasing his or its
Interest in the Partnership for the Partner’s own account, for investment and
with no present intention of distributing or reselling the same or any part
thereof.
8
9.5 Entire
Agreement; Amendment.
This
Agreement (together with the Certificate) contains the entire agreement among
the Partners relative to the formation, operation and continuation of the
Partnership. Except as otherwise expressly provided elsewhere in this Agreement,
this Agreement and the Certificate shall not be altered, modified or changed
except by a written document duly executed by all Partners at the time of
such
alteration, modification or change.
9.6 Governing
Law.
This
Agreement shall be governed by and interpreted and enforced in accordance
with
the laws of the State of Indiana, without regard to the principles of conflicts
of law thereof.
9.7 Severability.
In the
event any provision of this Agreement is held to be illegal, invalid or
unenforceable to any extent, the legality, validity and enforceability of
the
remainder of this Agreement shall not be affected thereby and shall remain
in
full force and effect and be enforced to the greatest extent permitted by
law.
9.8 Binding
Agreement.
The
provisions of this Agreement shall be binding upon, and inure to the benefit
of,
the parties hereto and their respective heirs, personal representatives,
successors and permitted assigns.
9.9 Headings.
The
headings of the Articles and Sections of this Agreement are for convenience
only
and shall not be considered in construing or interpreting any of the terms
or
provisions hereof.
9.10 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which shall constitute one agreement
that is
binding upon all of the parties hereto, notwithstanding that all parties
are not
signatories to the same counterpart.
[Signature
Page to Follow]
9
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
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“General
Partner”
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“Limited
Partner”
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Lincoln
JP Company, LLC
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Lincoln
National Corporation
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By:
Lincoln National Corporation,
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its
sole member
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title:2nd
VP
& Senior Counsel
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title:
2nd
VP
& Senior Counsel
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S-1
SCHEDULE
A
to
the
Limited
Partnership Agreement
Of
Lincoln
JP Holdings, L.P.
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Partners
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Capital
Contribution
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Percentage
Interest
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Lincoln
JP Company, LLC
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$0.01
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0.1%,
as General Partner
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Lincoln
National Corporation
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$9.99
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99.9%,
as Limited Partner
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