EXHIBIT 2.2
AGREEMENT OF LIMITED PARTNERSHIP
OF
OF ACQUISITION L.P.
This Agreement of Limited Partnership of OF Acquisition L.P. is entered
into by St. ▇▇▇▇▇ Capital Corp., a Delaware corporation, and CDI Holdings, Inc.,
a Delaware corporation.
W I T N E S S E T H:
In consideration of the mutual covenants expressed herein, the parties
hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
The definitions set forth in this Article shall apply throughout this
Agreement unless the context clearly indicates otherwise.
"AGREEMENT" - This Agreement and any modifications or amendments to this
Agreement.
"AFFILIATE" of a person (the "first person") means any other person (the
"second person") controlled by, controlling or under common control with the
first person. As used in this definition, "control" (and all variations of the
word) of a person means power to direct the affairs of that person.
"CODE" - The Internal Revenue Code of 1986, as amended, including
corresponding provisions of any subsequent federal tax law.
"GENERAL PARTNER" - A general partner of the Partnership.
"LIMITED PARTNER" - A limited partner of the Partnership.
"PARTNER" - A General partner or a Limited Partner.
"PARTNERSHIP" - The limited partnership existing pursuant to this
Agreement.
"PERSON" - Any individual, corporation, partnership, limited partnership,
limited liability partnership, limited liability company, professional
corporation, trust, estate; custodian, trustee, executor, administrator,
nominee, or other entity in its own or a representative capacity.
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"PRINCIPAL OFFICE" - As specified in Section 2.04.
"TEXREVLPA" - The Texas Revised Limited Partnership Act, as amended.
ARTICLE II
FORMATION AND INITIAL ORGANIZATION
2.1 FORMATION. The parties hereto hereby form the Partnership as a limited
partnership under TexRevLPA upon, and only upon, filing the certificate of
limited partnership which is required by the TexRevLPA.
2.2 NAME. The Partnership shall conduct its business and affairs under the
name of OF Acquisition L.P.
2.3 REGISTERED OFFICE AND REGISTERED AGENT. The Partnership's registered
office in Texas is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and the Partnership's registered agent at that address is ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇. The General Partner may change the registered office and registered
agent as the General Partner alone determines to be appropriate.
2.4 PRINCIPAL OFFICE. The principal office of the Partnership (the
"Principal Office") shall be located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; PROVIDED that the General Partner may change the Principal
Office to any other location in the United States as the General Partner alone
determines to be appropriate.
2.5 PURPOSES. The purpose of the Partnership is to conduct any business
which lawfully may be conducted in limited partnership form.
ARTICLE III
MANAGEMENT
3.1 POWERS OF THE GENERAL PARTNER. The General Partner shall have the
power to take any action in managing the Partnership's business and affairs as
may be necessary or appropriate to conduct its business including the power:
3.1(a) to acquire, invest in or otherwise participate in other
partnerships, corporations or other entities;
3.1(b) to purchase or otherwise acquire, construct, deal in, sell,
lease or otherwise dispose of full or fractional interests in real
property, depreciable property or personal property of any kind and to buy
or hold insurance of any kind;
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3.1(c) to provide or contract for services of any kind; to make,
enter into, deliver and perform contract, agreements and other
undertakings; to contract for the services of accountants, lawyers,
investment managers, appraisers, contractors, or other service providers
and to delegate powers to any such person; to retain or employ employees;
3.1(d) to lend money with or without security to any person,
including any partner or an Affiliate of a Partner, on any commercially
reasonable terms;
3.1(e) without limitation as to amount or terms, to borrow and raise
moneys, to issue, accept endorse and execute promissory notes, drafts,
bills of exchange, warrants, bonds, debentures and other negotiable or
nonnegotiable instruments and evidences of indebtedness, and to secure the
payment of any such indebtedness and any interest in any such indebtedness
by mortgage, pledge, transfer or assignment in trust of all or any part of
the Partnership assets, whether owned at the time of any such transactions
or acquired thereafter, and, in particular, to use the assets of the
Partnership to secure borrowings the proceeds of which may be used to
acquire companies or interests in companies in the fastener industry, and
to sell, pledge or otherwise dispose of any such obligations of the
Partnership;
3.1(f) to guarantee any financial transactions of any kind with or
without charging a fee therefor;
3.1(g) to have and maintain one or more offices and to rent or
acquire office space, engage personnel, purchase equipment and supplies
and do anything else which may be appropriate in connection with the
maintenance of offices;
3.1(h) to pay any expenses related to any of the Partnership's
businesses or affairs;
3.1(i) to compromise claims against the Partnership;
3.1(j) to establish bank accounts and other similar accounts for the
Partnership; to make or delegate the authority to make withdrawals from
such accounts by check or electronic transfer in the name of the
Partnership; and
3.1(k) to acquire real and personal property, arrange financing,
enter contracts and complete any other arrangements on behalf of the
Partnership, in the name of the Partnership or in the name of a nominee
without having to disclose the existence of the Partnership;
PROVIDED, however, that without the prior written consent of all of the
Partners, the General Partner shall not cause the Partnership to (i) file a
petition for relief in bankruptcy under any federal bankruptcy law or any other
jurisdiction's debtor relief law; or (ii) make any decision or take any action
which would make it impossible to carry on the Partnership's business and
affairs.
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3.2 RELIANCE BY THIRD PARTIES ON GENERAL PARTNER. The Partnership shall be
liable for any transaction with any third party who relies on the authority of
the General Partner if the General Partner communicates to the third party that
the actions taken by the General Partner are taken on behalf of the Partnership,
and the third party shall not be deemed to have any duty to determine whether
the General Partner has the authority to take the action.
3.3 DELEGATION BY GENERAL PARTNER. The General Partner may delegate any
power under this Agreement to any employee of the Partnership or an agent,
attorney or attorney-in-fact of the Partnership.
3.4 TIME AND EFFORT REQUIRED OF GENERAL PARTNER. The General Partner shall
devote an amount of time and effort to the Partnership which it determines in
good faith to be necessary to conduct the business of the Partnership; PROVIDED
that nothing in this Agreement shall be deemed to restrict the freedom of the
General Partner to conduct any business activity separate and apart from the
Partnership.
3.5 DUTIES OF GENERAL PARTNER; LIMITATION. Any obligation of the General
Partner under this Agreement or by operation of law shall be performable only to
the extent that the Partnership has funds available therefor, and the General
Partner shall not be liable personally with respect to any such obligation.
3.6 INDEMNIFICATION OF GENERAL PARTNER.
To the fullest extent permitted by law, the General Partner shall be
indemnified and held harmless by the Partnership from and against any and
all losses, claims damages, liabilities, joint or several, expenses
(including, without limitation, legal fees and expenses), judgments,
fines, penalties, interest and other amounts arising from any and all
claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which the General Partner may be
involved, or is threatened to be involved, as a party or otherwise, by
reason of its status as a general partner of the Partnership, PROVIDED,
that in each case the General Partner acted in good faith and in a manner
which the General Partner reasonably believed to be in the best interests
of the Partnership and, with respect to any criminal proceeding, had no
reasonable cause to believe its conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere, or its equivalent shall not create a
presumption that the General Partner acted in a manner contrary to that
specified above.
To the fullest extent permitted by law, expenses (including, without
limitation, legal fees and expenses) incurred by a General Partner in
defending any claim, demand, action suit or proceeding shall, from time to
time, be advanced by the Partnership prior to the final disposition of
such claim, demand, action, suit or
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proceeding upon receipt by the Partnership of an undertaking by or on
behalf of such General Partner to repay such amount if it shall be
determined that such General Partner is not entitled to be indemnified as
authorized in this Section.
3.7 LIMITED PARTNERS.
3.7(a) NO CONTROL OVER MANAGEMENT. Except as may be provided herein
to the contrary, no Limited Partner shall have any authority to
participate in the control of the Partnership's business or affairs.
3.7(b) LIMITED LIABILITY. A Limited Partner shall not be personally
liable for any debts or obligations of the Partnership.
3.7(c) NO RETURN OF CONTRIBUTIONS. A Limited Partner shall have no
right to withdraw from the Partnership and shall have no right to a return
of any contributions to the Partnership made by him or her except to the
extent of distributions made to him or her as provided herein.
3.8 TRANSACTIONS WITH PARTNERSHIP. Any Partner and any Affiliate of a
Partner may transact business of any kind with the Partnership.
3.9 COMPETITION. A Partner and its Affiliates may own, operate or invest
in any property or business venture which is not owned or operated by the
Partnership and without allowing the participation of the Partnership or the
other Partners, such that neither the Partnership nor any Partner shall have any
rights with respect to any such properties or business ventures nor any claims
with respect to their effect on the Partnership.
ARTICLE IV
PARTNERS AND CAPITALIZATION
4.1 PARTNERS. St. ▇▇▇▇▇ Capital Corp., a Delaware corporation, is the
general partner of the Partnership. CDI Holdings, Inc., a Delaware corporation,
is the limited partner of the Partnership.
4.2 CONTRIBUTIONS. Contemporaneously with the execution hereof, St. ▇▇▇▇▇
Capital Corp., a Delaware corporation, will contribute $1,000 to the
Partnership, and CDI Holdings, Inc., a Delaware corporation will contribute
600,000 shares of common stock of Industrial Holdings, Inc., a Texas
corporation, with an agreed value of $______.1 Each Partner is to own one Common
Unit
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1 To be completed as the fair market value of such 600,000 shares of
common stock as determined by an appraiser or as otherwise determined by the
Partners.
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for each dollar contributed or for each dollar of agreed value of the property
which was so contributed.
4.3 SOURCES OF ADDITIONAL FUNDS.
4.3(a)ADDITIONAL CONTRIBUTIONS. The General Partner may cause the
Partnership to issue additional Units, or classes or series of such Units,
or options, rights, warrants, or appreciation rights relating thereto, or
any other type of equity security that the Partnership may lawfully issue,
any secured or unsecured debt obligation of the Partnership convertible
into or exchangeable or exercisable for any class or series of equity
security of the Partnership (each a "Partnership Security") at any time or
from time to time to such Person or Persons and on such terms as the
General Partner may determine all without the approval of any other
Partner. Any Person to whom such a Partnership Security is issued shall
become a limited partner of the Partnership.
Any such Partnership Security shall be issuable with such
designations, preferences, and relative, participating, optional or other
special rights, powers or duties as may be fixed by the General Partner
including the right of the holder of each such Partnership Security to
share in distributions whether before or during winding up of the
Partnership, whether such Partnership Security is redeemable and if so the
conditions of any such redemption, whether such Partnership Security is
convertible or exchangeable and if so the terms of any such conversion or
exchange, and the right of the holder of any such Partnership Security to
vote on matters relating to the Partnership. After the issuance of any
such Partnership Security, the General Partner shall amend the provisions
of this Agreement to provide for the allocation for federal, state and
local income tax purposes of the Partnership's items of income, gain, loss
and deduction in accordance with applicable law.
No Partner shall have any preemptive, preferential or similar right
with respect to the issuance of any such Partnership Security by the
Partnership.
4.3(b)LOANS AND GUARANTEES BY PARTNERS AND AFFILIATES. No Partner
shall be obligated to contribute any additional funds or properties to the
Partnership. Nor shall any Partner be obligated to loan funds to the
Partnership, to guarantee loans to the Partnership or otherwise to incur
personal liability with respect to any loan to the Partnership.
If a Partner or any Affiliate of a Partner chooses to loan funds to
the Partnership, the terms of the loan shall be no less favorable to the
Partnership than the terms which could be obtained from a third-party
lender. If a Partner chooses to guarantee a loan to the Partnership or
otherwise to incur personal liability with respect to a loan to the
Partnership, in each case, with the consent of the General Partner, the
Partnership shall pay the Partner fair and reasonable compensation
therefor and shall reimburse, indemnify and hold the Partner harmless for
any loss, cost or expense incurred by the Partner with respect to the
loan.
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ARTICLE V
ACCOUNTING AND TAX MATTERS
5.1 BOOKS AND RECORDS. The General Partner shall keep and maintain the
books and records of the Partnership at the Principal Office, which books and
records shall be kept in accordance with accounting principles which the General
Partner determines to be appropriate for the business and affairs of the
Partnership.
ARTICLE VI
TAX MATTERS
6.1 TAX ELECTIONS. The General Partner shall determine whether the
Partnership shall make any election (including any election which may be
permitted with respect to the Partnership's method of accounting and any
election for which provision is made in Section 168 and Section 754 of the Code)
which is available to the Partnership for federal, state or local tax purposes.
6.2 PREPARATION OF TAX RETURNS. The General Partner shall use its
reasonable efforts to arrange, at the expense of the Partnership, for the
preparation and timely filing of all tax returns of the Partnership for federal,
state or local tax purposes and shall furnish to the Partners a copy of any
income tax returns so filed within a reasonable time after the filing thereof.
In addition, the General Partner shall furnish to the Partners such other tax
information as is reasonably required for federal, state and local tax reporting
purposes.
6.3 TAX MATTERS PARTNER. The General Partner is the tax matters partner,
within the meaning of Section 6231(a)(7) of the Code, and is authorized to
represent the Partnership (at the Partnership's expense) in connection with any
examination of the Partnership's affairs by any tax authority, including
administrative and judicial proceedings, and to expend Partnership funds for
professional services and the costs associated therewith.
6.4 TAX ALLOCATIONS. Unless the General Partner determines that another
allocation is required by applicable law (such as Section 704(c) of the Code)
each item of income, gain, loss, deduction and credit recognized by the
Partnership for federal, state or local income tax purposes shall be allocated
among the holders of Common Units in proportion to the number of such Common
Units which are so held.
ARTICLE VII
DISTRIBUTIONS
7.1 DISTRIBUTIONS. The General Partner shall from time to time cause the
Partnership to make such distributions to the Partners as the General Partner
may determine in its sole discretion,
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and any amount so distributed, whether prior to or during the winding up of the
Partnership, shall be divided amount the holders of Common Units in proportion
to the number of Common Units held by them.
ARTICLE VIII
ASSIGNMENTS
8.1 NEW PARTNERS. Except as otherwise provided herein, no person shall
become a Partner without the written consent of the General Partner.
8.2 ASSIGNMENT PREREQUISITES; REMEDIES FOR BREACH. No interest in the
Partnership shall be assigned, or otherwise transferred, except in compliance
with all applicable laws including federal and state securities laws.
ARTICLE IX
DISSOLUTION, WINDING UP AND LIQUIDATION
9.1 DISSOLUTION. The Partnership shall be dissolved on the first to occur
of
9.01(a)July 1, 2038 or
9.01(b)an event of withdrawal of the General Partner, as defined in
Section 4.02 of the TexRevLPA.
9.2 LIQUIDATOR. If the Partnership is dissolved, the Partnership's affairs
shall be wound up and the Partnership shall be liquidated by the General
Partner.
9.3 CONVERSION OF ASSETS TO CASH. After the Partnership is dissolved, the
assets of the Partnership shall be liquidated and converted to cash to the
extent necessary to pay all creditors of the Partnership, including Partners to
the extent allowed by Section 8.05(1) of the TexRevLPA. Any of the assets of the
Partnership which remain after the above-described assets are converted to cash
may be liquidated and converted to cash or retained for distribution in kind to
the Partners as the General Partner determines to be appropriate. The Partners
shall allow a reasonable
ARTICLE X
MISCELLANEOUS
10.1 MODIFICATION, TERMINATION AND WAIVER. This Agreement may be modified,
terminated or waived only by written agreement among all parties affected by the
modification, termination or waiver.
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10.2 ESTOPPEL CERTIFICATE. Within twenty days after receiving a written
request from another Partner, any Partner receiving the request shall return a
written, acknowledged statement which, to the extent of the Partner's knowledge,
(a) either states that this Agreement has not been modified or describes any
modifications which have been made, and (b) sates whether or not any Partner is
in default with respect to any obligation under this Agreement and describes the
default.
10.3 FURTHER ACTIONS. Each party to this Agreement shall execute and
deliver any documents and take any further actions which may be necessary to
effect the purposes and objectives of this Agreement.
10.4 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties to this Agreement and their respective successors and
assigns; provided that no interest in or under this Agreement may be assigned
except as provided by this Agreement.
10.5 CREDITORS. No provision in this Agreement shall be enforceable by,
nor construed for the benefit of, any creditors of the Partnership.
10.6 ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties to this Agreement with respect to the Partnership and supersedes any
prior understandings between or among them. There are no oral or written
representations, agreements, arrangements or understandings between or among the
parties to this Agreement which relate to the Partnership other than those
contained in this Agreement.
10.7 GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Texas and the rights and obligations of the parties to
this Agreement shall be governed by the laws of the State of Texas.
10.8 NOTICES. Except as otherwise provided, all notices and other
communications which may be required under this Agreement shall be submitted in
writing and shall be effective when received by the party to be notified. As
long as all costs are prepaid by the sender, notices may be sent by any
reasonable method, including hand delivery, mail (whether certified, overnight
or otherwise), air courier, facsimile transmission, Telex or cable.
10.9 FORMAT OF AGREEMENT; HEADINGS. The format of this Agreement and the
headings used throughout this Agreement are intended only for convenience of
reference and shall not affect the meaning of any provision in this Agreement.
10.10 CROSS-REFERENCES. Unless the context clearly indicates otherwise,
any references in this Agreement to an "Article" or "Section" are references to
articles or sections of this Agreement.
10.11 PLURALS, ETC. Pronouns, nouns and other terms used in this Agreement
shall be construed as necessary to include their masculine, feminine, neuter,
singular and plural forms.
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10.12 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original of this Agreement but all of
which, taken together, shall constitute one and the same Agreement.
IN WITNESS OF THIS AGREEMENT, the parties to this Agreement have executed,
and delivered this Agreement on the 20th day of November, 1997.
ST. ▇▇▇▇▇ CAPITAL CORP.,
a Delaware corporation
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
CDI HOLDINGS, INC.,
a Delaware corporation
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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FIRST AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
OF ACQUISITION L.P.
February 9, 1998
This First Amendment dated as of February 9, 1998 ("Amendment"), to the
Agreement of Limited Partnership of OF Acquisition L.P., a Texas limited
partnership, dated November 20, 1997 (the "Agreement"), is made and entered into
between St. ▇▇▇▇▇ Management, L.L.C., a Delaware limited liability company, as
General Partner, and CDI Holdings, Inc., a Delaware corporation, as Limited
Partner. Defined terms used herein shall have the meaning attributed to them in
the Agreement, unless otherwise defined herein.
WHEREAS, the Partners desire to amend the Agreement as hereinafter
provided; WHEREAS, St. ▇▇▇▇▇ Management, L.L.C. has heretofore replaced
St. ▇▇▇▇▇ Capital Corp. as the General Partner of the Partnership; and
WHEREAS, the Partners desires to admit an additional Limited Partner; NOW,
THEREFORE, the Partners hereby agree as follows:
1. Section 3.03 shall be amended to read in its entirety as follows:
3.03 DELEGATION BY GENERAL PARTNER. The General Partner may, in its
sole discretion, delegate any power under this Agreement to any
employee of the Partnership, or an agent, attorney or
attorney-in-fact of the Partnership. The Partnership may employ a
"General Manager", which position will not, in and of itself, mean
that such person is a partner in the Partnership or an officer,
director or member of the General Partner.
2. Section 6.04 shall be amended to read in its entirety as follows:
6.04 TAX ALLOCATIONS. Unless the General Partner determines that
another allocation is required by applicable law (such as Section
7.04(c) of the Code), each item of income, gain, loss, deduction and
credit recognized by the Partnership for federal, state or local
income tax purposes shall be allocated among the holders of Common
Units in proportion to the number of such Common Units which are so
held; provided, however, that all items of income, gain, loss,
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deduction and credit attributable to the 644,250 shares of common
stock of Industrial Holdings, Inc. (the "IHI Stock") held by the
Partnership shall be specially allocated to CDI Holdings, Inc.
3. Section 7.01 shall be amended to read in its entirety as follows:
7.01 DISTRIBUTIONS. The General Partner shall from time to time
cause the Partnership to make such distributions to the Partners as
the General Partner may determine in its sole discretion, and any
amount so distributed shall be distributed as follows:
(a) First, cash attributable to the ownership, sale, or
disposition of the IHI Stock, including dividends and
cash proceeds from any sale or disposition of the IHI
Stock, shall be distributed to CDI Holdings, Inc.
(b) All other distributions shall be made to the holders of
Common Units in proportion to the number of Common Units
held by them.
4. Section 9.03 shall be amended to read in its entirety as follows:
9.03 CONVERSION OF ASSETS TO CASH. After the Partnership is
dissolved, the assets of the Partnership shall be liquidated and
converted to cash to the extent necessary to pay all creditors of
the Partnership, including Partners to the extent allowed by Section
8.05(1) of the TEX REV LPA. Any of the assets of the Partnership
which remain after the above-described assets are converted to cash
may be liquidated and converted to cash or retained for distribution
in kind to the Partners as the General Partner determines to be
appropriate; provided, however, that any distribution in kind of the
IHI Stock shall be made to CDI Holdings, Inc. The Partners shall
allow a reasonable time for the orderly liquidation of the
Partnership in order to avoid losses to the extent possible.
5. St. ▇▇▇▇▇ Management, L.L.C., as the General Partner of the
Partnership, and CDI Holdings, Inc., as the sole limited partner of
the Partnership, hereby agree to and consent to Philform, Inc.
becoming a new Limited Partner in the Partnership.
6. St. ▇▇▇▇▇ Management, L.L.C., CDI Holdings, Inc. and Philform, Inc.
hereby agree that, after the admission of Philform, Inc. as a new
Limited Partner, they shall own, 1,000 Common Units, 14,114,969
Common Units and 13,562,401 Common Units, respectively.
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DATED as of the first above written.
ST. ▇▇▇▇▇ MANAGEMENT, L.L.C.
By:/s/▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, President
CDI HOLDINGS, INC.
By:/s/▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: SECRETARY
PHILFORM, INC.
By:/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
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