Exhibit 2
LIMITED PARTNERSHIP AGREEMENT
OF
▇▇▇▇▇▇▇ PARTNERS, L.P.
THIS LIMITED PARTNERSHIP AGREEMENT, made and entered into the 14th day of
November, 1997, by and among ▇▇▇▇▇▇▇ MANAGEMENT COMPANY, LLC, a Georgia limited
liability company; and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of the State of
Georgia;
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THE LIMITED PARTNERSHIP INTERESTS IN ▇▇▇▇▇▇▇ PARTNERS, L.P. (THE "INTERESTS")
ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN ARTICLE 14 OF THIS
AGREEMENT. THE INTERESTS HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER (i) THE GEORGIA SECURITIES ACT OF 1973, AS AMENDED (THE
"GEORGIA ACT"), IN RELIANCE UPON THE EXEMPTION PROVIDED IN SECTION 10-5-9(13) OF
THE OFFICIAL CODE OF GEORGIA ANNOTATED, (ii) UNDER ANY OTHER STATE SECURITIES
LAWS, OR (iii) UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"FEDERAL ACT"). NEITHER THE INTERESTS NOR ANY PART THEREOF MAY BE OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF ARTICLE 14 OF THIS AGREEMENT AND (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE GEORGIA ACT OR IN A
TRANSACTION THAT IS EXEMPT FROM REGISTRATION UNDER THE GEORGIA ACT OR THAT IS
OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT, (ii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER ANY OTHER APPLICABLE STATE SECURITIES LAWS OR IN A
TRANSACTION THAT IS EXEMPT FROM REGISTRATION UNDER SUCH SECURITIES LAWS OR THAT
IS OTHERWISE IN COMPLIANCE WITH SUCH SECURITIES LAWS, AND (iii) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION THAT
IS EXEMPT FROM REGISTRATION UNDER THE FEDERAL ACT OR THAT IS OTHERWISE IN
COMPLIANCE WITH THE FEDERAL ACT.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to form a limited partnership under the
laws of the State of Georgia for the purposes hereinafter described; and
WHEREAS, the parties hereto desire to set forth herein their respective
rights, duties and responsibilities with respect to such limited partnership;
NOW, THEREFORE, in consideration of the premises, and of the mutual
promises, obligations and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE 1
FORMATION OF PARTNERSHIP; NAME AND PRINCIPAL OFFICE
1.1 Formation. The parties hereto do hereby agree to and do hereby form a
limited partnership under the Revised Uniform Limited Partnership Act of the
State of Georgia (said limited partnership being hereinafter referred to as the
"Partnership").
1.2 Name, Registered Agent and Registered Office. The name of the
Partnership shall be ▇▇▇▇▇▇▇ Partners, L.P., its registered agent for service of
process shall be ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the registered office of the Partnership
shall be located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as the General Partner may from time to time designate.
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ARTICLE 2
PARTNERS
2.1 General Partner. The general partner of the Partnership and its
percentage interest in the Partnership as set forth opposite its name are:
GENERAL PARTNER PERCENTAGE INTEREST
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▇▇▇▇▇▇▇ Management Company, LLC 1.00%
The general partner, together with such persons, firms or entities as may
hereafter be admitted to the Partnership as substitute or additional general
partners, are referred to herein individually and collectively as the "General
Partner."
2.2 Limited Partner. The limited partner of the Partnership and his
percentage interest in the Partnership as set forth opposite his name is:
LIMITED PARTNER PERCENTAGE INTEREST
--------------- -------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 99%
The limited partner, together with such persons, firms or entities as may
hereafter be admitted to the Partnership as substitute or additional limited
partners, are referred to herein individually as a "Limited Partner" and
collectively as the "Limited Partners." The General and Limited Partners are
referred to herein collectively as the "Partners" and individually as a
"Partner."
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ARTICLE 3
PURPOSE OF PARTNERSHIP
The primary purpose of the Partnership shall be to invest and reinvest the
property contributed to the Partnership or later acquired by the Partnership for
current income production and for long term appreciation and to engage in such
other activities and businesses as the General Partner, in its sole discretion,
deems appropriate. Without limiting the generality of the foregoing, it is
anticipated that the Partnership will assist in maintaining and centralizing
control of the Partnership property in the ▇▇▇▇▇▇▇ family; avoiding undue
fractionalization of interests in the Partnership property; providing
flexibility not available through other types of entities; and promoting
knowledge and communication within the ▇▇▇▇▇▇▇ family regarding the Partnership
property.
ARTICLE 4
TERM
The term of the Partnership shall commence upon the filing for record of a
Certificate of Limited Partnership for the Partnership in the office of the
Secretary of State of the State of Georgia, and shall continue until the
Partnership is dissolved, liquidated, and terminated pursuant to Article 16
hereof.
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ARTICLE 5
CAPITAL CONTRIBUTIONS
5.1 Initial Contributions. Simultaneously with the execution hereof, each
of the Partners has contributed the property set forth opposite such Partner's
name on the Schedule attached hereto and incorporated herein by this reference
(the "Schedule"). The agreed value of the property so contributed is also set
forth on the Schedule.
5.2 Additional Capital Contributions. No Partner shall be required to make
additional contributions to the Partnership. No Partner shall be permitted to
make additional contributions to the Partnership without the consent of the
General Partner.
5.3 Capital Accounts. A separate capital account shall be maintained for
each Partner, and such capital account, as of any particular date, shall be the
sum of the following amounts:
(i) The amount of cash plus the agreed upon net fair market value (as
of the date of contribution) of any other property that has been
contributed by the Partner to the Partnership as of such date; plus
----
(ii) The aggregate amount of the Partnership's Net Profit that has
been allocated to such Partner as of such date pursuant to Section 5.4 and
Article 6 hereof; minus
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(iii) The aggregate amount of the Partnership's Net Loss that has been
allocated to such Partner as of such date pursuant to Section 5.4 and
Article 6 hereof; minus
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(iv) The sum of all distributions of cash and the agreed upon net fair
market value (as of the date of distribution) of any other property that
has been distributed to such Partner by the Partnership as of such date.
The provisions of this Agreement relating to the maintenance of capital accounts
are intended to comply with Treasury Regulation ss.1.704-1(b) and shall be
interpreted and applied in a manner
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consistent with such Regulation. In the event that any interest in the
Partnership is transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the capital account of the transferor to the extent
it relates to the transferred interest.
5.4 Revaluation of Capital Accounts. The General Partner shall determine
the gross fair market value as of each Valuation Date, as hereinafter defined,
of each asset owned by the Partnership at the opening of business on such
Valuation Date, and shall adjust the book value of each such asset to equal such
gross fair market value. The Partnership shall be deemed to have sold all of its
assets for such values as of such Valuation Date. Any gain or loss deemed to
have been realized by the Partnership as a result of such deemed sale of its
assets shall be treated as an additional item of Net Profit or Net Loss, as the
case may be, and shall be allocated to the Partners as provided in Article 6
hereof. "Valuation Date" shall mean for purposes of this Agreement any date
designated by the General Partner, provided that on such date either:
(a) a contribution is made to the capital of the Partnership by one or
more Partners under Section 5.2 hereof other than contributions made by all
of the Partners in proportion to their respective capital account balances
as of such date, or
(b) a distribution of cash or other property is made by the
Partnership to one or more Partners under Article 7 hereof other than a
distribution made to all of the Partners in proportion to their respective
capital account balances as of such date.
5.5 Interest on and Return of Capital. Each Partner acknowledges that such
Partner's return on his, her or its capital account will be limited to
allocations of Net Profit and Net Loss as set forth in Article 6 hereof, and
except as otherwise provided in Article 16 hereof, no Partner shall have the
right to interest on his, her or its capital account or the right to demand
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or to receive the return of the specific property contributed by that person to
the capital of the Partnership.
5.6 Waiver of Right of Partition. Each of the Partners hereby waives and
agrees not to exercise during the term of this Agreement any right he, she or it
may have to cause the Partnership's property to be partitioned or divided among
the Partners or to file a complaint or institute any proceeding at law or in
equity to cause the Partnership's property to be partitioned or otherwise
divided among the Partners.
5.7 Valuation Adjustments. The value of any property contributed to the
Partnership under Sections 5.1 or 5.2, above, shall be adjusted for all purposes
of this Agreement to reflect any value determined in a final valuation report
obtained or accepted by the Partnership in connection with the contribution.
ARTICLE 6
PROFITS, LOSSES AND DISTRIBUTIVE SHARES OF TAX ITEMS
For purposes of this Agreement, the Partnership's Net Profit or Net Loss,
as the case may be, for each taxable year of the Partnership shall be an amount
equal to the Partnership's taxable income or loss for such year as determined
under Internal Revenue Code ("I.R.C.") ss.703(a), except that (i) such Net
Profit or Net Loss shall be computed as if items of tax-exempt income and
nondeductible, noncapital expenditures (under I.R.C. ss.ss.705(a)(1)(B) and
705(a)(2)(B)) realized and incurred by the Partnership during such taxable year
were included in the computation of taxable income or loss, (ii) Book
Depreciation (as hereinafter defined) for such year shall be taken into account
in computing such taxable income or taxable loss in lieu of any
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amortization, depreciation or cost recovery deductions to which the Partnership
is entitled for such year; (iii) gain or loss resulting from any disposition of
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the book value of such property as
adjusted pursuant to Section 5.4 above, notwithstanding that the adjusted tax
basis of such property differs from its book value as so adjusted; and (iv)
items that are required to be specifically allocated under I.R.C. ss. 704(c)
shall not be taken into account in computing such taxable income or loss. "Book
Depreciation" for each taxable year means an amount computed for such year with
respect to the depreciable assets of the Partnership in the manner provided in
Treasury Regulation ss. 1.704-1(b)(2)(iv)(g)(3). The Partnership's Net Profit or
Net Loss, as the case may be, for each taxable year of the Partnership and each
item of income, gain, loss, deduction or credit of the Partnership for federal
or state income tax purposes shall be allocated to the Partners in proportion to
the balances standing in their respective capital accounts as of the beginning
of the year; provided, however, that such allocations among the Partners with
respect to periods within the taxable year shall be made in a manner the General
Partner determines is appropriate to reflect any change in the proportionate
capital account balances of the Partners during the taxable year. Further
provided, that tax items with respect to property that is subject to I.R.C. ss.
704(c) or the Regulations thereunder shall be allocated in accordance with said
provision and Regulations. Each Partner acknowledges that taxable income or loss
will be allocated to such Partner individually upon a sale by the Partnership of
property that such Partner has contributed to the Partnership to reflect any
difference between such Partner's basis in the property and its fair market
value at the time of the contribution. Any such sale of property contributed by
more than one Partner shall be a sale of property consisting
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pro rata of amounts of such property contributed by each such Partner of the
Partnership, and each Partner hereby consents to such pro rata sales of
contributed property.
ARTICLE 7
DISTRIBUTIONS TO PARTNERS
The cash or other assets of the Partnership may be distributed by the
Partnership to the Partners, at such times, and in such amounts, as the General
Partners may reasonably determine, in proportion to the positive balances, if
any, standing in the Partners' respective capital accounts, taking into account
the reasonable capital needs of the Partnership. Prior to a distribution in kind
of property of the Partnership, in liquidation or otherwise, the difference
between the value of the property to be distributed and its book value shall be
credited or charged, as appropriate, to the Partners' capital accounts in
proportion to their respective positive capital account balances, if any, as of
such time (but said adjustment to capital accounts is not intended to duplicate
any adjustment to capital accounts pursuant to Section 5.4 above). The
Partnership shall withhold and pay over to the applicable taxing authorities all
taxes or withholdings, and all interest, penalties, additions to tax, and
similar liabilities in connection therewith (hereinafter "Withheld Taxes") to
the extent that the General Partners determine that such withholding and/or
payment is required by any law, rule or regulation, including, without
limitation, Section 48-7-129 of the Official Code of Georgia Annotated. The
General Partners shall determine to which Partners such Withheld Taxes are
attributable, and all amounts so withheld with respect to any allocation or
distribution to any Partner shall be treated as amounts distributed to such
Partner pursuant to the first sentence of this Article 7 for all purposes of
this Agreement.
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ARTICLE 8
MANAGEMENT OF PARTNERSHIP
8.1 Authority of the General Partner. Except as otherwise specifically
provided in this Agreement, all decisions relating to the business and affairs
of the Partnership, and all designations and elections required or permitted to
be made by the Partnership under this Agreement, shall be made by the General
Partner.
8.2 Investment Advisors. The General Partner shall be authorized to engage
investment advisors for the Partnership and to delegate to them full power and
authority to decide upon and to order sales of Partnership property and to
decide upon and to order purchases of assets by the Partnership. Any such
delegation of authority may be general or may contain such conditions and
restrictions as may be determined by the General Partner.
8.3 Third Party Reliance. No person dealing with the Partnership shall be
required to inquire into the authority or capacity of the General Partner to act
on behalf of the Partnership or to bind the Partnership, but any such person
shall be entitled to rely entirely on action taken on behalf of the Partnership
through a written instrument signed by the General Partner, including, without
limitation, action taken to delegate investment authority pursuant to Section
8.2 hereof.
8.4 Limited Partners' Participation in Management. The Limited Partners, in
their capacity as such, shall not participate in the management of the
Partnership and shall have no right or authority to act for or bind the
Partnership or the Partners.
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ARTICLE 9
INVESTMENT REPRESENTATIONS OF LIMITED PARTNERS
9.1 Investment Intent. Each Limited Partner does hereby represent and
warrant to the Partnership and to the General Partner that such Limited Partner
has acquired his, her or its interest in the Partnership for investment solely
for his, her or its own account, with the intention of holding such interest for
investment, without any intention of participating directly or indirectly in any
distribution of any portion of such interest, and without the financial
participation of any other person in acquiring such interest.
9.2 Unregistered Limited Partnership Interests. Each Limited Partner does
hereby acknowledge that he, she or it is aware that his, her or its interest in
the Partnership has not been registered (a) under the Securities Act of 1933, as
amended (the "Federal Act"), or (b) under any state securities laws. Each
Limited Partner further understands and acknowledges that his, her or its
representations and warranties contained in this Article 9 are being relied upon
by the Partnership and by the General Partner as the basis for the exemption of
the Limited Partners' interests in the Partnership from the registration
requirements of the Federal Act and from the registration requirements of
applicable state securities laws. Each Limited Partner further acknowledges that
the Partnership will not and has no obligation to recognize any sale, transfer
or assignment of all or any part of his, her or its interest in the Partnership
as a Limited Partner to any person unless and until the provisions of Article 14
hereof have been fully satisfied.
9.3 Nature of Investment. Each Limited Partner hereby acknowledges that
prior to his, her or its execution of this Agreement, he, she or it has received
a copy of this Agreement and a copy of the Certificate of Limited Partnership of
the Partnership and that he, she or it has
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examined such documents or caused such documents to be examined by his, her or
its representative or attorney. Each Limited Partner hereby further acknowledges
that he, she or it or his, her or its attorney is familiar with this Agreement,
with the Certificate of Limited Partnership of the Partnership, and with the
Partnership's intention to invest and reinvest its assets in such manner as the
General Partner determines, subject to the limitations set forth above. Each
Limited Partner further acknowledges that he, she or it does not desire any
further information or data relating to the Partnership, its assets or the
General Partner. Each Limited Partner hereby acknowledges that he, she or it
understands that the purchase of his, her or its interest in the Partnership is
a speculative investment involving a high degree of risk and does hereby
represent that he, she or it has a net worth sufficient to bear the economic
risk of investing in the Partnership and to justify his, her or its investing in
a highly speculative venture.
9.4 Legend on Agreement and Certificate. Each Limited Partner hereby
acknowledges and agrees that the legend reflecting the restrictions imposed on
the transfer of his, her or its interest in the Partnership pursuant to Article
14 hereof, under the Federal Act and under any state securities law shall be
placed on the first page of this Agreement and on the first page of the
Certificate of Limited Partnership of the Partnership.
ARTICLE 10
POWER OF ATTORNEY
10.1 Grant of Power. Each Limited Partner does hereby irrevocably
constitute and appoint the General Partner as his, her or its true and lawful
agent and attorney-in-fact, in his, her
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or its name, place and stead, to make, execute, consent to, swear to,
acknowledge, record and file:
(a) A Certificate of Limited Partnership under the applicable laws of
the State of Georgia and under the applicable laws of any other
jurisdiction in which the General Partner deems such filing to be necessary
or desirable;
(b) Any and all amendments or modifications to said Certificate which
may be deemed necessary or appropriate by the General Partner to reflect
any amendment or modification to this Agreement made in compliance with
Section 17.2 below; and
(c) All certificates and other instruments which may be required to
effectuate the dissolution and termination of the Partnership pursuant to the
provisions of this Agreement.
10.2 Irrevocability of Power. It is expressly understood, intended and
agreed by each Limited Partner for himself, herself or itself, his, her or its
successors and assigns, that the grant of the power of attorney to the General
Partner pursuant to Article 10.1 above is coupled with an interest, is
irrevocable and shall survive the death or legal incompetency of the Limited
Partner or the assignment of his, her or its interest in the Partnership.
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ARTICLE 11
BANKING AND CUSTODY OF ASSETS
The funds of the Partnership shall be kept in one or more separate bank
accounts in the name of the Partnership in such banks or other federally insured
depositories as may be designated by the General Partner or shall otherwise be
invested in the name of the Partnership in such manner and upon such terms and
conditions as may be designated by the General Partner. All withdrawals from any
such bank accounts or investments established by the Partners hereunder shall be
made on such signature or signatures as may be designated by the General
Partner. The funds and other assets of the Partnership may also be held in an
account with such brokerage firms as may be designated by the General Partner.
ARTICLE 12
ACCOUNTING
12.1 Accounting Period. The annual accounting period of the Partnership
shall end on the last day of the calendar year.
12.2 Method of Accounting. The Partnership's books of account shall be
maintained, and its income, gains, losses and deductions shall be determined and
accounted for in accordance with such method of accounting as may be adopted for
the Partnership for federal income tax purposes.
12.3 Financial and Operating Statements and Tax Returns. At the close of
each taxable year of the Partnership, the Partnership shall have unaudited
financial statements prepared and distributed to each Partner. Such financial
statements shall reflect the results of the
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operations of the Partnership for such year, the unpaid balance due on all
obligations of the Partnership, each Partner's share of the Net Profit or Net
Loss of the Partnership for such year, each Partner's distributive share of all
tax items of the Partnership for such year, and all other information as may be
required to enable each Partner to prepare his, her or its federal, state and
local income tax returns in accordance with all then applicable laws, rules and
regulations. The Partnership also shall cause to be prepared and filed all
federal, state and local income tax returns required of the Partnership for each
taxable year.
12.4 Location of and Access to Books of Account. The Partnership's books of
account shall be kept at such locations as may be designated by the General
Partner, and each Partner shall at all times have access thereto.
ARTICLE 13
ADMISSION OF PARTNERS
Except as otherwise provided in Article 14 hereof, no person, firm,
corporation or other entity shall be admitted to the Partnership as either a
general or a limited partner without the consent of the General Partner.
ARTICLE 14
TRANSFER OF PARTNERSHIP INTERESTS
14.1 Transfer of Interest of Limited Partner. No Limited Partner shall
sell, assign, transfer, mortgage, pledge, encumber, hypothecate or otherwise
dispose of all or any part of his, her or its interest in the Partnership to any
person, firm, corporation or other entity without the
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prior or simultaneous written consent of the General Partner to any such
proposed disposition. In the event a Limited Partner transfers all or any part
of his, her or its interest in the Partnership after having first obtained such
written consent, such transfer shall be valid and effective only if the
transferring Limited Partner and his, her or its transferee:
(a) execute, acknowledge and deliver to the General Partner such
instruments of transfer and assignment as are in form and substance
satisfactory to the General Partner; and
(b) furnish to the General Partner such assurances as it may request,
including, without limitation, an opinion of counsel, which opinion and
which counsel are satisfactory to the General Partner, that the
transferring Limited Partner's interest in the Partnership has been
registered for sale under the Securities Act of 1933, as amended, and under
all applicable state securities laws, or that registration under the
Securities Act of 1933 and under all applicable state securities laws is
not required.
14.2 Substituted Limited Partner.
(a) In the event a Limited Partner transfers all or any part of his,
her or its interest in the Partnership in compliance with the provisions of
Section 14.1, above, the transferee of such Limited Partner shall have the
right to become a substituted Limited Partner of the Partnership, provided
that:
(i) the transferring Limited Partner has given his, her or its
transferee such right;
(ii) the transferring Limited Partner and his, her or its
transferee execute and deliver such instruments as the General Partner
deems necessary or desirable to effect such substitution;
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(iii) such transferee accepts and agrees in writing to be bound
by all of the terms and provisions of this Agreement;
(iv) such transferee pays all reasonable expenses connected with
such substitution; and
(v) the General Partner, in its sole and absolute discretion,
consents to the substitution of such transferee as a substituted
Limited Partner.
(b) A deceased Limited Partner shall be deemed to have given his, her
or its successor in interest the right to become a substituted Limited
Partner, provided such successor in interest is a member of the class
described in Section 14.5(b) hereof.
14.3 Transfer of Interest as General Partner. The General Partner covenants
and agrees that it will not sell, assign, transfer, mortgage, pledge, encumber,
hypothecate or otherwise dispose of all or any part of its interest in the
Partnership as General Partner to any person, firm, corporation or other entity
without first having obtained the written consent of all of the Partners to any
such proposed disposition.
14.4 Permitted Transfer of General Partner's Interest. In the event the
General Partner transfers full and complete ownership of all or any portion of
its interest in the Partnership as General Partner in compliance with the
provisions of Section 14.3 above, the Partnership shall continue, and the
transferee of such interest shall be admitted to the Partnership as a General
Partner with the same interest in Partnership Net Profit or Net Loss, tax items,
capital and distributions, the same obligations with respect to contributions to
the capital of the Partnership, and the same rights and obligations to
participate in the management of the Partnership, as the transferring General
Partner had with respect to the transferred interest in the Partnership;
provided, however, that any such transferee shall be subject to the terms and
conditions of this
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Agreement and shall promptly execute and deliver to the Partnership such
documents as may be necessary or appropriate, in the opinion of counsel to the
Partnership, to reflect such transferee's admission to the Partnership as a
General Partner and his, his, her or its or its agreement to be bound by all of
the terms and conditions of this Agreement.
14.5 Excepted Transfers . Notwithstanding any other provision of this
Agreement to the contrary, if:
(a) any interest of a General Partner or of a Limited Partner in the
Partnership is transferred by gift, sale, as a result of the death or legal
incompetency of a Partner, or upon distribution to a beneficiary of a trust
that is a Partner, whether such distribution is by operation of law or
otherwise; and
(b) the transferee is a member of the class consisting of:
(i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his descendants and any trust created and
existing for the primary benefit of him or one or more of their
descendants;
(ii) a trust established for the primary benefit of a spouse of
▇▇▇▇ ▇.▇▇▇▇▇▇▇ or a spouse of a descendant of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, where
such spouse does not possess a power of appointment or other power of
disposition over the property in such trust, other than a power
exercisable only in favor of descendants of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and where
the remainder interest in such trust shall in all events be
distributed to persons or trusts described in the immediately
preceding clause (i) or to trusts described in this clause (ii); and
(iii) upon the death of any Partner, his or her duly qualified
and acting personal representatives, provided that all persons or
trusts who are to receive any part of the Partnership interest under
the terms of such Partner's Will or under the applicable laws of
intestate succession are persons or trusts described in clauses (i)
and (ii) of this paragraph (b),
the transfer shall be valid, whether the interest transferred is the interest of
a General Partner or of a Limited Partner, and in either case, the transferee
shall be admitted as a substituted Limited
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Partner on the terms and conditions of this Article 14, but without the
requirement of the consent of the General Partner.
14.6 Attempted Transfers in Contravention. Any attempted transfer of an
interest in the Partnership in contravention of this Article 14 shall be void
and shall not bind or be recognized by the Partnership. Transfers restricted by
this Article 14 shall include both voluntary and involuntary transfers and
transfers by operation of law, except as otherwise expressly provided herein.
ARTICLE 15
WITHDRAWALS
The General Partner covenants and agrees that it will not withdraw or
retire from the Partnership except as a result of a permitted transfer of its
entire interest in the Partnership as a General Partner pursuant to Sections
14.3, 14.4 or 14.5 hereof, and that it will carry out its duties and
responsibilities hereunder until the Partnership is dissolved, liquidated and
terminated pursuant to Article 16 hereof.
ARTICLE 16
DISSOLUTION, LIQUIDATION AND TERMINATION OF PARTNERSHIP
16.1 Dissolving Events. The Partnership shall be dissolved, liquidated and
terminated only upon the happening of any of the following events:
(a) The election by the General Partner to terminate the Partnership;
or
(b) The happening of a "Disabling Event" (as defined in Section 16.2
hereof), unless:
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(i) there is any other acting General Partner willing to continue
the Partnership; provided, however, that the interest of the disabled
General Partner shall thereupon be converted to the interest of a
Limited Partner in the Partnership; or
(ii) within the ninety (90) day period immediately following the
happening of such Disabling Event, the Limited Partners unanimously
consent to continue the Partnership and elect a new General Partner.
Upon such consent to continue the Partnership, the personal
representative or beneficiary of the disabled General Partner shall
succeed to such Partner's interest in the Partnership in the same
manner and on the same terms as provided in Section 14.4 hereof;
provided, however, that the interest of the disabled General Partner
shall thereupon be converted to the interest of a Limited Partner in
the Partnership.
The events specified in O.C.G.A. Section 14-9-602(a)(4) and (5) shall not
result in dissolution of the Partnership.
16.2 Disabling Events. For purposes of this Agreement, the term "Disabling
Event" shall have the following meaning:
(i) the death or dissolution of a General Partner; or
(ii) a determination by a court of competent jurisdiction that a
General Partner is legally incompetent.
16.3 Method of Liquidation. Upon the happening of any of the events
specified in Section 16.1 above that require the Partnership to be dissolved,
liquidated and terminated, all of the Partnership's assets shall be applied and
distributed in the following order of priority:
(a) To the payment of the debts and liabilities of the Partnership
other than to Partners and to the expenses of liquidation in the order of
priority as provided by law; then to
(b) The establishment of any reserves which the General Partner deems
necessary for any contingent or unforeseen liabilities or obligations of
the Partnership; provided, however, that any such reserves shall be paid
over to a bank or other designated agent to be held in escrow for the
purpose of paying any such contingent or unforeseen liabilities or
obligations
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and, at the expiration of such period as the Partners deem advisable, of
distributing the balance of such reserves in the manner hereinafter
provided in this Article; then to
(c) The repayment of any liabilities or debts, other than capital
accounts, of the Partnership to any of the Partners; then to
(d) The Partners in proportion to the positive balances, if any, then
standing in their respective capital accounts. No Partner with a deficit
capital account balance shall have any obligation to make any contribution
to the Partnership with respect to such deficit, and such deficit shall not
be considered a debt owed to the Partnership or to anyone else.
16.4 Reasonable Time for Liquidation. A reasonable time shall be allowed
for the orderly liquidation of the Partnership's assets pursuant to Section 16.3
above in order to minimize the losses normally attendant upon such a
liquidation.
16.5 Date of Termination. The Partnership shall terminate when all of its
assets shall have been applied and distributed in accordance with the provisions
of Section 16.3 above. The establishment of any reserves in accordance with the
provisions of Section 16.3 above shall not have the effect of extending the term
of the Partnership, but any such reserves shall be distributed in the manner
provided in such Section upon expiration of the period of such reserve.
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ARTICLE 17
GENERAL PROVISIONS
17.1 Notices. Except as otherwise specifically provided herein, whenever
any notice or other communication is required or permitted to be given
hereunder, such notice or other communication shall be in writing and shall be
(as elected by the party giving such notice)
(a) delivered in person; or
(b) sent by U.S. registered or certified mail, return receipt
requested, postage prepaid to the person to whom the notice is intended to
be given at the address he, she or it has previously furnished in writing
to the Partnership or to his, his, her or its last known address. Any
notice or other communication delivered in person shall be deemed
effectively given when delivered, and any notice or other communication
mailed as hereinabove provided shall be deemed effectively given on the
date of mailing.
17.2 Modifications. No change or modification of this Agreement shall be
valid or binding upon a Partner, nor shall any term or condition of this
Agreement be considered waived by a Partner, unless the change, modification or
waiver is in writing and is signed by such Partner. Notwithstanding the
foregoing, an amendment to this Agreement shall be valid and binding on all
Partners if its purpose is to reflect the admission of a new Partner or the
transfer of an interest in the Partnership (in either case in compliance with
the other provisions of this Agreement), and it is signed by the General Partner
and, as the case may be, the newly admitted Partner or the transferor and
transferee Partners.
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17.3 Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the Partners, and their respective legal representatives,
transferees, heirs, successors and assigns, subject to the limitations in
Article 14 hereof.
17.4 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of the provision in any other jurisdiction.
17.5 Arbitration.
(a) Agreement to Arbitrate. Any controversy, dispute or claim arising
out of or relating to this Agreement or any transaction hereunder shall be
settled by a single arbitrator appointed in accordance with this Section
17.5. This agreement to arbitrate shall be specifically enforceable under
the prevailing arbitration law of the state in which the arbitration is
convened.
(b) Procedure. The arbitration shall be conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association
(the "AAA") then in effect. The party desiring the arbitration (the
"Claimant") shall give to the other party or parties (the "Respondent")
written notice of the Claimant's desire to arbitrate, specifying the
questions to be arbitrated and naming an arbitrator agreeable to the
Claimant. Within a reasonable time thereafter, not exceeding thirty (30)
days, the Respondent shall give in like manner written notice, specifying
any additional questions to be arbitrated and either agreeing to the
arbitrator named by the claimant or naming an alternate arbitrator. If the
parties are unable to agree on an arbitrator within thirty (30) days
thereafter, the parties shall immediately notify the AAA and the AAA shall
appoint the arbitrator in accordance with its then existing rules for
appointment of an
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arbitrator from the AAA's National Panel of Commercial Arbitrators. The
arbitration shall be conducted in the state in which the Respondent is
domiciled at the time the arbitration is convened. The award rendered by
the arbitrator shall be final, and judgment may be entered upon the award
in any court having jurisdiction of the matter.
(c) Enforcement. For the purpose of enforcing any arbitration award
granted herein or enforcing any other provisions or rights hereunder, the
parties hereby agree and consent to in personam jurisdiction in the courts
of the State of Georgia or the domicile of any party at the time of such
enforcement, at the selection of the person instituting such enforcement.
(d) Costs. As a part of the arbitration award and in addition to such
other relief as may be granted, the prevailing party in the arbitration
proceeding shall be entitled to the costs of arbitration, including
reasonable attorneys' fees as determined by the arbitrator, together with
any costs, including reasonable attorneys' fees as determined by the court,
incurred by the prevailing party in court enforcement of the arbitration
award after it is rendered by the arbitrator. If any party voluntarily
dismisses a claim or counterclaim, the other party shall be considered the
prevailing party with respect to such claim or counterclaim.
17.6 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same
document. All counterparts shall be construed together and shall constitute one
agreement.
17.7 Construction. This Agreement shall be interpreted and construed in
accordance with the internal laws of the State of Georgia. The Article, Section
and other headings herein have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions herein. As used in this Agreement, the
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singular shall include the plural, the plural shall include the singular, and
the masculine, feminine or neuter gender shall each include both other genders,
all as appropriate in the given context.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed, sealed, and delivered
this Agreement effective as of the date first above written.
GENERAL PARTNER
▇▇▇▇▇▇▇ MANAGEMENT COMPANY, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Member
Signed, sealed and delivered
in my presence this 14th
day of November, 1997
/s/
-----------------------
Unofficial Witness
/s/
-----------------------
Notary Public
[SEAL]
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Member
Signed, sealed and delivered
in my presence this 14th
day of November, 1997
/s/
-----------------------
Unofficial Witness
/s/
-----------------------
Notary Public
[SEAL]
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SCHEDULE
Property Fair Market
Contributed Value
----------- -----------
General Partner
---------------
▇▇▇▇▇▇▇ Management Company, LLC Cash $ 100,000
Limited Partner
---------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 300,000 shares of $9,112,500
common stock of
▇▇▇▇▇ Enterprises, Inc.
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CERTIFICATE OF LIMITED PARTNERSHIP
OF ▇▇▇▇▇▇▇ PARTNERS, L.P.
1. The name of the Partnership is ▇▇▇▇▇▇▇ Partners, L.P.
2. The registered office of the Partnership is located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the initial agent for service of
process for the Partnership is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, whose address is the same as
that of the registered office of the Partnership.
--------------------------------------------------------------------------------
THE LIMITED PARTNERSHIP INTERESTS IN ▇▇▇▇▇▇▇ PARTNERS, L.P. (THE "INTERESTS")
ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN ARTICLE 14 OF THE
LIMITED PARTNERSHIP AGREEMENT OF ▇▇▇▇▇▇▇ PARTNERS, L.P. (THE "AGREEMENT"). THE
INTERESTS HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
(i) THE GEORGIA SECURITIES ACT OF 1973, AS AMENDED (THE "GEORGIA ACT"), IN
RELIANCE UPON THE EXEMPTION PROVIDED IN SECTION 10-5-9(13) OF THE OFFICIAL CODE
OF GEORGIA ANNOTATED, (ii) UNDER ANY OTHER STATE SECURITIES LAWS, OR (iii) UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "FEDERAL ACT").
NEITHER THE INTERESTS NOR ANY PART THEREOF MAY BE OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE
WITH THE TERMS AND CONDITIONS OF ARTICLE 14 OF THE AGREEMENT AND (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE GEORGIA ACT OR IN A TRANSACTION
THAT IS EXEMPT FROM REGISTRATION UNDER THE GEORGIA ACT OR THAT IS OTHERWISE IN
COMPLIANCE WITH THE GEORGIA ACT, (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER ANY OTHER APPLICABLE STATE SECURITIES LAWS OR IN A TRANSACTION
THAT IS EXEMPT FROM REGISTRATION UNDER SUCH SECURITIES LAWS OR THAT IS OTHERWISE
IN COMPLIANCE WITH SUCH SECURITIES LAWS, AND (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION THAT IS EXEMPT
FROM REGISTRATION UNDER THE FEDERAL ACT OR THAT IS OTHERWISE IN COMPLIANCE WITH
THE FEDERAL ACT.
-1-
3. The name and business address of the General Partner of the
Partnership is as follows:
▇▇▇▇▇▇▇ Management Company, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Executed on the date indicated by the General Partner of ▇▇▇▇▇▇▇
Partners, L.P.
GENERAL PARTNER DATE EXECUTED
--------------- -------------
▇▇▇▇▇▇▇ MANAGEMENT
COMPANY, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ November 14, 1997
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ November 14, 1997
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Member
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