SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.
AGREEMENT OF LIMITED PARTNERSHIP
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CONTENTS
SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.
AGREEMENT OF LIMITED PARTNERSHIP
ARTICLE I..................................................................................... 1
1.1 Formation.............................................................................. 1
1.2 Name................................................................................... 1
1.3 Purposes............................................................................... 1
1.4 Term................................................................................... 1
1.5 Principal Place of Business............................................................ 1
1.6 Registered Agent and Office............................................................ 2
ARTICLE II.................................................................................... 2
2.1 Definitions............................................................................ 2
ARTICLE III................................................................................... 5
3.1 Partnership Units...................................................................... 5
3.2 Initial Capital Contributions and Units................................................ 6
3.3 Additional Capital Contributions and Units............................................. 6
3.4 Manner of Making Contribution and Holding Units........................................ 6
3.5 Capital Accounts....................................................................... 6
3.6 Adjustments to Capital Accounts........................................................ 7
3.7 No Withdrawal of or Interest on Capital Account........................................ 7
ARTICLE IV.................................................................................... 8
4.1 Income Cash Flow....................................................................... 8
4.2 Principal Cash Flow.................................................................... 8
4.3 Other Distributions.................................................................... 8
4.4 Division of Distributions.............................................................. 8
4.5 Tax Allocations........................................................................ 8
4.6 Distribution Standard.................................................................. 9
ARTICLE V..................................................................................... 9
5.1 Management and Voting by General Partners.............................................. 9
5.2 Authority of General Partners.......................................................... 9
5.3 Liability of General Partners.......................................................... 11
5.4 Dealing with Third Parties............................................................. 11
5.5 Time Devoted to Partnership............................................................ 11
5.6 Compensation........................................................................... 11
5.7 Role and Liability of Limited Partners................................................. 11
5.8 Meetings of Partners................................................................... 11
5.9 Manner of Acting....................................................................... 11
5.10 Discretion and Duty................................................................... 11
5.11 Power of Attorney..................................................................... 11
5.12 Books and Records..................................................................... 12
5.13 Financial Statements.................................................................. 12
5.14 Tax Accounting........................................................................ 12
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5.15 Tax Matters Partner................................................................... 12
5.16 Bank Accounts and Title to Property................................................... 13
5.17. Exculpation and Indemnification...................................................... 13
ARTICLE VI.................................................................................... 13
6.1 Transfer of General Partner Units...................................................... 13
6.2 Transfer of Limited Partner Units...................................................... 14
6.3 Sale of Limited Partner Units.......................................................... 14
6.4 Other Transfers of Limited Partner Units............................................... 14
6.5 Purchase Price Under Paragraph 6.4..................................................... 14
6.6 Rights of Assignee..................................................................... 15
6.7 Consequences of Event of Withdrawal.................................................... 15
6.8 Purchase of Limited Partner Units Upon Withdrawal...................................... 16
6.9 Securities Law Restrictions............................................................ 16
6.10 Limitation on Transfer Causing Tax Termination........................................ 16
6.11 Method of Transfer and Reliance....................................................... 16
ARTICLE VII................................................................................... 17
7.1 Admission of Family Members as Limited Partners........................................ 17
7.2 Admission of Others as Limited Partners................................................ 17
7.3 Admission of General Partners.......................................................... 17
7.4 Withdrawal of General Partner.......................................................... 18
7.5 Event of Withdrawal With Respect to General Partner.................................... 18
7.6 Withdrawal of Limited Partner.......................................................... 18
7.7 Termination of Limited Partner Status.................................................. 18
ARTICLE VIII.................................................................................. 18
8.1 Events Causing Dissolution............................................................. 18
8.2 Winding Up............................................................................. 19
8.3 Distribution of Assets................................................................. 19
ARTICLE IX.................................................................................... 19
9.1 Notices................................................................................ 19
9.2 Binding Effect......................................................................... 20
9.3 Waiver of Partition.................................................................... 20
9.4 Severability........................................................................... 20
9.5 Gender and Number of Words............................................................. 20
9.6 Counterparts........................................................................... 20
9.7 Further Action......................................................................... 20
9.8 Entire Agreement....................................................................... 20
9.9 Amendment.............................................................................. 20
9.10 Grantor of Declaration of Trust as Partner............................................ 20
9.11 Trustee of Trust as Partner........................................................... 21
9.12 Governing Law......................................................................... 21
9.13 Headings.............................................................................. 21
SCHEDULE A....................................................................................
SCHEDULE B....................................................................................
SCHEDULE C....................................................................................
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SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.
AGREEMENT OF LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into this
_______ day of _____________________, 2005 by and among ▇▇▇▇▇▇ ▇. FINE, as
Trustee of the ▇▇▇▇▇▇ ▇. FINE DECLARATION OF TRUST Dated September 28, 2004, and
▇▇▇▇▇▇ ▇. FINE, as Trustee of the ▇▇▇▇▇▇ ▇. FINE DECLARATION OF TRUST Dated
September 28, 2004, as the General Partners, and the persons listed on attached
Schedule A, as it originally appears, as the initial Limited Partners.
WHEREAS, the parties hereto desire to form a Limited Partnership governed
by the Illinois Revised Uniform Limited Partnership Act under the name of SFLL
FINE FAMILY INVESTMENTS PARTNERSHIP, L. P., for the purposes and upon the terms,
conditions and covenants hereinafter set forth;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as
follows:
ARTICLE I
ORGANIZATION
1.1 Formation. The Partners hereby agree to form the Partnership as a
limited partnership pursuant to the provisions of the Act and upon the terms and
conditions set forth in this Agreement. The General Partners shall execute and
cause to be filed a Certificate of Limited Partnership and shall take any other
actions, including the filing or recording of any documents, reasonably
necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of Illinois and any other state or jurisdiction in
which the Partnership engages in business. The General Partners shall not be
required to deliver or mail to any Limited Partner a copy of the Certificate of
Limited Partnership or any amendment or restatement thereof.
1.2 Name. The name of the Partnership shall be SFLL FINE FAMILY
INVESTMENTS PARTNERSHIP, L. P., or such other name as the General Partners may
from time to time select.
1.3 Purposes. The purposes of the Partnership shall be to acquire, hold,
dispose of, manage and otherwise deal with securities and other assets for
investment purposes, with the primary emphasis being on securities and other
assets offering the potential for superior long-term capital appreciation.
1.4 Term. The term of the Partnership shall begin upon the filing of the
Certificate of Limited Partnership and shall continue until December 31, 2045,
unless sooner terminated as provided in Paragraph 8.1.
1.5 Principal Place of Business. The principal place of business of the
Partnership shall be ▇▇ ▇. ▇▇▇▇, #▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
place as the General Partners may from time to time select.
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1.6 Registered Agent and Office. The registered agent and the address of
the registered office of the Partnership required in Illinois or in any other
state or jurisdiction in which the Partnership engages in business shall be such
authorized person and such address as the General Partners may from time to time
select.
ARTICLE II
DEFINITIONS
2.1 Definitions. For purposes of this Agreement, the terms set forth below
and any variations or uses thereof, when capitalized, shall have the following
meanings and shall be subject to the following provisions:
(a) "Act" means the Illinois Revised Uniform Limited Partnership Act
(805 Illinois Compiled Statutes, Act 210), as amended, and a reference to
a section thereof (made by using "Section 210/______ of the Act") shall be
deemed to be a reference to the corresponding provision of any successor
statute.
(b) "Admission Agreement" means an agreement substantially in the
form set forth in attached Schedule B.
(c) "Agreement" means this Agreement, attached Schedules A, B and C,
and the cover page and Table of Contents hereto, all as amended from time
to time.
(d) "Built-in Gain or Loss Items" means items of income, gain, loss
and deduction that are allocated in accordance with Section704(c) of the
Code and the Regulations thereunder with respect to property contributed
to the Partnership so as to take account of any variation between the
adjusted basis of the property to the Partnership for federal income tax
purposes and its fair market value at the time of contribution.
(e) "Code" means the Internal Revenue Code of 1986, as amended, and
a reference to a section thereof (made by using "Section______ of the
Code") shall be deemed to be a reference to the corresponding provision of
any successor statute.
(f) "Declaration of Trust" means a trust that the grantor can revoke
and of which he is the sole trustee.
(g) "Event of Withdrawal" means (i) in the case of a General Partner
who is an individual, the death or adjudication of incompetency of such
individual; (ii) the withdrawal of a General Partner as provided in
Paragraph 6.7(a) or 7.4 hereof; (iii) a General Partner's ceasing to hold,
by reason of a Transfer or otherwise, any General Partner Units; (iv) a
General Partner's Transfer or attempted Transfer of a General Partner Unit
that is not permitted by Paragraph 6.1 hereof; (v) in the case of a
General Partner who is the grantor of a Declaration of Trust that holds
one or more General Partner Units and is not a General Partner, the
grantor's ceasing to be sole trustee of such trust (other than by
revocation of the trust); (vi) in the case of a General Partner that is a
corporation or a partnership, the dissolution of such corporation or
partnership; (viii) in
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the case of a General Partner that is a trustee of a trust, the
termination of such trust (but not merely the substitution of a new
trustee); (viii) the adjudication of bankruptcy or insolvency of a General
Partner or a General partner's assignment for the benefit of creditors;
(ix) in the case of a General Partner other than an individual,
partnership, corporation, trust or estate, the termination of such General
Partner; (x) any other event that causes a person to cease to be a general
partner under Section 210/402 of the Act, except that, unless otherwise
specifically provided in this Subparagraph (g), none of the events
described in Section 210/402(4) or (5) of the Act shall be deemed to have
such effect. An Event of Withdrawal of a General Partner shall have the
consequences set forth in Paragraphs 6.7, 7.5 and 8.1 hereof.
(h) "Family Member" means any one or more of the following: (i)
▇▇▇▇▇▇ ▇. FINE; (ii) ▇▇▇▇▇▇ ▇. FINE; (iii) any descendant of ▇▇▇▇▇▇ ▇.
FINE and ▇▇▇▇▇▇ ▇. FINE; (iv) any trust, custodianship, guardianship or
similar arrangement created for the primary benefit of one or more of the
foregoing individuals; and (v) any other business entity, including a
partnership, corporation or limited liability company, that is controlled
by, and substantially all of the interests in which are directly or
indirectly owned by, one or more Family Members. The determination of
whether any of the foregoing persons is a Family Member shall be made by
the General Partners and shall be binding upon all persons if made in good
faith.
(i) "General Partner" means any person who (i) is referred to as
such in the first paragraph of this Agreement or who is subsequently
admitted as a General Partner as provided in Paragraph 7.3 hereof; (ii)
has not ceased to be a General Partner as provided in Paragraph 6.7(a) or
7.5 hereof; and (iii) holds one or more General Partner Units.
(j) "General Partner Unit" means a Unit that may be held only by a
General Partner and which entitles the holder to the rights and benefits
provided in this Agreement.
(k) "Income Cash Flow" means the gross cash receipts from
Partnership operations (excluding capital contributions, proceeds from any
Partnership borrowings, proceeds from the sale of Partnership assets and
similar items ordinarily credited to principal), (i) increased by any
reductions in reserves previously established as provided in Clause
(ii)(C) of this Subparagraph (k), and (ii) reduced by the amount of (A)
operating expenses and any expenses ordinarily charged to income, (B) any
expenses ordinarily charged to principal (such as principal payments on a
loan), to the extent principal consisting of cash is insufficient, and (C)
any increases in reserves established by the General Partners from gross
cash receipts that otherwise would have been included in Income Cash Flow,
but only to the extent necessary to meet the reasonable needs of the
Partnership's business, which reserves shall be adjusted by the General
Partners when Income Cash Flow is determined. For purposes of the
preceding sentence, the determination of whether a receipt or expense is
ordinarily credited or charged to principal or income shall be made in the
same manner as for a trust under Illinois law.
(l) "Limited Partner" means any person who (i) is referred to as
such on attached Schedule A, as it originally appears, or who is
subsequently admitted as a Limited Partner as provided in Paragraph 7.1 or
7.2 hereof, (ii) has not ceased to be a Limited Partner as provided in
Paragraph 7.7 hereof, and (iii) holds one or more Limited Partner Units.
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(m) "Limited Partner Unit" means a Unit that may be held by a
General Partner, a Limited Partner or a person who is not a Partner, and
which entitles the holder to the rights and benefits provided in this
Agreement.
(n) "1933 Act" means the Securities Act of 1933, as amended.
(o) "Partner" means any person who is a General Partner, a Limited
Partner or both.
(p) "Partnership" means the limited partnership formed pursuant to
this Agreement.
(q) "Percentage Interest" means, with respect to any Unit Holder as
of a particular time, a fraction, the numerator of which is the number of
all Units then held by such Unit Holder, and the denominator of which is
the total number of all Units then held by all Unit Holders.
(r) "Primary Option" means an option exercisable by the Partnership
to purchase all, but not less than all, of the Limited Partner Units
subject to such option, which option may be exercised only by giving
written notice to the Unit Holder whose Limited Partner Units are subject
to such option within sixty (60) days after receipt of the Sale Notice in
the case of a sale under Paragraph 6.3 hereof, or receipt of the Transfer
Notice in the case of a Transfer under Paragraph 6.4 hereof.
(s) "Principal Cash Flow" means the gross cash receipts from the
sale of Partnership assets, (i) increased by any reductions in reserves
previously established as provided in Clause (ii)(B) of this
Subparagraph(s), and (ii) reduced by the amount of (A) any expenditures
ordinarily charged to principal (determined in the same manner as for a
trust under Illinois law) and (B) any increases in reserves established by
the General Partners from such gross cash receipts, but only to the extent
necessary to meet the reasonable needs of the Partnership's business,
which reserves shall be adjusted by the General Partners when Principal
Cash Flow is determined.
(t) "Proportionate Share" means a fraction, the numerator of which
is the number of all Units held by a Partner who exercises his Secondary
Option (determined at the end of the ninety (90)-day period referred to in
Paragraph 2.1(v) hereof), and the denominator of which is the total number
of all Units then held by all Partners who exercise their Secondary
Options.
(u) "Regulations" means Treasury Regulations under the Code,
including Proposed and Temporary Regulations, and a reference to a section
thereof (made by using "Section________ of the Regulation") shall be
deemed to be a reference to the corresponding provision of any successor
regulation.
(v) "Secondary Option" means an option exercisable by each Partner
(other than the Partner who holds the Limited Partner Units that are
subject to such option) to purchase all of the Limited Partner Units that
were subject to a Primary Option that was not exercised; provided,
however, that if Partners exercise their Secondary Options to purchase, in
the aggregate, more than all of such Units, each Partner who has exercised
his Secondary Option shall have the right to purchase a Proportionate
Share of such Units and if any such Partner exercises his Secondary
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Option to purchase less than a Proportionate share of such Units, the
remaining Partners who have exercised their Secondary Options shall have
the right to purchase the Limited Partner Units that such Partner elected
not to purchase, in proportion to the number of all Units held by each of
them or as such Partners otherwise agree. A Secondary Option may be
exercised only by giving written notice to the Unit Holder whose Limited
Partner Units are subject to such option within ninety (90) days after
receipt of the Sale Notice in the case of a sale under Paragraph 6.3
hereof, or receipt of the Transfer Notice in the case of a Transfer under
Paragraph 6.4 hereof.
(w) "Tax Losses" and "Tax Profits" mean, for each taxable year of
the Partnership, an amount equal to the net loss or taxable income,
respectively, of the Partnership for such taxable year, determined in
accordance with Section 703(a) of the Code (except that for such purposes,
all items of income, gain, loss or deduction required to be separately
stated under Section 703(a)(1) of the Code shall be included in taxable
income or loss), increased by any exempt income and decreased by any
expenditures described in Section 705(a)(2)(B) of the Code.
(x) "Transfer" means: (i) any disposition, direct or indirect,
voluntary or involuntary, by operation of law or otherwise, by will, law
of descent and distribution, distribution from an estate or trust
(including allocation to another trust under the same instrument), sale,
gift, pledge, encumbrance, assignment, attachment or distribution from the
Partnership to creditors of a Unit Holder; (ii) the grantor's ceasing to
be sole trustee of a Declaration of Trust (other than by revocation of the
trust) that holds one or more General Partner Units and is not a General
Partner; (iii) the grantor's ceasing to be sole trustee of a Declaration
of Trust (other than by revocation of the trust) that holds one or more
Limited Partner Units and is not a Limited Partner; or (iv) the occurrence
of any event that directly or indirectly results in a Unit Holder's
ceasing to be a Family Member. Transfer shall not include a transfer: (A)
to a Declaration of Trust by the grantor thereof; (B) to the executor,
administrator or other legal representative of the estate of a deceased
Unit Holder; or (C) to a Unit Holder's guardian, conservator or
attorney-in-fact.
(y) "Unit" means an interest in the Partnership.
(z) "Unit Holder" means any person who holds one or more Units of
either or both classes of Units, whether or not such person is a Partner.
ARTICLE III
CAPITAL CONTRIBUTIONS, UNITS AND ACCOUNTS
3.1 Partnership Units. The Partnership shall have two classes of Units:
General Partner Units and Limited Partner Units. General Partner Units may be
held only by a General Partner. Limited Partner Units may be held by a General
Partner, Limited Partner or other person. The number of Units of each class (a)
may be increased to effectuate an issuance of Units made in accordance with
Paragraph 3.3 hereof, and (b) may be increased or decreased, proportionally with
respect to each Unit Holder, by the General Partners as may be necessary or
convenient. Units to be issued in exchange for a capital contribution shall be
deemed issued upon receipt of such contribution.
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3.2 Initial Capital Contributions and Units. The initial Partners shall
make initial capital contributions upon commencement of the Partnership term and
shall be issued Units in exchange therefor as set forth in attached Schedule A,
as it originally appears. The initial Partners agree that the fair market value
of the property initially contributed by them is as set forth in such schedule.
3.3 Additional Capital Contributions and Units.
(a) Additional capital contributions may be made, and additional
Units may be issued, only as provided in this Agreement.
(b) No General Partner shall be required to make any additional
capital contribution, but may do so at such times and in such amounts as
the General Partners shall determine. If a General Partner makes an
additional contribution to the capital of the Partnership, the General
Partner shall receive additional General Partner Units.
(c) No Limited Partner shall be required to make any additional
capital contribution, but may do so at such times and in such amounts as
the General Partners and the Limited Partner in question may determine.
Any Limited Partner making an additional contribution to the capital of
the Partnership shall receive additional Limited Partner Units. The
General Partners shall have sole discretion to determine which of the
Limited Partners, if any, shall be permitted to make additional
contributions to Partnership capital from time to time under this
paragraph (c).
(d) The fair market value of any property contributed to the
Partnership as an additional capital contribution shall be determined as
the contributor and the General Partners (or, if the contributor is a
General Partner, all the other General Partners) agree, or, if the
contributor is the sole General Partner, as the contributor and all the
Limited Partners agree. The number of Units of a particular class to be
issued in exchange for an additional capital contribution shall be based
on the relative fair market values of the property contributed and the
Partnership's assets (less liabilities) immediately before any portion of
the additional contribution is made.
3.4 Manner of Making Contribution and Holding Units. A person may make an
initial or additional capital contribution under Paragraph 3.2 or 3.3 hereof
either directly or by causing a Declaration of Trust of which he is the grantor
to make such contribution on his behalf. Units issued in exchange for an initial
or additional capital contribution under Paragraph 3.2 or 3.3 hereof may
initially be held by a Declaration of Trust of which the contributor is the
grantor if he so directs at the time of the contribution.
3.5 Capital Accounts. The Partnership shall maintain a capital account for
each Unit Holder in accordance with Regulations under Section 704(b) of the Code
and the Regulations promulgated pursuant thereto. If the Partnership determines
that the manner in which the capital accounts are to be maintained pursuant to
this Agreement should be modified in order to comply with Code Section 704(b)
and the Regulations, then notwithstanding anything to the contrary contained
herein, the method in which the capital accounts are maintained shall be so
modified; provided, however, that any change in the manner of maintaining
capital accounts shall not materially alter the economic agreement between or
among the
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Partners as set forth in this Agreement. The initial capital account of a Unit
Holder who acquired his initial Units by making a capital contribution in
exchange therefor shall be the amount of money and the fair market value of any
other property comprising such contribution.
3.6 Adjustments to Capital Accounts.
(a) The capital account of each Unit Holder shall be increased by
(i) the amount of money contributed to the Partnership by such Unit
Holder, (ii) the fair market value of any property (other than money)
contributed to the Partnership by such Unit Holder, (iii) such Unit
Holder's distributive share of Tax Profits (excluding Built-in Gain or
Loss Items), and (iv) such other amounts as may be required for the
capital account to be considered to be determined and maintained in
accordance with Section 1.704-1(b)(2)(iv) of the Regulations.
(b) The capital account of each Unit Holder shall be decreased by
(i) the amount of money distributed to such Unit Holder by the
Partnership, (ii) the fair market value of any property (other than money)
distributed to such Unit Holder by the Partnership, (iii) such Unit
Holder's distributive share of Tax Losses (excluding Built-in Gain or Loss
Items), and (iv) such other amounts as may be required for the capital
account to be considered to be determined and maintained in accordance
with Section 1.704-1(b)(2)(iv) of the Regulations.
(c) If (i) one or more Units are issued by the Partnership to a new
or existing Partner or other Unit Holder in exchange for more than a de
minimis capital contribution, (ii) one or more Units are redeemed by the
Partnership for more than a de minimis amount of money or other property,
or (iii) the Partnership is liquidated, the General Partners shall revalue
the Partnership's assets in accordance with Section 1.704-1(b)(2)(iv)(f)
of the Regulations, and the capital accounts of the Unit Holders shall be
adjusted in accordance with Section 1.704-1(b)(2)(iv)(g) of the
Regulations in a manner consistent with the revaluation.
(d) If one or more Units are Transferred by or otherwise acquired
from a Unit Holder, the portion of such Unit Holder's capital account
attributable to such Units shall carry over to the transferee.
3.7 No Withdrawal of or Interest on Capital Account. Except as otherwise
provided in this Agreement, no Unit Holder shall be entitled to withdraw from
the Partnership or demand or receive a return of his capital contribution or the
capital represented by the Units. No Unit Holder shall receive any interest on
the capital represented by his Units.
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ARTICLE IV
DISTRIBUTION AND TAX ALLOCATIONS
4.1 Income Cash Flow. The Partnership may distribute Income Cash Flow at
such times and in such amounts as may from time to time be reasonably determined
by General Partners holding more than fifty percent (50%) of the General Partner
Units held by General Partners.
4.2 Principal Cash Flow. The Partnership may distribute Principal Cash
Flow at such times and in such amounts as may from time to time be determined by
General Partners holding ninety percent (90%) or more of the General Partner
Units held by General Partners.
4.3 Other Distributions. The Partnership may make additional distributions
(other than distributions of Income Cash Flow or Principal Cash Flow) at such
times and in such amounts as may from time to time be determined by General
Partners holding ninety percent (90%) or more of the General Partner Units held
by General Partners.
4.4 Division of Distributions. Each distribution under this Article IV
shall be made to the Unit Holders as of the time of the distribution,
simultaneously to each of them, in accordance with their respective Percentage
Interests at such time.
4.5 Tax Allocations.
(a) Any Built-in Gain or Loss Items with respect to property
contributed to the Partnership shall be allocated among the contributing
Partner and other Unit Holders in accordance with Section 704(c) of the
Code and the Regulations thereunder. If one or more Units are Transferred
by or otherwise acquired from a contributing Partner, the Built-In Gain or
Loss Items that would have been allocable to the contributing Partner with
respect to such Units had he retained such Units shall be allocated to the
transferee (or subsequent transferee) of such Units. If any Partnership
asset is revalued pursuant to Paragraph 3.6(c) hereof, subsequent
allocations of depreciation, depletion, amortization and gain or loss, as
computed for federal income tax purposes, with respect to such asset shall
take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its fair market value in the same manner
as under Section 704(c)of the Code and the Regulations thereunder, and if
one or more Units are Transferred by or otherwise acquired from a Unit
Holder, such allocations shall carry over to the transferee (or subsequent
transferee) of such Units in the same manner as under the preceding
sentence.
(b) Any Tax Profits and Tax Losses not allocated under the preceding
provisions of this Paragraph 4.5 shall be allocated to the Unit Holders in
the same proportions as distributions under Paragraph 4.4 hereof. Such
allocation shall be made without regard to any election under Section 754
of the Code which may be made by the Partnership; provided, however, that
such allocations, once made, shall be adjusted for federal (and to the
extent applicable, state and local) income tax purposes (but not for
capital account or financial reporting purposes) as necessary or
appropriate (and to the appropriate Partners) to take into account those
adjustments permitted by Sections 734 and 743 of the Code.
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(c) The allocations under this Paragraph 4.5 shall be for federal
income tax purposes only and may be changed by the General Partners to the
extent necessary to comply with federal income tax laws.
4.6 Distribution Standard. Distributions to the Partners hereunder shall
be made only as determined necessary for the heatlh, education, support, and
maintenance of the Partners.
ARTICLE V
MANAGEMENT
5.1 Management and Voting by General Partners. The General Partners shall
have the sole and exclusive right to mange the business of the Partnership and
shall have the rights and powers set forth in Paragraph 5.2 hereof. If there is
more than one General Partner, the decision of General Partners holding more
than fifty percent (50%) of the General Partner Units held by General Partners
shall be the decision of the General Partners, except as otherwise provided
herein. General Partners holding more than fifty percent (50%) of the General
Partner Units held by General Partners may, by a written instrument, elect or
remove a Managing General Partner, and may delegate to such Managing General
Partner any or all duties, responsibilities, functions, rights and powers of the
General Partners hereunder, except the Managing General Partner shall have no
right or power to take or cause to be taken any action that could not be taken
or caused to be taken by the delegating General Partners directly. If a Managing
General Partner is acting, no other General Partner shall be responsible for, or
have any authority to bind the Partnership with respect to, the matters that
have been delegated to the Managing General Partner.
5.2 Authority of General Partners. Subject to the limitations and
restrictions set forth in this Agreement, the General Partners shall have all of
the rights and powers of general partners under the Act and all of the rights
and powers set forth in this Agreement, including the following rights and
powers:
(a) To invest and reinvest Partnership funds in any investments that
the General Partners determine to be consistent with the purposes of the
Partnership;
(b) To operate, manage, maintain, finance, improve, construct, own,
grant options with respect to, sell, convey, assign, pledge, mortgage,
exchange, lease and otherwise deal with any real or personal property
necessary, convenient or incidental to the accomplishment of the purposes
of the Partnership;
(c) To execute any agreements, documents, certifications and
instruments necessary or convenient in connection with the management,
maintenance and operation of the Partnership assets, or in connection with
managing the affairs of the Partnership, including amendments to this
Agreement and the Certificate of Limited Partnership made and approved in
accordance with the terms of this Agreement, both as General Partners and,
if required, as attorney-in-fact for the Limited Partners pursuant to any
power of attorney granted by the Limited Partners to the General Partners;
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(d) To vote or give proxies to vote any stock or other security; to
exercise management rights as a general partner of another partnership or
as a manager or member of a limited liability company; to participate in
the management or conduct of any business; to participate in any
incorporation, organization, reorganization, merger, consolidation,
recapitalization, liquidation or dissolution of any business or any change
in its nature; to invest additional capital in any business by subscribing
to or purchasing additional stock, securities or other interests of any
business; and to execute any organizational, buy-sell, stock restriction
or other similar agreement;
(e) To purchase one or more policies of insurance on the life of any
Partner, or on the joint lives of any Partner and such Partner's spouse,
as may be necessary, convenient or incidental to the accomplishment of the
purposes of the Partnership;
(f) To execute, in furtherance of the purposes of the Partnership,
any deed, lease, mortgage, deed of trust, mortgage note, promissory note,
▇▇▇▇ of sale, contract or other instrument purporting to convey or
encumber any Partnership asset;
(g) To borrow money and issue evidences of indebtedness necessary,
convenient or incidental to the accomplishment of the purposes of the
Partnership and to secure the same by mortgage, pledge or other lien on
any Partnership asset;
(h) To prepay in whole or in part, refinance, recast, increase,
modify or extend any liabilities affecting the Partnership assets and in
connection therewith execute any extensions or renewals of encumbrances on
any Partnership assets;
(i) To institute, prosecute, defend, settle, compromise and dismiss
lawsuits or other judicial or administrative proceedings brought on or in
behalf of, or against, the Partnership or the Partners in connection with
the activities arising out of, connected with or incidental to this
Agreement, and to engage counsel or others in connection therewith;
(j) To engage in any kind of activity and perform and carry out
agreements of any kind of activity and perform and carry out agreements of
any kind necessary or incidental to, or in connection with, the
accomplishment of the purposes of the Partnership, as may be lawfully
carried on or performed by the Partnership under the laws of each state in
which the Partnership is then formed or qualified;
(k) To employ attorneys, accountants, investment advisers,
depositaries and agents, and to delegate to such persons the duty to
manage or supervise any asset or operations of the Partnership; and
(l) To take any actions not expressly proscribed or limited by this
Agreement, or to refrain from taking any such actions, as may be necessary
or appropriate to accomplish the purposes of the Partnership.
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5.3 Liability of General Partners. The General Partners shall have
unlimited liability for the satisfaction of all of the Partnership's obligations
in excess of its assets, except as otherwise agreed with creditors.
5.4 Dealing with Third Parties. The signature of any General Partner shall
be necessary and sufficient to bind the Partnership, and no person dealing with
the Partnership need inquire as to the authority of any General Partner to bind
the Partnership. No General Partner shall act to bind the Partnership in
contravention of this Agreement.
5.5 Time Devoted to Partnership. The General Partners shall devote so much
time to the Partnership as is reasonably required to conduct the Partnership's
business.
5.6 Compensation. The General Partners shall be entitled to reasonable
compensation for services rendered to the Partnership and shall be reimbursed
for any expenses reasonably incurred in connection with Partnership's business.
5.7 Role and Liability of Limited Partners. No Limited Partner, as such,
shall (a) have any right or power to take part in the management or control of
the Partnership or its business and affairs or to act for or bind the
Partnership in any way, (b) have the right to vote on any Partnership matter,
except as otherwise provided herein, or (c) be personally liable for Partnership
obligations, except as otherwise provided in the Act.
5.8 Meetings of Partners. Meetings of the Partners may be called by the
General Partners and shall be called by the General Partners upon the written
request of Limited Partners holding more than thirty-five percent (35%) of the
Limited Partner Units held by Limited Partners. Notice of any such meeting shall
be given to all Partners not less than ten (10) days nor more than thirty (30)
days prior to the date of such meeting, as determined by the General Partners,
and shall state the nature of the business to be transacted.
5.9 Manner of Acting. The Partners may vote and otherwise act in person,
by telephone, by facsimile or by any other reasonable method of communication
approved by the General Partners.
5.10 Discretion and Duty. Except as otherwise provided in this Agreement,
any action that any Partner may take and any determination that any Partner may
make pursuant to this Agreement, including any vote, approval, consent or
agreement, may be taken and made at the sole discretion of such Partner. Nothing
in this Agreement shall be construed as relieving a General Partner of any
fiduciary duty, or from acting honestly, in good faith and in a manner that is
in, or not contrary to, the best interests of the Partnership.
5.11 Power of Attorney. Each Limited Partner hereby irrevocably makes,
constitutes and appoints each General Partner, with full power of substitution,
as his true and lawful attorney-in-fact for him and in his name, place and
▇▇▇▇▇, and for his use and benefit, to sign, execute, certify, acknowledge,
swear to, file and record:
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(a) All certificates and instruments (including counterparts of this
Agreement) that the General Partners may deem necessary or appropriate to
be filed by the Partnership under the Act or the laws of any state or
jurisdiction in which the Partnership is doing or intends to do business;
(b) Any amendments to this Agreement and the instruments described
in Paragraph 5.11(a) hereof that the General Partners deem necessary or
appropriate to effectuate an amendment of this Agreement made and approved
in accordance with the terms hereof;
(c) All certificates and other instruments that the General Partners
deem necessary or appropriate to effectuate the dissolution and
termination of the Partnership pursuant to the terms hereof; and
(d) Any other instrument that is now or may hereafter be required by
law to be filed on behalf of the Partnership or is deemed necessary or
appropriate by the General Partners to carry out fully the provisions of
this Agreement in accordance with its terms.
The foregoing power of attorney is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death, disability, legal
incapacity, bankruptcy, insolvency, dissolution or cessation of existence of a
Limited Partner.
5.12 Books and Records. The General Partners shall maintain separate books
of account for the Partnership at its principal place of business that shall
show a true and accurate record of all costs and expenses incurred, all charges
made, all credits made and received and all income derived in connection with
the conduct of the Partnership and the operation of its business in accordance
with generally accepted accounting principles consistently applied, and, to the
extent inconsistent therewith, in accordance with this Agreement.
5.13 Financial Statements. Within a reasonable time after the close of
each fiscal year, or within such other time as may be prescribed by law, the
General Partners shall furnish each Partner with such financial information as
is required by law or as the General Partners determine to provide, and shall
furnish each Unit Holder with information sufficient to enable him to comply
with federal and state income tax laws.
5.14 Tax Accounting. The fiscal year of the Partnership shall be the
calendar year and the Partnership shall use such method of accounting as the
General Partners shall determine.
5.15 Tax Matters Partner. ▇▇▇▇▇▇ ▇. FINE as Trustee of the ▇▇▇▇▇▇ ▇. FINE
DECLARATION OF TRUST Dated September 28, 2004, or such other General Partner as
the General Partners may from time to time appoint, shall be the Partnership's
Tax Matters Partner as defined in Section 6231(a)(7) of the Code. The Tax
Matters Partner shall have sole responsibility for representing the Partnership
in all dealings with the Internal Revenue Service and any state, local or
foreign taxing authority. At the sole discretion of the Tax Matters Partner, the
Partnership shall make an election under Section 754 of the Code.
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5.16 Bank Accounts and Title to Property. All Partnership funds shall be
held in such bank, brokerage or investment accounts of the Partnership as the
General Partners may determine. All real and personal property of the
Partnership shall be titled in the name of the Partnership and not in the name
of any Partner. No Partner shall have any right in specific Partnership
property.
5.17. Exculpation and Indemnification.
(a) No General Partner shall be liable to the Partnership or the
Limited Partners for any act performed or omitted to be performed ("Act or
Omission") by such General Partner in connection with the business of the
Partnership, provided such General Partner (i) reasonably believed such
Act or Omission to be in, or not contrary to, the best interests of the
Partnership, (ii) such Act or Omission was either an honest mistake or was
made in good faith, and (iii) such Act or Omission did not constitute a
breach of fiduciary duty.
(b) The Partnership shall indemnify, hold harmless and pay all
judgments and claims against each General Partner (and any officer,
director or manager of such General Partner, or any legal representative
of such General Partner) relating to any liability or damage incurred by
reason of any Act or Omission by such General Partner (or such officer,
director or manager, or legal representative) in connection with the
business of the Partnership, including attorneys' fees incurred in
connection with the defense of any action based on such Act or Omission,
which attorneys' fees may be paid as incurred, including all such
liabilities under federal and state securities laws, including the 1933
Act, as permitted by law, provided such judgment or claim resulted from an
Act or Omission for which such General Partner (or such officer, director
or manager, or legal representative, if such person were a General
Partner) would not be liable to the Partnership or the Limited Partners
under Paragraph 5.17(a) hereof.
ARTICLE VI
TRANSFER AND PURCHASE OF UNITS
6.1 Transfer of General Partner Units. A General Partner Unit may be
Transferred only as follows:
(a) A General Partner Unit may be Transferred to a General Partner
at any time, without the approval or consent of any Partner.
(b) A General Partner Unit may be Transferred to a Family Member if
all the General Partners approve the Family Member's admission to the
Partnership as a General Partner and the Family Member executes an
Admission Agreement. A General Partner Unit may be Transferred to a person
who is not a Family Member if all the Partners approve such person's
admission to the Partnership as a General Partner and such person executes
an Admission Agreement.
(c) A General Partner Unit shall be Transferred to a remaining or
new General Partner or General Partners as provided in Paragraph 6.7
hereof.
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Any Transfer or attempted Transfer of a General Partner Unit in violation of
this Agreement shall be null and void and of no force or effect whatsoever and
shall be an Event of Withdrawal.
6.2 Transfer of Limited Partner Units. A Limited Partner Unit may be
Transferred at any time to a Limited Partner or a Family Member without the
approval or consent of any Partner. A Limited Partner Unit may be Transferred to
any other person only if the Transfer is made in accordance with Paragraph 6.3
or 6.4 hereof. Any Transfer or attempted Transfer of a Limited Partner Unit in
violation of this Agreement shall be null and void and of no force or effect
whatsoever.
6.3 Sale of Limited Partner Units. Except as provided in Paragraph 6.2, a
Unit Holder (the "Selling Unit Holder") may only voluntarily transfer Limited
Partner Units (the "Offered Units") pursuant to a bona fide offer to purchase
such Offered Units and only if the procedures set forth in this Paragraph 6.3
are followed completely. At least ninety (90) days before the proposed sale, (i)
the proposed buyer must deposit the entire amount of the purchase price for the
Offered Units in an escrow account established on terms satisfactory to the
General Partners, and (ii) the Selling Unit Holder shall give written notice
(the "Sale Notice") to the General Partners (who shall promptly send a copy
thereof to each other Partner), stating the number of Offered Units, the name
and address of the proposed buyer, and the price and other terms and conditions
of the proposed sale (the "Sale Terms"). Upon receipt of the Sale Notice, the
Offered Units shall be subject to purchase by the Partnership and the other
Partners under their Primary and Secondary Options. Any purchase of the Offered
Units by the Partnership or Partners under this Paragraph 6.3 shall be upon the
Sale Terms. If such options are not exercised to purchase all of the Offered
Units, the Selling Unit Holder may sell all of the Offered Units to the proposed
buyer upon the Sale Terms. This Paragraph 6.3 shall not apply to a Transfer of
Limited Partner Units to a Limited Partner or Family Member.
6.4 Other Transfers of Limited Partner Units. If a Unit Holder (the
"Transferring Unit Holder") has any information that would reasonably lead him
to believe that he may be required to Transfer involuntarily all or any of his
Limited Partner Units (the "Offered Units"), at least ninety (90) days before
the proposed involuntary Transfer, or, if earlier, within ten (10) days after
the Transferring Unit Holder has such information, the Transferring Unit Holder
shall give written notice (the "Transfer Notice") to the General Partners (who
shall promptly send a copy thereof to each other Partner), stating the number of
Offered Units, the name and address of the proposed transferee and the terms and
conditions of the proposed Transfer (the "Transfer Terms"). Upon receipt of the
Transfer Notice, the Offered Units shall be subject to purchase by the
Partnership and the other Partners under their Primary and Secondary Options.
Any purchase of the Offered Units by the Partnership or Partners under this
Paragraph 6.4 shall be for the price and upon the terms set forth in Paragraph
6.5 hereof. If such options are not exercised to purchase all of the Offered
Units, the Transferring Unit Holder may Transfer all of the Offered Units to the
proposed transferee upon the Transfer Terms. This Paragraph 6.4 shall not apply
to a Transfer of Limited Partner Units to a Limited Partner or Family Member or
to a voluntary sale of Limited Partner Units.
6.5 Purchase Price Under Paragraph 6.4. The purchase price for any Limited
Partner Units to be purchased by the Partnership or any Partner under Paragraph
6.4 hereof shall be the fair value thereof, which shall be the amount agreed
upon by the Transferring Unit Holder and the purchasing party, or, if they are
unable to agree, the amount determined by an appraiser selected by the
Transferring
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Unit Holder and the purchasing party, which appraised value shall be based upon
the Transferring Unit Holder's right to share in distributions from the
Partnership, as provided in Section 210/604 of the Act. The purchasing party
shall pay at least twenty percent (20%) of the purchase price in cash at the
closing, which shall occur within one hundred twenty (120) days after the
General Partners' receipt of the Transfer Notice. The balance of the purchase
price may be paid in such number of equal annual installments as may be selected
by the purchasing party, but not more than ten (10), and shall bear interest on
the principal balance from time to time outstanding at a rate, per annum, equal
to the applicable federal rate in effect on the date of closing. The
installments shall be evidenced by a promissory note containing such terms as
are customarily found in such notes.
6.6 Rights of Assignee. If one or more Limited Partner Units are
Transferred to or otherwise acquired by a person who is not a Limited Partner,
unless and until such person is admitted as a Limited Partner, such person shall
have only the rights of a Unit Holder hereunder who is not a Partner, including
the right to receive any allocations or distributions with respect to such Units
in accordance with this Agreement, and shall not be entitled to exercise any
voting or other rights or powers of a Partner under the Act or this Agreement,
to receive any information (other than tax information) or accounting of the
affairs of the Partnership or to inspect the books or records of the
Partnership. However, the subsequent Transfer of such Units (or assignment
thereof to a Declaration of Trust) shall be subject to the provisions of this
Article VI. This Paragraph 6.6 shall not affect any rights or powers such person
may have as a General Partner.
6.7 Consequences of Event of Withdrawal.
(a) Upon the occurrence of an Event of Withdrawal of a General
Partner (the "Withdrawal"), any remaining General Partner may carry on the
business of the Partnership. If no remaining General Partner carries on
the business of the Partnership, each remaining General Partner shall also
be deemed to have withdrawn at the time of the Withdrawal. Immediately
after the Withdrawal, each remaining General Partner shall advise all the
other Partners in writing as to whether or not such General Partner is
carrying on the business of the Partnership.
(b) If any remaining General Partner carries on the business of the
Partnership, all of the General Partner Units held by the withdrawn
General Partner, other than General Partner Units Transferred as permitted
by Paragraph 6.1(a) or (b) hereof, shall be sold to and purchased by the
remaining General Partner, or, if there is more than one remaining General
Partner, by all of the remaining General Partners, in proportion to the
number of General Partner Units held by each of them (or as they otherwise
agree). If there is no remaining General Partner or no remaining General
Partner carries on the business of the Partnership, but the business of
the Partnership is continued by the remaining Partners in accordance with
Paragraph 8.1(b) hereof, all of the General Partner Units held by each
withdrawn General Partner, other than General Partner Units Transferred as
permitted by Paragraph 6.1(a) or (b) hereof, shall be sold to and
purchased by the new General Partner or General Partners appointed in
accordance with Paragraph 8.1(b) hereof.
(c) Each sale and purchase of General Partner Units under this
Paragraph 6.7 shall be effective as of the time of the Withdrawal. The
purchase price for such General Partner ▇▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇ the fair value thereof as of the date of Withdrawal, which shall
be the amount agreed upon by the withdrawn General Partner (or other
holder) and the purchasing General Partner, or, if they are unable to
agree, the amount determined by an independent appraiser selected by the
withdrawn General Partner (or other holder) and the purchasing General
Partner, which appraised value shall be based upon the withdrawn General
Partner's right to share in distributions from the Partnership, as
provided in Section 210/604 of the Act. The Purchase Price shall be paid
within one hundred twenty (120) days after the Withdrawal.
6.8 Purchase of Limited Partner Units Upon Withdrawal. Upon the withdrawal
of a Limited Partner in accordance with Paragraph 7.6 hereof, the Partnership
shall purchase the Limited Partner Units held by such Limited Partner with
respect to which such Limited Partner has withdrawn. The purchase price for such
Limited Partner Units shall be the fair value thereof as of the date of
withdrawal, as agreed upon the by the withdrawn Limited Partner and General
Partners other than such Limited Partner, or, if they are unable to agree (or
the withdrawn Limited Partner is the sole General Partner), as determined by an
independent appraiser selected by the withdrawn Limited Partner and such General
Partners (or, if the withdrawn Limited Partner is the sole General Partner, by a
majority in number of the other Limited Partners), which appraised value shall
be based upon the withdrawn Limited Partner's right to share in distributions
from the Partnership, as provided in Section 210/604 of the Act. The Purchase
Price shall be paid within ninety (90) days after the Limited Partner's
withdrawal.
6.9 Securities Law Restrictions. All Partners acknowledge that the Units
have not been registered under the 1933 Act, in reliance on applicable
exemptions, and agree that the Units shall not be Transferred except in
compliance with the 1933 Act and applicable state securities laws. Any attempted
Transfer of a Unit that does not so comply shall be null and void and of no
force or effect whatsoever. The General Partners may require, as a condition
precedent to any Transfer of Units, that the transferor furnish, at the
transferor's expense, an opinion of counsel reasonably satisfactory to the
General Partners that such Transfer will so comply.
6.10 Limitation on Transfer Causing Tax Termination. No Transfer of any
Units may be made if such Transfer, together with all other Transfers of Units
within the preceding twelve (12) months, would, in the opinion of counsel for
the Partnership, result in termination of the Partnership under Section 708 of
the Code.
6.11 Method of Transfer and Reliance. A Transfer of a Unit to any person
or an assignment of a Unit to a Declaration of Trust made in accordance with
this Agreement shall be effective only upon the execution of a written
assignment and acknowledgment substantially in the form set forth in attached
Schedule C by the Unit Holder making such Transfer or assignment and the
transferee thereof (who may execute a facsimile copy of the original of such
form with the same force and effect as if such copy had been the original),
provided, however, that until such assignment and acknowledgment is delivered to
a General Partner (who shall immediately apprise all of the other General
Partners of the receipt thereof), the General Partners may treat the transferor
of a Unit as the holder thereof for all purposes hereof and shall incur no
liability therefor.
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ARTICLE VII
ADMISSION AND WITHDRAWAL OF PARTNERS
7.1 Admission of Family Members as Limited Partners. A Family Member to
whom one or more Limited Partner Units have been Transferred or who otherwise
holds such Units and who is not a Limited Partner may be admitted to the
Partnership as a Limited Partner with the approval of all the General Partners,
upon executing an Admission Agreement. Such actions may be taken before or at
the same time as a Transfer of Limited Partners Units, and, if so taken, the
admission shall be effective immediately upon the Transfer. If such Family
Member is a Declaration of Trust, the grantor thereof may be admitted to the
Partnership as a Limited Partner as provided in this Paragraph 7.1. A Family
Member who does not hold any Limited Partner Units may be admitted to the
Partnership as a Limited Partner with the approval of all the General Partners,
upon making a capital contribution in exchange for Limited Partner Units in
accordance with Paragraphs 3.3 and 3.4 hereof and executing an Admission
Agreement.
7.2 Admission of Others as Limited Partners. Any person (other than a
Family Member) to whom one or more Limited Partners Units have been Transferred
or who otherwise holds such Units and who is not a Limited Partner may be
admitted to the Partnership as a Limited Partner with the approval of all the
Partners, upon executing an Admission Agreement. If such person is a Declaration
of Trust, the grantor thereof may be admitted to the Partnership as a Limited
Partner as provided in the preceding sentence. Any person who is not a Family
Member and who does not hold any Limited Partner Units may be admitted to the
Partnership as a Limited Partner with the approval of all the Partners, upon
making a capital contribution in exchange for Limited Partner Units in
accordance with Paragraphs 3.3 and 3.4 hereof and executing an Admission
Agreement.
7.3 Admission of General Partners. A person may be admitted to the
Partnership as a General Partner only as follows:
(a) A Family Member to whom one or more General Partner Units are to
be Transferred as permitted by Paragraph 6.1(b) hereof or who otherwise
holds such Units and who is not a General Partner, may be admitted to the
Partnership as a General Partner with the approval of all the General
Partners, upon executing an Admission Agreement and acquiring one or more
of such Units.
(b) A person who has been appointed as a new General Partner in
accordance with Paragraph 8.1(b) hereof shall be admitted to the
Partnership as a General Partner upon purchasing General Partner Units in
accordance with Paragraph 6.7 hereof and executing an Admission Agreement.
(c) A person not described in Paragraph 7.3(a) or (b) hereof to whom
one or more General Partner Units are to be Transferred as permitted by
Paragraph 6.1(b) hereof and who is not a General Partner, may be admitted
to the Partnership as a General Partner with the approval of all the
Partners, upon executing an Admission Agreement and acquiring one or more
of such Units.
17
7.4 Withdrawal of General Partner. A General Partner may withdraw from the
Partnership at any time by giving written notice to all the other Partners. Such
notice shall be given at least thirty (30) days before the withdrawal.
7.5 Event of Withdrawal With Respect to General Partner. Upon the
occurrence of an Event of Withdrawal of a General Partner, the General Partner
shall cease to be a General Partner of the Partnership and such Event of
Withdrawal shall have the consequences set forth in Paragraphs 6.7 and 8.1(b)
hereof. If such General Partner is also a Limited Partner, he shall continue as
a Limited Partner of the Partnership under this Agreement and may not withdraw
as such except as provided in Paragraph 7.6 hereof.
7.6 Withdrawal of Limited Partner. A Limited Partner may withdraw from the
Partnership, completely or with respect to one or more Limited Partner Units
held by such Partner, only with the approval of General Partners holding ninety
percent (90%) or more of the General Partner Units held by General Partners.
Except as provided in the preceding sentence, a Limited Partner may not withdraw
from the Partnership prior to the dissolution and winding up of the Partnership.
Upon the withdrawal of a Limited Partner, the Partnership shall purchase the
Limited Partner Units held by such Partner with respect to which such Partner
has withdrawn, as provided in Paragraph 6.8 hereof.
7.7 Termination of Limited Partner Status. A Limited Partner shall cease
to be a Limited Partner of the Partnership upon the first to occur of his
complete withdrawal from the Partnership or his ceasing to hold any Limited
Partner Units. If such Limited Partner is also a General Partner, he shall
continue as a General Partner of the Partnership under this Agreement. A Limited
Partner who ceases to be a Family Member shall cease to be a Limited Partner of
the Partnership, but shall continue to hold all of his Limited Partner Units,
subject to the Limitations set forth in Paragraph 6.6 hereof, unless all of such
Units are purchased under Paragraph 6.4 hereof.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
8.1 Events Causing Dissolution. The Partnership shall be dissolved upon
the first to occur of the following:
(a) Subject to the provisions of Paragraph 4.6, the vote or written
consent of (i) all General Partners and (ii) the Limited Partners holding
more than two-thirds (2/3) of the Limited Partner Units held by Limited
Partners, to dissolve the Partnership; or
(b) An Event of Withdrawal of a General Partner unless any remaining
General Partner carries on the business of the Partnership; provided,
however, that if there is no remaining General Partner or no remaining
General Partner carries on the business of the Partnership, the
Partnership shall not be dissolved and shall not be required to be wound
up by reason of any Event of Withdrawal, if within ninety (90) days after
the withdrawal, all remaining Partners agree, in writing, to continue the
business of the Partnership and to the appointment, effective as of the
time of withdrawal, of one or more new General Partners; or
18
(c) At the time there are no Limited Partners; provided, however,
that the Partnership shall not be dissolved and shall not be required to
be wound up if, within ninety (90) days after the occurrence of the event
that caused the last Limited Partner to cease to be a Limited Partner, the
personal representative of the last Limited Partner and all of the General
Partners agree, in writing or vote, to continue the business of the
Partnership and to the admission of the personal representative of such
limited partner, or its nominee or designee, to the Partnership as a
Limited Partner, effective as of the occurrence of the event that caused
the last Limited Partner to cease to be a Limited Partner.
8.2 Winding Up. Upon dissolution, the Partnership shall terminate and
immediately commence winding up its affairs. The General Partners, or, if none,
a liquidator or liquidators selected by Limited Partners holding more than fifty
percent (50%) of the Limited Partner Units held by Limited Partners, shall be
responsible for overseeing the winding up and dissolution of the Partnership,
shall take full account of the assets and liabilities of the Partnership, and
shall cause the Partnership assets, or if such assets are liquidated, the
proceeds therefrom, to the extent sufficient therefor, to be applied and
distributed as follows:
(a) First, to the discharge of all of the Partnership's liabilities
to creditors (whether by payment or the making of reasonable provision for
payment thereof), other than liabilities for which reasonable provision
for payment has been made and other than liabilities for distributions to
Partners, Unit Holders who are not Partners, former Partners or former
such Unit Holders, as may be applicable, under Sections 210/601 and
210/604 of the Act.
(b) Second, to the payment and discharge of all of the Partnership's
liabilities for distributions to Partners, Unit Holders who are not
Partners, former Partners or former such Unit Holders, as may be
applicable, under Sections 210/601 and 210/604 of the Act; and
(c) Third, to the Unit Holders as of the time of the event causing
dissolution, in accordance with their respective Percentage Interests at
such time.
8.3 Distribution of Assets. No Unit Holder shall have any right to demand
or receive property other than cash upon dissolution of the Partnership. If
Partnership assets other than cash are distributed upon dissolution, no Unit
Holder shall be required to accept a distribution of any such asset in excess of
his Percentage Interest thereof without such Unit Holder's consent.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. Any notice or other communication required to be given
hereunder shall be in writing and delivered in person, by overnight courier or
by facsimile or telephone with confirmation delivered by overnight courier, with
charges prepaid, and if it is sent to a Partner, addressed to his address as it
appears on the records of the Partnership. Any such notice or communication
shall be deemed to be received on the date delivered or, if by telephone or by
facsimile, on the date of confirmation of receipt.
19
9.2 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Partners and their respective heirs, executors, administrators or
other legal representatives, successors and permitted assigns.
9.3 Waiver of Partition. Each Partner irrevocably waives during the term
of the Partnership any right that he may have to seek a judicial decree of
dissolution of the Partnership or to maintain any action for partition with
respect to any Partnership assets.
9.4 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or
validity of the remainder of this Agreement.
9.5 Gender and Number of Words. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or persons may require.
9.6 Counterparts. This Agreement may be executed in one or more
counterparts with the same effect as if all the Partners had signed the same
document. All counterparts shall be construed together and shall constitute the
Agreement.
9.7 Further Action. Each Partner, upon the request of any General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any
documents that may be reasonably necessary, appropriate or desirable to carry
out the provisions of this Agreement.
9.8 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and may not be
amended or modified except as provided herein.
9.9 Amendment. This Agreement may be amended only with the consent of all
the General Partners and Limited Partners holding more than fifty percent (50%)
of the Limited Partner Units held by Limited Partners, except that no amendment
shall be made to change (a) any Unit Holder's share of distributions (other than
by reason of a capital contribution pursuant to the terms hereof) or his
obligations, responsibilities or liabilities without such Unit Holder's consent,
or (b) the vote, approval, consent or agreement required to take any action,
unless such change is approved by all the Partners. The General Partners may
amend attached Schedule A as may be necessary or appropriate to reflect the
issuance or transfer of Units, admission or withdrawal of Partners, capital
contributions or any similar matters.
9.10 Grantor of Declaration of Trust as Partner. If General Partner Units
are held by a Declaration of Trust that is not a General Partner and the grantor
thereof is a General Partner, unless and until such trust becomes a General
Partner, the grantor shall be a General Partner with respect to such Units and
such Units shall be deemed to be held by the grantor for purposes of any
provision of this Agreement relating to a determination of whether or not the
General Partner holds any such Units, a determination of the number of General
Partner Units held by such Partner or a matter requiring the vote, approval,
consent, determination or agreement of General Partners or Unit Holders. If
Limited Partner Units are held by a Declaration of Trust that is not a Limited
Partner and the grantor thereof is a
20
Limited Partner, unless and until such trust becomes a Limited Partner, the
grantor shall be a Limited Partner with respect to such Units and such Units
shall be deemed to be held by the grantor for purposes of any provision of this
Agreement relating to a determination of whether or not the Limited Partner
holds any such Units, a determination of the number of Limited Partner Units
held by such Partner or a matter requiring the vote, approval, consent, request
or agreement of Limited Partners or Unit Holders. In both such cases, the
Declaration of Trust shall be subject to the same restrictions, limitations and
obligations with respect to the Units held by it that the grantor would have
been subject to had such Units actually been held by him individually. Except to
the extent inconsistent with the preceding provisions of this Paragraph 9.10, a
Declaration of Trust that is not a Partner with respect to a particular class of
Units held by it shall have the right to receive any distributions or other
payments that would otherwise be made to the Partner by whom such Units are
deemed to be held and shall have the same other rights with respect to such
Units as would a Unit Holder who is not a Partner with respect to such Units.
9.11 Trustee of Trust as Partner. If a person who is a Partner in his
capacity as the trustee of a trust ceases to act as trustee of such trust, the
successor trustee thereof, but not the trustee of a different trust, shall
continue to be the same type of Partner, in the same capacity, as the trustee
who ceased to so act. For purposes of this Agreement, a separate trust created
from a trust under the same instrument shall be deemed to be a different trust,
but the trust created under a Declaration of Trust shall not be treated as a
different trust by reason of the death of the grantor thereof.
9.12 Governing Law. This Agreement shall be construed and the validity and
effect of the provisions hereof shall be determined under the laws of Illinois,
except as otherwise specifically provided herein.
9.13 Headings. The Table of Contents and the headings in this Agreement
are for convenience of reference only and shall not affect the meaning of any
provision hereof.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
GENERAL PARTNERS:
/s/ ▇▇▇▇▇▇ ▇. Fine
------------------------------------------------
▇▇▇▇▇▇ ▇. FINE, as Trustee of the ▇▇▇▇▇▇ ▇. FINE
DECLARATION OF TRUST Dated September 28, 2004,
as amended
/s/ ▇▇▇▇▇▇ ▇. Fine
------------------------------------------------
▇▇▇▇▇▇ ▇. FINE, as Trustee of the ▇▇▇▇▇▇ ▇. FINE
DECLARATION OF TRUST Dated September 28, 2004,
as amended
LIMITED PARTNERS:
/s/ ▇▇▇▇▇▇ ▇. Fine
------------------------------------------------
▇▇▇▇▇▇ ▇. FINE, as Trustee of the ▇▇▇▇▇▇ ▇. FINE
DECLARATION OF TRUST Dated September 28, 2004,
as amended
/s/ ▇▇▇▇▇▇ ▇. Fine
------------------------------------------------
▇▇▇▇▇▇ ▇. FINE, as Trustee of the ▇▇▇▇▇▇ ▇. FINE
DECLARATION OF TRUST Dated September 28, 2004,
as amended
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SCHEDULE A
PARTNERS AND CAPITAL CONTRIBUTIONS
Initial Capital Contributions Units
----------------------------- -----
Type of
Names and Addresses of Partners Partner General Partner Limited Partner
------------------------------- ------------------- --------------- ---------------
▇▇▇▇▇▇ ▇. FINE, General and 2,027,197 shares Akesis 100 (50%) 4,900 (50%)
Trustee of the ▇▇▇▇▇▇ ▇. FINE Limited Pharmaceuticals, Inc.
DECLARATION OF TRUST Dated
9/28/04
Address: ▇▇ ▇. ▇▇▇▇ #▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. FINE, General and 100 (50%) 4,900 (50%)
Trustee of the ▇▇▇▇▇▇ ▇. FINE Limited
DECLARATION OF TRUST Dated
9/28/04
Address: ▇▇ ▇. ▇▇▇▇ #▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total 200 (100%) 9,800 (100%)
SCHEDULE B
SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.
ADMISSION AGREEMENT
THIS ADMISSION AGREEMENT is made and entered into this ______ day of
_______________________, _______ by and among the undersigned General Partners
of SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P. (the "Partnership"), acting
on behalf of the Partnership, and the person whose signature appears below ("New
Partner").
RECITALS
A. The business and affairs of the Partnership are governed by the SFLL
FINE FAMILY INVESTMENTS PARTNERSHIP, L. P. Agreement of Limited Partnership
dated _________________, 2005, as amended from time to time in accordance with
the terms thereof (the "Partnership Agreement").
B. The admission of New Partner to the Partnership as the type of partner
shown in the space above his signature has been approved or otherwise effected
as provided in the Partnership Agreement.
AGREEMENT
1. Admission of New Partner. New Partner shall be admitted to the
Partnership as the type of partner shown in the space above New Partner's
signature upon satisfaction of any conditions to the admission set forth in the
Partnership agreement and shall thereupon have all the rights and obligations of
such a partner under the Partnership Agreement.
2. Bound by Agreement. New Partner agrees to be bound by all of the terms,
conditions, restrictions and other provisions of the Partnership Agreement and
acknowledges receipt of a copy thereof.
3. Capital Contribution. New Partner shall immediately make any capital
contribution to the Partnership required to be made in connection with New
Partner's admission.
4. Counterparts. This Admission Agreement may be executed in one or more
counterparts, all of which together shall constitute the Admission Agreement.
IN WITNESS WHEREOF, this Admission Agreement has been executed as of the date
first above written.
GENERAL PARTNERS:
__________________________________________
__________________________________________
NEW PARTNER:
AS A ______________________ PARTNER OF THE
PARTNERSHIP
__________________________________________
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SCHEDULE C
SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.
ASSIGNMENT OF UNITS
The undersigned Unit Holder hereby makes the following Transfer or
assignment of all of such Unit Holder's right, title and interest in, to and
under Units of SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P.:
Number of Units: ___________________________ Type of Units: ______________
Type of Transfer or Assignment (i.e., gift, sale, etc.): _______________________
Transferee Information
Name: ______________________________________ Date of Birth: _______________
Home Address: ______________________________ Taxpayer I.D. No.: ___________
Relationship: ______________________________
This Assignment of Units has been executed this ___________ day of
___________________, _____________.
TRANSFEROR OF UNITS
__________________________
ACKNOWLEDGMENT BY TRANSFEREE
The undersigned Transferee hereby acknowledges receipt of and accepts the
foregoing Assignment of Units (or a facsimile copy thereof) and acknowledges
that such Units are subject to the terms and conditions of the SFLL FINE FAMILY
INVESTMENTS PARTNERSHIP, L. P. Agreement of Limited Partnership.
This Acknowledgment by Transferee has been executed this ________ day of
_______________________, ______________.
TRANSFEREE OF UNITS
__________________________
ACKNOWLEDGMENT BY GENERAL PARTNERS
The undersigned General Partners of SFLL FINE FAMILY INVESTMENTS
PARTNERSHIP, L. P., hereby acknowledge that they have received a copy of the
foregoing Assignment and that such Assignment has been made as permitted by and
in accordance with the SFLL FINE FAMILY INVESTMENTS PARTNERSHIP, L. P. Agreement
of Limited Partnership.
This Acknowledgment by General Partners has been executed this
______________ day of _____________, ______.
GENERAL PARTNERS
__________________________
__________________________
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