<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Weis Markets, Inc.
--------------------------------
(Name of Issuer)
COMMON STOCK, NO PAR VALUE
--------------------------------
(Title of Class of Securities)
948849-104
--------------------------------
(CUSIP Number)
Copy to:
Janet C. Weis George W. Patrick, Esq.
Weis Family Holdings, L.P. Dechert Price & Rhoads
Weis Family Holdings, L.L.C. 4000 Bell Atlantic Tower
c/o Michael M. Apfelbaum, Esq. 1717 Arch Street
Apfelbaum, Apfelbaum & Apfelbaum Philadelphia, PA 19103
43 South Fifth Street (215) 994-2631
Sunbury, PA 17801
(570) 286-0255
----------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 28, 1999
------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss. 240.13d-1(e), ss. 240.13d-1(f) or ss. 240.13d-1(g),
check the following box. [ ]
<PAGE>
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
_______________________________________________________________________________
CUSIP No. 948849-104 13D Page 3 of 12
_______________________________________________________________________________
1 NAME OF REPORTING PERSONS Weis Family Holdings, L.P.
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
51-0390495
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS*
00
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 8,087,773
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 0
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 8,087,773
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,087,773
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.4%
______________________________________________________________________________
14 TYPE OF REPORTING PERSON*
PN
______________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
_______________________________________________________________________________
CUSIP No. 948849-104 13D Page 4 of 12
_______________________________________________________________________________
1 NAME OF REPORTING PERSONS Weis Family Holdings, L.L.C.
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
51-0390493
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS*
00
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OR ORGANIZATION
Delaware
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 8,087,773
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 0
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 8,087,773
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,087,773
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.4%
______________________________________________________________________________
14 TYPE OF REPORTING PERSON*
CO
______________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
_______________________________________________________________________________
CUSIP No. 948849-104 13D Page 5 of 12
_______________________________________________________________________________
1 NAME OF REPORTING PERSONS Janet C. Weis
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
______________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
______________________________________________________________________________
3 SEC USE ONLY
______________________________________________________________________________
4 SOURCE OF FUNDS*
00
______________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
______________________________________________________________________________
6 CITIZENSHIP OR PLACE OR ORGANIZATION
United States
_______________________________________________________________________________
| |
NUMBER OF | 7 | SOLE VOTING POWER
SHARES | | 8,132,411
BENEFICIALLY |_____|________________________________________________________
OWNED BY | |
EACH | 8 | SHARED VOTING POWER
REPORTING | | 0
PERSON WITH |_____|________________________________________________________
| |
| 9 | SOLE DISPOSITIVE POWER
| | 8,132,411
|_____|________________________________________________________
| |
| 10 | SHARED DISPOSITIVE POWER
| | 0
_______________|_____|_________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,132,411
______________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
______________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5%
______________________________________________________________________________
14 TYPE OF REPORTING PERSON*
IN
______________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 6 of 12
The summary descriptions contained in this Statement of
certain agreements and documents are qualified in their entirety by reference to
the complete texts of such agreements and documents filed as Exhibits hereto and
incorporated herein by reference.
Item 1. Security and Issuer
- --------------------------------------------------------------------------------
This Statement relates to shares of Common Stock, no par value (the
"Common Stock"), of Weis Markets, Inc., a Pennsylvania corporation (the
"Company").
The address of the Company's principal executive office is 1000 S.
Second Street, Sunbury, PA 17801.
Item 2. Identity and Background
- --------------------------------------------------------------------------------
(a) The persons filing this Statement on Schedule 13D are:
(i) Weis Family Holdings, L.P., a Delaware limited partnership
(the "Partnership");
(ii) Weis Family Holdings, L.L.C., a Delaware limited
liability company, as general partner of the Partnership (the "LLC"); and
(iii) Janet C. Weis, as the Manager of the LLC (together with
the Partnership and the LLC, the "Reporting Persons").
(b) The address of each of the Reporting Persons is:
(i) Weis Family Holdings, L.P., c/o Mellon Bank (DE) National
Association, 919 North Market Street, Suite 200, Wilmington, Delaware, 19801.
(ii) Weis Family Holdings, L.L.C., c/o Mellon Bank (DE)
National Association, 919 North Market Street, Suite 200, Wilmington, Delaware,
19801.
(iii) Janet C. Weis, c/o Michael M. Apfelbaum, Esq.,
Apfelbaum, Apfelbaum & Apfelbaum, 43 South Fifth Street, Sunbury, PA 17801.
(c) The Partnership is principally engaged in holding shares of Common
Stock of the Company. The LLC is principally engaged in managing the affairs of
the Partnership. Janet C. Weis' principal occupation is that of a homemaker,
philanthropist and author. She is the sole Manager of the LLC.
(d)(e) None of the Reporting Persons, during the last five years (i)
has been convicted in a criminal proceeding (excluding traffic violations and
similar misdemeanors); or (ii) has been a
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 7 of 12
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Janet C. Weis is a citizen of the United States of America.
Item 3. Source and Amount of Funds
- --------------------------------------------------------------------------------
The Partnership acquired 8,067,773 shares of Common Stock from the
limited partners of the Partnership. The limited partners contributed those
shares to the Partnership in exchange for their respective limited partnership
interests in the Partnership. The Partnership also acquired 20,000 shares of
Common Stock from the general partner, the LLC, in exchange for its general
partnership interest in the Partnership. The LLC acquired those 20,000 shares of
Common Stock from its members who contributed those shares to the LLC in
exchange for their membership interests in the LLC.
Item 4. Purpose of Transaction
- --------------------------------------------------------------------------------
This Schedule 13D reflects the contribution of Common Stock to
the Partnership by Janet C. Weis and by certain of her descendants and trusts
for their benefit. These contributors, all of whom are limited partners of the
Partnership and some of whom are members of the LLC, decided to consolidate
their ownership of Common Stock in one vehicle that will allow them to pool the
income derived from the assets of the Partnership for purposes of reinvestment
and to centralize the management of those assets. They thereby hope to
facilitate transfers among family members and to maintain, to the extent
consistent with their other goals, their present association with, and
involvement in the activities of, the Company. The Partnership has acquired
the Common Stock for investment purposes.
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 8 of 12
Item 5. Interest in Securities of Issuer
- --------------------------------------------------------------------------------
(a) - (b) Based upon information provided by the Company, the Reporting
Persons believe that as of June 7, 1999, the Company had 41,693,575 shares of
Common Stock issued and outstanding. For purposes of
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 9 of 12
Rule 13d-3 promulgated by the SEC under the Act, the Partnership is the
beneficial owner of 8,087,773 shares of Common Stock (which represents
approximately 19.4% of such class).
For purposes of Rule 13d-3 promulgated by the SEC under the Act, the
LLC may be deemed to be the beneficial owner of 8,087,773 shares of Common Stock
(which represents 19.4% of such class).
For purposes of Rule 13d-3 promulgated by the SEC under the Act, Janet
C. Weis may be deemed to have acquired beneficial ownership of shares of Common
Stock held by the Partnership because she is the sole Manager of the LLC which
is the general partner of the Partnership. The amount of such shares is
8,087,773. In addition to these shares, Janet C. Weis also beneficially owns
44,638 shares of Common Stock. Janet C. Weis may therefore be deemed to be the
beneficial owner of 8,132,411 shares of Common Stock (which represents 19.5% of
such class).
(c) The following are the only transactions in Common Stock of the
Company which have been effected during the last sixty (60) days by any of the
Reporting Persons:
On April 26, 1999, Janet C. Weis purchased 6,500 shares of Common Stock of the
Company from the Charles B. Degenstein Foundation at a price of $35.06 per
share.
On May 28, 1999, the LLC acquired 10,400 shares of Common Stock of the Company
from Janet C. Weis as capital contribution to the LLC in exchange for a 52%
interest in the LLC.
On May 28, 1999, the LLC acquired 3,200 shares of Common Stock of the Company
from Ellen Weis Goldstein as capital contribution to the LLC in exchange for a
16% interest in the LLC.
On May 28, 1999, the LLC acquired 3,200 shares of Common Stock of the Company
from Nancy Weis Wender as capital contribution to the LLC in exchange for a 16%
interest in the LLC.
On May 28, 1999, the LLC acquired 3,200 shares of Common Stock of the Company
from Susan Weis Mindel as capital contribution to the LLC in exchange for a 16%
interest in the LLC.
On May 28, 1999, the Partnership acquired 8,087,773 shares of Common Stock of
the Company as capital contributions from its general partner and limited
partners in the amounts and on such terms as are indicated in Schedules numbered
1 through 20 of the Limited Partnership Agreement of Weis Family Holdings, L.P.,
dated May 28, 1999 attached hereto as Exhibit 2 and incorporated herein by
reference.
(d) None.
(e) Not applicable.
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 10 of 12
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
- --------------------------------------------------------------------------------
As noted above, in connection with its formation, the Partnership
acquired beneficial ownership of 8,087,773 shares of Common Stock on May 28,
1999. The LLC is the sole general partner of the Partnership. As such, the LLC
has the power to direct the voting of and disposition of any shares beneficially
owned by the Partnership. As a result, the LLC may be deemed to beneficially own
any shares owned by the Partnership. Janet C. Weis is the sole Manager of the
LLC. As a result, Janet C. Weis may be deemed to beneficially own any shares
deemed to be beneficially owned by the LLC .
Item 7. Materials to Be Filed as Exhibits
- --------------------------------------------------------------------------------
Exhibit Number Description
- -------------- -----------
1 Joint Filing Agreement
2 Limited Partnership Agreement of Weis Family Holdings, L.P.,
dated as of May 28, 1999.
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 11 of 12
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
June 7, 1999 WEIS FAMILY HOLDINGS, L.P.
By: Weis Family Holdings, L.L.C.
By: /s/ Janet C. Weis
---------------------------------
Janet C. Weis
Manager
WEIS FAMILY HOLDINGS, L.L.C.
By: /s/ Janet C. Weis
---------------------------------
Janet C. Weis
Manager
/s/ Janet C. Weis
-------------------------------------
Janet C. Weis
<PAGE>
June 3, 1999
CUSIP No. 948849-104 13D Page 12 of 12
Exhibit 1
JOINT FILING AGREEMENT
Pursuant to Rule 13d-1(k) promulgated under the Securities
Exchange Act of 1934, the undersigned hereby agree to the joint filing of this
Statement on Schedule 13D including any amendments thereto.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
Dated: June 7, 1999
WEIS FAMILY HOLDINGS, L.P.
By: Weis Family Holdings, L.L.C.
By: /s/ Janet C. Weis
-------------------------------
Janet C. Weis
Manager
WEIS FAMILY HOLDINGS, L.L.C.
By: /s/ Janet C. Weis
-------------------------------
Janet C. Weis
Manager
/s/ Janet C. Weis
-----------------------------------
Janet C. Weis
<PAGE>
EXHIBIT 2
LIMITED PARTNERSHIP AGREEMENT
OF
WEIS FAMILY HOLDINGS, L.P.
Dated as of May 28, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I Definitions............................................................................................3
ARTICLE II Formation and Initial Organization....................................................................6
2.1. Formation...........................................................................................6
2.2. Term................................................................................................7
2.3. Name................................................................................................7
2.4. Principal Office....................................................................................7
2.5. Registered Office and Registered Agent..............................................................7
2.6. Purposes............................................................................................8
ARTICLE III Management..........................................................................................10
3.1. Powers of Management...............................................................................10
3.2. Authority to Exercise Powers of Management.........................................................12
3.3. Managing Partner...................................................................................13
3.4. Reliance by Third Parties on General Partners......................................................14
3.5. Delegation by General Partners.....................................................................14
3.6. Time and Effort Required of General Partners.......................................................14
3.7. Duties of General Partners; Limitations............................................................14
3.8. Indemnification of General Partners................................................................15
3.9. Limited Partners...................................................................................16
3.10. Approval Rights Related to Certain Major Decisions................................................17
ARTICLE IV Partners and Capitalization..........................................................................19
4.1. Contributions and Partnership Interests............................................................19
4.2. Adjustments to Partnership Interests...............................................................21
4.3. Nature of Contributions............................................................................22
4.4. Sources of Additional Funds........................................................................22
4.5. Capital Accounts...................................................................................23
ARTICLE V Accounting and Tax Matters............................................................................23
5.1. Books and Records..................................................................................23
5.2. Financial Statements...............................................................................24
5.3. Taxes..............................................................................................24
ARTICLE VI Allocation of Profits and Losses.....................................................................24
ARTICLE VII Operating Distributions.............................................................................25
</TABLE>
i
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<TABLE>
<CAPTION>
<S> <C> <C>
7.1. Distributable Cash.................................................................................25
7.2. Operating Distributions............................................................................25
ARTICLE VIII Assignments and Pledges............................................................................25
8.1. New Partners.......................................................................................25
8.2. Assignment Prerequisites; Remedies for Breach......................................................26
8.3. Rights and Duties of Assignors and Assignees.......................................................26
8.4. Permitted Assignees................................................................................26
8.5. Special Rules for General Partnership Interests....................................................27
8.6. Lifetime Assignment by Partner or Assignee.........................................................28
8.7. Death of Partner or Assignee.......................................................................28
8.8. Death of Partner's or Assignee's Spouse............................................................28
8.9. Divorce of Partner or Assignee.....................................................................28
8.10. Changes in Beneficial Ownership of Trust Properties...............................................28
8.11. Changes in the Ownership of Entities which are Partners...........................................28
8.12. Involuntary Assignments...........................................................................28
8.13. Actuarial Ownership of Trust Properties by Permitted Assignees....................................29
8.14. Assignments to Existing Limited Partners..........................................................30
8.15. Pledge Prerequisites; Remedies for Breach.........................................................30
ARTICLE IX Withdrawals and Contingent Put Right.................................................................31
9.1. General Partners...................................................................................31
9.2. Limited Partners...................................................................................31
ARTICLE X Dissolution, Winding Up and Liquidation...............................................................32
10.1. Dissolution.......................................................................................32
10.2. Effective Date and Notice.........................................................................32
10.3. Reconstitution....................................................................................33
10.4. Liquidator........................................................................................33
10.5. Conversion of Assets to Cash......................................................................34
10.6. Liquidating Distributions.........................................................................34
10.7. Reserves..........................................................................................35
10.8. Accounting on Liquidation; Fair Market Value of In-Kind Distributions.............................35
10.9. Restoration of Capital Account Deficits...........................................................35
10.10. Termination......................................................................................36
ARTICLE XI Miscellaneous........................................................................................36
11.1. Mandatory Arbitration of All Disputes.............................................................36
</TABLE>
ii
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<TABLE>
<CAPTION>
<S> <C> <C>
11.2. Modification, Termination and Waiver..............................................................36
11.3. Estoppel Certificate..............................................................................37
11.4. Further Actions...................................................................................37
11.5. Certificate Requirements..........................................................................37
11.6. Successors and Assigns............................................................................37
11.7. Creditors.........................................................................................37
11.8. Personal Liability................................................................................37
11.9. Entire Agreement..................................................................................38
11.10. Governing Law....................................................................................38
11.11. Notices..........................................................................................38
11.12. Format of Agreement; Headings....................................................................38
11.13. Usage of the Word "Include.".....................................................................38
11.14. Usage of the Word "Person."......................................................................38
11.15. Usage of the Word "Trust.".......................................................................39
11.16. Cross-References.................................................................................39
11.17. Plurals, etc.....................................................................................39
11.18. Incorporation of Schedules and Exhibits By Reference.............................................39
11.19. Counterparts.....................................................................................39
</TABLE>
iii
<PAGE>
LIMITED PARTNERSHIP AGREEMENT
OF WEIS FAMILY HOLDINGS, L.P.
THIS LIMITED PARTNERSHIP AGREEMENT (this "Agreement") of Weis Family
Holdings, L.P. (the "Partnership") is entered into by the following:
(1) as General Partner:
Weis Family Holdings, L.L.C.
(2) as Limited Partners:
(a) Janet C. Weis;
(b) Ellen Weis Goldstein;
(c) Nancy Weis Wender;
(d) Susan Weis Mindel;
(f) Amy Elizabeth Wender;
(g) Kathryn Lee Wender;
(h) Trustees of The Laura Ann Goldstein 1999 Trust under Deed
of Laura Ann Goldstein dated May 18, 1999 (under which Laura Ann Goldstein and
Ellen Weis Goldstein are presently the Trustees) [hereinafter "The Laura Ann
Goldstein 1999 Trust"];
(i) Trustees of The Paul Weis Goldstein 1999 Trust under Deed
of Paul Weis Goldstein dated May 19, 1999 (under which Paul Weis Goldstein and
Ellen Weis Goldstein are presently the trustees) [hereinafter "The Paul Weis
Goldstein 1999 Trust"];
(j) Trustees of The Wendy Lynn Mindel 1998 Trust under
Agreement of Wendy Lynn Mindel dated March 22, 1998 (under which Wendy Lynn
Mindel and Susan Weis Mindel are presently the trustees) [hereinafter "The Wendy
Lynn Mindel 1998 Trust"];
(k) Trustees of The Emily Beth Mindel 1998 Trust under
Agreement of Emily Beth Mindel dated March 22, 1998 (under which Emily Beth
Mindel and Susan Weis Mindel are presently the trustees) [hereinafter "The Emily
Beth Mindel 1998 Trust"];
(l) Trustees of the Irrevocable Trust for the benefit of Amy
Elizabeth Wender under Agreement of Sigfried Weis dated December 19, 1988 (under
which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Amy Elizabeth Wender Gallo Trust"];
(m) Trustees of the Irrevocable Trust for the benefit of
Kathryn Lee Wender under Agreement of Sigfried Weis dated December 19, 1988
(under which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Kathryn Lee Wender Gallo Trust"];
1
<PAGE>
(n) Trustees of the Irrevocable Trust for the benefit of Laura
Ann Goldstein under Agreement of Sigfried Weis dated December 19, 1988 (under
which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Laura Ann Goldstein Gallo Trust"];
(o) Trustees of the Irrevocable Trust for the benefit of Paul
Weis Goldstein under Agreement of Sigfried Weis dated December 19, 1988 (under
which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Paul Weis Goldstein Gallo Trust"];
(p) Trustees of the Irrevocable Trust for the benefit of Wendy
Lynn Mindel under Agreement of Sigfried Weis dated December 19, 1988 (under
which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Wendy Lynn Mindel Gallo Trust"];
(q) Trustees of the Irrevocable Trust for the benefit of Emily
Beth Mindel under Agreement of Sigfried Weis dated December 19, 1988 (under
which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel are
presently the trustees) [hereinafter "The Emily Beth Mindel Gallo Trust"];
(r) Trustees of the Residuary Marital Trust under Agreement of
Sigfried Weis dated August 27, 1993, as amended and restated on October 28,
1993, and as further amended on April 21, 1995 [hereinafter "Sigfried Weis Trust
Agreement"] (under which Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis
Mindel are presently the trustees) [hereinafter "Residuary Marital Trust u/A
Sigfried Weis"]; and
(s) Trustees of the Generation-Skipping Transfer Trust under
the Sigfried Weis Trust Agreement (under which Ellen Weis Goldstein, Nancy Weis
Wender, and Susan Weis Mindel are presently the trustees) [hereinafter
"Generation-Skipping Transfer Trust u/A Sigfried Weis"].
RECITALS
--------
The parties to this Agreement wish to form and operate the Partnership
under the Delaware Revised Limited Partnership Act and, in consideration of the
mutual covenants expressed in this Agreement, have agreed to conduct the
Partnership's business and affairs according to the provisions of this
Agreement, which Agreement shall govern their rights and obligations with
respect to the Partnership.
2
<PAGE>
ARTICLE I
Definitions
The definitions set forth in this Article shall apply throughout this
Agreement unless the context clearly indicates otherwise, although certain other
terms are defined elsewhere in this Agreement for convenience.
"Act" - The Delaware Revised Limited Partnership Act, as amended.
"Agreement" - This Agreement and any modifications or amendments to
this Agreement.
"Affiliate" - Any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company,
professional corporation, trust, estate, custodian, trustee, executor,
administrator, nominee or other entity controlled by, controlling or under
common control with another, other than by reason of this Agreement. As used in
this definition, the term "control" means actual discretion or power to direct
the affairs of the controlled individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company,
professional corporation, trust, estate, custodian, trustee, executor,
administrator, nominee or other entity. Any general partner in a partnership
shall be deemed to control that partnership, but no person or entity shall be
deemed to control any other entity solely by virtue of being a director, officer
or holder of voting securities of that entity.
"Approved Debts" - Those liabilities of the Partnership which need not
be paid in cash upon liquidation of the Partnership, as described in Section
10.5.
"Assign" - To make an Assignment.
"Assigned Partnership Interest" - The interest in the Partnership which
is transferred as a result of an Assignment.
"Assignee" - The recipient of an Assigned Partnership Interest.
"Assignment" - Any method whatsoever, whether direct or indirect and
whether voluntary or involuntary, by which the legal or beneficial ownership of
any interest in the Partnership is transferred or changed, including: (1) sales,
exchanges, gifts, donations and any other forms of conveyance, assignment or
transfer; (2) changes in the beneficial interests of any trust or estate which
holds any interest in the Partnership and distributions from any such trust or
estate; (3) changes in the ownership of any Partner or Assignee which is a
corporation, partnership, limited partnership, limited liability partnership,
limited liability company, professional corporation or other entity, including
the dissolution of any such entity; and (4) changes in legal or beneficial
ownership or other forms of transfer resulting from the death or
3
<PAGE>
divorce of any Partner or Assignee or the death of any Partner's or Assignee's
spouse. Notwithstanding the foregoing, however, the term "Assignment" shall not
include mortgages, pledges or other similar encumbrances of, or grants of
security interests in, any legal or beneficial interest in any interest in the
Partnership, provided that the term "Assignment" shall include any levy,
foreclosure or similar seizure associated with a mortgage, pledge, encumbrance
or security interest.
"Assignor" - The Partner, Assignee or other person effecting an
Assignment.
"Book Value of the Partnership Assets" - The book value of the
Partnership Assets according to the Partnership's most recent financial
statements.
"Capital Accounts" - As described in Section 4.5 and Exhibit A.
"Certificate of Limited Partnership" - The Certificate of Limited
Partnership and any amendments to it or restatements of it which are required to
be filed with the Secretary of State of Delaware on behalf of the Partnership by
the Act.
"Code" - The United States Internal Revenue Code of 1986, as amended,
including corresponding provisions of any subsequent federal tax law.
"Contingent Put Right" - The contingent right of a Limited Partner to
withdraw from the Partnership with respect to the Limited Partner's Limited
Partnership Interest as described in Section 9.2.(b).
"Determination Date" - In the case of an Assignment which already has
occurred, the date on which the Assignment occurred, such as a death, divorce or
change in the beneficial ownership of property held in trust, but if no specific
event exists or the Assignment is merely proposed and has not yet occurred, the
last date on which the Assignor or other designated person may submit an
Offering Notice to the Partnership as required by Exhibits B and C.
"Distributable Cash" - The amount of cash described in Section 7.1
which shall be distributed to the Partners as provided in Section 7.2.
"Effective Date" - The date on which this Agreement becomes effective
as provided in Section 2.1.
"Fair Market Value" - The price at which a designated Partnership
Interest or Assigned Partnership Interest would change hands between a
hypothetical willing buyer and a hypothetical willing seller, neither being
under any compulsion to buy or sell and both having reasonable knowledge of all
relevant facts, including without limitation all facts relevant under Sections
2031 and 2512 of the Code with respect to valuation of interests in closely-held
limited partnerships, and all restrictions imposed
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by this Agreement and the Act with respect to distributions to Partners and
Assignees, Assignments and the rights of Assignees, the ability or inability of
any Partner or Assignee to cause the dissolution and liquidation of the
Partnership, and the withdrawal of Partners and Assignees prior to the
dissolution and liquidation of the Partnership; provided that the Contingent Put
Right shall be ignored in determining that price; further provided that if any
two or more parties cannot agree on that price, it shall be determined by
arbitration as provided in Exhibit E.
"Fiscal Year" - The twelve-month period beginning January 1 and ending
December 31 of each year, except for (1) the year in which the Partnership is
formed as provided in Section 2.1, in which case the Fiscal Year shall begin on
the Effective Date, and (2) the year in which the Partnership is liquidated and
terminated as provided in Article X in which case the Fiscal Year shall end on
the date of the final distribution to the Partners in liquidation of the
Partnership as provided in Article X.
"General Partner" - A Partner designated as a General Partner by or
under this Agreement. References throughout this Agreement to the General
Partners include the Managing Partner, if any, unless the context clearly
indicates otherwise.
"General Partnership Interest" - A Partnership Interest held by a
Partner as a General Partner.
"Limited Partner" - A Partner designated as a Limited Partner by or
under this Agreement.
"Limited Partnership Interest" - A Partnership Interest held by a
Partner as a Limited Partner.
"Liquidator" - The Partners or agent responsible for winding up the
Partnership's affairs as provided in Section 10.4.
"Losses" - As described in Exhibit A.
"Major Decisions" - The actions and decisions which require approval as
described in Section 3.10.
"Managing Partner" - The General Partner or General Partners designated
as Managing Partner by Section 3.3.
"Member of the General Partner" and "Percentage Interests in the entity
which is the General Partner" - The Members of Weis Family Holdings, L.L.C. and
such Members' percentage interests in Weis Family Holdings, L.L.C.
"Offering Notice" - The written notice which an Assignor or other
designated person must submit to the Partnership, the Partners, any Assignees
who are Permitted
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Assignees and certain other designated persons prior to making or administering
an Assignment, as described in Exhibits B and C.
"Partner" - Any person designated as a Partner by or under this
Agreement, whether a General Partner or Limited Partner.
"Partnership" - The limited partnership existing pursuant to this
Agreement.
"Partnership Assets" - All of the properties owned by the Partnership,
whether tangible, intangible, real, personal or mixed.
"Partnership Interest" - The interest in the Partnership representing
any Partner's right to receive distributions from the Partnership and to receive
allocations of Profits and Losses, which interest shall be personal property for
all purposes as provided in Section 17-701 of the Act.
"Partnership Management" - Those General Partners having the authority
to exercise the Powers of Management as provided in Section 3.2 and potentially
having the authority to wind up the Partnership's affairs and accomplish its
liquidation as provided in Section 10.4.(a)(i).
"Percentage Interest" - The percentage representing the Partnership
Interest owned by each General Partner and Limited Partner as set forth on
Schedule #1.
"Permitted Assignee" - Those Assignees described in Section 8.4 to whom
or which a Partnership Interest or Assigned Partnership Interest may be Assigned
without restriction.
"Powers of Management" - The powers to manage the Partnership's
business and affairs as described in Section 3.1.
"Principal Office" - The office in the United States where records are
to be kept or made available, the location of which is specified in Section 2.4.
"Profits" - As described in Exhibit A.
ARTICLE II
Formation and Initial Organization
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2.1. Formation.
The Partners shall form the Partnership as a limited partnership under
the Act. This Agreement shall be effective, and the Partnership shall exist,
only upon compliance by the Partners with Section 17-201 of the Act. Except as
provided to the
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contrary in this Agreement, the rights and obligations of the Partners and any
Assignees with respect to the Partnership, and the administration of the
Partnership, shall be governed by the Act.
2.2. Term.
Once formed as provided in Section 2.1, the Partnership shall continue
to exist for a definite term ending on May 28, 2049, unless it is dissolved,
liquidated and terminated prior to that date as provided in Article X.
2.3. Name.
The Partnership shall conduct its business and affairs under the name
of "Weis Family Holdings, L.P.," and the Partners shall file assumed name
certificates and otherwise conform with local law as necessary to establish the
Partnership's name in any area in which it operates; provided that the
Partnership Management may change the Partnership's name as the Partnership
Management alone determines to be appropriate, and the Partners shall take any
action which may be necessary to accomplish that change of name in compliance
with local law in any area in which the Partnership operates, if the Partnership
Management provides written notice to all of the other Partners regarding the
proposed change of name at least five business days prior to taking any action
to change the name.
2.4. Principal Office.
The Principal Office shall be located at c/o Mellon Bank (DE)
National Association, 919 North Market Street, Suite 200, Wilmington, Delaware
19801; provided that the Partnership Management may change the Principal Office
to any other location in the United States as the Partnership Management alone
determines to be appropriate, and the Partners shall take any action which may
be necessary to accomplish that change in compliance with local law in any area
in which the Partnership operates, if the Partnership Management provides
written notice to all of the other Partners regarding the proposed change at
least five business days prior to taking any action to change the Principal
Office.
2.5. Registered Office and Registered Agent.
As required by Section 17-104 of the Act, the Partnership's
registered office in Delaware shall be located at 1013 Centre Road, Wilmington,
New Castle County, Delaware 19805, and the Partnership's registered agent at
that address shall be Corporation Service Company; provided that the Partnership
Management may change the registered office and registered agent as the
Partnership Management alone determines to be appropriate.
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2.6. Purposes.
The Partnership shall not be deemed to exist for a specific purpose;
rather, the purpose of the Partnership is to manage the Partnership Assets by
conducting any business which lawfully may be conducted in limited partnership
form. Some of the more particular purposes of the Partnership are (any
references to properties of the families of Janet C. Weis and her descendants to
include properties held in trust):
2.6.(a) to consolidate the management and control of the stock of
Weis Markets, Inc. owned by the families of Janet C. Weis and her
descendants, which consolidation should improve the efficiency of the
management of those properties by holding them in a single, flexible
entity;
2.6.(b) to pool the income earned by the properties contributed
to the Partnership in order to enhance investment opportunities and
investment diversification for the families of Janet C. Weis and her
descendants;
2.6.(c) to establish an investment policy related to certain
properties of the families of Janet C. Weis and her descendants which
is focused on growth as measured by total return rather than attempting
to achieve a certain level of either income or appreciation for any
particular time period, while providing a policy with respect to the
distribution of cash to the Partners which promotes growth in the value
of the Partnership Assets;
2.6.(d) to keep the ownership of certain properties of the
families of Janet C. Weis and her descendants, whether direct,
indirect, legal, or beneficial ownership, within the families of Janet
C. Weis and her descendants to the extent possible by providing an
opportunity for the Partnership, the Partners and any Assignees who are
Permitted Assignees to purchase any Partnership Interest or Assigned
Partnership Interest prior to certain Assignments becoming effective;
2.6.(e) to the extent allowed by law, to protect those properties
of the families of Janet C. Weis and her descendants which are
contributed to the Partnership from any unknown future creditors of
those family members who are or become Partners;
2.6.(f) to identify the nature of a Partner's Partnership
Interest or an Assignee's Assigned Partnership Interest as separate
property rather than community property;
2.6.(g) to avoid the potential expense and publicity of
litigation related to certain properties of the families of Janet C.
Weis and her descendants by requiring Partners and Assignees to submit
to arbitration for the resolution of
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disputes and by requiring the losers of a dispute to bear the costs
associated with the dispute;
2.6.(h) to provide flexibility in the management of certain
properties of the families of Janet C. Weis and her descendants not
available through the use of corporations, trusts and other business
entities;
2.6.(i) to promote the education of, and communication among,
certain members of the families of Janet C. Weis and her descendants
with respect to financial matters;
2.6.(j) to avoid the fractionalization of the ownership of the
stock of Weis Markets, Inc. owned by the families of Janet C. Weis and
her descendants;
2.6.(k) to manage investments in any other business without
regard to the form in which the business is organized and without
limitation as to the nature of the investment; and to hold, buy, sell,
lease, pledge, mortgage and otherwise deal in or dispose of those
investments;
2.6.(l) to acquire general partnership interests or limited
partnership interests in other partnerships and limited partnerships;
to enter into partnership agreements as a general partner or limited
partner; and to become a member of a joint venture or to participate in
any other form of syndication for the purpose of conducting business as
described in this Agreement;
2.6.(m) to purchase, sell, invest or otherwise deal in stocks,
bonds and other securities and similar interests of any kind, including
stocks, bonds, notes, debentures, commercial paper, bills of exchange
and evidences of indebtedness of any domestic or foreign person; to
purchase, sell, invest or otherwise deal in bonds, notes, bills and
other evidences of indebtedness and currencies of any domestic or
foreign government, state, municipality, school district or any
political subdivision thereof; to purchase, sell, invest or otherwise
deal in derivatives of any kind related to any kind of underlying
asset, including both options and futures; to purchase, sell, invest or
otherwise deal in gold, silver, grain, livestock cotton, petrochemicals
and other commodities and provisions traded on exchanges or in the
over-the-counter-market; and to form corporations, partnerships and
other business enterprises as may be desirable in making any such
investments, and to do any and all things necessary or incident to such
ventures; and
2.6.(n) to engage generally in the real estate business; to
acquire, hold, develop and operate real estate properties, whether full
or fractional interests and whether improved or unimproved, either as
operator, managing agent, principal, agent, partner, stockholder,
associate, joint venturer,
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participant or otherwise; to invest funds and to raise funds to be
invested in such ventures; to purchase, perform services, construct,
acquire, own, develop, operate, lease, mortgage, pledge, sell or
otherwise dispose of any such real estate properties, buildings, and
other properties and any interest therein; and to form corporations,
partnerships and other business enterprises as may be desirable in
making any such investments, and to do any and all things necessary or
incident to such ventures.
ARTICLE III
Management
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3.1. Powers of Management.
The Powers of Management include all powers to take any action or no
action in managing the Partnership's business and affairs as may be necessary or
appropriate to achieve the Partnership's purposes, including the power:
3.1.(a) to purchase or otherwise acquire, construct, deal in,
sell, lease or otherwise dispose of full or fractional interests in
real property, depreciable property or personal property of any kind,
including buildings, machinery, equipment or otherwise; to sell,
assign, transfer, convey, lease, loan, exchange or otherwise dispose of
all or any part of the Partnership Assets; provided that the purchase
or other acquisition of any such interests has the consent of 80% of
the Members of the General Partner based on their Percentage Interests
in the entity which is the General Partner;
3.1.(b) to invest or otherwise participate in other partnerships,
corporations or other entities; provided that the purchase or other
participation in any items other than publicly traded stocks (excluding
derivatives), investment grade bonds, Treasury bonds, Treasury bills,
and Treasury notes, commercial paper, mutual funds, money market funds,
and cash shall have the consent of 80% of the Members of the General
Partner based on their Percentage Interests in the entity which is the
General Partner;
3.1.(c) to provide or contract for services of any kind; to make,
enter into, deliver and perform contracts, agreements and other
undertakings; to contract for the services of accountants, lawyers,
investment managers, appraisers, contractors, or other service
providers and to delegate powers to any such person, whether
ministerial or discretionary; to retain or employ employees; to appoint
any individual as an officer of the Partnership; and to delegate to any
such officers or employees any of the Powers of Management; provided
that no spouse of a Partner and no organization with which a spouse of
a Partner is employed or associated may receive compensation in
connection with any such contract with or employment by the
Partnership; and provided further that no
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Partner, no child, sibling, or other non-spouse relative of a Partner,
and no organization with which a Partner or a child, sibling, or other
non-spouse relative of a Partner is employed or associated may be so
employed or contracted with and receive compensation without the
consent of 80% of the Members of the General Partner, based on their
Percentage Interests in the entity which is the General Partner;
3.1.(d) to lend money with security to any person, including any
Partner or any Partner's Affiliate but excluding any spouse of a
Partner, on any terms determined to be appropriate with the consent of
80% of the Members of the General Partner based on their Percentage
Interests in the entity which is the General Partner; provided that in
connection with any loan to a Partner, (i) such loan shall be secured
by such Partner's Partnership Interest, (ii) such loan may not exceed
50% of the value of such Partner's Partnership Interest, (iii) such
Partner shall repay such loan through reduced Partnership Distributions
on such terms as such Partner and the Partnership shall agree, and (iv)
such Partner shall reimburse the Partnership for any costs, including
counsel fees, associated with such loan;
3.1.(e) without limitation as to amount or terms, to borrow and
raise moneys, to issue, accept, endorse and execute promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or nonnegotiable instruments and evidences of indebtedness,
and to secure the payment of any such indebtedness and any interest in
any such indebtedness by mortgage, pledge, transfer or assignment in
trust of all or any part of the Partnership Assets, whether owned at
the time of any such transactions or acquired thereafter, and to sell,
pledge or otherwise dispose of any such obligations of the Partnership;
provided that any action under this subsection has the consent of 80%
of the Members of the General Partner based on their Percentage
Interests in the entity which is the General Partner;
3.1.(f) to guarantee any financial transaction of any kind with
or without charging a fee therefor, with the consent of 80% of the
Members of the General Partner based on their Percentage Interests in
the entity which is the General Partner;
3.1.(g) to establish trusts for the benefit of the Partnership
which are revocable by the Partnership Management, and to assign and
convey all or any part of the Partnership Assets into such trusts on
any terms deemed appropriate by the Partnership Management; provided
that any such trust shall be revocable in favor of the Partnership;
3.1.(h) to have and maintain one or more offices and to rent or
acquire office space, engage personnel, purchase equipment and supplies
and do anything else which may be appropriate in connection with the
maintenance of
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offices, with the consent of 80% of the Members of the General Partner
based on their Percentage Interests in the entity which is the General
Partner;
3.1.(i) to buy or hold insurance of any kind;
3.1.(j) to pay any expenses related to any of the Partnership's
businesses or affairs;
3.1.(k) to compromise claims against the Partnership;
3.1.(l) to establish bank accounts and other similar accounts for
the Partnership; to make or delegate the authority to make withdrawals
from such accounts by check or electronic transfer in the name of the
Partnership; and
3.1.(m) subject to the limitations set forth above regarding the
consent of the Members of the entity which is the General Partner, to
acquire real and personal property, arrange financing, enter contracts
and complete any other arrangements on behalf of the Partnership,
either in the name of the Partnership, in the name of any General
Partner having the authority to exercise the Powers of Management or in
the name of a nominee, without having to disclose the existence of the
Partnership.
3.2. Authority to Exercise Powers of Management.
Except with respect to a Partner's approval rights pertaining to Major
Decisions as provided in Section 3.10, the Powers of Management shall be
exercised only by those General Partners granted the authority to exercise the
Powers of Management by this Section, which General Partners shall comprise the
Partnership Management. Any exercise of the Powers of Management in accordance
with the provisions of this Section shall be binding on the Partnership.
3.2.(a) Managing Partner. Whenever there is a Managing Partner,
the Powers of Management shall be exercised only by the Managing
Partner or by unanimous consent of the General Partners.
3.2.(b) No Managing Partner. Whenever there is no Managing
Partner, the Powers of Management shall be exercised only by majority
consent of the General Partners on the basis of their Percentage
Interests.
3.2.(c) Exception for Life Insurance. Any decision on behalf of
the Partnership to acquire a life insurance policy which insures the
life of any Partner shall be made on behalf of the Partnership only
with the consent of 80% of the Members of the General Partner based on
their Percentage Interests in the Entity which is the General Partner.
At any time during which the Partnership owns any life insurance policy
insuring the life of any Partner or
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otherwise possesses any of the incidents of ownership with respect to
any such policy, as the term "incidents of ownership" is defined for
purposes of Section 2042 of the Code, the insured Partner shall have no
right or power to exercise any Powers of Management with respect to any
incidents of ownership of the policy, including the right to borrow
from the insurance company or any other person using the policy as
collateral, to change or prevent any change in the beneficiary
designation under the policy, to surrender the policy or any portion of
the policy for its cash surrender value, and to cancel or terminate the
policy; instead, the Powers of Management with respect to the policy
shall be exercised only by majority consent of the General Partners,
excluding the insured Partner, on the basis of their Percentage
Interests.
3.2.(d) No Authority Given to Limited Partners. Other than with
respect to a Limited Partner's approval rights pertaining to Major
Decisions as provided in Section 3.10, no Limited Partner shall have
any authority to exercise any Powers of Management.
3.3. Managing Partner.
The Managing Partner shall serve only as provided in this Section.
3.3.(a) Appointment. The General Partner appoints Weis Family
Holdings, L.L.C. to serve as Managing Partner. If at any time there is
no General Partner serving as Managing Partner, then by majority
consent of the General Partners on the basis of their Percentage
Interests, the General Partners may appoint one or more of the General
Partners to serve as Managing Partner.
3.3.(b) Resignation. Any General Partner may resign from that
General Partner's position as Managing Partner at any time with or
without cause by providing written notice to all of the other Partners.
3.3.(c) Removal. Any General Partner may be removed from that
General Partner's position as Managing Partner by majority consent of
the General Partners on the basis of their Percentage Interests.
3.3.(d) Compensation and Reimbursement. Any Managing Partner
shall receive fair and reasonable compensation for any services
performed on behalf of the Partnership and shall be entitled to receive
reimbursement for any expenses incurred in the performance of the
Managing Partner's duties under this Agreement.
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3.4. Reliance by Third Parties on General Partners.
The Partnership shall be liable for any transaction with any third
party who relies on the authority of any General Partner within the Partnership
Management if that General Partner communicates to the third party that the
actions taken by the General Partner are taken on behalf of the Partnership, and
the third party shall not be deemed to have any duty to determine whether the
General Partner has the authority to take the action even if it appears to be
prohibited by this Agreement; provided that whenever there is a Managing
Partner, any action taken by any person other than the Managing Partner which
has not been delegated by the Managing Partner to the person, even if the action
is stated to be taken on behalf of the Partnership, shall not be binding on the
Partnership. This Section shall not affect the liability of any General Partner
to the Partnership or the other Partners for any conduct which violates other
provisions of this Agreement.
3.5. Delegation by General Partners.
Any General Partner may delegate any obligation or power under this
Agreement to any employee of the Partnership and may utilize a power of attorney
to delegate any obligation or power under this Agreement to an agent, attorney
or attorney-in-fact. To the extent provided by a General Partner in a power of
attorney, the General Partner's agent, attorney or attorney-in-fact shall have
complete authority to exercise every power granted to the General Partner by
this Agreement and to fulfill every obligation which is required of the General
Partner under this Agreement.
3.6. Time and Effort Required of General Partners.
The General Partners shall devote an amount of time and effort to the
Partnership which is consistent with the duty of care imposed by Section
3.7.(d); provided that nothing in this Agreement shall be deemed to restrict the
freedom of any General Partner to conduct any business activity separate and
apart from the Partnership other than the duty of loyalty imposed by Section
3.7.(c).
3.7. Duties of General Partners; Limitations.
3.7.(a) Funds Available. Except as provided in Section 10.9.(b)
with respect to the restoration of Capital Account deficits, any
obligation of a General Partner under this Agreement or by operation of
law shall be performable only to the extent that the Partnership has
funds available therefor, and no General Partner shall be liable
personally with respect to any such obligation.
3.7.(b) No Guarantees. Except as provided in this Agreement with
respect to Guaranteed Payments, the General Partners do not guarantee
the return of any Partner's capital contributions nor do they guarantee
any
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allocations of Profits or Losses nor any distributions of Distributable
Cash to any Partner or Assignee.
3.7.(c) Duty of Loyalty. In exercising the powers granted by this
Agreement and in performing the duties required by this Agreement, each
General Partner has a duty (i) to account to the Partnership and to
hold for the Partnership any property, profit or benefit derived by the
General Partner in conducting and winding up the Partnership's business
and affairs or from the General Partner's use of any of the Partnership
Assets, (ii) to refrain from dealing with the Partnership on behalf of
a party having an interest adverse to the Partnership and (iii) to
refrain from competing with the Partnership or dealing with the
Partnership in a manner adverse to the Partnership. Consistent with
this duty, any General Partner or any General Partner's Affiliate may
own, operate or invest in any property or business venture which is not
owned or operated by the Partnership without providing notice to the
Partnership, the other Partners or any Assignees and without allowing
the participation of the Partnership, the other Partners or any
Assignees, such that neither the Partnership nor any Partner or
Assignee shall have any rights with respect to any such properties or
business ventures nor any claims with respect to their effect on the
Partnership. Also consistent with this duty, any General Partner or any
General Partner's Affiliate may transact business of any kind with the
Partnership and any of the Partners or Assignees.
3.7.(d) Duty of Care; Business Judgment Rule. In exercising the
powers granted by this Agreement and in performing the duties required
by this Agreement, each General Partner has a duty to act in good faith
with the reasonable belief that the General Partner's actions are in
the Partnership's best interests; provided that an error in judgment by
itself shall not constitute a violation of this duty. Consistent with
this duty, each General Partner may act without liability to the
Partnership, the other Partners or any Assignee in reliance upon any
written instrument which is reasonably believed by the General Partner
to be genuine and to have been signed or presented by the proper
parties. Also consistent with this duty, each General Partner may act
or refrain from acting without liability to the Partnership, the other
Partners or any Assignee in reliance upon any opinion of any consultant
or adviser with respect to matters which the General Partner reasonably
believes to be within the consultant's or adviser's professional
competence.
3.8. Indemnification of General Partners.
3.8.(a) Mandatory Indemnification; Standards. To the fullest
extent permitted by law, the Partnership shall indemnify any Partner or
former Partner who or which was, is or is threatened to be made a named
defendant or respondent in any legal proceeding because the person is
or was a General Partner if it is determined that the Partner or former
Partner acted in good faith,
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acted in the Partnership's best interests when acting in the official
capacity of a General Partner, and in all other cases acted in a manner
which at least was not opposed to the Partnership's best interests.
3.8.(b) Scope of Indemnification. Pursuant to the indemnity
described above in this Section, the Partnership shall reimburse any
qualifying Partner or former Partner for any payments made with respect
to judgments, penalties, including excise and similar taxes, fines,
settlements and reasonable expenses, including attorneys' fees, related
to the proceeding. The indemnification rights granted by this Section
are in addition to any rights against third parties.
3.8.(c) Advance Payment of Expenses. To the fullest extent
permitted by law, the Partnership shall pay or reimburse, in advance or
during the course of any proceeding, reasonable expenses incurred by
any Partner or former Partner who or which was, is or is threatened to
be made a named defendant or respondent in any legal proceeding because
the person is or was a General Partner if the Partnership first
receives a written affirmation by the Partner of the Partner's good
faith belief that the Partner has met the standard of conduct necessary
for indemnification under this Section and also receives a written
undertaking by or on behalf of the Partner to repay the amount paid or
reimbursed if it ultimately is determined that the Partner has not met
the standard of conduct necessary for indemnification under this
Section.
3.9. Limited Partners.
3.9.(a) No Control Over Management. Other than with respect to a
Limited Partner's approval rights pertaining to Major Decisions as
provided in Section 3.10, no Limited Partner shall have any authority
to exercise the Powers of Management nor to participate in the control
of the Partnership's business or affairs. The Partnership shall not be
bound by any act of a Limited Partner.
3.9.(b) Limited Liability. The Limited Partners shall not be
personally liable for any debts or obligations of the Partnership.
3.9.(c) No Return of Contributions. The Limited Partners shall
have no right to withdraw from the Partnership other than by exercising
the Contingent Put Right as provided in Section 9.2.(b) and shall have
no right to a return of any contributions to the Partnership made by
them except to the extent that distributions made to them in the normal
course of business as provided in Article VII and upon liquidation of
the Partnership as provided in Section 10.6 may be considered as such
by law.
3.9.(d) Access to Certain Information. Upon written request by a
Limited Partner, but only at the expense of the Limited Partner and
only at
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reasonable times and for a purpose related to the Limited Partner's
Limited Partnership Interest, a Limited Partner may require the
Partnership to provide: (i) true and full information regarding the
status of the business and financial condition of the Partnership; (ii)
a copy of the Partnership's federal, state and local income tax returns
promptly after they become available; (iii) a current list of the full
name and last known business, residence or mailing address of each
Partner; (iv) a copy of this Agreement and the Certificate of Limited
Partnership, together with executed copies of any powers of attorney
pursuant to which this Agreement and the Certificate of Limited
Partnership may have been executed; (v) any other information regarding
the Partnership's business and affairs as is just and reasonable; and
(vi) subject to contractual limitations regarding confidentiality and
access to information contained in agreements between the Partnership
and third parties covering all or any part of the Partnership Assets or
properties owned by other entities in which the Partnership owns a
direct or indirect interest, and at the Limited Partner's own risk,
access to any such Partnership Assets and properties and the
opportunity to observe all operations related to any such Partnership
Assets and properties.
3.9.(e) Competition. Except as specifically prohibited in Section
3.7.(c), any Limited Partner may own, operate or invest in any property
or business venture which is not owned or operated by the Partnership
without providing notice to the Partnership or the other Partners and
without allowing the participation of the Partnership or the other
Partners, such that neither the Partnership nor any Partner shall have
any rights with respect to any such properties or business ventures nor
any claims with respect to their effect on the Partnership.
3.9.(f) Transactions with Partnership. Any Limited Partner or any
Limited Partner's Affiliate may transact business of any kind with the
Partnership and any of the Partners.
3.10. Approval Rights Related to Certain Major Decisions.
3.10.(a) Unanimous Approval. Subject to the procedures described
below in this Section, the following Major Decisions shall not be made
on behalf of the Partnership by any General Partner without the prior
written consent of all of the Partners:
(i) filing a petition for relief in bankruptcy under any
federal bankruptcy law or any other jurisdiction's debtor relief
law;
(ii) making any decision or taking any action which would
make it impossible to carry on the Partnership's business and
affairs; or
(iii) violating this Agreement in any manner.
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3.10.(b) Majority Approval. In addition to the Major Decisions
described above in this Section, and subject to the procedures
described below in this Section, if Weis Family Holdings, L.L.C. is not
serving as Managing Partner, the following Major Decisions shall not be
made on behalf of the Partnership by any General Partner without the
prior written consent of a majority of the Partners on the basis of
their Percentage Interests:
(i) making any investment or series of related investments
during any Fiscal Year which would require a capital commitment
of a dollar amount greater than (A) ten percent (10%) of the Book
Value of the Partnership Assets or (B) $2,000,000 whichever
amount is larger,
(ii) acquiring debt of any kind if, after acquiring the debt,
the dollar amount of the Partnership's aggregate debt outstanding
is greater than (A) twenty percent (20%) of the Book Value of the
Partnership Assets or (B) $4,000,000, whichever amount is larger;
(iii) consenting to any sale, lease, transfer or other
disposition of any of the Partnership Assets, whether one
transaction or a series of related transactions, if the total
value of any such Partnership Assets is greater than (A) twenty
percent (20%) of the Book Value of the Partnership Assets or (B)
$4,000,000 whichever amount is larger; or
(iv) disposing of all or part of the Partnership Assets to a
Permitted Assignee if the total value of any such Partnership
Assets is greater than (A) two and one-half percent (2.5%) of the
Book Value of the Partnership Assets or (B) $500,000, whichever
amount is larger.
All dollar amounts in this Section shall be adjusted as necessary
to reflect inflation after the Effective Date, to be determined solely
by the Partnership Management by reference to changes in the "Consumer
Price Index All Urban Consumers - U.S. City Average (1982-84 = 100) All
Items" as published by the U.S. Department of Labor/Bureau of Labor
Statistics or, if that index is no longer in use, by any other widely
used inflation index selected by the Partnership Management.
3.10.(c) Procedures Regarding Major Decisions. Prior to making
any Major Decision, a General Partner shall provide all of the other
Partners with a written notice describing the Major Decision and
providing any other information which may be reasonably necessary for
them to evaluate the Major Decision; provided that the Partnership
shall bear any expenses related to providing the notice and
information. If any Partner fails to approve or disapprove the Major
Decision within ten days after receipt of the notice and information
required above, that Partner shall be deemed to have approved the
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Major Decision; provided that the Partnership Management may extend the
ten-day period if it provides written notice to all of the other
Partners.
ARTICLE IV
Partners and Capitalization
---------------------------
4.1. Contributions and Partnership Interests.
4.1.(a) The following contributions of property to the
Partnership and allocations of Partnership Interests shall be made as
of the Effective Date:
(i) Weis Family Holdings, L.L.C. shall contribute to the
Partnership the properties described in Schedule #2, and shall be
allocated the Partnership Interest set forth on Schedule #1
opposite its name;
(ii) Janet C. Weis shall contribute to the Partnership the
properties described in Schedule #3 and shall be allocated the
Partnership Interest set forth on Schedule #1 opposite her name;
(iii) Ellen Weis Goldstein shall contribute to the
Partnership the properties described in Schedule #4 and shall be
allocated the Partnership Interest set forth on Schedule #1
opposite her name;
(iv) Nancy Weis Wender shall contribute to the Partnership
the properties described in Schedule #5 and shall be allocated
the Partnership Interest set forth on Schedule #1 opposite her
name;
(v) Susan Weis Mindel shall contribute to the Partnership the
properties described in Schedule #6 and shall be allocated the
Partnership Interest set forth on Schedule #1 opposite her name;
(vi) Amy Elizabeth Wender shall contribute to the Partnership
the properties described in Schedule #7 and shall be allocated
the Partnership Interest set forth on Schedule #1 opposite her
name;
(vii) Kathryn Lee Wender shall contribute to the Partnership
the properties described in Schedule #8 and shall be allocated
the Partnership Interest set forth on Schedule #1 opposite her
name;
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(viii) The Trustees of The Laura Ann Goldstein 1999 Trust
shall contribute to the Partnership the properties described in
Schedule #9 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(ix) The Trustees of The Paul Weis Goldstein 1999 Trust shall
contribute to the Partnership the properties described in
Schedule #10 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(x) The Trustees of The Wendy Lynn Mindel 1998 Trust shall
contribute to the Partnership the properties described in
Schedule #11 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xi) The Trustees of The Emily Beth Mindel 1998 Trust shall
contribute to the Partnership the properties described in
Schedule #12 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xii) The Trustees of The Amy Elizabeth Wender Gallo Trust
shall contribute to the Partnership the properties described in
Schedule #13 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xiii) The Trustees of The Kathryn Lee Wender Gallo Trust
shall contribute to the Partnership the properties described in
Schedule #14 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xiv) The Trustees of The Laura Ann Goldstein Gallo Trust
shall contribute to the Partnership the properties described in
Schedule #15 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xv) The Trustees of The Paul Weis Goldstein Gallo Trust
shall contribute to the Partnership the properties described in
Schedule #16 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xvi) The Trustees of The Wendy Lynn Mindel Gallo Trust shall
contribute to the Partnership the properties described in
Schedule #17 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
(xvii) The Trustees of The Emily Beth Mindel Gallo Trust
shall contribute to the Partnership the properties described in
Schedule #18 and shall be allocated the Partnership Interest set
forth on Schedule #1 opposite their name;
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(xviii) The Trustees of the Residuary Marital Trust u/A
Sigfried Weis shall contribute to the Partnership the properties
described in Schedule #19 and shall be allocated the Partnership
Interest set forth on Schedule #1 opposite their name; and
(xix) The Trustees of the Generation-Skipping Transfer Trust
u/A Sigfried Weis shall contribute to the Partnership the
properties described in Schedule #20 and shall be allocated the
Partnership Interest set forth on Schedule #1 opposite their
name.
4.1.(b) As a result of the capital contributions described above,
each of Weis Family Holdings, L.L.C., Janet C. Weis, Ellen Weis
Goldstein, Nancy Weis Wender, Susan Weis Mindel, Amy Elizabeth Wender,
Kathryn Lee Wender, the Trustees of The Laura Ann Goldstein 1999 Trust,
the Trustees of The Paul Weis Goldstein 1999 Trust, the Trustees of The
Wendy Lynn Mindel 1998 Trust, the Trustees of The Emily Beth Mindel
1998 Trust, the Trustees of The Amy Elizabeth Wender Gallo Trust, the
Trustees of The Kathryn Lee Wender Gallo Trust, the Trustees of The
Laura Ann Goldstein Gallo Trust, the Trustees of The Paul Weis
Goldstein Gallo Trust, the Trustees of the Wendy Lynn Mindel Gallo
Trust, the Trustees of the Emily Beth Mindel Gallo Trust, the Trustees
of the Residuary Marital Trust u/A Sigfried Weis, and the Trustees of
the Generation-Skipping Transfer Trust u/A Sigfried Weis initially
shall be the only Partners and shall be General Partners and Limited
Partners as designated on Schedule #1.
4.2. Adjustments to Partnership Interests.
4.2.(a) When Adjustments Shall Be Made. Subject to the allocation
requirements below in this Section, if an arbitrator pursuant to a
proceeding under this Agreement, all of the Partners or a court by
final judgment determines that the Partnership Interests initially
received by any Partner do not adequately reflect the fair market value
as of the Effective Date of the capital contributions made by the
Partner, reduced as necessary by any liabilities which are assumed by
the Partnership, then the Partner's Partnership Interests shall be
adjusted to reflect that fair market value. All circumstances shall be
given equitable effect in making any such adjustments, including
consideration of factors such as income taxes paid and the time value
of money, and retroactive adjustments of Capital Accounts shall be made
if necessary. If prior to any adjustments a Partner has received any
distributions from the Partnership which are excessive given the
adjustments which are required by this Section, the Partner immediately
shall pay cash to the Partnership in the amount of the excess; provided
that if the Partner fails or refuses to pay within thirty days after
receiving written notice from the Partnership of the obligation to pay,
any future distributions payable to the Partner by the Partnership
shall be withheld until the equitable results required by this Section
are achieved. Likewise, if
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prior to any adjustments a Partner has received distributions from the
Partnership which are deficient given the adjustments which are
required by this Section, the Partner shall be paid cash by the
Partnership in the amount of the deficiency until the equitable results
required by this Section are achieved.
4.2.(b) Allocation Among Types of Partnership Interests. If any
adjustments to the Partnership Interests are required by this Section,
those adjustments shall be allocated to the Partners' various
Partnership Interests as follows: any allocation of the original
capital contributions to General Partnership Interests as provided on
Schedule #1 shall not be adjusted, and any adjustment shall be made
only to the Partners' Limited Partnership Interests; provided that
adjustments shall be made first to General Partnership Interests if it
is necessary to ensure that the total Percentage Interest represented
by the General Partnership Interests is at least one-fifth of one
percent (0.20%), in which case the adjustments shall be made among all
of the General Partners in the same proportions as originally allocated
on Schedule #1.
4.3. Nature of Contributions.
Any cash or other properties contributed to the Partnership by the
Partners as provided in Sections 4.1 and 4.2 are not loans by the Partners to
the Partnership, and the repayment of the contributions is dependent on the
financial results achieved by the Partnership. No Partner shall be paid interest
solely as a result of contributing capital to the Partnership, and no amount
payable to any Partner as provided in this Agreement is guaranteed by the
Partnership or any other Partner. This Section shall not be construed in a
manner which prohibits a Partner from lending funds to the Partnership so long
as the loan is distinguished from a contribution by the Partner and is evidenced
as such on the Partnership's books.
4.4. Sources of Additional Funds.
4.4.(a) Additional Contributions. Except as required by Sections
4.1, 4.2 and 10.9, no Partner shall be obligated to contribute any
additional funds or properties to the Partnership, nor shall any
Partner be obligated to loan funds to the Partnership, to guarantee
loans to the Partnership or otherwise to incur personal liability with
respect to any loan to the Partnership; provided that the General
Partners shall contribute additional properties to the Partnership
proportionately on the basis of their percentage Interests as necessary
to ensure that the total Percentage Interest represented by their
General Partnership Interests is at least one-fifth of one percent
(0.20%). Any Partner may make voluntary contributions to the
Partnership if agreed to by all of the other Partners; provided that,
consistent with the principles described in Section 4.2, the
Partnership Interests of all Partners shall be adjusted at that time to
reflect the fair market value of the property contributed by the
Partner. The provisions of this Agreement pertaining to capital
contributions shall not confer any rights
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on third parties which are not Partners, such that no third-party
creditor of the Partnership shall have any right or power to force a
Partner to contribute any capital to the Partnership.
4.4.(b) Loans and Guarantees by Partners and Affiliates. If a
Partner or any Partner's Affiliate chooses to loan funds to the
Partnership, the terms of the loan shall be no less favorable to the
Partnership than the terms which could be obtained from a third-party
lender. If a Partner chooses to guarantee a loan to the Partnership or
otherwise to incur personal liability with respect to a loan to the
Partnership, the Partnership shall pay the Partner fair and reasonable
compensation therefor and shall reimburse, indemnify and hold the
Partner harmless for any loss, cost or expense incurred by the Partner
with respect to the loan. The compensation which shall be paid to a
Partner as required by this subsection shall be paid during each Fiscal
Year in which the loan is outstanding and shall be a dollar amount
equal to one percent (1%) of the daily weighted average amount of the
loan which is guaranteed by the Partner during the Fiscal Year;
provided that the Partnership Management shall adjust the compensation
as necessary to conform to market conditions which may exist.
4.5. Capital Accounts.
The Partnership Management shall establish and maintain a Capital
Account for each Partner as provided in this Section and Exhibit A.
4.5.(a) Capital Account Increases. Subject to the provisions of
Exhibit A, each Capital Account shall be increased by (i) the amount of
cash and the fair market value of any property contributed to the
Partnership by the Partner, reduced by any liabilities which are
assumed by the Partnership, and (ii) any Profits allocated to the
Partner as provided in Article VI and Exhibit A.
4.5.(b) Capital Account Decreases. Subject to the provisions of
Exhibit A, each Capital Account shall be decreased by (i) the amount of
cash and the fair market value of any property distributed to the
Partner by the Partnership, reduced by any liabilities which are
assumed by the Partner, and (ii) any Losses allocated to the Partner as
provided in Article VI and Exhibit A.
ARTICLE V
Accounting and Tax Matters
--------------------------
5.1. Books and Records.
The Partnership Management shall keep and maintain the books and
records of the Partnership at the Principal Office, which books and records
shall be accurate in all material respects and shall be kept in accordance with
consistently applied accounting
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principles which the Partnership Management determines to be appropriate for the
business and affairs of the Partnership. The Partnership Management also shall
keep and maintain at the Principal Office any additional information and records
as are necessary for the preparation of the Partnership's federal income tax
returns.
5.2. Financial Statements.
No later than sixty days after the end of a Fiscal Year, the
Partnership Management shall provide each Partner with a copy of the
Partnership's financial statements for the Fiscal Year, which financial
statements shall include a balance sheet indicating the Partnership's assets and
liabilities and each Partner's Capital Account balance as of the end of the
Fiscal Year, a statement of income and expenses for the Fiscal Year and a
statement of cash flows for the Fiscal Year. Objections by any Partner to the
accuracy of the financial statements must be made within thirty days after the
Partner has received the financial statements. If no objection is made within
that time, the financial statements shall be considered to be correct. In
addition, as soon as reasonably possible after each quarter of each Fiscal Year
other than the fourth quarter, the Partnership Management shall provide each
Partner with a quarterly report which the Partnership Management deems adequate
to inform the Partners of the Partnership's financial results.
5.3. Taxes.
The Partnership Management shall prepare and file all income tax
returns and any other tax returns on behalf of the Partnership on a timely basis
and shall provide each Partner with a copy of any such return as soon as
reasonably possible after it has been filed, together with any other information
which the Partner may require for tax compliance purposes. The Partnership
Management shall notify all of the Partners upon receipt of any notice regarding
any examination by any state, federal or local authority with respect to the
Partnership's tax compliance. Additional provisions regarding the taxation of
the Partnership are provided in Exhibit A.
ARTICLE VI
Allocation of Profits and Losses
--------------------------------
Except as provided in Exhibit A, Profits and Losses shall be allocated
proportionately to each of the General Partners and Limited Partners based on
their Percentage Interests.
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ARTICLE VII
Operating Distributions
-----------------------
Except as provided in this Article, the Partnership shall make no
distributions of cash or other property to any Partner until its liquidation as
provided in Section 10.6.
7.1. Distributable Cash.
Distributable Cash includes only that cash held by the Partnership at
the end of a Fiscal Year after reasonable reserves of cash have been set aside
by the Partnership Management, subject to the duties imposed by Section 3.7, for
working capital and other cash requirements, including current and reasonably
projected expenses, current and reasonably projected investment opportunities
and reasonably anticipated contingencies. For purposes of this subsection, any
of the Partnership Assets which are contributed to the Partnership by the
Partners, any borrowed funds, and any cash generated upon the sale of any of the
Partnership Assets, including Partnership Assets which are purchased with
borrowed funds, and including the cash attributable to appreciation in value,
shall be considered as necessary for investment purposes.
7.2. Operating Distributions.
From time to time during each Fiscal Year, the Partnership may
distribute any part or all of the Distributable Cash proportionately to each of
the General Partners and Limited Partners based on their Percentage Interests;
provided that there shall be no Distributable Cash for a fiscal year unless the
Partnership Management has affirmatively decided how much cash is Distributable
Cash for that fiscal year and, in addition, has affirmatively decided that a
portion of such Distributable Cash for that fiscal year shall be distributed and
the General Partner's determination as to all of those matters shall be binding
on all of the other Partners; and provided further that no more than sixty days
after each Fiscal Year, the Partnership shall distribute all of the
Distributable Cash (as determined by the Partnership Management in accordance
with Section 7.1) proportionately to each of the General Partners and Limited
Partners based on their Percentage Interests. No distributions under this
Section shall have the effect of changing any of the Percentage Interests.
ARTICLE VIII
Assignments and Pledges
-----------------------
8.1. New Partners.
Notwithstanding the occurrence of a valid Assignment in compliance with
the provisions of this Article VIII, except as provided in Sections 8.5, 8.14,
and 9.1, (a) no descendant of Janet C. Weis (or custodian for a custodial
account for the benefit of a
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descendant of Janet C. Weis) shall become a Partner without agreeing in writing
to be bound by the terms of this Agreement, (b) no spouse of a Partner shall
become a Partner under any circumstances, and (c) no other person shall become a
Partner without (i) the consent of 80% of the Members of the General Partner
based on their Percentage Interests in the entity which is the General Partner
and (ii) agreeing in writing to be bound by the terms of this Agreement.
8.2. Assignment Prerequisites; Remedies for Breach.
Unless permitted by this Article, no Assignment shall occur except with
the written consent of the Partnership and all of the Partners. In addition to
recovering damages for any Assignment made or attempted in breach of this
Agreement, the Partnership may pursue injunctive or other equitable remedies,
including the equitable remedy of specific performance, without the necessity of
securing or posting any bond.
8.3. Rights and Duties of Assignors and Assignees.
Except with respect to an Assignment involving a General Partnership
Interest as provided in Section 8.5, an Assignee shall be entitled only to
allocations of Profits and Losses as provided in Article VI and distributions as
provided in Article VII and Section 10.6 which are attributable to the Assigned
Partnership Interests held by the Assignee and shall not be entitled to exercise
any Powers of Management nor otherwise participate in the management of the
Partnership nor the control of its business and affairs. Consistent with the
provisions of Exhibit A, neither the Partnership nor the General Partners shall
be required to determine the tax consequences of an Assignment for an Assignor
and any Assignees, and the Partnership shall continue with the same inside basis
and Capital Account for any Assignees as were attributable to the Assignor. An
Assignee shall not be liable as a Partner solely as a result of an Assignment
until the Assignee becomes a Partner, and an Assignor shall not be relieved of
the Assignor's obligations under this Agreement solely as a result of an
Assignment until each Assignee becomes a Partner; otherwise, however, an
Assignee shall be bound by the provisions of this Agreement to the extent
allowed by law. Within a reasonable period of time after an Assignment, each
Assignee shall execute and deliver to the Partnership a written statement of the
Assignee's agreement to be bound by this Agreement, which statement shall become
part of this Agreement; provided that the failure to execute and deliver the
statement shall not relieve the Assignee from the restrictions imposed by this
Agreement.
8.4. Permitted Assignees.
Except as provided in Section 8.8 with respect to the death of a
Partner's or Assignee's spouse and in Section 8.9 with respect to the divorce of
a Partner or Assignee, an Assignment may occur without restriction if each
Assignee is one of the following Permitted Assignees:
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8.4.(a) any person who is a Partner at the time of the
Assignment;
8.4.(b) any person who is a descendant of Janet C. Weis,
including any person adopted by any descendant of hers, and including
the descendants of any such adopted person, provided that the adoption
is completed before the adopted person reaches eighteen years of age;
8.4.(c) the trustees of any trust holding properties with respect
to which Permitted Assignees actuarially comprise more than
seventy-five percent (75%) of the beneficial ownership at the time of
the Assignment, determined as provided in Section 8.13; provided that
under no circumstances may distributions of trust principal that
consist in whole or in part of any Partnership Interest be made to any
person or entity other than a Permitted Assignee; provided further that
either (i) at least one trustee is a descendant of Janet C. Weis and
all voting power over stock in Weis Markets, Inc. held by the trust is
delegated to that trustee or trustees, (ii) all of the trustees are
descendants of Janet C. Weis, or (iii) the trustees enter into a voting
agreement whereunder one or more descendants of Janet C. Weis are
delegated all voting power over stock in Weis Markets, Inc. held by the
trust; and provided further that any power of appointment granted by
such trust to any individual who is not a descendant of Janet C. Weis
shall be limited to the power to appoint to or for the benefit of one
or more Permitted Assignees;
8.4.(d) any corporation, partnership, limited liability
partnership, limited liability company, professional corporation or
other business entity in which all classes of stock partnership
interest, membership or other equity interest are wholly owned by
Permitted Assignees at the time of the Assignment.
8.5. Special Rules for General Partnership Interests.
Upon any Assignment of a General Partnership Interest in which each
Assignee is a Permitted Assignee, each Permitted Assignee shall become a Limited
Partner and shall hold the Assigned Partnership Interest as a Limited
Partnership Interest, provided that upon any such Assignment at or by reason of
a General Partner's death, each Permitted Assignee shall become a General
Partner and shall hold the Assigned Partnership Interest as a General
Partnership Interest, and during the intervening period of estate
administration, the personal representatives of the deceased General Partner's
estate shall hold the Assigned Partnership Interest as a General Partnership
Interest on behalf of each Permitted Assignee and shall have the rights, powers
and obligations of a General Partner, in each case subject to the limitations
described in Section 10.3.
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8.6. Lifetime Assignment by Partner or Assignee.
No Partner or Assignee may Assign any part or all of the Partnership
Interests held in the Partner's or Assignee's name to Assignees which do not
consist solely of Permitted Assignees.
8.7. Death of Partner or Assignee.
No Assignment may occur upon the death of a Partner or Assignee or
during the administration of the estate of a deceased Partner or Assignee that
involves Assignees which do not consist solely of Permitted Assignees.
8.8. Death of Partner's or Assignee's Spouse.
No Assignment may occur upon the death of a Partner's or Assignee's
spouse or during the administration of the estate of a deceased spouse of a
Partner or Assignee that involves Assignees which do not consist solely of
Permitted Assignees.
8.9. Divorce of Partner or Assignee.
No Partner or Assignee may voluntarily permit an Assignment to occur
upon the divorce of such Partner or Assignee that involves Assignees which do
not consist solely of Permitted Assignees.
8.10. Changes in Beneficial Ownership of Trust Properties.
No Assignment may occur upon any change in the beneficial ownership of
the properties of a trust that involves Assignees which do not consist solely of
Permitted Assignees.
8.11. Changes in the Ownership of Entities which are Partners.
No Assignment may occur upon any change in the ownership of any
corporation, partnership, limited liability partnership, limited liability
company, professional corporation or other business entity which does not result
in all classes of stock, partnership interest, membership or other equity
interest being wholly owned by Permitted Assignees.
8.12. Involuntary Assignments.
For any involuntary Assignment to occur, including an Assignment caused
by (a) levy, foreclosure or similar seizure related to a mortgage, pledge or
other similar encumbrance of, or grant of a security interest in, any legal or
beneficial interest in any Partnership Interest or Assigned Partnership
Interest, (b) bankruptcy or other insolvency proceedings instituted on behalf of
a Partner, an Assignee, a Partner's
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spouse or an Assignee's spouse, or (c) judicial or administrative order,
including an order in connection with a divorce, the parties demanding the
Assignment first must offer the Partnership Interests or Assigned Partnership
Interests, as the case may be, which are to be Assigned for sale to the
Partnership and the existing Partners and Assignees who are Permitted Assignees
as provided in Exhibit B or, in the case of an involuntary assignment in
connection with a divorce, as provided in Exhibit C.
8.13. Actuarial Ownership of Trust Properties by Permitted Assignees.
The provisions of this Section shall apply in making the determination
whether Permitted Assignees actuarially comprise more than seventy-five percent
(75%) of the beneficial ownership of properties held in a trust at the time of
an Assignment to the trustees of the trust.
8.13.(a) Beneficial Interests to be Ignored. The following
beneficial interests in the trust shall be ignored:
(i) any beneficial interest of a person who is lawfully
married to a Permitted Assignee at the time of the Assignment or
who had been married to a Permitted Assignee at the time of the
Permitted Assignee's death and has not remarried at the time of
the Assignment; and
(ii) any beneficial interest represented by the existence of
any power of appointment over the trust properties, even though
the actual exercise of the power of appointment may constitute an
Assignment; provided that in the case of a power held by any
person other than a descendant of Janet C. Weis such power is
limited to the power to appoint to or for the benefit of one or
more Permitted Assignees.
8.13.(b) Determination Based on Relevant Interests. The
beneficial interests which are not ignored as provided above in this
Section ("Relevant Interests") shall be divided into two categories,
those which are held for Permitted Assignees and those which are not,
and each category shall be valued as provided under Section 2512(a) of
the Code as if the beneficial interests were then assigned, even if
those interests are not assignable. Permitted Assignees shall be deemed
to comprise more than seventy-five percent (75%) of the beneficial
ownership of properties held in a trust at the time of an Assignment to
the trustees of the trust if the value of the Relevant Interests which
are held for Permitted Assignees is more than three times the value of
the Relevant Interests which are not held for Permitted Assignees.
8.13.(c) Certification by Partnership Management. Upon request by
the trustee of any trust, the Partnership Management may certify
whether Permitted Assignees actuarially comprise more than seventy-five
percent (75%) of the beneficial ownership of properties held in the
trust. The Partnership
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Management shall have complete discretion in issuing or failing to
issue such a certification and shall be liable only for fraud or bad
faith. Regardless of whether the Partnership Management issues such a
certification, the Partnership shall not be estopped from claiming that
Permitted Assignees actuarially comprise more or less than seventy-five
percent (75%) of the beneficial ownership of properties held in the
trust, but if the Partnership Management does issue such a
certification, all third parties dealing with the trustee may rely on
the certification.
8.14. Assignments to Existing Limited Partners.
In the event of a valid Assignment in compliance with the provisions of
this article VIII to a Permitted Assignee who is an existing Limited Partner,
such Assigned Partnership Interest shall be added to such Partner's Limited
Partnership Interest and such Partner shall be treated as a Partner with respect
to such Partner's entire such Limited Partnership Interest.
8.15. Pledge Prerequisites; Remedies for Breach.
Ellen Weis Goldstein, Nancy Weis Wender, and Susan Weis Mindel each may
pledge any part or all of her Interest in the Partnership for loans of up to
$10,000,000 in total value upon written notice to each of the General Partners
but without requiring the consent of any Partner. Ellen Weis Goldstein's, Nancy
Weis Wender's, and Susan Weis Mindel's rights to pledge their Interests for
loans of up to $10,000,000 in total value without the consent of any Partner
extend to each of them alone and their personal representatives and not to any
Assignee of their Interests. Ellen Weis Goldstein, Nancy Weis Wender, and Susan
Weis Mindel each may pledge any part of her Interest in the Partnership for
loans in excess of $10,000,000 in total value only with the prior written
consent of (i) 80% of the Members of the General Partner based on their
Percentage Interests in the entity which is the General Partner and (ii) a
majority of the Partners on the basis of their Percentage Interests in the
Partnership. No partner other than Ellen Weis Goldstein, Nancy Weis Wender, and
Susan Weis Mindel may pledge any portion of the Partner's Interest in the
Partnership without the prior written consent of (i) 80% of the Members of the
General Partner based on their Percentage Interests in the entity which is the
General Partner and (ii) a majority of the Partners on the basis of their
Percentage Interests in the Partnership. In the event of any pledge made by
Ellen Weis Goldstein, Susan Weis Mindel, Nancy Weis Wender, or any other Partner
for loans of any amount, such Partner shall reimburse the Partnership and each
of the other Partners for and indemnify the Partnership and each of the other
Partners against any costs, including counsel fees, associated with such pledge.
In addition to recovering damages for any pledge made or attempted to be made in
breach of this Agreement, the Partnership may pursue injunctive or other
equitable remedies, including the equitable remedy of specific performance,
without the necessity of securing or posting any bond.
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ARTICLE IX
Withdrawals and Contingent Put Right
------------------------------------
9.1. General Partners.
No General Partner shall withdraw from the Partnership prior to May 28,
2049, unless the Partnership is dissolved prior to that date as provided in
Section 10.1.(b) or 10.1.(d), and any such early withdrawal shall be a breach of
this Agreement. As a consequence of an early withdrawal by a General Partner,
the withdrawing General Partner's General Partnership Interest shall be
converted into a Limited Partnership Interest, and the withdrawing General
Partner shall be admitted to the Partnership as a Limited Partner, subject to
the limitations described in Section 10.3. In addition, the Partnership may
recover damages to the extent permitted by law, including the reasonable cost of
replacement with respect to the services required of the withdrawing General
Partner under this Agreement, and the Partnership may effect the recovery of any
such damages by offsetting them against amounts otherwise distributable to the
withdrawing General Partner and by reducing the size of the Limited Partnership
Interest into which the withdrawing General Partner's General Partnership
Interest is converted.
9.2. Limited Partners.
9.2.(a) General Rule. Except as provided in this Section, no
Limited Partner or Assignee shall have the right to withdraw from the
Partnership prior to its liquidation as provided in Article X.
9.2.(b) Contingent Put Right. With the prior written consent of
two-thirds of the Partners on the basis of their Percentage Interests
and upon written notice to each General Partner and Limited Partner at
any time prior to the Partnership's liquidation as provided in Article
X, any Limited Partner may withdraw from the Partnership with respect
to any part or all of the Limited Partner's Limited Partnership
Interest, and the Partnership shall distribute to the Limited Partner
any of the Partnership Assets agreed to by the Limited Partner and the
Partnership Management, excluding the Partner exercising the Contingent
Put Right, or any other form of consideration deemed appropriate
pursuant to Exhibit D; provided that the value of any property
distributed shall have a total value equal to the Fair Market Value of
the withdrawn Limited Partnership Interest. If Fair Market Value must
be determined pursuant to arbitration as provided in Exhibit E,
notwithstanding any provision of Exhibit E to the contrary, the Partner
exercising the Contingent Put Right shall select the appraiser to act
on that Partner's behalf, and the Partnership Management, excluding the
Partner exercising the Contingent Put Right and any Affiliate of that
Partner, shall select the appraiser to act on the Partnership's behalf;
provided that if there is no General Partner within the Partnership
31
<PAGE>
Management other than the Partner exercising the Contingent Put Right
or an Affiliate of that Partner, the appraiser to act on behalf of the
Partnership shall be selected by a plurality of the General Partners,
excluding the Partner exercising the Contingent Put Right and any
Affiliate of that Partner, on the basis of their Percentage Interests;
further provided that if there is no General Partner at all other than
the Partner exercising the Contingent Put Right or an Affiliate of that
Partner, the appraiser to act on behalf of the Partnership shall be
selected by a majority of the General Partners and Limited Partners who
are not the Partner exercising the Contingent Put Right and who are not
an Affiliate of that Partner, on the basis of their Percentage
Interests.
ARTICLE X
Dissolution, Winding Up and Liquidation
---------------------------------------
10.1. Dissolution.
No Partner may cause the dissolution of the Partnership except as
provided in this Section. The Partnership shall not be dissolved until the first
to occur of:
10.1.(a) May 28, 2049;
10.1.(b) the written consent of all the General Partners and
two-thirds of the Limited Partners;
10.1.(c) an event of withdrawal of a General Partner, as
described in Section 17-402 of the Act; or
10.1.(d) the entry of a decree of judicial dissolution under
Section 17-802 of the Act.
10.2. Effective Date and Notice.
The dissolution of the Partnership shall be effective as of the day on
which the event causing the dissolution occurs, but the Partnership shall not
terminate until all of its affairs have been wound up and it has been liquidated
as provided in this Article. If the Partnership is dissolved for any reason, the
Partnership Management shall provide each of the Partners with written notice of
the dissolution within two weeks of the event causing dissolution.
32
<PAGE>
10.3. Reconstitution.
If the Partnership is dissolved as provided in Section 10.1.(a) or
10.1.(c), the Partnership may be reconstituted and its business continued
without being wound up if:
10.3.(a) there remains at least one General Partner and the
remaining General Partner or General Partners wish to carry on the
business of the Partnership, provided that if the dissolution occurs
because of the death of a General Partner, any substituted General
Partner admitted to the Partnership as provided in Section 8.5 shall
not have the right to participate in the determination of whether the
Partnership's business should be carried on; or
10.3.(b) within ninety days after the effective date of the
Partnership's dissolution, all of the remaining Partners agree in
writing to continue the business of the Partnership and, if there is no
remaining General Partner, agree to the appointment of one or more new
General Partners to be effective as of the effective date of the
Partnership's dissolution, provided in each case that the agreement of
a former General Partner who is admitted to the Partnership as a
Limited Partner upon withdrawal as provided in Section 9.1 shall not be
required with respect to any Partnership Interest owned by that former
General Partner if the dissolution was caused by that former General
Partner's withdrawal; further provided that the agreement of a
substituted General Partner admitted to the Partnership as provided in
Section 8.5 shall not be required with respect to any Partnership
Interest owned by that substituted General Partner if the dissolution
was caused by the death of the antecedent General Partner, and further
provided that all of the remaining Partners shall bear proportionately
the dilution of their Partnership Interests caused by the admission of
any General Partner.
10.4. Liquidator.
If the Partnership is dissolved and is not reconstituted as provided in
Section 10.3, the Partnership's affairs shall be wound up and the Partnership
shall be liquidated under the authority of the Liquidator appointed by this
Section.
10.4.(a) Appointment of Liquidator. The winding up of the
Partnership's affairs and its liquidation shall be accomplished under
the authority of either:
(i) the Partnership Management, exclusive of any General
Partner causing the dissolution of the Partnership in breach of
this Agreement; or
33
<PAGE>
(ii) if the dissolution was caused by an event of withdrawal
of the last remaining General Partner, as described in Section
17-402 of the Act, either by the Limited Partners or by an agent
selected by the Limited Partners on such terms and conditions as
may be deemed appropriate by the Limited Partners, exclusive of
any former General Partner admitted to the Partnership as a
Limited Partner upon withdrawal as provided in Section 9.1.
10.4.(b) Powers of Liquidator. Except as otherwise provided in
this Article, the Liquidator shall have the authority to exercise all
of the Powers of Management to the extent necessary to wind up the
Partnership's affairs and liquidate the Partnership, subject to the
same duties which are imposed on the Partnership Management by this
Agreement, and subject to the same limitations on those duties and
indemnification rights which are granted to the Partnership Management
by this Agreement.
10.5. Conversion of Assets to Cash.
If the Partnership is dissolved and is not reconstituted as provided in
Section 10.3, unless other arrangements are made which are satisfactory to all
of the remaining General Partners, exclusive of any General Partner causing the
dissolution of the Partnership in breach of this Agreement, or, if there are no
General Partners remaining, which are satisfactory to all of the remaining
Partners, exclusive of any Partner causing the dissolution of the Partnership in
breach of this Agreement, the Partnership Assets shall be liquidated and
converted to cash to the extent necessary to pay all creditors of the
Partnership, including Partners to the extent allowed by Section 17-804(a)(1) of
the Act, except for creditors which are owed Approved Debts, which Approved
Debts shall consist only of liabilities owed by the Partnership which are
secured by properties from which the projected net cash flow is sufficient to
pay principal and interest as such obligations become due and which are not
accelerated nor considered defaulted upon solely because of the dissolution of
the Partnership and the distribution in liquidation of the Partnership of any
properties which secure the liabilities. Any of the Partnership Assets which
remain after the above described assets are converted to cash may be liquidated
and converted to cash or retained for distribution in kind to the Partners as
the Liquidator determines to be appropriate. The Partners shall allow a
reasonable time for the orderly liquidation of the Partnership in order to avoid
losses to the extent possible.
10.6. Liquidating Distributions.
After a sufficient amount of the Partnership Assets have been converted
to cash as provided in Section 10.5, and allowing for the creation of reserves
as provided in Section 10.7, all cash held by the Partnership and any of the
remaining Partnership Assets shall be distributed as provided in this Section.
34
<PAGE>
10.6.(a) Creditors. Any cash held by the Partnership shall be
paid in the order of priority as may be required to all creditors of
the Partnership other than creditors which are owed Approved Debts,
including Partners to the extent allowed by Section 17-804(a)(1) of the
Act, in satisfaction of all liabilities other than Approved Debts which
are owed by the Partnership.
10.6.(b) Partners. After making payments to creditors as provided
above in this Section, any remaining cash shall be distributed, and any
of the remaining Partnership Assets shall be distributed in kind, among
the Partners in proportion to the credit balances in their Capital
Accounts.
10.7. Reserves.
After making payment or provision for payment of all expenses of
liquidation and all liabilities other than Approved Debts which are owed by the
Partnership as provided above in this Article, the Liquidator may establish cash
reserves as the Liquidator determines to be appropriate for any contingent or
unforeseen liabilities of the Partnership. Upon a decision by the Liquidator
that such reserves are no longer necessary, any cash remaining in such reserves
shall be distributed according to the provisions above in this Article.
10.8. Accounting on Liquidation; Fair Market Value of In-Kind
Distributions.
Any items of income, gain, loss, deduction or credits against tax which
arise during the course of the Partnership's winding up and liquidation shall be
allocated among the Partners as provided in Article VI and credited or charged
to their respective Capital Accounts as provided in Section 4.5 and Exhibit A.
With respect to any property to be distributed in kind to a Partner as provided
in this Article, the Liquidator shall determine the fair market value of the
property, and the Capital Accounts of the Partners shall be adjusted as provided
in Section 4.5 and Exhibit A for the gain or loss which would have been
recognized had the property instead been sold for its fair market value;
provided that if the Partners cannot agree on the property's fair market value,
it shall be determined by arbitration as provided in Exhibit E as if the
property were a Partnership Interest with a disputed Fair Market Value.
10.9. Restoration of Capital Account Deficits.
10.9.(a) Limited Partners. Except as provided below in Section
10.9.(b), no Limited Partner shall have any obligation to contribute
additional cash or other properties in order to eliminate a deficit in
the Limited Partner's Capital Account which may exist after taking into
account all Capital Account adjustments required by this Article and
Exhibit A.
10.9.(b) General Partners. Any General Partner, including for
purposes of this Section 10.9.(b) any former General Partner converted
to a
35
<PAGE>
Limited Partner as provided in Section 9.1 because the former General
Partner caused the dissolution of the Partnership as provided in
Section 10.1.(c) by withdrawing from the Partnership, who or which has
a deficit balance in the Partner's Capital Account after taking into
account all Capital Account adjustments required by this Article and
Exhibit A, limited in the case of a former General Partner as described
above to a deficit balance existing at the time of the former General
Partner's withdrawal and conversion to a Limited Partner, shall
contribute to the Partnership an amount of cash sufficient to eliminate
the deficit balance no later than (i) the end of the calendar year in
which the Partnership's liquidation otherwise has been completed or
(ii) ninety days after the date on which the Partnership's liquidation
otherwise has been completed, whichever is later.
10.10. Termination.
Upon the completion of the Partnership's liquidation and the
distribution of all cash held by the Partnership and all of the Partnership
Assets as provided above in this Article, the Partnership shall terminate, and
the Liquidator and Partners shall execute and record all documents necessary to
effectuate the dissolution and termination of the Partnership under the Act or
any other laws.
ARTICLE XI
Miscellaneous
11.1. Mandatory Arbitration of All Disputes.
Any dispute between or among the Partnership, any of the Partners, any
Assignees or any other parties which is related to Fair Market Value and cannot
be resolved by agreement shall be resolved by arbitration as provided in Exhibit
E, and any other dispute which cannot be resolved by agreement shall be resolved
by arbitration as provided in Exhibit F. The resolution of a dispute by
arbitration as provided in Exhibits E and F shall be final as between the
parties to the dispute and may be enforced or preserved upon application to any
court of competent jurisdiction.
11.2. Modification, Termination and Waiver.
This Agreement may be modified, terminated or waived only by written
agreement among a two-thirds majority of all parties affected by the
modification, termination or waiver based on their Percentage Interests;
provided that any affected party who dissents in writing prior to the closing of
the voting on such modification, termination or waiver, shall have the right for
a period of sixty days following the effective date of such modification,
termination, or waiver to put any part or all of that
36
<PAGE>
party's Interest to the Partnership in accordance with Section 9.2.(b) but
without requiring the consent of any other Partner.
11.3. Estoppel Certificate.
Within twenty days after receiving a written request from another
Partner, any Partner receiving the request shall return a written, acknowledged
statement which, to the extent of the Partner's knowledge, (a) either states
that this Agreement has not been modified or describes any modifications which
have been made, and (b) states whether or not any Partner is in default with
respect to any obligation under this Agreement and describes the default.
11.4. Further Actions.
Each party to this Agreement shall execute and deliver any documents
and take any further actions which may be necessary to effect the purposes and
objectives of this Agreement.
11.5. Certificate Requirements.
The Partners promptly shall execute and file any certificates or other
documents which may be required by applicable law in connection with the
formation, existence, dissolution or liquidation of the Partnership.
11.6. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the parties to
this Agreement and their respective successors and assigns; provided that no
interest in or under this Agreement may be assigned except as provided by this
Agreement.
11.7. Creditors.
No provision in this Agreement shall be enforceable by, nor construed
for the benefit of, any creditors of the Partnership.
11.8. Personal Liability.
Except as may be provided in a separate agreement delivered to the
Partnership Management, no employee, officer, director, shareholder, limited
partner or other agent of any Partner shall be liable personally for any
obligations of the Partner under this Agreement.
37
<PAGE>
11.9. Entire Agreement.
This Agreement represents the entire agreement of the parties to this
Agreement with respect to the Partnership and supersedes any prior
understandings between or among them. There are no oral or written
representations, agreements, arrangements or understandings between or among the
parties to this Agreement which relate to the Partnership other than those
contained in this Agreement.
11.10. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of Delaware, and the rights and obligations of the parties to this
Agreement shall be governed by the laws of the State of Delaware.
11.11. Notices.
Except as otherwise provided, all notices and other communications
which may be required under this Agreement shall be submitted in writing and
shall be effective when received by the party to be notified. As long as all
costs are prepaid by the sender, notices may be sent by any reasonable method,
including hand delivery, mail (whether certified, overnight or otherwise), air
courier, facsimile transmission, Telex or cable.
11.12. Format of Agreement; Headings.
The format of this Agreement and the headings used throughout this
Agreement are intended only for convenience of reference and shall not affect
the meaning of any provision in this Agreement.
11.13. Usage of the Word "Include."
In order to avoid repeated use of phrases such as "...including, but
not limited to,..." and "...which may include, without limitation,..."
throughout this Agreement, any derivative of the word "include" shall be
construed only in an illustrative sense and not in a limiting sense, such that
illustrations or examples associated with any provision in this Agreement which
are set apart by any derivative of the word "include" shall not be construed to
limit the generality of the provision which is modified, nor to be the exclusive
illustrations or examples with respect to the provision, unless the context
clearly indicates otherwise.
11.14. Usage of the Word "Person."
In order to avoid repeated use of phrases such as "...any person or
entity..." throughout this Agreement, any derivative of the word "person" in
this Agreement shall
38
<PAGE>
include an individual, corporation, partnership, limited partnership, limited
liability partnership, limited liability company, professional corporation,
trust, estate, custodian, trustee, executor, administrator, nominee, charity or
other entity in its own or a representative capacity.
11.15. Usage of the Word "Trust."
Any derivative of the word "trust" shall include all trusts and any
arrangement which has substantially the same effect as a trust.
11.16. Cross-References.
Unless the context clearly indicates otherwise, any references in this
Agreement to an "Article" or "Section" are references to articles or sections of
this Agreement.
11.17. Plurals, etc.
Pronouns, nouns and other terms used in this Agreement shall be
construed as necessary to include their masculine, feminine, neuter, singular
and plural forms.
11.18. Incorporation of Schedules and Exhibits By Reference.
The provisions of the schedules and exhibits which are attached to this
Agreement and to which reference is made in various places throughout this
Agreement are incorporated by reference into this Agreement for all purposes
without the necessity of repeatedly referring to such incorporation throughout
this Agreement when referring to the schedules and exhibits.
11.19. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original of this Agreement but all of which, taken together, shall
constitute one and the same Agreement.
IN WITNESS OF THIS AGREEMENT, the parties to this Agreement have signed
below on the dates indicated, to be effective as of the Effective Date.
39
<PAGE>
GENERAL PARTNER:
WEIS FAMILY HOLDINGS, L.L.C.
_____________________________ By:_______________________
Date Janet C. Weis,
Member and Manager
LIMITED PARTNERS:
----------------------------- --------------------------
Date Janet C. Weis
----------------------------- --------------------------
Date Ellen Weis Goldstein,
Individually and as Trustee
of the following trusts:
The Laura Ann Goldstein
1999 Trust, The Paul Weis
Goldstein 1999 Trust, The
Amy Elizabeth Wender Gallo
Trust, The Kathryn Lee
Wender Gallo Trust, The
Laura Ann Goldstein Gallo
Trust, The Paul Weis
Goldstein Gallo Trust, The
Wendy Lynn Mindel Gallo
Trust, The Emily Beth
Mindel Gallo Trust, the
Residuary Marital Trust u/A
Sigfried Weis, and the
Generation-Skipping
Transfer Trust u/A Sigfried
Weis
----------------------------- ---------------------------
Date Nancy Weis Wender,
Individually and as Trustee
of the following trusts:
The Amy Elizabeth Wender
Gallo Trust, The Kathryn
Lee Wender Gallo Trust, The
Laura Ann Goldstein Gallo
Trust, The Paul Weis
Goldstein Gallo Trust, The
Wendy Lynn Mindel Gallo
Trust, The Emily Beth
Mindel Gallo Trust, the
Residuary Marital Trust u/A
Sigfried Weis, and the
Generation-Skipping
Transfer Trust u/A Sigfried
Weis
40
<PAGE>
----------------------------- ---------------------------
Date Susan Weis Mindel,
Individually and as Trustee
of the following trusts:
The Wendy Lynn Mindel 1998
Trust, The Emily Beth
Mindel 1998 Trust, The Amy
Elizabeth Wender Gallo
Trust, The Kathryn Lee
Wender Gallo Trust, The
Laura Ann Goldstein Gallo
Trust, The Paul Weis
Goldstein Gallo Trust, The
Wendy Lynn Mindel Gallo
Trust, The Emily Beth
Mindel Gallo Trust, the
Residuary Marital Trust u/A
Sigfried Weis, and the
Generation-Skipping
Transfer Trust u/A Sigfried
Weis
----------------------------- ---------------------------
Date Amy Elizabeth Wender
----------------------------- ---------------------------
Date Kathryn Lee Wender
----------------------------- ---------------------------
Date Laura Ann Goldstein, as
Trustee of The Laura Ann
Goldstein 1999 Trust
----------------------------- ---------------------------
Date Paul Weis Goldstein, as
Trustee of The Paul Weis
Goldstein 1999 Trust
----------------------------- ---------------------------
Date Wendy Lynn Mindel, as
Trustee of The Wendy Lynn
Mindel 1998 Trust
----------------------------- ---------------------------
Date Emily Beth Mindel, as
Trustee of The Emily Beth
Mindel 1998 Trust
41
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared JANET C. WEIS, individually and as
Member and Manager of WEIS FAMILY HOLDINGS, L.L.C., known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
42
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared ELLEN WEIS GOLDSTEIN, individually and
as Trustee of the following trusts: The Laura Ann Goldstein 1999 Trust, The Paul
Weis Goldstein 1999 Trust, The Amy Elizabeth Wender Gallo Trust, The Kathryn Lee
Wender Gallo Trust, The Laura Ann Goldstein Gallo Trust, The Paul Weis Goldstein
Gallo Trust, The Wendy Lynn Mindel Gallo Trust, The Emily Beth Mindel Gallo
Trust, the Residuary Marital Trust u/A Sigfried Weis, and the
Generation-Skipping Transfer Trust u/A Sigfried Weis, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
43
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared NANCY WEIS WENDER, individually and as
Trustee of the following trusts: The Amy Elizabeth Wender Gallo Trust, The
Kathryn Lee Wender Gallo Trust, The Laura Ann Goldstein Gallo Trust, The Paul
Weis Goldstein Gallo Trust, The Wendy Lynn Mindel Gallo Trust, The Emily Beth
Mindel Gallo Trust, the Residuary Marital Trust u/A Sigfried Weis, and the
Generation-Skipping Transfer Trust u/A Sigfried Weis, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
44
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared SUSAN WEIS MINDEL, individually and as
Trustee of the following trusts: The Wendy Lynn Mindel 1998 Trust, The Emily
Beth Mindel 1998 Trust, The Amy Elizabeth Wender Gallo Trust, The Kathryn Lee
Wender Gallo Trust, The Laura Ann Goldstein Gallo Trust, The Paul Weis Goldstein
Gallo Trust, The Wendy Lynn Mindel Gallo Trust, The Emily Beth Mindel Gallo
Trust, the Residuary Marital Trust u/A Sigfried Weis, and the
Generation-Skipping Transfer Trust u/A Sigfried Weis, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
45
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared AMY ELIZABETH WENDER, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
46
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared KATHRYN LEE WENDER, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument and acknowledged that she executed the same for the purposes therein
contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
47
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared LAURA ANN GOLDSTEIN, as Trustee of The
Laura Ann Goldstein 1999 Trust, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
she executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
48
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared PAUL WEIS GOLDSTEIN, as Trustee of The
Paul Weis Goldstein 1999 Trust, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
he executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
49
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared WENDY LYNN MINDEL, as Trustee of The
Wendy Lynn Mindel 1998 Trust, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
she executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
50
<PAGE>
STATE OF :
: ss.
COUNTY OF :
On this the ____ day of _____________, 1999, before me, the
undersigned officer, personally appeared EMILY BETH MINDEL, as Trustee of The
Emily Beth Mindel 1998 Trust, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
she executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
----------------------------------
Notary Public
My Commission Expires:
51
<PAGE>
Schedule #1, page 1
Schedule #1
Initial Contributions and Partnership Interest
----------------------------------------------
<TABLE>
<CAPTION>
Percentage
Contribution Interest
------------ ----------
<S> <C> <C>
General Partner:
Weis Family Holdings, L.L.C.
Limited Partners:
Janet C. Weis
Ellen Weis Goldstein
Nancy Weis Wender
Susan Weis Mindel
Amy Elizabeth Wender
Kathryn Lee Wender
Trustees of The Laura Ann Goldstein 1999 Trust
Trustees of The Paul Weis Goldstein 1999 Trust
Trustees of The Wendy Lynn Mindel 1998 Trust
Trustees of The Emily Beth Mindel 1998 Trust
Trustees of The Amy Elizabeth Wender Gallo Trust
Trustees of The Kathryn Lee Wender Gallo Trust
Trustees of The Laura Ann Goldstein Gallo Trust
Trustees of The Paul Weis Goldstein Gallo Trust
Trustees of The Wendy Lynn Mindel Gallo Trust
Trustees of The Emily Beth Mindel Gallo Trust
Trustees of the Residuary Marital Trust u/A Sigfried
Weis
Trustees of the Generation-Skipping Transfer Trust u/A
Sigfried Weis
TOTAL (All Partners)
</TABLE>
Schedule #1, page 1
<PAGE>
Schedule #2
Capital Contributions By
Weis Family Holdings, L.L.C.
----------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Weis Family Holdings, L.L.C., subject to all
valid liens and encumbrances:
20,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc.
as of the Effective Date at $ .
Schedule #2, page 1
<PAGE>
Schedule #3
Capital Contributions By
Janet C. Weis
-------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Janet C. Weis, subject to all valid liens and
encumbrances:
3,200,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #3, page 1
<PAGE>
Schedule #4
Capital Contributions By
Ellen Weis Goldstein
--------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Ellen Weis Goldstein, subject to all valid
liens and encumbrances:
1,000,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #4, page 1
<PAGE>
Schedule #5
Capital Contributions By
Nancy Weis Wender
-----------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Nancy Weis Wender, subject to all valid liens
and encumbrances:
1,000,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #5, page 1
<PAGE>
Schedule #6
Capital Contributions By
Susan Weis Mindel
-----------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Susan Weis Mindel, subject to all valid liens
and encumbrances:
1,000,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #6, page 1
<PAGE>
Schedule #7
Capital Contributions By
Amy Elizabeth Wender
--------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Amy Elizabeth Wender, subject to all valid
liens and encumbrances:
2,596 shares of Weis Markets, Inc. common stock; and
97,404 shares of Weis Markets, Inc. common stock that Amy Elizabeth
Wender is entitled to receive from the charitable lead annuity trusts
under articles NINE and TEN of the will of Claire Gross Weis, which
terminated as of May 2, 1999.
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #7 page 1
<PAGE>
Schedule #8
Capital Contributions By
Kathryn Lee Wender
------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by Kathryn Lee Wender, subject to all valid liens
and encumbrances:
2,596 shares of Weis Markets, Inc. common stock; and
97,404 shares of Weis Markets, Inc. common stock that Kathryn Lee
Wender is entitled to receive from the charitable lead annuity trusts
under articles NINE and TEN of the Will of Claire Gross Weis, which
terminated as of May 2, 1999.
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #8 page 1
<PAGE>
Schedule #9
Capital Contributions By
Trustees of The Laura Ann Goldstein 1999 Trust
----------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Laura Ann Goldstein 1999
Trust, subject to all valid liens and encumbrances:
2,597 shares of Weis Markets, Inc. common stock assigned to the
Trustees of The Laura Ann Goldstein 1999 Trust by Laura Ann Goldstein;
and
97,403 shares of Weis Markets, Inc. common stock that the Trustees of
The Laura Ann Goldstein 1999 Trust are entitled to receive from the
charitable lead annuity trusts under articles NINE and TEN of the Will
of Claire Gross Weis, which terminated as of May 2, 1999 (assigned to
the Trustees by Laura Ann Goldstein).
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #9 page 1
<PAGE>
Schedule #10
Capital Contributions By
Trustees of The Paul Weis Goldstein 1999 Trust
----------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Paul Weis Goldstein 1999
Trust, subject to all valid liens and encumbrances:
2,597 shares of Weis Markets, Inc. common stock assigned to the
Trustees of The Paul Weis Goldstein 1999 Trust by Paul Weis Goldstein;
and
97,403 shares of Weis Markets, Inc. common stock that the Trustees of
The Paul Weis Goldstein 1999 Trust are entitled to receive from the
charitable lead annuity trusts under articles NINE and TEN of the Will
of Claire Gross Weis, which terminated as of May 2, 1999 (assigned to
the Trustees by Paul Weis Goldstein).
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #10 page 1
<PAGE>
Schedule #11
Capital Contributions By
Trustees of The Wendy Lynn Mindel 1998 Trust
--------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Wendy Lynn Mindel 1998
Trust, subject to all valid liens and encumbrances:
2,596 shares of Weis Markets, Inc. common stock; and
97,404 shares of Weis Markets, Inc. common stock that the Trustees of
The Wendy Lynn Mindel 1998 Trust are entitled to receive from the
charitable lead annuity trusts under articles NINE and TEN of the Will
of Claire Gross Weis, which terminated as of May 2, 1999 (assigned to
the Trustees by Wendy Lynn Mindel).
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #11, page 1
<PAGE>
Schedule #12
Capital Contributions By
Trustees of The Emily Beth Mindel 1998 Trust
--------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Emily Beth Mindel 1998
Trust, subject to all valid liens and encumbrances:
2,596 shares of Weis Markets, Inc. common stock; and
97,404 shares of Weis Markets, Inc. common stock that the Trustees of
The Emily Beth Mindel 1998 Trust are entitled to receive from the
charitable lead annuity trusts under articles NINE and TEN of the Will
of Claire Gross Weis, which terminated as of May 2, 1999 (assigned to
the Trustees by Emily Beth Mindel).
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #12, page 1
<PAGE>
Schedule #13
Capital Contributions By
Trustees of The Amy Elizabeth Wender Gallo Trust
------------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Amy Elizabeth Wender Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #13, page 1
<PAGE>
Schedule #14
Capital Contributions By
Trustees of The Kathryn Lee Wender Gallo Trust
----------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Kathryn Lee Wender Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #14, page 1
<PAGE>
Schedule #15
Capital Contributions By
Trustees of The Laura Ann Goldstein Gallo Trust
-----------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Laura Ann Goldstein Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #15, page 1
<PAGE>
Schedule #16
Capital Contributions By
Trustees of The Paul Weis Goldstein Gallo Trust
-----------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Paul Weis Goldstein Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #16, page 1
<PAGE>
Schedule #17
Capital Contributions By
Trustees of The Wendy Lynn Mindel Gallo Trust
---------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Wendy Lynn Mindel Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #17, page 1
<PAGE>
Schedule #18
Capital Contributions By
Trustees of The Emily Beth Mindel Gallo Trust
---------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of The Emily Beth Mindel Gallo
Trust, subject to all valid liens and encumbrances:
36,000 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #18, page 1
<PAGE>
Schedule #19
Capital Contributions By
Trustees of the Residuary Marital Trust u/A Sigfried Weis
---------------------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of the Residuary Marital Trust u/A
Sigfried Weis, subject to all valid liens and encumbrances:
1,018,628 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #19, page 1
<PAGE>
Schedule #20
Capital Contributions By
Trustees of the Generation-Skipping Transfer Trust u/A Sigfried Weis
--------------------------------------------------------------------
The following properties are being contributed to Weis Family Holdings,
L.P. as of the Effective Date by the Trustees of the Generation-Skipping
Transfer Trust u/A Sigfried Weis, subject to all valid liens and encumbrances:
33,145 shares of Weis Markets, Inc. common stock
Valued per Appraisal of Sheldrick, McGehee & Kohler, Inc. as
of the Effective Date at $ .
Schedule #20, page 1
