UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
KANSAS CITY LIFE INSURANCE COMPANY
(Name of Issuer)
COMMON STOCK, $1.25 PAR VALUE
(Title of Class of Securities)
484836-10-1
(CUSIP Number)
WILLIAM A. HIRSCH, ESQ.
KENDA K. TOMES, ESQ.
MORRISON & HECKER L.L.P.
2600 GRAND AVE.
KANSAS CITY, MISSOURI 64108
(816) 691-2600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
SEPTEMBER 27, 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 Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box / /.
PAGE 1 OF 13
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SCHEDULE 13D
CUSIP NO. 484836-10-1
1 Name of Reporting Person
IRS Identification Nos. of Above Person (entities only)
W.E.B. INTERESTS LTD.
2. Check the appropriate Box if a Member of a Group (a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization TEXAS
7. Sole Voting Power
NUMBER OF SHARES -0-
8. Shared Voting Power
BENEFICIALLY OWNED 2,358,340
BY EACH REPORTING 9. Sole Dispositive Power
-0-
PERSON WITH 10. Shared Dispositive Power
2,358,340
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
2,358,340
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain shares of Common Stock / /
13. Percent of Class Represented by Amount in Row (11)
19.2%
(See Item 5(b))
14. Type of Reporting Person
PN
PAGE 2 OF 13
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SCHEDULE 13D
CUSIP NO. 484836-10-1
1 Name of Reporting Person
IRS Identification Nos. of Above Person (entities only)
WALTER E. BIXBY, JR. REVOCABLE TRUST DATED JULY 28, 1999, AS AMENDED
2. Check the appropriate Box if a Member of a Group (a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization MISSOURI
7. Sole Voting Power
NUMBER OF SHARES -0-
8. Shared Voting Power
BENEFICIALLY OWNED 2,358,340
BY EACH REPORTING 9. Sole Dispositive Power
-0-
PERSON WITH 10. Shared Dispositive Power
2,358,340
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
2,358,340
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain shares of Common Stock / /
13. Percent of Class Represented by Amount in Row (11)
19.2%
(See Item 5b))
14. Type of Reporting Person
OO
PAGE 3 OF 13
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SCHEDULE 13D
CUSIP NO. 484836-10-1
1 Name of Reporting Person
IRS Identification Nos. of Above Person (entities only)
ROBERT PHILIP BIXBY
2. Check the appropriate Box if a Member of a Group (a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization USA
7. Sole Voting Power
NUMBER OF SHARES 383,137
8. Shared Voting Power
BENEFICIALLY OWNED 2,714,340
BY EACH REPORTING 9. Sole Dispositive Power
383,137
PERSON WITH 10. Shared Dispositive Power
2,714,340
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
3,097,477
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain shares of Common Stock / /
13. Percent of Class Represented by Amount in Row (11)
25.2%
(See Item 5(b))
14. Type of Reporting Person
IN
PAGE 4 OF 13
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SCHEDULE 13D
CUSIP NO. 484836-10-1
1 Name of Reporting Person
IRS Identification Nos. of Above Person (entities only)
WALTER E. BIXBY III
2. Check the appropriate Box if a Member of a Group (a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization USA
7. Sole Voting Power
NUMBER OF SHARES 368,085
8. Shared Voting Power
BENEFICIALLY OWNED 2,714,340
BY EACH REPORTING 9. Sole Dispositive Power
368,085
PERSON WITH 10. Shared Dispositive Power
2,714,340
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
3,082,425
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain shares of Common Stock / /
13. Percent of Class Represented by Amount in Row (11)
25.1%
(See Item 5b))
14. Type of Reporting Person
IN
PAGE 5 OF 13
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SCHEDULE 13D
CUSIP NO. 484836-10-1
1 Name of Reporting Person
IRS Identification Nos. of Above Person (entities only)
ANGELINE I. O'CONNOR, F/K/A ANGELINE I. OXLER
2. Check the appropriate Box if a Member of a Group (a) /x/
(b) / /
3. SEC Use Only
4. Source of Funds NOT APPLICABLE
5. Check Box if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization USA
7. Sole Voting Power
NUMBER OF SHARES 353,688
8. Shared Voting Power
BENEFICIALLY OWNED 2,714,340
BY EACH REPORTING 9. Sole Dispositive Power
353,688
PERSON WITH 10. Shared Dispositive Power
2,714,340
11. Aggregate Amount Beneficially Owned by Each Reporting
Person
3,068,028
12. Check Box if the Aggregate Amount in Row (11) Excludes
Certain shares of Common Stock / /
13. Percent of Class Represented by Amount in Row (11)
24.9%
(See Item 5(b))
14. Type of Reporting Person
IN
PAGE 6 OF 13
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This Schedule 13 D is the initial filing with the Securities and Exchange
Commission ("Commission") by W.E.B. Interests Ltd., a Texas partnership, and by
the Walter E. Bixby, Jr. Revocable Trust dated July 28, 1999, as amended by the
First Amendment of the Declaration of Trust dated August 17, 1999, a Missouri
trust. In the manner indicated below, this Schedule 13D also amends and
supercedes the Schedule 13D filed by Robert Philip Bixby with the Commission on
October 26, 1990, the Schedule 13D filed by Walter E. Bixby III with the
Commission on December 27, 1993 and the Schedule 13D filed by Angeline I.
O'Connor f/k/a Angeline I. Oxler with the Commission on October 26, 1990. The
reporting persons file this Schedule 13D as a group. This is the first Schedule
13D or amendment filed electronically by any of the reporting persons and
therefore amends and restates any prior filings.
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D, relates to the common stock, $1.25 par value ("Common
Stock"), of Kansas City Life Insurance Company, a Missouri legal reserve life
insurance corporation (the "Company"), whose principal executive offices are at
3520 Broadway, Kansas City, Missouri, 64111-2565. This Schedule 13D takes into
account the Company's 2 for 1 stock split which became effective June 21, 1999.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 13D is filed by W.E.B. Interests Ltd., a Texas limited
partnership (the "Partnership"), the Walter E. Bixby, Jr. Revocable Trust dated
July 28, 1999, as amended by the First Amendment of the Declaration of Trust
dated August 17, 1999, a Missouri trust (the "Revocable Trust"), Robert Philip
Bixby ("Mr. Philip Bixby"), Walter E. Bixby III ("Mr. W.E. Bixby III") and
Angeline I. O'Connor, f/k/a Angeline I. Oxler ("Ms. O'Connor").
The principal business of the Partnership is managing the assets of the
Partnership. The principal address of the Partnership is 3520 Broadway, Kansas
City, Missouri, 64111-2565. The Partnership has not during the last five years
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), nor during the last five years has the Partnership been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction resulting in any 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.
The principal business of the Revocable Trust is managing the assets of
the Revocable Trust. The principal address of the Revocable Trust is 3520
Broadway, Kansas City, Missouri, 64111-2565. The Revocable Trust has not during
the last five years been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), nor during the last five years has the
Revocable Trust been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction resulting in any 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.
PAGE 7 OF 13
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Mr. Philip Bixby is an individual whose present primary occupation is as
President and Chief Executive Officer of the Company with an office at 3520
Broadway, Kansas City, Missouri, 64111-2565. As co-trustee to the Revocable
Trust, Mr. Philip Bixby is a managing partner of the Partnership. Mr. Philip
Bixby has been a member of the Board of Directors of the Company since
1985. During the last five years, Mr. Philip Bixby has not been convicted in
any criminal proceeding (excluding traffic violations or similar misdemeanors),
and has not been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction resulting in any judgment, decree, or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws, or finding any violations with respect to
such laws. Mr. Philip Bixby is a citizen of the United States.
Mr. W.E. Bixby III is an individual whose present primary occupation is as
President of Old American Insurance Company, a Missouri insurance corporation
and a wholly-owned subsidiary of the Company, with an office at 3520 Broadway,
Kansas City, Missouri, 64111-2565. As co-trustee to the Revocable Trust, Mr.
W.E. Bixby III is a managing partner of the Partnership. Mr. W.E. Bixby III has
been a member of the Board of Directors of the Company since 1996.
During the last five years, Mr. W.E. Bixby III has not been convicted in any
criminal proceeding (excluding traffic violations or similar misdemeanors), and
has not been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction resulting in any judgment, decree, or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws, or finding any violations with respect to
such laws. Mr. W.E. Bixby III is a citizen of the United States.
Ms. O'Connor is self employed and she resides at 12501 Granada Lane,
Leawood, KS 66209. As co-trustee to the Revocable Trust, Ms O'Connor is a
managing partner of the Partnership. During the last five years, Ms. O'Connor
has not been convicted in any criminal proceeding (excluding traffic violations
or similar misdemeanors), and has not been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction resulting in any
judgment, decree, or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws, or finding
any violations with respect to such laws. Ms. O'Connor is a citizen of the
United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Not applicable. The filing of this Schedule 13D was not prompted by the
purchase of any Common Stock by any of the reporting persons. See Item 4.
ITEM 4. PURPOSE OF TRANSACTION.
On July 29, 1999, for the benefit of his children and grandchildren, Mr.
Walter E. Bixby, Jr. contributed 2,358,340 shares of Common Stock to the
Revocable Trust. On August 19, 1999, as sole trustee of the Revocable Trust, Mr.
Walter E. Bixby, Jr. transferred the 2,358,340 shares of Common Stock owned by
the Revocable Trust to the Partnership (the "Partnership Shares"), the
general partners of which are the Revocable Trust, Mr. Philip Bixby,
Mr. W.E.Bixby III and Ms. O'Conner. As sole trustee of the Revocable Trust
and sole managing partner of the Partnership, Mr. Walter E. Bixby, Jr.
shared with the general partners of the Partnership the
PAGE 8 OF 13
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power to vote, or to direct the vote, and shared with the general partners of
the Partnership the power to dispose, or direct the disposition of the
Partnership Shares. On September 27, 1999, Mr. Walter E. Bixby, Jr. died
resulting in his three children, Mr. Philip Bixby, Mr. W.E. Bixby III and Ms.
O'Connor becoming successor co-trustees of the Revocable Trust. When Mr. Philip
Bixby, Mr. W.E. Bixby III and Ms. O'Connor became co-trustees of the Revocable
Trust, they also became co-managing partners of the Partnership. Pursuant to
the terms of the Limited Partnership Agreement of the Partnership (the
"Partnership Agreement"), the trustees of the Revocable Trust are the managing
partners of the Partnership. Relevant portions of the Partnership Agreement are
set forth as Exhibit 2 hereto.
Except as set forth in this Item 4, none of the Partnership, the Revocable
Trust, Mr. Philip Bixby, Mr. W.E. Bixby III nor Ms. O'Connor have any present
plans or proposals that relate to or that would result in any of the actions
specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Act.
However, each reserves the right to formulate such plans or proposals, and to
take such action with respect to any or all of such matters and any other
matters as they may determine.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Taking into account those shares of Common Stock for which the Partnership
shares voting and dispositive powers, the aggregate number of shares of Common
Stock beneficially owned by the Partnership is 2,358,340, which accounts for
19.2% of the entire class of shares of Common Stock of the Company. (See Item
5(b) herein).
Taking into account those shares of Common Stock for which the Revocable
Trust shares voting and dispositive powers, the aggregate number of shares of
Common Stock beneficially owned by the Revocable Trust is 2,358,340, which
accounts for 19.2% of the entire class of shares of Common Stock of the Company.
(See Item 5(b) herein).
Taking into account those shares of Common Stock for which Mr. Philip Bixby
shares voting and dispositive powers, the aggregate number of shares of Common
Stock beneficially owned by Mr. Philip Bixby is 3,097,477, which accounts for
25.2% of the entire class of shares of Common Stock of the Company. (See Item
5(b) herein).
Taking into account those shares of Common Stock for which Mr. W.E. Bixby
III shares voting and dispositive powers, the aggregate number of shares of
Common Stock beneficially owned by Mr. W.E. Bixby III is 3,082,425, which
accounts for 25.1% of the entire class of shares of Common Stock of the Company.
(See Item 5(b) herein).
Taking into account those shares of Common Stock for which Ms. O'Connor
shares voting and dispositive powers, the aggregate number of shares of Common
Stock beneficially owned by Ms. O'Connor is 3,068,028, which accounts for 24.9%
of the entire class of shares of Common Stock of the Company. (See Item 5(b)
herein).
PAGE 9 OF 13
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As of September 27, 1999, the Company has informed the reporting persons
that the Company's stock transfer records reflect 12,305,850 shares of Common
Stock outstanding.
(b) The Partnership directly owns and shares with the general partners of
the Partnership, the Revocable Trust, Mr. Philip Bixby, Mr. W.E. Bixby III and
Ms. O'Connor, and the co-managing partners of the Partnership, Mr. Philip Bixby,
Mr. W.E. Bixby III and Ms. O'Connor, the power to vote, or to direct the vote,
and the power to dispose, or direct the disposition of the Partnership Shares.
As a general partner of the Partnership, the Revocable Trust shares the
power to vote, or to direct the vote, and the power to dispose, or direct the
disposition of the Partnership Shares.
As co-trustee of the Revocable Trust and co-managing partner and a general
partner of the Partnership, Mr. Philip Bixby shares the power to vote, or to
direct the vote, and the power to dispose, or direct the disposition of the
Partnership Shares. As custodian for Blake Bixby, Mr. Philip Bixby has the sole
power to vote, or to direct the vote, and the sole power to dispose, or direct
the disposition of 6,358 shares of Common Stock. As custodian for J.P. Bixby,
Mr. Philip Bixby has the sole power to vote, or to direct the vote, and the sole
power to dispose, or direct the disposition of 6,358 shares of Common Stock. As
custodian for Chris Oxler, Ms. O'Connor's son, Mr. Philip Bixby has the sole
power to vote, or to direct the vote, and the sole power to dispose, or direct
the disposition of 4,244 shares of Common Stock. As custodian for Carey Oxler,
Ms. O'Connor's daughter, Mr. Philip Bixby has the sole power to vote, or to
direct the vote, and the sole power to dispose, or direct the disposition of
4,244 shares of Common Stock. Mr. Philip Bixby directly owns and has the sole
power to vote, or to direct the vote, and the sole power to dispose, or direct
the disposition of 347,998 shares of Common Stock. As co-trustee with Mr. W.E.
Bixby III and Ms. O'Connor of the Walter E. Bixby Descendants Trust, Mr. Philip
Bixby shares the power to vote, or to direct the vote, and the power to dispose,
or direct the disposition of 356,000 shares of Common Stock. As a participant in
the Company's Employee Stock Option Plan (the "ESOP"), Mr. Philip Bixby has the
sole power to vote, or to direct the vote, and the sole power to dispose, or
direct the disposition of 529 shares of Common Stock. As a participant in the
Company's 401(k) Plan, Mr. Philip Bixby has the sole power to vote, or to
direct the vote, and the sole power to dispose, or direct the disposition of
13,406 shares of Common Stock.
As co-trustee of the Revocable Trust and co-managing partner and a general
partner of the Partnership, Mr. W.E. Bixby III shares the power to vote, or to
direct the vote, and the power to dispose, or direct the disposition of the
Partnership Shares. As custodian for Walter E. Bixby, IV, Mr. W.E. Bixby III has
the sole power to vote, or to direct the vote, and the sole power to dispose, or
direct the disposition of 6,152 shares of Common Stock. As custodian for Adam J.
Bixby, Mr. W.E. Bixby III has the sole power to vote, or to direct the vote, and
the sole power to dispose, or direct the disposition of 2,380 shares of Common
Stock. As custodian for Kai M. Bixby, Mr. W.E. Bixby III has the sole power to
vote, or to direct the vote, and the sole power to dispose, or direct the
disposition of 2,380 shares of Common Stock. Mr. W.E. Bixby III directly owns
and has the sole power to vote, or to direct the vote, and the sole power to
dispose, or direct the disposition of 352,008 shares of Common Stock. As
co-trustee with Mr. Philip Bixby and Ms. O'Connor of the Walter E. Bixby
Descendants Trust, Mr. W.E. Bixby III shares the power to
PAGE 10 OF 13
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vote, or to direct the vote, and the power to dispose, or direct the disposition
of 356,000 shares of Common Stock. As a participant in the ESOP, Mr. W.E.
Bixby III has the sole power to vote, or to direct the vote, and the sole power
to dispose, or direct the disposition of 318 shares of Common Stock. As a
participant in the Company's 401(k) Plan, Mr. W.E. Bixby III has the sole power
to vote, or to direct the vote, and the sole power to dispose, or direct the
disposition of 4847 shares of Common Stock.
As co-trustee of the Revocable Trust and co-managing partner and a general
partner of the Partnership, Ms. O'Connor shares the power to vote, or to direct
the vote, and the power to dispose, or direct the disposition of the Partnership
Shares. Ms. O'Connor directly owns and has the sole power to vote, or to direct
the vote, and the sole power to dispose, or direct the disposition of 353,688
shares of Common Stock. As co-trustee with Mr. Philip Bixby and Mr. W.E. Bixby
III of the Walter E. Bixby Descendants Trust, Ms. O'Connor shares the power to
vote, or to direct the vote, and the power to dispose, or direct the disposition
of 356,000 shares of Common Stock.
(c) Other than the transactions described in this Item 5(a), no
transaction in the Common Stock was effected during the past sixty days.
(d) No other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock discussed in this Schedule 13D.
(e) Not Applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Except as described in Items 4 and 5 herein, none of the Partnership, the
Revocable Trust, Mr. Philip Bixby, Mr. W.E. Bixby III nor Ms. O'Connor are a
party to any contract, arrangement, understanding or relationship (legal or
otherwise) with any person with respect to the shares of Common Stock. However,
the extended Bixby family (including members of the families of Mr. Walter E.
Bixby, Jr. and Mr. Joseph R. Bixby, brother of Mr. Watler E. Bixby, Jr.)
beneficially owns more than a majority of the outstanding shares of Common
Stock and each reporting person shares an expectation that such ownership will
continue.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Statement of Joint Filing.
Exhibit 2. Article III (Management) and the Signature Pages of the
Limited Partnership Agreement of W.E.B. Interests Ltd. (the
"Partnership Agreement") by and among the General Partners
and Limited Partners as set forth on the Signature Pages of
the Partnership Agreement.
PAGE 11 OF 13
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EXHIBIT INDEX
TO SCHEDULE 13D
No. Description of Exhibit
- --- ----------------------
1. Statement of Joint Filing.
2. Article III (Management) and the Signature Pages of the Limited
Partnership Agreement of W.E.B. Interests Ltd. (the "Partnership
Agreement") by and among the General Partners and Limited Partners as set
forth on the Signature Pages of the Partnership Agreement.
PAGE 12 OF 13
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Schedule 13D
Filing
October 1, 1999
SIGNATURES
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.
W.E.B. Interests Ltd.
October 1, 1999 By: /s/ Walter E. Bixby III
---------------------------------------
Name: Walter E. Bixby III
---------------------------------------
Title: Co-Managing Partner
Walter E. Bixby, Jr. Revocable Trust dated
July 28, 1999, as amended
October 1, 1999 By: /s/ Angeline I. O'Connor
---------------------------------------
Name: Angeline I. O'Connor
---------------------------------------
Title: Co-Trustee
October 1, 1999 /s/ Robert Philip Bixby
___________________________________________
Robert Philip Bixby
October 1, 1999 /s/ Walter E. Bixby III
___________________________________________
Walter E. Bixby III
October 1, 1999 /s/ Angeline I. O'Connor
___________________________________________
Angeline I. O'Connor
PAGE 13 OF 13
EXHIBIT 1
STATEMENT OF JOINT FILING
Pursuant to Reg. Section 240.13d-1(k)(1)(iii) of the Securities Exchange
Act of 1934, the foregoing Schedule 13D is filed on behalf of the W.E.B.
Interests Ltd., the Walter E. Bixby, Jr. Revocable Trust dated July 28, 1999, as
amended, Robert Philip Bixby, Walter E. Bixby III, and Angeline I. O'Connor.
W.E.B. Interests Ltd.
October 1, 1999 By: /s/ Walter E. Bixby III
---------------------------------------
Name: Walter E. Bixby III
---------------------------------------
Title: Co-Managing Partner
Walter E. Bixby, Jr. Revocable Trust dated
July 28, 1999, as amended
October 1, 1999 By: /s/ Angeline I. O'Connor
---------------------------------------
Name: Angeline I. O'Connor
---------------------------------------
Title: Co-Trustee
October 1, 1999 /s/ Robert Philip Bixby
___________________________________________
Robert Philip Bixby
October 1, 1999 /s/ Walter E. Bixby III
___________________________________________
Walter E. Bixby III
October 1, 1999 /s/ Angeline I. O'Connor
___________________________________________
Angeline I. O'Connor
LIMITED PARTNERSHIP AGREEMENT
OF
W.E.B. INTERESTS, LT.D
<PAGE>
ARTICLE III
Management
3.01 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:
3.01(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;
3.01(b)to invest or otherwise participate in other partnerships,
corporations or other entities;
3.01(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;
3. 01 (d) to lend money with or without security to any person,
including any Partner or any Partner's Affiliate, on any terms
determined to be appropriate;
3.01(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;
3.01(f)to guarantee any financial transaction of any kind with or
without charging a fee therefor;
3.01(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;
<PAGE>
3.01(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 offices;
3.01(i)to buy or hold insurance of any kind;
3.01(j)to pay any expenses related to any of the Partnership's
businesses or affairs;
3.01(k)to compromise claims against the Partnership;
3.01(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
3.01(m)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.
3.02 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.
3.02(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.
3.02(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.
3.02(c)Exception for Life Insurance. Notwithstanding the foregoing
provisions of this Section, 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 by majority consent of the
General Partners, excluding the Partner to be insured, on the basis of
their Percentage Interests. At any time during which the Partnership owns
any life insurance policy insuring the life of any Partner or 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
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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.
3.02(d)Exception for Controlled Corporations. Notwithstanding the
foregoing provisions of this Section and the other provisions of this
agreement, with respect to any corporate stock owned by the Partnership,
if the Partnership, either alone or in conjunction with any other person,
has the right to vote stock possessing at least twenty percent of the
total combined voting power of all classes of stock of the corporation,
then the stock shall be voted by the Partners and Assignees in proportion
to their respective capital account balances. For purposes of this
subsection, the determination of the Partnership's percentage vote with
respect to corporate stock shall be made as provided in section 318 of the
Code as if Walter E. Bixby, Jr. owned all of the Partnership's stock.
3.02(e)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.
3.03 Managing Partner. Subject to the rights of Class A Limited Partners
when Guaranteed Payments are in arrears as provided in Section 7.01(c), the
Managing Partner shall serve only as provided in this Section.
3.03(a)Appointment. As the initial Managing Partner, the General
Partners appoint Walter E. Bixby, Jr., in his capacity as trustee of the
Walter E. Bixby, Jr. Revocable Trust. If Walter E. Bixby, Jr. for any
reason fails or ceases to serve as trustee of the Walter E. Bixby, Jr.
Revocable Trust, then the successor trustee or trustees of such trust or
of any successor trusts shall 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.
3.03(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.
3.03(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.
3.03(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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3.04 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.
3.05 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.
3.06 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 3.07(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 3.07(c).
3.07 Duties of General Partners; Limitations.
3.07(a)Funds Available. Except as provided in Section 10.09(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.
3.07(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
allocations of Profits or Losses nor any distributions of Distributable
Cash to any Partner or Assignee.
3.07(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
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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. This subsection is intended to impose on the General Partners
the duty of loyalty imposed by Section 4.04 of the Texas Revised
Partnership Act without modification.
3.07(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. This subsection is
intended to impose on the General Partners the duty of care imposed by
Section 4.04 of the Texas Revised Partnership Act without modification.
3.08 Indemnification of General Partners.
3.08(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 as provided in Section 11.06 of the
Act that the Partner or former Partner acted in good faith, 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, such that the
indemnification permitted by Section 11.02 of the Act shall be mandatory.
3.08(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.
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3.08(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 without the determination specified in Section 11.06
of the Act and referenced above in this Section and without the
authorization or determination specified in Section 1 1.07 of the Act 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 indemnification
against expenses incurred in connection with that proceeding is prohibited
by Section 11.05 of the Act.
3.09 Limited Partners.
3.09(a)No Control Over Management. Other than with respect to a
Limited Partner's approval rights pertaining to Major Decisions as
provided in Section 3.1 0, 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.
3.09(b)Limited Liability. The Limited Partners shall not be
personally liable for any debts or obligations of the Partnership.
3.09(c)No Return of Contributions. The Limited Partners shall have no
right to withdraw from the Partnership other than by exercising the Put
Right as provided in Section 9.02(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 10.06 may be considered as such by law.
3.09(d)Access to Certain Information. Upon written request by a
Limited Partner, but only at the expense of the Limited Partner and only
at 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
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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.
3.09(e) Competition. Except as specifically prohibited in Section
3.07(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.
3.09(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.
3.1.(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.
3.1.(b) 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 Major Decision; provided that the Partnership Management
may extend the ten-day period if it provides written notice to all of the
other Partners.
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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.
GENERAL PARTNERS:
/s/ Walter E. Bixby, Jr.
- ------------------------------------
Walter E. Bixby, Jr., trustee of the
Walter E. Bixby, Jr. Revocable Trust
Date:
-------------------------------
/s/ Robert Philip Bixby
- ------------------------------------
Robert Philip Bixby
Date:
-------------------------------
/s/ Walter E. Bixby, III
- ------------------------------------
Walter E. Bixby, III
Date:
-------------------------------
/s/ Angeline I. O'Connor
- ------------------------------------
Angeline I. O'Connor
Date:
-------------------------------
CLASS A LIMITED PARTNER:
/s/ Walter E. Bixby, Jr.
- ------------------------------------
Walter E. Bixby, Jr.
Date:
-------------------------------
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CLASS B LIMITED PARTNERS:
/s/ Robert Philip Bixby
- ---------------------------------------
Robert Philip Bixby, trustee of the
Robert Philip Bixby GST Trust and
the Issue Trust for Robert Philip Bixby
Date:
----------------------------------
/s/ Walter E. Bixby, III
- ---------------------------------------
Walter E. Bixby III, trustee of the
Walter E. Bixby III GST Trust and the
Issue Trust for Walter E. Bixby, III
Date:
----------------------------------
/s/ Angeline I. O'Connor
- ---------------------------------------
Angeline I. O'Connor, trustee of the
Angeline I. O'Connor GST Trust and the
Issue Trust for Angeline I. O'Connor
Date:
----------------------------------
CLASS C LIMITED PARTNER:
/s/ Walter E. Bixby, Jr.
- ---------------------------------------
Walter E. Bixby, Jr., trustee of the
Walter E. Bixby, Jr. Revocable Trust
Date:
----------------------------------
