SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)
Premier Parks, Inc.
(Name of Issuer)
Common Stock, par value of $.01 per share)
(Title of Class of Securities)
886506 10 4
(CUSIP No.)
David A. Jones
Humana Building
Sixth Floor
Fifth and Main Street
Louisville, Kentucky 40202
(502) 580-3650
December 1, 1995
(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 Statement and is filing this Statement because of Rule
13d-1(b)(3) or (4), check the following box:
( )
Check the following box if a fee is being paid with this
Statement:
( )
1. NAME OF REPORTING PERSON
David A. Jones
S.S. OR I.R.S. IDENTIFICATION NO. OF
ABOVE PERSON
###-##-####
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ( X ) (b) ( )
3. SEC USE ONLY
4. SOURCE OF FUNDS
BK
5. CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) ( )
6. CITIZENSHIP OR PLACE OR ORGANIZATION
United States
Number of 7. SOLE VOTING POWER
Shares
Beneficially 477,247 (See Row 11 below)
Owned By
Each 8. SHARED VOTING POWER
Reporting
Person
With 0
9. SOLE DISPOSITIVE POWER
477,247 (See Row 11 below)
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
477,247 shares of Common Stock, $0.01 par value,
of Premier Parks, Inc. (as adjusted to reflect a 1:5
reverse stock split declared on May 6, 1996).
12. CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES SHARES ( )
13. PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
8.9%
14. TYPE OF REPORTING PERSON
IN
1. NAME OF REPORTING PERSON
JG Partnership, Ltd.
S.S. OR I.R.S. IDENTIFICATION NO. OF
ABOVE PERSON
61-1294111
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ( X ) (b) ( )
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) ( )
6. CITIZENSHIP OR PLACE OR ORGANIZATION
United States
Number of 7. SOLE VOTING POWER
Shares 477,247 (See Row 11 below)
Beneficially 8. SHARED VOTING POWER
Owned By 0
Each
Reporting 9. SOLE DISPOSITIVE POWER
Person 477,247 (See Row 11 below)
With 10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
477,247 shares of Common Stock, $0.01 par value,
of Premier Parks, Inc. (as adjusted to reflect a 1:5
reverse stock split declared on May 6, 1996).
12. CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES SHARES ( )
13. PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
8.9%
14. TYPE OF REPORTING PERSON
PN
AMENDMENT NO. 4
THIS AMENDMENT NO. 4 hereby amends Items
2, 3, 4, 5, 6, and 7 of the Schedule 13D, dated August 15,
1995, filed with the Securities and Exchange Commission
by and on behalf of David A. Jones.
ITEM 1. Security and Issuer.
Not Amended.
ITEM 2. Identity and Background.
ITEM 2 is hereby amended to add the following at
the end thereof:
JG Partnership, Ltd. (the "Partnership") is a limited
partnership organized under the laws of the Commonwealth
of Kentucky on December 1, 1995 and engaged primarily in
the business of owning, acquiring, and selling investments.
The address of its principal place of business is c/o David
A. Jones, 500 West Main Street, Louisville, Kentucky
40202. Since its organization, neither the Partnership nor
any of its executive officers or directors has been convicted
in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction
that resulted in or subjected it or them 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.
The Partnership acquired 477,247 shares (the
"Shares") of Common Stock, $0.01 par value (Premier
Common Stock), of Premier Parks, Inc. ("Premier") (as
adjusted to reflect a 1:5 reverse stock split declared on May
6, 1996) by assignment from David A. Jones as partial
consideration for the issuance of (i) a 0.51% general
partnership interest and a 49.5% limited partnership interest
in the Partnership to Mr. Jones and (ii) a 0.49% general
partnership interest and a 49.5% limited partnership interest
in the Partnership to Mr. Jones' spouse, Betty A. Jones. On
December 29, 1996 Mr. Jones and Mrs. Jones each assigned
a 0.5% limited partnership interest to a non-profit foundation.
On December 31, 1995, Mrs. Jones assigned her
remaining 49% limited partnership interest in the Partnership
to Mr. Jones. On January 3, 1995, Mr. Jones assigned
a 98% limited partnership interest in the Partnership to the
David A. Jones Venture Capital Qualified Annuity Trust
(the "Trust"), of which Mrs. Jones is the sole trustee. Mr.
Jones receives a fixed annual payment from the Trust.
Mr. Jones and Mrs. Jones are the two general
partners of the Partnership. A 0.49% general partnership
interest is held by Mrs. Jones. A 0.51% general partnership
interest is held by Mr. Jones, who is also the Managing
Partner of the Partnership. Mr. Jones will serve in that
capacity until a successor Managing Partner is elected by a
majority in interest of the general partners. The Managing
Partner has the sole right, power and authority on behalf of
the Partnership to manage, acquire, hold, sell or otherwise
dispose of the property of the Partnership.
ITEM 3. Source and Amount of Funds or Other
Consideration.
ITEM 3 is hereby amended to read in its entirety as
follows:
The Partnership issued general and limited partnership
interests in exchange for the Shares. See ITEM 2.
ITEM 4. Purpose of Transaction.
ITEM 4 is hereby amended to add the following at
the end thereof:
The Partnership acquired the Shares for investment.
The Partnership does not have any plans or proposals which
relate to or would result in:
(a) Except as set forth below, the acquisition by
any person of additional securities of Premier, or the
disposition of securities of Premier;
(b) An extraordinary corporate transaction, such
as a merger, reorganization or liquidation, involving
Premier or any of its subsidiaries;
(c) A sale or transfer of a material amount of
assets of Premier or of any of its subsidiaries;
(d) Any change in the present board of directors
or management of Premier, including any plans or proposals
to change the number or term of directors or to fill any
existing vacancies on the board;
(e) Any material change in the present capitalization
or dividend policy of Premier;
(f) Any other material change in Premier's
business or corporate structure;
(g) Changes in Premier's charter, bylaws or
instruments corresponding thereto or other actions which
may impede the acquisition of control of Premier by any
person;
(h) Causing a class of securities of Premier to
cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association;
(i) A class of equity securities of Premier
becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated
above.
The Partnership and Mr. Jones anticipate that they
will purchase shares in the public offering of Premier
Common Stock expected to close on or about May 31,
1996. The Partnership reserves the right to formulate plans
or proposals to take such action, with respect to any or all
of the foregoing matters and any other matters as he, she or
it may determine.
ITEM 5. Interest in Securities of Premier.
ITEM 5 is hereby amended in its entirety to read as
follows:
a. The Partnership beneficially owns 477,247 shares
Premier Common Stock, which consists of 356,035 shares
issued and outstanding and 121,212 shares not outstanding
(based on the current conversion price) which are issuable
upon conversion of the Preferred Stock beneficially owned
by the Partnership. Based on the current conversion price,
upon conversion of the Preferred Stock, the Partnership
would beneficially own 8.9% of the issued and outstanding
shares of Premier Common Stock.
b. As Managing Partner of the Partnership, Mr.
Jones has sole voting and dispositive power with respect to
such shares.
c. Neither Mr. Jones nor the Partnership has
effected any transactions in Premier Common Stock during
the past sixty days.
d. To the knowledge of Mr. Jones and the Partnership,
no other person has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from
the sale of, such securities.
ITEM 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
Premier.
ITEM 6 is hereby amended in its entirety to read as
follows:
Mr. Jones is the Managing Partner and a general
partner of the Partnership. By virtue of the Limited
Partnership Agreement of JG Partnership, Ltd., the Managing
Partner has all voting and dispositive power over the Shares.
The Partnership was created by the Limited Partnership
Agreement of JG Partnership, Ltd. By virtue of the
Assignment by Mr. Jones to the Partnership, dated November
29, 1995, the Partnership has all right, title and interest
in and to the Shares.
ITEM 7. Material to be filed as Exhibits.
The following exhibits are attached hereto or
incorporated herein by reference:
Exhibit No. Description
99.1 Assignment by David A. Jones
to JG Partnership, Ltd., dated
November 29, 1995
99.2 Agreement of Partnership
of JG Limited Partnership, Ltd.,
dated November 29, 1995
99.3 Agreement between David A. Jones
and JG Partnership, Ltd.,
dated May 24, 1995, to file a single 13D
SIGNATURES
After reasonable inquiry and to the best of our
knowledge and belief, we certify that the information set
forth in this statement is true, complete and correct.
Date: May 24, 1996
/s/ David A. Jones
David A. Jones,
Individually
JG PARTNERSHIP, LTD.
By:/s/ David A. Jones
David A. Jones, Managing Partner
EXHIBIT INDEX
Exhibit
99.1 Assignment by David A.
Jones to JG Partnership, Ltd.,
dated November 29, 1995
99.2 Agreement of Limited Partnership
of JG Partnership, Ltd., dated
November 29, 1995
99.3 Agreement between David A. Jones
and JG Partnership, Ltd.,
dated May 24, 1995, to file
a single 13D
EXHIBIT 99.1
ASSIGNMENT
I, DAVID A. JONES, of Louisville, Kentucky,
hereby transfer, convey and assign to the JG Partnership,
Ltd., a Kentucky limited partnership ( the "Partnership"),
all of my right, title and interest in and to all of the stocks,
securities and other interests described on Exhibit A attached
hereto and incorporated herein by this reference
(individually, a "Security" and collectively, the
"Securities"). Said transfer, conveyance and assignment is
being made by me to the Partnership in exchange for the
issuance by the Partnership of (A) a 0.51% general
partnership interest and a 49% limited partnership interest to
me and (B) a 0.49% general partnership interest and a 49%
limited partnership interest to my wife Betty A. Jones. I
hereby agree to execute any and all additional transfer
documents (including but not limited to any necessary stock
powers or other instruments of assignment) which are
required by the issuer of the respective Security to cause the
transfer, conveyance and assignment of such Security to the
Partnership to be recorded on the transfer books of such
issuer.
This Assignment is hereby made and dated this 29th
day of November, 1995.
/s/ David A. Jones
David A. Jones
COMMONWEALTH OF KENTUCKY)
) SS:
COUNTY OF JEFFERSON )
Subscribed and sworn to before me by David A.
Jones this 29th day of November, 1995.
/s/ Judith C. Bealmer
Notary Public
My commission expires: 9-4-98
EXHIBIT 99.2
AGREEMENT OF LIMITED PARTNERSHIP
OF
JG PARTNERSHIP, LTD.
THIS AGREEMENT OF LIMITED PARTNER-
SHIP ("Agreement") is made this 29th day of November,
1995, by and among DAVID A. JONES, an individual
(sometimes hereinafter referred to as the "Managing
Partner," a "General Partner" and a "Limited Partner"),
BETTY A. JONES, an individual (sometimes hereinafter
referred to as a "General Partner" and a "Limited Partner"),
and any other person who executes an Addendum to
Agreement of Limited Partnership in the form of Exhibit A
hereto. The foregoing parties are herein referred to
collectively as the "Partners" and individually as a
"Partner." For purposes of this Agreement, the terms
"Managing Partner," "General Partner," "Limited Partner"
and "Partners" include all persons then acting in such
capacities in accordance with the terms of this Agreement.
W I T N E S S E T H:
WHEREAS, the parties hereto wish to form a
limited partnership under the laws of the Commonwealth of
Kentucky for the purposes set forth herein;
NOW, THEREFORE, in consideration of the
premises, the parties hereto agree as follows:
ARTICLE I
FORMATION
1.1 Formation. The Partners do hereby form a
Limited Partnership (the "Partnership") pursuant to the
Kentucky Revised Uniform Limited Partnership Act (the
"Kentucky Act"). The Managing Partner shall cause to be
filed in accordance with the Kentucky Act a Certificate of
Limited Partnership pertaining to the Partnership.
ARTICLE II
NAME AND OFFICE
2.1 Name. The name of the Partnership shall be
"JG Partnership, Ltd." The Managing Partner shall have
the right and authority to operate the business of the Partner-
ship under such other name(s) as may be required in any
jurisdiction in which the Partnership shall operate.
2.2 Assumed Name Certificate. The
Partnership shall file such certificates of assumed name as
shall be required by law.
2.3 Principal Office. The principal office of the
Partnership shall be at 500 West Main Street, Louisville,
Kentucky 40202, or at such other place as the Managing
Partner may from time to time designate by notice to the
Partners. The Managing Partner shall notify the Partners of
the establishment of any office of the Partnership in addition
to, or in replacement of, the principal office named herein
or any replacement thereof. The books of the Partnership
shall be maintained at such principal place of business or
such other office as the Managing Partner may deem appro-
priate.
ARTICLE III
PURPOSES AND TERM
3.1 Purposes. The purposes of the Partnership
are:
(a) To own and hold for investment or
otherwise those stocks, partnership interests and
other securities listed on Exhibit B hereto;
(b) To acquire, by purchase, exchange,
contribution or otherwise, such other stocks,
partnership interests, securities or other property the
Managing Partner deems appropriate;
(c) To sell, exchange, transfer, or
otherwise dispose of any of such stocks, partnership
interests, securities and other property at such times
and in such manner as the Managing Partner deems
appropriate; and
(d) To do all things necessary or desirable
in connection with the foregoing, or otherwise
contemplated in this Agreement or the Kentucky
Act.
3.2 Partnership Powers. In furtherance of the
purposes of the Partnership as set forth in Section 3.1
hereof, the Partnership shall have the power to do any and
all things the Managing Partners deem necessary,
appropriate or advisable or within the contemplation of this
Agreement, and in connection therewith, the Partnership
shall have all the powers of a natural person, except as
otherwise specifically provided in this Agreement.
3.3 Term. The term of the Partnership shall
commence simultaneously with the filing of a Certificate of
Limited Partnership in the Office of the Secretary of State
of the Commonwealth of Kentucky, and shall continue until
December 31, 2025, unless sooner terminated as provided
in this Agreement.
ARTICLE IV
CAPITAL
4.1 Capital Contribution of Partners. Contem-
poraneously with the execution of this Agreement, the
Partners have contributed to the capital of the Partnership all
of their respective right, title and interest in and to the
property listed on Exhibit B hereto as indicated opposite
their names on Exhibit C hereto in exchange for the interests
(whether as a Limited Partner or General Partner) in the
capital and profits of the Partnership set forth opposite their
names. It is hereby agreed that the fair market values of the
foregoing contributions are as set forth on Exhibit C hereto.
4.2 Partner Percentage Interest. For purposes
of this Agreement, the term "Partner Percentage Interest"
means the partnership percentage set forth opposite each
Partner's name on Exhibit C hereto, as amended from time
to time.
4.3 Limited Partner's Liability. No Limited
Partner shall be liable as a Limited Partner for any debts,
obligations or losses of the Partnership in excess of the sum
of such Limited Partner's capital contribution under Section
4.1 hereof and such Limited Partner's share of the undis-
tributed profits of the Partnership. Furthermore, no Limited
Partner shall be required in such Limited Partner's capacity
as a Limited Partner to contribute any capital or lend any
funds to the Partnership other than as provided in Section
4.1 hereof.
4.4 Withdrawal of Capital. No Partner shall be
entitled to withdraw any part of his or her capital
contribution to the Partnership, or to receive any distribution
from the Partnership, except as provided in Articles IX and
XI hereof. Except as may be determined by the Managing
Partner, in his sole discretion, no Partner shall be entitled to
demand or receive any property from the Partnership other
than cash.
4.5 Interest on Capital Contributions. No
Partner shall be entitled to interest on any capital
contribution made to the Partnership.
4.6 No Priority. Except as otherwise required by
this Agreement, no Partner shall have priority over any
other Partner as to return of capital contributions,
allocations of income, gains, losses, deductions or credits,
or as to distributions.
4.7 Capital Account. There shall be established
on the books of the Partnership a capital account ("Capital
Account") for each Partner, which shall control the division
of the Partnership's assets and properties upon liquidation of
the Partnership. It is the intention of the Partners that such
Capital Accounts be maintained in accordance with the
provisions of Treas. Reg. Sec1.704-1(b)(2)(iv), and this
Agreement shall be so construed. Accordingly, each such
Capital Account shall initially be credited with the amount
of the initial capital contribution of the Partner (as set forth
in Section 4.1 hereof and Exhibit B hereto), and thereafter
shall be increased by (i) any cash or the fair market value of
any property contributed by such Partner (net of any
liabilities assumed by the Partnership or to which the
contributed property is subject), (ii) the amount of all net
income (whether or not exempt from tax) and gain allocated
to such Partner pursuant to Sections 7.1, 7.3, 7.5 or 7.6
hereof, and (iii) any positive adjustment to basis required by
section 50(c) of the Internal Revenue Code of 1986, as
amended (the "Code"), and decreased by (x) the amount of
all net losses allocated to such Partner pursuant to Sections
7.2, 7.3, 7.5 or 7.6 hereof (including expenditures
described in section 705(a)(2)(B) of the Code, or treated as
such an expenditure by reason of Treas. Reg. Sec 1.704-1(b)(2)(iv)(i)),
(y) the amount of cash, and the fair market
value of property (net of any liabilities assumed by such
Partner or to which the distributed property is subject)
distributed to such Partner pursuant to Articles IX and XI
hereof and (z) any negative adjustment to basis required by
section 50(c) of the Code.
4.8 Interest of Creditors. Any person who
makes a loan, including a nonrecourse loan, to the
Partnership shall not thereby have any direct or indirect
interest in the profits, capital or property of the Partnership,
other than in such person's capacity as a creditor.
ARTICLE V
ACCOUNTING
5.1 Books and Records. Copies of this
Agreement and all amendments hereto, copies of the
Certificate of Limited Partnership and all amendments
thereto, and the records required by the Kentucky Act shall
be maintained at the Partnership's principal place of
business. The Managing Partner shall maintain full and
accurate books of the Partnership at the Partnership's
principal place of business, or such other place as may be
permitted by the Kentucky Act and as the Managing Partner
may deem appropriate, showing all receipts and
expenditures, assets and liabilities, profits and losses, and all
other records necessary for recording the Partnership's
business and affairs, including those sufficient to record the
allocations and distributions provided for in Articles VII, IX
and XI hereof. Such books and records shall be maintained,
and the net income and net loss of the Partnership shall be
determined, in the same manner as the Partnership computes
its income and deductions for federal income tax purposes.
5.2 Fiscal Year. The fiscal year of the
Partnership shall be the calendar year ("Fiscal Year"), and
the Partnership's books and records shall be closed and
balanced at the end of each Fiscal Year.
5.3 Reports.
(a) Within 90 days after the close of each
Fiscal Year of the Partnership, the Managing Partner
shall furnish to each person who was a Partner
during such Fiscal Year all the information relating
to the Partnership that shall be necessary for the
preparation by each such Partner of his or her
federal and state income or other tax returns.
(b) Within 90 days after the close of each
Fiscal Year of the Partnership, the Managing Partner
shall furnish to each person who was a Partner
during such Fiscal Year an unaudited report of the
business and operations of the Partnership during
such Fiscal Year that shall constitute the accounting
of the Managing Partner for such Fiscal Year. Such
report shall include a balance sheet as of the end of
such Fiscal Year, a statement of Partnership net
income and net loss for such Fiscal Year, the
allocation of net income and net loss among the
Partners, reconciliation of cash distributions to the
Partners during such Fiscal Year, and such other
information as shall be reasonably necessary for the
Partners to be advised of the results of the
Partnership's operations for such Fiscal Year.
5.4 Tax Returns and Other Reports. It shall be
the duty of the Managing Partner to prepare, or cause to be
prepared, and to file or cause to be filed on or before the
due date, all federal, state and local income tax and
information returns, if any, that the Partnership is required
to file. The Managing Partner shall prepare and file with
appropriate state authorities any reports required to be filed
by the Partnership with such authorities.
ARTICLE VI
BANK ACCOUNTS AND EXCESS FUNDS
All funds of the Partnership shall be deposited in its
name in checking accounts, cash equivalent accounts or
other investments as shall be designated by the Managing
Partner. Withdrawals therefrom shall be made upon the
signature of such person or persons as may be designated by
the Managing Partner.
ARTICLE VII
ALLOCATION OF NET INCOME AND NET LOSS
7.1 Income. Income, determined in accordance
with section 703(a) of the Code, for any Fiscal Year shall be
allocated among the Partners in accordance with their
respective Partner Percentage Interests in effect for such
Fiscal Year.
7.2 Losses. Losses for any Fiscal Year shall be
allocated among the Partners in accordance with their
respective Partner Percentage Interests in effect for such
year, provided that losses shall not be allocated to a Limited
Partner pursuant to this Section 7.2 to the extent such
allocation would cause such Limited Partner to have a
deficit Capital Account at the end of any Fiscal Year. Any
such excess shall be allocated to the General Partners in
accordance with their respective Partner Percentage
Interests.
7.3 Regulatory Allocations.
(a) Minimum Gain Chargeback.
Except as otherwise provided in Treas. Reg. Section
1.704-2(f), notwithstanding any other provision of
this Article VII, if there is a net decrease in Partner-
ship Minimum Gain, as defined in Treas. Reg.
Section 1.704-2(b)(2) and determined under Treas.
Reg. Section 1.704-2(d), during any Fiscal Year,
each Partner shall be specially allocated items of
Partnership income and gain for such Fiscal Year
(and, if necessary, subsequent Fiscal Years) in an
amount equal to such Partner's share of the net
decrease in Partnership Minimum Gain, determined
in accordance with Treas. Reg. Section 1.704-2(g).
Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts
required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be
determined in accordance with Treas. Reg. Sections
1.704-2(f)(6) and 1.704-2(j)(2). This Section 7.3(a)
is intended to comply with the minimum gain
chargeback requirement in Treas. Reg. Section
1.704-2(f) and shall be interpreted consistently
therewith.
(b) Partner Minimum Gain
Chargeback. Except as otherwise provided in
Treas. Reg. Section 1.704-2(i)(4), notwithstanding
any other provision of this Article VII, if there is a
net decrease in Partner Nonrecourse Debt Minimum
Gain, as defined in Treas. Reg. Section 1.704-2(i)(2)
and determined in accordance with Treas. Reg.
Section 1.704-2(i)(3), attributable to a Partner
Nonrecourse Debt, as defined in Treas. Reg. Section
1.704-2(b)(4), during any Fiscal Year, each Partner
who has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with
Treas. Reg. Section 1.704-2(i)(5), shall be specially
allocated items of Partnership income and gain for
such Fiscal Year (and, if necessary, subsequent
Fiscal Years) in an amount equal to such Partner's
share of the net decrease in Partner Nonrecourse
Debt Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with
Treas. Reg. Section 1.704-2(i)(4). Allocations
pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The
items to be so allocated shall be determined in
accordance with Treas. Reg. Sections 1.704-2(i)(4)
and 1.704-2(j)(2). This Section 7.3(b) is intended to
comply with the minimum gain chargeback
requirement in Treas. Reg. Section 1.704-2(i)(4) and
shall be interpreted consistently therewith.
(c) Section 754 Adjustments. To the
extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to section 734(b) of the
Code or section 743(b) of the Code is required,
pursuant to Treas. Reg. SEC 1.704-1(b)(2)(iv)(m), to be
taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis), and such gain
or loss shall be specially allocated to the Partners in
a manner consistent with the manner in which their
Capital Accounts are required to be adjusted
pursuant to such Regulation.
(d) Qualified Income Offset. If a
Limited Partner unexpectedly receives any
adjustments, allocations, or distributions described in
Treas. Reg. Section 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6),
items of Partnership income and gain shall be
specially allocated to the Limited Partner in an
amount and manner sufficient to eliminate, to the
extent required by the Regulations, the Adjusted
Capital Account Deficit of the Limited Partner as
quickly as possible, provided that an allocation
pursuant to this Section 7.3(d) shall be made only if
and to the extent that the Limited Partner would have
an Adjusted Capital Account Deficit after all other
allocations provided for in this Article VII have been
tentatively made as if this Section 7.3(d) were not in
this Agreement.
(e) Gross Income Allocation. If a
Limited Partner has a deficit Capital Account at the
end of any Fiscal Year that is in excess of the sum of
(i) the amount the Limited Partner is obligated to
restore pursuant to any provision of this Agreement,
and (ii) the amount the Limited Partner is deemed to
be obligated to restore pursuant to the penultimate
sentences of Treas. Reg. Sections 1.704-2(g)(1) and
1.704-2(i)(5), the Limited Partner shall be specially
allocated items of Partnership income and gain in the
amount of such excess as quickly as possible,
provided that an allocation pursuant to this Section
7.3(e) shall be made only if and to the extent the
Limited Partner would have a deficit Capital
Account in excess of such sum after all other
allocations provided for in this Article VII have been
tentatively made as if Section 7.3(d) hereof and this
Section 7.3(e) were not in this Agreement.
(f) Nonrecourse Deductions.
Nonrecourse Deductions, as set forth in Treas. Reg.
Section 1.704-2(b)(1), for any Fiscal Year shall be
specially allocated to each Partner in accordance
with the Partner Percentage Interests.
(g) Partner Nonrecourse Deductions.
Any Partner Nonrecourse Deductions, as defined in
Treas. Reg. Sections 1.704-2(i)(1) and 1.704-2(i)(2),
for any Fiscal Year shall be specially allocated to the
Partner who bears the economic risk of loss with
respect to the Partner Nonrecourse Debt, as defined
in Treas. Reg. Section 1.704-2(b)(4), to which such
Partner Nonrecourse Deductions are attributable in
accordance with Treas. Reg. Section 1.704-2(i)(1).
7.4 Curative Allocations. The allocations set
forth in Section 7.3 hereof (the "Regulatory Allocations")
are intended to comply with certain requirements of the
Treasury Regulations. It is the intent of the Partners that,
to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with
special allocations of other items of Partnership income,
gain, loss and deduction pursuant to this Section 7.4.
Therefore, notwithstanding any other provision of Article
VII (other than the Regulatory Allocations), the Managing
Partner shall make such offsetting special allocations in
whatever manner he determines appropriate so that, after
such offsetting allocations are made, each Partner's Capital
Account balance is, to the extent possible, equal to the
Capital Account balance such Partner would have had if the
Regulatory Allocations were not part of the Agreement and
all Partnership items were allocated pursuant to Sections 7.1
and 7.2. In exercising his discretion under this Section 7.4,
the Managing Partner shall take into account future
Regulatory Allocations under Sections 7.3(a) and 7.3(b)
that, although not yet made, are likely to offset other
Regulatory Allocations previously made under Sections
7.3(f) and 7.3(g).
7.5 Allocations with Respect to Contributed
Property.
(a) Section 704(c). In accordance with
section 704(c) of the Code and the Regulations
thereunder income, gain, loss, and deduction with
respect to any property contributed to the capital of
the Partnership shall, solely for tax purposes, be
allocated among the Partners so as to take account of
any variation between the adjusted basis of such
property to the Partnership for federal income tax
purposes and its initial Gross Asset Value (computed
in accordance with Section 7.5(b) hereof). In the
event the Gross Asset Value of any Partnership asset
is adjusted pursuant to Section 7.5(b) hereof,
subsequent allocations of income, gain, loss, and
deduction with respect to such asset shall take
account of any variation between the adjusted basis
of such asset for federal income tax purposes and its
Gross Asset Value in the same manner as under
section 704(c) of the Code and the Regulations
thereunder. Any elections or other decisions relating
to such allocations shall be made by the Managing
Partner in any manner that reasonably reflects the
purpose and intention of this Agreement.
Allocations pursuant to this Section 7.5(a) are solely
for purposes of federal, state, and local taxes and
shall not affect, or in any way be taken into account,
in computing, any Partner's Capital Account or
share of income, losses, other items, or distributions
pursuant to any provisions of this Agreement.
(b) "Gross Asset Value" means, with
respect to any asset, the asset's adjusted basis for
federal income tax purposes, except as follows:
(i) The initial Gross Asset Value
of any asset contributed by a Partner to the
Partnership shall be the gross fair market
value of such asset, as determined by the
contributing Partner and the Managing
Partner, provided that, if the contributing
Partner is the Managing Partner, the
determination of the fair market value of a
contributed asset shall require the consent of
the other General Partner(s).
(ii) The Gross Asset Value of all
Partnership assets shall be adjusted to equal
their respective gross fair market values, as
determined by the Managing Partner, as of
the following times: (a) the acquisition of an
additional interest in the Partnership by any
new or existing Partner in exchange for more
than a de minimis Capital Contribution; (b)
the distribution by the Partnership to a
Partner of more than a de minimis amount of
property as consideration for an interest in
the Partnership; and (c) the liquidation of the
Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g);
provided, however, that adjustments pursuant
to clauses (a) and (b) above shall be made
only if the Managing Partner reasonably
determines that such adjustments are
necessary or appropriate to reflect the
relative economic interests of the Partners in
the Partnership;
(iii) The Gross Asset Value of any
Partnership asset distributed to any Partner
shall be adjusted to equal the gross fair
market value of such asset on the date of
distribution as determined by the distributee
and the Managing Partner, provided that, if
the distributee is the Managing Partner, the
determination of the fair market value of the
distributed asset shall require the consent of
the other General Partner(s); and
(iv) The Gross Asset Values of
Partnership assets shall be increased (or
decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to
section 734(b) or section 743(b) of the Code,
but only to the extent that such adjustments
are taken into account in determining Capital
Accounts pursuant to Regulation Section
1.704-1(b)(2)(iv)(m) and Section 7.3(c)
hereof; provided, however, that Gross Asset
Values shall not be adjusted pursuant to this
Section 7.5(b)(iv) to the extent the Managing
Partner determines that an adjustment
pursuant to Section 7.5(b)(ii) hereof is
necessary or appropriate in connection with
a transaction that would otherwise result in
an adjustment pursuant to this Section
7.5(b)(iv).
If the Gross Asset Value of an asset has been
determined or adjusted pursuant to Section 7.5(b)
hereof, such Gross Asset Value shall thereafter be
adjusted by the depreciation taken into account with
respect to such asset for purposes of computing
income and loss.
7.6 Allocations in Event of Transfer of
Partnership Interest. In the event of the transfer of all or
any part of a Partner's interest in the Partnership (in
accordance with the provisions of this Agreement) at any
time other than at the beginning of a Fiscal Year, or in the
event of the admission of a new Partner, the transferring
Partner, transferee Partner or new Partner's share of the
Partnership's net income, gain, net loss, deductions and
credits, as computed both for accounting purposes and for
federal income tax purposes, shall be allocated between the
transferor Partner and the transferee Partner, or among the
new Partner and the other Partners, as the case may be, in
the same ratio as the number of days in such Fiscal Year
before and after the date of such transfer or admission.
Notwithstanding the foregoing, if the Partnership uses the
cash receipts and disbursements method of accounting, the
Partnership's "allocable cash basis items", as that term is
used in section 706(d)(2)(B) of the Code, shall be allocated
as required by section 706(d)(2)(B) of the Code and the
Regulations promulgated thereunder.
ARTICLE VIII
DISTRIBUTIVE SHARES AND FEDERAL INCOME
TAX ELECTIONS
8.1 Distributive Shares. Except as otherwise
provided in this Agreement, for purposes of Subchapter K
of the Code, the distributive shares of the Partners of each
item of Partnership taxable income, gain, loss, deduction or
credit for any Fiscal Year shall be in the same proportions
as their respective shares of the items allocated to them
pursuant to Sections 7.1 and 7.2 hereof, provided, however,
that the General Partners' aggregate distributive share of
taxable income, gain, loss, deduction or credit shall at all
times equal or exceed at least one percent (1%) of each
material item of Partnership income, gain, loss, deduction
or credit prior to taking into account the Regulatory
Allocations required by section 704 of the Code and Section
7.3 hereof.
8.2 Elections. The election permitted to be made
by section 754 of the Code, and any other elections required
or permitted to be made by the Partnership under the Code,
shall be made by the Managing Partner in his sole discre-
tion.
ARTICLE IX
DISTRIBUTIONS
9.1 Distributions of Net Cash Flow. The
Managing Partner shall have the sole discretion to determine
the amount and timing of all distributions to the Partners of
net cash flow or the proceeds of the sale of any of the
Partnership's assets. The Managing Partner shall have no
obligation to make any minimum distributions to the
Partners in any Fiscal Year. Except as otherwise required
by this Agreement, all distributions for any Fiscal Year (not
in kind in accordance with Section 9.2 or not in connection
with the liquidation and dissolution of the Partnership in
accordance with Section 11.3 hereof) shall be made to the
Partners in accordance with their Partner Cash Flow
Interests set forth opposite their names on Exhibit C hereto,
as amended from time to time.
9.2 Property Distributions. If any property of
the Partnership, other than cash, is distributed by the Part-
nership to a Partner (in connection with the liquidation of
the Partnership or otherwise), the fair market value of such
Property shall be used for purposes of determining the
amount of such distribution. The difference, if any, of such
fair market value over (or under) the value at which such
property is carried on the books of the Partnership shall be
credited or charged to the Capital Accounts of the Partners
in accordance with the ratio in which the Partners share in
the gain and loss of the Partnership pursuant to Sections 7.1
and 7.2 hereof. The fair market value of the property
distributed shall be agreed to by the Managing Partner and
the distributee Partner in good faith; provided that, if the
Managing Partner is the distributee Partner, the fair market
value determination shall be made by the other General
Partner(s) and the distributee Partner.
ARTICLE X
MANAGEMENT
10.1 Management.
(a) Subject to the limitations and
restrictions set forth in this Agreement, control and
management of the business of the Partnership as
described in Article III hereof shall be vested in the
Managing Partner during the term of the
Partnership, including its liquidation and dissolution.
David A. Jones shall serve as the Managing Partner
unless and until his successor is elected by a majority
in interest of the General Partners. Except as
otherwise specifically provided in this Agreement,
the Limited Partners shall have no voice in, or take
any part in, the management of the business of the
Partnership, or have any authority or power to act on
behalf of the Partnership in any manner whatsoever.
(b) Except as otherwise specifically
provided in this Agreement, the Managing Partner
shall have the right, power and authority on behalf
of the Partnership, and in its name, to exercise all of
the rights, powers and authority that may be so
possessed by a general partner pursuant to the
Kentucky Act, including, but not limited to, the
following:
(i) To acquire, hold, manage, sell
or otherwise dispose of property at such
price, for cash, deferred payments, notes,
securities or other property and upon such
terms, as the Managing Partner deems to be
in the best interests of the Partnership;
(ii) To borrow money required for
the business and affairs of the Partnership
from others and to secure the repayment of
such borrowings by executing mortgages or
deeds of trust, pledging or otherwise
encumbering or subjecting to security
interests, all or any part of the assets of the
Partnership, and to refund, refinance,
increase, modify, consolidate or extend the
maturity of any indebtedness created by such
borrowings, or any such mortgage, deed of
trust, pledge, encumbrance or other security
device, all upon such terms as the Managing
Partner deems to be in the best interests of
the Partnership ("Permitted Partnership
Financing");
(iii) To place record title to, or the
right to use, Partnership assets in the name or
names of a nominee or nominees for any
purpose convenient or beneficial to the
Partnership;
(iv) To employ persons at the
expense of the Partnership, and on its behalf,
in the management of the Partnership's
property, on such terms and for such
compensation as the Managing Partner deems
to be in the best interests of the Partnership;
provided, however, that the employment of
others by the Managing Partner shall not
relieve him of his responsibility for the
management of the Partnership;
(v) To incur, at the expense of the
Partnership, bank and investment charges
with respect to bank and investment accounts
maintained, and other expenses in connection
with the management of the Partnership's
assets;
(vi) To employ persons, at the
expense of the Partnership, to perform legal
and accounting services in connection with
the management of the Partnership's
business, and to provide services in
connection with the preparation and filing of
any tax return or any other report, including,
but not limited to, any report to the Partners
required of the Partnership; and
(vii) To enter into such agreements,
contracts, documents and instruments with
such parties and to give such receipts,
releases and discharges with respect to all of
the foregoing and any matters incident
thereto, as the Managing Partner deems, in
his sole discretion, advisable, appropriate or
convenient.
(c) Consistent with the provisions of
Section 10.1(b), the Managing Partner is specifically
authorized to employ Chrysalis Ventures, Inc. to
manage the Partnership's property, on such terms
and conditions as the Managing Partner deems to be
in the best interests of the Partnership.
(d) Notwithstanding any provision in this
Article to the contrary, without the prior consent of
all of the General Partners and of the Limited
Partners owning, in the aggregate, a majority of the
Partner Percentage Interests held by the Limited
Partners, he Managing Partner shall not have the
authority to:
(i) Do any act in contravention of
this Agreement or that would make it
impossible to carry on the ordinary business
of the Partnership;
(ii) Confess a judgment against the
Partnership;
(iii) Admit a General Partner,
except as provided in this Agreement; or
(iv) Admit a Limited Partner,
except as provided in this Agreement.
(e) Notwithstanding any provision in this
Agreement to the contrary, without the prior
unanimous consent of all of the Partners, no General
Partner shall have the authority to dissolve or
liquidate the Partnership.
10.2 Standard of Care of Managing Partner;
Indemnification.
(a) The Managing Partner shall not be
liable, responsible or accountable in damages to the
Partners or the Partnership for any act or omission
on behalf of the Partnership performed or omitted by
him in good faith and in a manner reasonably
believed by him to be within the scope of the
authority granted to him by this Agreement
(including such authority as is given him in connec-
tion with the liquidation and dissolution of the
Partnership) and in the best interests of the
Partnership, unless he has been grossly negligent or
willful with respect to such acts or omissions.
(b) The Partnership shall indemnify and
hold harmless the Managing Partner from and
against any loss, expense, damage or injury suffered
or sustained by him by reason of any act or omission
performed or omitted by him arising out of his
activities on behalf of the Partnership or in fur-
therance of the interests of the Partnership,
including, but not limited to, reasonable attorneys'
fees or other costs or expenses incurred in
connection with the defense of any actual or
threatened action, proceeding or claim; provided,
however, that no such indemnification shall be
provided if the act or omission involved the gross
negligence or willful misconduct of the Managing
Partner.
(c) Nothing contained in this Section 10.2
shall restrict or limit any fiduciary obligation of the
Managing Partner to the Partners provided by law.
10.3 Other Activities; Related Party Transac-
tions. The Managing Partner shall devote only such of his
time to the affairs of the Partnership's business as the
Managing Partner, in his discretion, deems necessary. The
Managing Partner may engage in, or possess an interest in,
other business ventures of any nature and description,
independent of or with others, and neither the Partnership
nor any Partner shall have any rights by virtue of this
Agreement in and to such independent ventures, or to the
income or profits derived therefrom, even if competitive
with the business of the Partnership.
10.4 Reimbursement of Expenses of Managing
Partner. Regardless of whether any distributions are made
to the Partners, the Partnership shall reimburse the
Managing Partner, at his cost, for the reasonable and neces-
sary expenses he incurs in performing services on behalf of
the Partnership, including, but not limited to, (i) costs of
accounting, statistical or bookkeeping services, (ii) costs of
computing or accounting equipment, (iii) travel and lodging
expenses, (iv) due diligence expenses, and (v) telephone,
postage, legal, accounting and all other expenses relating to
the operation of the business of the Partnership.
ARTICLE XI
DISSOLUTION
11.1 Dissolution.
(a) The Partnership shall dissolve upon,
but not before, the first to occur of the following:
(i) The Bankruptcy (as hereinafter
defined), death or withdrawal (unless the
withdrawal is by reason of a transfer
pursuant to Article XIII hereof) of the last
remaining General Partner; or
(ii) The expiration of the term
hereof; or
(iii) The unanimous vote of all of
the Partners.
For purposes of this Agreement, the "Bankruptcy" of a
General Partner shall be deemed to have occurred 60 days
after the happening of (u) the filing of an application by a
General Partner for, or his or her consent to, the
appointment of a trustee of his or her assets, (v) the filing
by a General Partner of a voluntary petition in bankruptcy
(whether federal or state), (w) the filing by a General
Partner of a pleading in any court of record admitting in
writing his or her inability to pay his or her debts as they
become due, (x) the making by a General Partner of a
general assignment for the benefit of his or her creditors, (y)
the filing by a General Partner of any answer admitting the
material allegations of, or consenting to, or defaulting in
answering, a bankruptcy petition filed against him in any
bankruptcy proceeding (whether federal or state) or (z) the
entry of an order, judgment or decree by any court of
competent jurisdiction adjudicating the Partner a bankrupt,
or appointing a trustee of his or her assets, and such order,
judgment or decree continuing unstayed and in effect for a
period of at least 60 days.
(b) Dissolution of the Partnership shall be
effective upon the date on which the event giving
rise to the dissolution occurs, but the Partnership
shall not terminate until the assets of the Partnership
shall have been distributed as provided in Section
11.3 hereof. Notwithstanding dissolution of the
Partnership, prior to the liquidation and termination
of the Partnership, the business of the Partnership
and the affairs of the Partners, as such, shall
continue to be governed by this Agreement.
(c) Upon a dissolution of the Partnership
pursuant to Section 11.1(a)(i) hereof, if the Limited
Partners select a successor General Partner (the
"Successor General Partner") to replace the sole
remaining General Partner (the "Remaining General
Partner") within sixty (60) days from the date of the
event causing the dissolution, the Partnership shall
continue between the Limited Partners and such
Successor General Partner as a reconstituted limited
partnership under the terms of this Agreement. Such
Successor General Partner shall, as a condition to
becoming the Successor General Partner, purchase
the interest in the Partnership of the Remaining
General Partner. The purchase price for the
Remaining General Partner's interest in the Partner-
ship shall be an amount determined in accordance
with Section 11.1(d) hereof.
(d) (i) If a Successor General Partner
is appointed in accordance with the
provisions of Section 11.1(c) hereof, the
purchase price for the Remaining General
Partner's interest in the Partnership shall be
an amount mutually agreed upon by the
Remaining General Partner and the Successor
General Partner within ten (10) days
following the selection of the Successor
General Partner or, if the Remaining General
Partner and the Successor General Partner
are unable to so agree, an amount equal to
the amount that would have been distributed
to the Remaining General Partner had the
Partnership sold all of its assets as of the
close of the month preceding the date on
which the event referred to in Section
11.1(a)(i) hereof occurred (appropriately
adjusted for any distribution received, or
capital contribution made, by the Remaining
General Partner since that date) and then
immediately liquidated.
(ii) If the Remaining General
Partner and the Successor General Partner
are unable to agree on the purchase price
within such 10-day period, then the
Remaining General Partner and the Successor
General Partner shall each appoint a qualified
appraiser within 15 days thereafter to deter-
mine the fair market value of the assets of
the Partnership on which the parties are
unable to agree. Each of the two appraisers
shall make a determination of such fair
market value within 30 days following the
close of the 15-day period referred to above.
If the two appraisals differ by 10% or less of
the higher appraisal, the fair market value of
the assets appraised shall be the average of
such two appraisals. If the two appraisals
differ by more than 10% of the higher
appraisal, the two appraisers shall, within
three days thereafter, appoint a third
qualified appraiser who shall make a deter-
mination of such fair market value within 30
days following his appointment. The fair
market value of the assets appraised in such
case shall be the middle appraisal of the three
appraisals. If the first two appraisers are
unable to agree upon a third appraiser within
such 3-day period, either party may, within
10 days thereafter, petition the American
Arbitration Association to appoint a third
appraiser, who shall make a determination of
such fair market value within 30 days
following his appointment. If the first two
appraisers are unable to agree upon a third
appraiser and neither party petitions for the
appointment of a third appraiser within such
10-day period, the fair market value of the
assets appraised shall be the average of the
two appraisals.
(iii) If either the Remaining
General Partner or the Successor General
Partner fails to timely appoint an appraiser,
or if either of them does not provide the ap-
praisal to the other within the time period set
forth herein, then (A) such defaulting party
shall be deemed to have forfeited his, her or
its right to select an appraiser, (B) such
defaulting party's appraiser shall be selected
by the American Arbitration Association and
(C) the fair market value of the assets
appraised shall be the average of the
appraisals of the other party and that of the
appraiser selected by the American
Arbitration Association.
(iv) The closing of the purchase of
the Remaining General Partner's interest in
the Partnership shall take place within 10
days following the determination of the
purchase price of the Remaining General
Partner's interest in the Partnership in
accordance with the provisions of this
Section 11.1(d). Such purchase price shall
be paid in full in cash at the time of closing.
(e) The Partnership shall not dissolve
upon the Bankruptcy, liquidation, dissolution,
withdrawal or assignment of the interest in the
Partnership of any Limited Partner. In any such
event, the General Partners shall have the right and
duty to continue the business of the Partnership
under the terms of this Agreement.
11.2 Sale of Assets Upon Dissolution. Upon a
dissolution of the Partnership in a situation in which the
Partnership is not continued as provided in Section 11.1(c)
hereof, the Managing Partner shall determine, in his sole
discretion, whether the assets of the Partnership are to be
sold, or whether such assets are to be distributed to the
Partners in dissolution of the Partnership.
11.3 Distributions Upon Dissolution. Upon the
dissolution of the Partnership in a situation in which the
Partnership is not continued as provided in Section 11.1(c),
the properties of the Partnership shall be liquidated in
orderly fashion (unless the Managing Partner has determined
to distribute the same in kind as provided in Section 11.2
hereof), and the proceeds thereof and the property to be
distributed in kind shall be distributed as follows:
(a) First, to the payment and discharge of
all of the Partnership's debts and liabilities and the
necessary expenses of liquidation, and to the
establishment of any reserves that the Managing
Partner determines to create in his sole discretion for
unmatured and/or contingent liabilities or obligations
of the Partnership.
(b) Second, to the Partners, in amounts
equal to the positive balances in their Capital
Accounts and otherwise in accordance with Section
9.1.
If a General Partner has a deficit balance in his or
her Capital Account at the time of liquidation and
dissolution of the Partnership, after crediting all income
upon sale of the Partnership's assets that have been sold,
and after making the allocations provided for in Section 11.2
hereof with respect to any of the Partnership's assets that are
to be distributed in kind, such General Partner shall be
obligated to contribute the amount of such deficit to the
Partnership at a time no later than the end of the Fiscal Year
in which the Managing Partner's interest is liquidated (or,
if later, within 90 days after the date of liquidation).
11.4 Distributions in Fiscal Year of Dissolution.
It is intended that all distributions made pursuant to this
Article XI shall constitute payments made in exchange for
the interest of a Partner in Partnership property within the
meaning of section 736(b) of the Code. Any allocation of
income or loss of the Partnership to any Partner with respect
to any Fiscal Year shall constitute such Partner's distributive
share of such income or loss for such Fiscal Year within the
meaning of sections 704(a) and 736(a) of the Code,
notwithstanding that such allocation shall have been made in
the Fiscal Year in which a liquidating distribution occurs.
11.5 Cancellation of Certificate. Upon
completion of the distribution of the Partnership's assets and
the termination of the Partnership, the Managing Partner
shall cause the Certificate of Limited Partnership of the
Partnership to be cancelled and shall take such other actions
as may be necessary to terminate the Partnership for
purposes of the Kentucky Act.
ARTICLE XII
WITHDRAWAL AND ASSIGNMENT BY LIMITED PARTNER;
ADDITION OF LIMITED PARTNERS
12.1 Withdrawal by Limited Partner. A
Limited Partner may not withdraw from the Partnership
prior to the dissolution of the Partnership pursuant to Article
XI.
12.2 Assignment of Limited Partner's Interest.
(a) Except as provided in Section 12.2(b)
hereof, no Limited Partner may sell, assign,
transfer, pledge, hypothecate, encumber or otherwise
dispose of its interest in the Partnership, nor may an
assignee of the Limited Partner be entitled to become
a substitute Limited Partner in place of its assignor,
without the prior written consent of the Managing
Partner, which consent may be withheld by the
Managing Partner for any reason whatsoever.
Notwithstanding the foregoing, in no event shall a
transfer or assignment be effective unless the
Managing Partner has received a written opinion of
counsel satisfactory to it that such assignment will
not violate, or cause the Partnership to violate, any
applicable law or governmental regulation, including
any federal or state securities law, applicable to such
transaction, and that such assignment will not result
in a change in its status as a partnership under the
Code. Any purported assignment or transfer that is
prohibited by the terms of this Section 12.2(a) shall
be null and void ab initio and of no force or effect.
(b) Notwithstanding Section 12.2(a), a
Limited Partner may transfer or assign all or any
portion of his or her interest as a Limited Partner to
any Partner or to any Permitted Limited Partner
Transferee. For purposes of this Agreement, the
term "Permitted Limited Partner Transferee" shall
mean any lineal descendant of David A. Jones and
Betty A. Jones or a spouse of such lineal descendant
(a "Family Member") or any corporation,
partnership, trust or other entity controlled by, or
established for the benefit of, one or more of such
Limited Partner or any Family Member.
12.3 Substitute Limited Partner. No assignee of
a Limited Partner shall have the right to become a substitute
Limited Partner unless all of the following conditions are
satisfied: (a) the fully executed and acknowledged written
instrument of assignment has been filed with the
Partnership, setting forth the statement of the assignor that
the assignee become a substitute Limited Partner in his
place; (b) the assignee has executed an Addendum to
Agreement of Limited Partnership in the form of Exhibit A
hereto; (c) the assignor and assignee have executed and
acknowledged such other instruments as the Managing
Partner may, in his sole discretion, deem necessary or
desirable to effect such admission, including the written
acceptance and adoption by the assignee of the provisions of
this Agreement, its execution, acknowledgement and
delivery to the General Partner of a power of attorney, the
form and content of which are as set forth in Section 15.1
hereof, and such other documents as are required by reason
of any applicable federal or state securities laws, (d) the
General Partner has consented to such assignment and (e)
the assignee has paid the costs incurred by the Partnership
in connection with such transfer, including, but not by way
of limitation, the costs of preparing and filing any necessary
amendment to the Partnership's Certificate of Limited
Partnership.
12.4 Admission of New Limited Partner. Except
as otherwise specifically provided for herein, no new
Limited Partners may be admitted to the Partnership without
the prior consent of the General Partners.
ARTICLE XIII
WITHDRAWAL AND ASSIGNMENT BY GENERAL PARTNER
13.1 Withdrawal and Assignment. A General
Partner may not withdraw from the Partnership, nor sell,
assign or transfer his or her interest in the Partnership to a
person who is not a Partner, or admit a new general partner
to the Partnership, without the prior written consent of
Limited Partners owning, in the aggregate, a majority of the
Partner Percentage Interests held by the Limited Partners.
Any purported assignment made without compliance with
this Article XIII shall be null and void ab initio and of no
force or effect.
ARTICLE XIV
TAX MATTERS PARTNER
14.1 Tax Matters Partner. The tax matters
partner ("TMP") for the Partnership shall be the Managing
Partner.
14.2 Retention of Counsel. The TMP shall
employ experienced tax counsel to represent the Partnership
in connection with any audit or investigation of the Partner-
ship by the Internal Revenue Service ("IRS"), and in con-
nection with all subsequent administrative and judicial pro-
ceedings arising out of such audit. The fees and expenses of
such counsel shall be a Partnership expense and shall be paid
by the Partnership. Such counsel shall be responsible solely
for representing the Partnership, and if the Partners of the
Partnership desire tax counsel to represent their respective
separate interests, they may do so at their own expense.
14.3 Notices to Partners; Expenses.
(a) The TMP shall keep the Partners
informed of all administrative and judicial
proceedings as required by section 6223(g) of the
Code and shall, within 10 days of receipt thereof,
furnish to each Partner a copy of each notice or
communication received by the TMP from the IRS
(except such notices or communications as are sent
directly to such requesting Partner by the IRS).
(b) All reasonable and necessary expenses
incurred by the TMP in serving as the TMP,
including the costs of the notices provided for in
Section 14.3(a) hereof, shall be a Partnership
expense and shall be paid by the Partnership.
14.4 Authority of TMP. The TMP shall have the
authority to take all acts permitted to be taken by the TMP
under the Code.
14.5 Indemnity. The Partnership shall indemnify
and hold harmless the TMP against judgments, fines,
amounts paid in settlement and reasonable expenses
(including attorneys' fees) reasonably incurred by him in
any civil, criminal or investigative proceeding in which he
is involved or threatened to be involved by reason of his
being the TMP, provided that the TMP acted in good faith,
within what he reasonably believed to be the scope of his
authority and for a purpose that he reasonably believed to be
in the best interests of the Partnership or its Partners to
whom he would otherwise be subject by reason of willful
misconduct or negligence in his duties involved in acting as
TMP.
ARTICLE XV
POWER OF ATTORNEY
15.1 Appointment of Managing Partner.
(a) Each Limited Partner, as well as any
Limited Partner who becomes a party to this
Agreement or becomes entitled to the benefits of its
provisions after the date hereof, hereby irrevocably
constitutes and appoints the Managing Partner, with
full power of substitution, its true and lawful
attorney-in-fact, with full power and authority, in its
name, place and stead, to make, execute, consent to,
swear to, acknowledge, record and file with respect
to the Partnership, the following:
(i) A certificate of limited
partnership under the laws of the Common-
wealth of Kentucky, including therein all
information required by applicable law.
(ii) Any certificate or other
instrument that may be required to be filed
by the Partnership or the Partners under the
laws of any state, or any other jurisdiction in
which the Partnership conducts business.
(iii) Any and all amendments or
modifications of the instruments described in
Sections 15.1(a)(i) or 15.1(a)(ii) hereof.
(iv) All certificates and other
instruments that may be necessary, required
or desirable to effect the dissolution and
termination of the Partnership in accordance
with the provisions of this Agreement.
15.2 Extent of Power. The power of attorney
hereby granted by each Limited Partner, as well as any
Limited Partner who becomes a party to this Agreement or
becomes entitled to the benefits of its provisions after the
date hereof, is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death,
Bankruptcy, liquidation or dissolution of the Limited Partner
granting it. The Power of Attorney hereby granted may be
exercised on behalf of the Limited Partners by referencing
all of the Limited Partners on whose behalf a document is
being executed, and with a single signature as attorney-in-fact for all of them.
15.3 Additional Powers. Each Limited Partner
hereby agrees to execute and deliver to the Managing
Partner within five (5) days after receipt of the Managing
Partner's written request therefor, such other and further
powers of attorney and other instruments that the Managing
Partner, in his sole discretion, deems necessary or desirable
to comply with any laws, rules or regulations relating to the
formation, operation or termination of the Partnership.
ARTICLE XVI
MISCELLANEOUS
16.1 Notices.
(a) All notices, requests, demands or
other communications under this Agreement shall be
in writing and shall be delivered personally against
a written receipt or transmitted by mail, registered or
certified, return receipt requested, postage prepaid,
addressed as follows:
(i) If given to the Partnership, to
the Partnership at its principal office.
(ii) If given to a Limited Partner,
to the address following its name on the
signature page of this Agreement or on the
Addendum to Agreement of Limited
Partnership in the form of Exhibit A hereto.
The Partners may change their respective
addresses for notices by giving notice thereof to the
Partnership.
(b) All notices, demands and requests
shall be effective and shall be deemed given upon
being personally delivered against a written receipt
or upon being deposited in the United States mail in
the manner provided in Section 16.1(a) hereof. The
time period in which a response to any such notice,
demand or request shall commence to run, however,
shall begin on the date of such personal delivery or
the date shown on the return receipt, as applicable;
provided, however, that if the recipient of such
notice refuses acceptance thereof, then the time
period in which his response to such notice must be
given shall commence to run two (2) days following
such mailing.
16.2 Amendment. This Agreement may be
modified or amended, from time to time, only upon the
written consent of all of the Partners.
16.3 Captions. Section titles or captions
contained in this Agreement are inserted only as a matter of
convenience and reference, and in no way define, limit,
extend or describe the scope of this Agreement, or the intent
of any provision hereof.
16.4 Construction. All pronouns and any
variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as the identity of the
person or persons may reasonably require.
16.5 Counterparts. This Agreement may be
executed in any number of counterparts and all of such
counterparts shall for all purposes constitute one Agreement,
binding upon the parties hereto, notwithstanding that all
parties are not signatories to the same counterpart.
16.6 Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of
the Commonwealth of Kentucky.
16.7 Benefit. Except as otherwise specifically
provided herein, this Agreement shall be binding upon and
inure to the benefit of, the parties hereto, their executors,
administrators, heirs, successors and assigns.
16.8 Severability. If any provision of this
Agreement, or the application thereof to any person, entity
or circumstances, shall be invalid or unenforceable to any
extent, the remainder of this Agreement, and the application
of such provision to other persons, entities or circumstances,
shall not be affected thereby, and in all events, this
Agreement shall be enforced to the greatest extent permitted
by law.
16.9 Entire Agreement. This Agreement contains
the entire agreement between the parties hereto. No
variations, modifications, or changes hereof shall be binding
upon any Partner unless made in accordance with the
provisions of Section 16.2 hereof.
16.10 Successors and Assigns. Subject in all
respects to the limitations on transferability contained
herein, this Agreement shall be binding upon, and shall
inure to the benefit of, the heirs, administrators, personal
representatives, successors and assigns of the respective
parties hereto.
IN WITNESS WHEREOF, the General Partners
and the Limited Partners have executed this Agreement as
of the day and year first above written.
GENERAL PARTNERS:
/s/ David A. Jones
David A. Jones
Address: 500 West Main Street
Louisville, Kentucky 40202
/s/ Betty A. Jones
Betty A. Jones
Address: 500 West Main Street
Louisville, Kentucky 40202
LIMITED PARTNERS:
/s/ David A. Jones
David A. Jones
Address: 500 West Main Street
Louisville, Kentucky 40202
/s/ Betty A. Jones
Betty A. Jones
Address: 500 West Main Street
Louisville, Kentucky 40202
EXHIBIT A
ADDENDUM
TO
AGREEMENT OF LIMITED PARTNERSHIP
THIS ADDENDUM TO AGREEMENT OF
LIMITED PARTNERSHIP ("Addendum") is made as of
this _____ day of _______________, 19___, by and
between DAVID A. JONES, as Managing Partner of JG
PARTNERSHIP, LTD., a Kentucky limited partnership
(the "Partnership") and __________
______________________________ (the "Proposed
Limited Partner").
RECITALS:
A. Pursuant to that certain Agreement of
Limited Partnership dated as of November ___, 1995 (the
"Agreement"), the Partners in the Partnership have
provided for certain procedures and restrictions with
respect to the business affairs of the Partnership and have
placed certain restrictions on the transfer of interests in
the Partnership. Except as otherwise provided herein, all
capitalized terms in this Addendum shall have the
meaning given to them in the Agreement.
B. The Proposed Limited Partner has proposed
to acquire an interest in the Partnership and acknowledges
that prior to becoming a substitute Limited Partner, the
Proposed Limited Partner is required to execute this
Addendum agreeing to be bound by the terms of the
Agreement.
NOW, THEREFORE, the Managing Partner and
the Proposed Limited Partner agree as follows:
The Proposed Limited Partner hereby agrees to be
bound by all of the terms and conditions and to assume all
of the obligations of a Limited Partner as set forth in the
Agreement. The Managing Partner agrees that by
executing this Addendum, the Proposed Limited Partner
has satisfied his/her/its obligation, pursuant to Section
12.3 of the Agreement to consent, in form and substance
satisfactory to the Managing Partner, to being a Limited
Partner subject to the terms of this Agreement.
<PAGE>
WITNESS the signatures of the undersigned, as of
the day and date first above written.
DAVID A. JONES,
Managing Partner,
JG Partnership, Ltd.
/s/ David A. Jones
(Name)
(Address)
(the Proposed Limited Partner")
EXHIBIT B
JG PARTNERSHIP, LTD.
Property Contributed to Partnership Capital
Contributor Property Fair Market Value
EXHIBIT C
JG PARTNERSHIP, LTD.
Capital Contributions, Partner Percentage
Interests, Partner Cash Flow Interests
Capital Partner Partner
Contribution Percentage Cash Flow
Interests Interest
General Partner
David A. Jones _____ .51% .51%
Betty A. Jones _____ .49% .49%
Limited Partner
David A. Jones _____ 49.5% 49.5%
Betty A. Jones _____ 49.5% 49.5%
EXHIBIT 99.3
AGREEMENT
This Agreement is made and entered into by and
between David A. Jones ("the Managing Partner") and JG
Partnership, Ltd. (the "Partnership").
As of May 24, 1996, the Partnership owned of
record and approximatly 477,247 shares of Common
Stock, $0.01 par value (the "Shares"), of Premier Parks,
Inc. ("Premier"). The Managing Partner has dispositive
and voting power over the Shares.
The Managing Partner and the Partnership desire
to enter into an agreement to file jointly all reports
required to be filed by them under Section 13 of the
Securities Exchange Act of 1934 with respect to their
ownership of the Shares.
NOW, THEREFORE, in consideration of the
premises and the mutual promises of the parties hereto,
they hereby covenant and agree as folllows:
1. The Managing Partner and the Partnership
agree that a single Schedule 13D and any amendments
thereto relating to the Shares shall be filed on behalf of
each of them.
2. The Managing Partner and the Partnership
each acknowledges and agrees that he or it is individually
responsible for the timely filing of such Schedule 13D and
any amendments thereto and for the completeness and
accuracy of the information contained therein.
3. This agreement shall not be assignable by
any party hereto.
4. This agreement shall be terminated only
upon the first to occur of the following: (a) the death of
any of the individual parties hereto, (b) the dissolution of
the Partnership or of Premier, (c) a written notice of
termination given by either party hereto to the other.
EXECUTED as of the 24th day of May, 1996.
/s/ David A. Jones
David A. Jones
JG PARTNERSHIP, LTD.
By:/s/ David A. Jones
David A. Jones, Managing Partner
