<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D*
Under the Securities Exchange Act of 1934
MEDICAL TECHNOLOGY SYSTEMS, INC.
--------------------------------
(Name of Issuer)
$.01 Par Value Common Stock
------------------------------
(Title of Class of Securities)
5846 2R 505
--------------
(CUSIP Number)
Todd E. Siegel, President
12920 Automobile Boulevard, Clearwater, Florida 34622
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 20, 1993
----------------
(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 Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this statement / /.
Page 1 of 8 Pages
<PAGE> 2
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CUSIP NO. 58462R505 Page 2 of 8
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- ------------------------------- -------------------------------
<TABLE>
<S> <C>
============================================================================================================================
Names of Reporting Person
1 SS or IRS Identification Nos. of Above Person
TODD E. SIEGEL
- ----------------------------------------------------------------------------------------------------------------------------
Check the Appropriate Box if a Member of a Group
2 (a) / /
(b) / /
- ----------------------------------------------------------------------------------------------------------------------------
SEC use only
3
- ----------------------------------------------------------------------------------------------------------------------------
Source of Funds
4
OO
- ----------------------------------------------------------------------------------------------------------------------------
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) / /
5
- ----------------------------------------------------------------------------------------------------------------------------
Citizenship or Place of Organization
6
USA
- ----------------------------------------------------------------------------------------------------------------------------
Sole voting power
7 636,082 (INCLUDES CURRENTLY EXERCISABLE OPTIONS TO
ACQUIRE 60,000 SHARES)
-------------------------------------------------------------------------------------------------------
Number of shares Shared voting power
beneficially 8
owned by each -0-
reporting person -------------------------------------------------------------------------------------------------------
with Sole dispositive power
9 636,082 (INCLUDES CURRENTLY EXERCISABLE OPTIONS TO ACQUIRE
60,000 SHARES)
-------------------------------------------------------------------------------------------------------
Shared dispositive power
10
-0-
- ----------------------------------------------------------------------------------------------------------------------------
Aggregate Amount Beneficially Owned by Each Reporting Person
11
636,082 (INCLUDES CURRENTLY EXERCISABLE OPTIONS TO ACQUIRE 60,000 SHARES)
- ----------------------------------------------------------------------------------------------------------------------------
Check if the Aggregate Amount in Row (11) Excludes Certain Shares / /
12
- ----------------------------------------------------------------------------------------------------------------------------
Percent of Class Represented by Amount in Row (11)
13
10.8%
- ----------------------------------------------------------------------------------------------------------------------------
Type of Reporting Person
14
IN
============================================================================================================================
</TABLE>
Page 2 of 8 Pages
<PAGE> 3
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CUSIP NO. 58462R505 Page 3 of 8
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<TABLE>
<S> <C>
============================================================================================================================
Names of Reporting Person
1 SS or IRS Identification Nos. of Above Person
SIEGEL FAMILY QTIP TRUST
- ----------------------------------------------------------------------------------------------------------------------------
Check the Appropriate Box if a Member of a Group
2 (a) / /
(b) / /
- ----------------------------------------------------------------------------------------------------------------------------
SEC use only
3
- ----------------------------------------------------------------------------------------------------------------------------
Source of Funds
4
OO
- ----------------------------------------------------------------------------------------------------------------------------
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
5
/ /
- ----------------------------------------------------------------------------------------------------------------------------
Citizenship or Place of Organization
6
FLORIDA
- ----------------------------------------------------------------------------------------------------------------------------
Sole voting power
7
390,313
------------------------------------------------------------------------------------------------------
Number of shares Shared voting power
beneficially 8
owned by each -0-
reporting person -------------------------------------------------------------------------------------------------------
with Sole dispositive power
9
390,313
-------------------------------------------------------------------------------------------------------
Shared dispositive power
10
-0-
- ----------------------------------------------------------------------------------------------------------------------------
Aggregate Amount Beneficially Owned by Each Reporting Person
11
390,313
- ----------------------------------------------------------------------------------------------------------------------------
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
12
- ----------------------------------------------------------------------------------------------------------------------------
Percent of Class Represented by Amount in Row (11)
13
6.6%
- ----------------------------------------------------------------------------------------------------------------------------
Type of Reporting Person
14
OO
============================================================================================================================
</TABLE>
Page 3 of 8 Pages
<PAGE> 4
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CUSIP NO. 58462R505 Page 4 of 8
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<TABLE>
<S> <C>
============================================================================================================================
Names of Reporting Person
1 SS or IRS Identification Nos. of Above Person
JADE PARTNERSHIP
- ----------------------------------------------------------------------------------------------------------------------------
Check the Appropriate Box if a Member of a Group
2 (a) / /
(b) / /
- ----------------------------------------------------------------------------------------------------------------------------
SEC use only
3
- ----------------------------------------------------------------------------------------------------------------------------
Source of Funds
4
OO
- ----------------------------------------------------------------------------------------------------------------------------
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
5
- ----------------------------------------------------------------------------------------------------------------------------
Citizenship or Place of Organization
6
FLORIDA
- ----------------------------------------------------------------------------------------------------------------------------
Sole voting power
7
390,313
-------------------------------------------------------------------------------------------------------
Number of shares Shared voting power
beneficially 8
owned by each -0-
reporting person -------------------------------------------------------------------------------------------------------
with Sole dispositive power
9
390,313
- ----------------------------------------------------------------------------------------------------------------------------
Shared dispositive power
10
-0-
- ----------------------------------------------------------------------------------------------------------------------------
Aggregate Amount Beneficially Owned by Each Reporting Person
11
390,313
- ----------------------------------------------------------------------------------------------------------------------------
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
12
- ----------------------------------------------------------------------------------------------------------------------------
Percent of Class Represented by Amount in Row (11)
13
6.6%
- ----------------------------------------------------------------------------------------------------------------------------
Type of Reporting Person
14
PN
============================================================================================================================
</TABLE>
Page 4 of 8 Pages
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ITEM 1. SECURITY AND ISSUER.
Title of Securities: Common Stock $.01 par value ("Common
Stock") of Medical Technology
Systems, Inc. ("Issuer")
Name and Address of Issuer: Medical Technology Systems, Inc.
12920 Automobile Boulevard
Clearwater, Florida 34622
ITEM 2. IDENTITY AND BACKGROUND FOR TODD E. SIEGEL.
Item 2.(a) Name:
Todd E. Siegel
Item 2.(b) Business Address:
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(c) Occupation:
President and Chief Executive Officer of the Issuer
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(d) Criminal Proceedings:
None
Item 2.(e) Civil Proceedings:
None
Item 2.(f) U.S.A.
ITEM 2. IDENTITY AND BACKGROUND FOR SIEGEL FAMILY QTIP TRUST.
Item 2.(a) Name:
Siegel Family QTIP Trust
Item 2.(b) Business Address:
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(c) Principal Business:
Investor
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(d) Criminal Proceedings:
None
Item 2.(e) Civil Proceedings:
None
Item 2.(f) U.S.A.
Page 5 of 8 Pages
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ITEM 2. IDENTITY AND BACKGROUND JADE PARTNERSHIP.
Item 2.(a) Name:
JADE Partnership
Item 2.(b) Business Address:
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(c) Principal Business:
Investor
12920 Automobile Boulevard
Clearwater, Florida 34622
Item 2.(d) Criminal Proceedings:
None
Item 2.(e) Civil Proceedings:
None
Item 2.(f) U.S.A.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Todd E. Siegel entered into an employment agreement on September 1,
1994, pursuant to which he elected to receive 160,769 shares of the Issuer's
Common Stock in lieu of cash compensation for fiscal year 1996. Mr. Siegel
acquired the remaining 25,000 shares of Common Stock held in his name from the
Issuer prior to becoming a reporting person.
The 390,313 shares currently owned by the JADE Partnership (the
"Partnership") were transferred to the Partnership by Siegel Family Limited
Partnership (the "Limited Partnership") in 1994 for estate planning purposes.
In 1991, the Limited Partnership obtained the shares from the Siegel Family
QTIP Trust (the "QTIP"), of which Todd Siegel is the Trustee.
ITEM 4. PURPOSE OF TRANSACTION.
Prior to October 20, 1993, Mr. Siegel's beneficial interest in the
Common Stock of the Issuer was less than 5%. Harold Siegel, Todd E. Siegel's
father, was the Trustee of the Siegel Family Revocable Trust ("Revocable
Trust"), which was the managing general partner of the Limited Partnership.
Prior to October 20, 1993, Harold Siegel, as Trustee of the Revocable Trust,
beneficially held 390,313 shares of Common Stock and all of the Voting
Preferred Stock of the Issuer resulting in 71% voting control of the Issuer.
On October 20, 1993, Harold Siegel died and the Revocable Trust provided for
the transfer of its assets into the Siegel Family QTIP Trust ("QTIP"). Upon
his father's death, Todd Siegel became the trustee under the QTIP, thereby
acquiring beneficial ownership of the Common Stock and Voting Preferred Stock.
On November 3, 1993, the Issuer reported the change on a Form 8-K. In 1994,
the QTIP transferred its interest from the Limited Partnership to the
Partnership.
Also prior to October 20, 1993, Todd Siegel held 25,000 shares of
Common Stock, constituting less then 5% of the outstanding Common Stock. Since
that time, Mr. Siegel has acquired 160,769 shares in lieu of cash compensation,
pursuant to his employment agreement (see Item 3).
In 1994, Mr. Siegel obtained options to purchase 40,000 shares under
his employment agreement. In 1996, Mr. Siegel obtained options to purchase
20,000 shares under the Non-Qualified Stock Option Agreement incorporated by
reference as Exhibit 3.
Page 6 of 8 Pages
<PAGE> 7
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5.(a) Aggregate number of shares of Common Stock of the
Issuer: 5,903,788 shares were outstanding as of
October 25, 1996, as contained in the Schedule 14A
filed with the Commission on October 28, 1996. The
percentage of the shares of Common Stock held by Mr.
Siegel is 10.8%
Item 5.(b) Mr. Siegel has sole voting power over 636,082 shares
of Common Stock (includes options to purchase
60,000 shares).
Item 5.(c) None
Item 5.(d) None
Item 5.(e) Not Applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Mr. Siegel is the trustee of the QTIP, which is the managing partner
of the Partnership, which owns all of the 6,500,000 shares of the Issuer's
Voting Preferred Stock. Holders of the Voting Preferred Stock are entitled to
cast 2 votes per share on any matter on which the Common Stock is entitled to
vote. As managing partner of the Partnership, the QTIP has control over the
Voting Preferred Stock and as trustee of the QTIP, Mr. Siegel has control over
the QTIP. As a result, Mr. Siegel has 72.1% of the total voting control of the
Issuer.
Mr. Siegel has an employment agreement with the Issuer pursuant to
which he may elect to receive shares of Common Stock in lieu of cash
compensation. In fiscal year 1996, Mr. Siegel elected to receive 160,769
shares, at a price of $0.25 per share, in lieu of receiving cash compensation.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Amended and Restated Siegel Family Revocable Trust*
Exhibit 2. Form of Todd Siegel's Employment Agreement*
Exhibit 3. Non-Qualified Stock Option Agreement*
Exhibit 4. JADE Partnership Agreement
Exhibit 5. Joint Filing Agreement
* Incorporated herein by reference to the Issuer's Form 10-K for the
year ended March 31, 1995.
Page 7 of 8 Pages
<PAGE> 8
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: January 29, 1997
/s/ TODD E. SIEGEL
-----------------------------------------------------
Todd E. Siegel
JADE PARTNERSHIP
By: /s/ TODD E. SIEGEL
--------------------------------------------------
Todd E. Siegel, Trustee of The Siegel Family QTIP
Trust, as Managing General Partner
SIEGEL FAMILY QTIP TRUST
By: /s/ TODD E. SIEGEL
--------------------------------------------------
Todd E. Siegel, Trustee
The original statement shall be signed by each person on whose behalf
the statement is filed or his authorized representative. If the statement is
signed on behalf of a person by his authorized representative (other than an
executive officer or general partner of this filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name and any title of each person who signs the statement shall be typed or
printed beneath his signature.
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE
FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
Page 8 of 8 Pages
<PAGE> 1
EXHIBIT 4
PARTNERSHIP AGREEMENT
OF
JADE PARTNERS
(A FLORIDA GENERAL PARTNERSHIP)
THIS PARTNERSHIP AGREEMENT is made and entered into effective the 21
day of February, 1994, by and all of the parties listed on Exhibit "A" attached
hereto admitted to the Partnership treated hereby as General Partners (the
"Partners"). All capitalized terms used herein shall have the meaning assigned
thereto in Section 1.8 hereof, unless otherwise defined elsewhere herein.
ARTICLE I
GENERAL
1.1. Formation of Partnership. The parties hereby form a partnership
pursuant to the provisions of the Uniform Partnership Act of the State of
Florida, and in accordance with the further terms and provisions hereof. Each
Partner shall immediately execute all such certificates and other documents
conforming hereto as necessary for the Partners to accomplish all filing,
recording, publishing and other acts appropriate to comply with all requirements
for the formation and operation of a general partnership under the laws of the
State of Florida and for the formation, qualification and operation of a general
partnership in all other jurisdictions where the Partnership shall propose to
conduct business.
1.2. Name. The name of the Partnership shall be JADE PARTNERS.
1.3. Limited Purpose of the Partnership. The limited purpose of the
Partnership is to acquire, own, hold, manage and maintain any assets owned or
leased by the Partnership, to pay any expenses and liabilities related thereto
and to take such other necessary action as shall be reasonable in carrying out
the affairs of the Partnership.
1.4. Authority of the Partnership. In order to carry out its purpose,
the Partnership is empowered to do any and all acts and things necessary,
desirable, convenient, incidental, appropriate, proper and advisable for the
furtherance and accomplishment of its purpose, and for the protection and
benefit of the Partnership.
1.5. Principal Place of Business, The location of the principal place
of business of the Partnership is 12920 Automobile Boulevard, Clearwater,
Florida 34622 or such other place or places as the Partners determine. The
place, of residence or
<PAGE> 2
principal place of business of each Partner shall be as set forth on Exhibit
"A" attached hereto.
1.6. Term. The Partnership shall be effective from and after the date
that first appears on this document. The Partnership shall terminate on the
earlier to occur of:
(a) December 31, 2044, or
(b) such date as is required by Section 7.1 hereof.
1.7. Definitions. For the purposes of this Agreement, the following
terms shall have the meanings indicated:
"ACT" means the Uniform General Partnership Act of the State
of Florida as from time to time amended.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account, after giving
effect to the following adjustments: (i) increased by any amounts which such
Partner is obligated to restore pursuant to this Agreement or is deemed to
be obligated to restore pursuant to the penultimate sentences of Regulation
Sections 1.704-2(g)(1) and 1.704-2(i)(5); and (ii) decreased by the items
described in Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)
(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition is
intended to comply with the requirements of the alternate test for economic
effect contained in Regulation Section 1.704-1 (b)(2)(ii)(d) and shall be
interpreted consistently therewith.
"AFFILIATE" means any person directly or indirectly controlling,
controlled by or under common control with one or more of the Partners as
determined under Code Section 318.
"AGREEMENT or PARTNERSHIP AGREEMENT" means this Partnership Agreement
together with all amendments hereto.
"CAPITAL ACCOUNTS" of the Partners shall be determined and maintained in
accordance with the rules of Treasury Regulation Section 1.704-1 (b)(2)(iv)
and, to the extent consistent therewith, each Partner's Capital Account
shall be increased by:
(a) the amount of money contributed by such Partner to the
Partnership;
2
<PAGE> 3
(b) the fair market value of any property contributed by such
Partner to the Partnership (net of any liabilities securing such
contributed property that the Partnership is considered to assume or
take subject to under Code Section 752);
(c) allocations to such Partner of income or gain (including tax
exempt income) pursuant to Article VI but excluding any income or gain
described in Treasury Regulation Section 1.704-1(b)(4)(i):
(d) the amount of Partnership liabilities assumed by such Partner or
secured by any Partnership property distributed to such Partner other
than the liabilities referred to in paragraph (f) below,
and each Partners Capital Account shall be decreased by:
(e) the amount of any money distributed to such Partner by the
Partnership;
(F) the fair market value of any property distributed to such
Partner by the Partnership (net of any liabilities securing such
distributed property that such Partner is considered to assume or take
subject to pursuant to Code Section 752);
(g) the amount of losses, costs and expenses allocated to such
Partner under Article VI:
(h) allocations to such Partner of expenditures of the Partnership
described in Code Section 705(a)(2)(B); and
(i) the amount of any liabilities of such Partner assumed by the
Partnership or secured by any property such Partner contributes to the
Partnership other than the liabilities referred to in paragraph (b)
above;
subject, however, to such other adjustments as may be required under the
Code and Treasury Regulations thereunder, including, but not limited to
increases and decreases to reflect a revaluation of the Partnership Property on
the Partnership's books in accordance with the rules of Treasury Regulations
Section 1.704-1(b)(2)(iv)(f). Generally, a transferee of a Partnership interest
shall succeed to the Capital Account relating to the Partnership Unit
transferred. The Capital Account is to be determined and maintained at all times
in strict accordance with all the provisions of Treasury Regulations Section
1.704-1(b)(2)(iv). The Capital Account of a Partner may, under certain
circumstances, be an amount less than zero.
"CAPITAL TRANSACTIONS" means the sale, exchange or refinancing of all or
a portion of the Partnership's Property.
3
<PAGE> 4
"CAPITAL VALUE" means the fair market value of the Property (net of any
liabilities securing such Property that the Partnership is considered to
assume or take subject to under Code Section 752) such Partner is
contributing to the Partnership. The Partners agree that the value of the
Property contributed to the Partnership by each Partner shall be as set
forth on Exhibit "A" attached hereto.
"CODE" means the Internal Revenue Code of 1986, as from time to time
amended and any federal legislation that may be substituted therefor.
"FEDERAL INCOME TAX ITEMS" means Profits, Losses, Gain From Capital
Transactions and Loss From Capital Transactions.
"GAIN FROM CAPITAL TRANSACTIONS" means income or gain of the Partnership
as determined for federal income tax purposes as a result of the sale,
exchange, or refinancing of all or a portion of the Partnership's property.
"HOLDER OF RECORD" means the person in whose name a Unit is then
registered on the books and records of the Partnership pursuant to Section
2.3 hereof. A Holder of Record does not include any Person who receives the
rights to distributions from and allocations of Federal Income Tax Items of
the Partnership by levy, foreclosure, charging order, execution or other
similar proceeding.
"INCAPACITY" means when (i) an individual is declared or adjudicated as
such by a court of competent jurisdiction, (ii) a guardian, conservator, or
other personal representative of an individual's person or estate has been
appointed by a court of competent jurisdiction, or (iii) an individual is
certified as such in writing by at least two licensed physicians.
"LOSSES" means each item of loss, deduction and credit of the
Partnership as determined for federal income tax purposes, but excluding
Loss From Capital Transactions.
"LOSS FROM CAPITAL TRANSACTIONS" means any loss of the Partnership as
determined for federal income tax purposes as a result of the sale, exchange
or refinancing of all or a portion of the Partnership's property.
"MANAGING PARTNER" means the SIEGEL FAMILY QTIP TRUST by and through its
trustee, or the successor Managing Partner elected by the Partners in the
manner provided herein.
"NET CASH FLOW means monies available from the operation of the
Partnership for any twelve (12) month period ending December 31st without
deduction for depreciation, amortization or any other non-cash expenses, but
4
<PAGE> 5
after deducting monies used to pay or establish reserves for all other
expenses, debt payments, improvements and repairs related to the operation
and administration of the Partnership.
"NET PROCEEDS" means the amount realized by the Partnership on the
disposition of, or any other capital transaction involving, a Partnership
property, less all fees, costs or expenses paid or to be paid with respect
thereto and the amount of indebtedness (if any) of the Partnership paid or
to be paid from such monies.
"PARTNERS" means those persons herein identified as partners herein and
listed in Exhibit "A" and those other persons admitted from time to time as
partners pursuant hereto or the Act.
"PARTNERSHIP" means this partnership formed under the Uniform General
Partnership Act of the State of Florida in accordance with the terms and
provisions of this Agreement.
"PARTNERSHIP CAPITAL" means the total capital contribution to the
Partnership actually made or paid by the Partners with respect to the
acquisition of Units in the Partnership.
"PARTNERSHIP UNIT" or "UNITS" means each Partners ownership interest in
the Partnership as set forth in Exhibit "A" attached hereto, as adjusted
after the Partnership receives the Capital Values of the assets contributed
by each Partner to the Partnership.
"PARTY" means a signatory to this Agreement.
"PERSON" or "PERSONS" means an individual, corporation, partnership,
joint venture, trust or any other entity.
"PROFITS" means each item of income and gain of the Partnership. as
determined for federal income tax purposes, but excluding Gain From Capital
Transactions.
"PROPERTIES" means the real, personal and intangible assets contributed
or to be contributed to the Partnership by the Partners and all other
interests, rights and assets of any type owned by the Partnership. The
initial Properties shall be as set forth on Exhibit "A" attached hereto. The
term "PROPERTY" includes a single asset which is included in the Properties.
"SUBSTITUTE PARTNER" means any person not previously a Partner who
purchases or otherwise acquires from a Partner a Unit and is admitted to the
5
<PAGE> 6
Partnership as a Substitute Partner in accordance with the terms of this
Agreement.
"VOTE" refers to the right of the Partners subject to all limitations
set forth below and elsewhere in this Agreement, to decide any matter that
may be submitted for decision by the Partners in accordance with the express
written terms of this Agreement or under the provisions of the Act. Each
Partner shall be entitled to cast one (1) vote for each Unit held of record
by him on the date when notice is given of the matter to be voted on or
consented to by the Partners. A "Simple Majority Vote" of the Partners means
a vote for over fifty percent (50%), a "Required Vote" means a vote of at
least sixty-five percent (65%) and a "Unanimous Vote" means a vote of one
hundred percent (100%) of the Partners. Except as otherwise expressly
provided in this Agreement, a Simple Majority Vote shall be sufficient to
pass and approve any matter submitted to a Vote of the Partners. Whenever a
Vote of the Partners is required or permitted, a written consent to the
action to be taken signed by the Partners holding the required percentage
may be used in lieu of holding a formal meeting at which a Vote is taken.
ARTICLE 11
PARTNERS, CAPITALIZATION AND ASSESSMENTS
2.1. Partners' Authority. Except as otherwise provided in this
Agreement, the General Partners of the Partnership shall have the sole,
exclusive and absolute right and authority to act for and on behalf of the
Partnership and all of the Partners in connection with all aspects of the
business of the Partnership.
2.2. Partners' Partnership Interests. The Partners in the Partnership
shall initially own one hundred (100) Units as reflected on Exhibit "A".
2.2.1. Time of Admission. A Person shall be deemed to have been admitted
as a Partner:
(a) On the date this Agreement is fully executed by the Partners; or
(b) If applicable, with respect to any additional Partners or Substitute
Partners on the first day of the calendar month following the month in which
such person complies with Article IV hereof
2.2.2. Contribution to Capital by Partners. Each Partner shall
contribute those Properties (or portions thereof) set forth opposite each of
their respective names on Exhibit "A" attached hereto. Each Partner shall
receive such portion of the initial one hundred (100) outstanding Units of
the Partnership as is equal to the amount that the Capital Value of the
portion of the Property contributed by
6
<PAGE> 7
such Partner bears to the sum of the Capital Value of all of the
Properties contributed to the Partnership by all Partners. With the prior
written consent of the Partners, a Partner may, if he elects to do so, make
additional capital contributions from time to time. No Partner is required
to make any additional capital contributions to the Partnership.
Notwithstanding anything in this Agreement to the contrary, if at any time
it is determined by a court of competent jurisdiction that at the time of
its contribution to the Partnership the value of a Property did not exceed
the total of all indebtedness secured by valid lien(s) upon such Property,
then such Property is deemed not to have been contributed to the Partnership
and title to said Property shall revert to the Partner who contributed same,
effective as of the date of such Property's contribution to the Partnership.
2.2.3. Execution by Partners, By executing the Agreement, each Partner
subscribes and agrees to contribute to the capital of the Partnership, those
amounts of Properties (or portions thereof) as set forth opposite each of
their respective names on Exhibit "A" attached hereto.
2.3. Registration Rights of Holders of Record. Upon the admission of a
person as a Partner, such person shall be registered on the records of the
Partnership as a Partner and a Holder of Record, together with his address and
number of Partnership Units such Partner owns. Upon the assignment of a
Partnership Unit pursuant to the terms of Article IV hereof, the assignee of
such Partnership Unit shall be registered on the records of the Partnership as a
Holder of Record, together with his address and the number of Units he owns.
A Holder of Record shall be entitled to all distributions and all
allocations of Net Cash Flow, Net Proceeds, and Federal Income Tax Items with
respect to the Partnership Units registered in his name in the manner specified
in Article VI until his rights in such Partnership Units have been transferred
as permitted by this Agreement and the Partners have been notified as required
herein. The payment to the Holder of Record of any allocation or distribution
with respect to such Partnership Units shall be sufficient to discharge the
Partnership's obligation in respect thereto.
2.4. Initial Capitalization. The Partnership shall have as its initial
capitalization an amount equal to the Partners' initial capital contribution.
The amount of the capital contributions of each Partner and the aggregate amount
of such initial contributions by the Partners shall be set forth in Exhibit "A"
of this Agreement.
2.5. Return of Capital. No Partner has the right to require the return
of all or any part of his capital contribution(s) or a distribution of any
property from the Partnership prior to its termination and dissolution.
The Partners shall not be personally liable for the return of the capital
contributions of the Partners if and to the extent that any return is required.
Any such return shall be made solely from the assets of the Partnership. If any
Partner shall
7
<PAGE> 8
receive the return, in whole or in part, of his capital contribution, he shall
nevertheless be liable to the Partnership, to the extent provided in the Act,
for the sum returned, together with interest thereon, to the extent necessary to
discharge the Partnership's liabilities to creditors who extended credit to the
Partnership or whose claims against the Partnership arose prior to such return
or as otherwise provided under applicable law.
2.6. Interest on Capital. No interest shall be payable on any capital
contributions made to the Partnership or on any Capital Account.
2.7. Capital Account. An individual Capital Account shall be maintained
for each of the Partners as provided for in Section 1.8 herein.
2.8. Status of Partnership Units. Except as otherwise provided in this
Agreement, the Partnership Units owned by a Partner shall be fully paid and
nonassessable. A Partner shall not have the right to withdraw or reduce his
capital contributions to the Partnership except as a result of (i) the
dissolution and termination of the Partnership, or (ii) as otherwise provided in
this Agreement and in accordance with applicable law.
2.9. Voluntary Withdrawal of a General Partner. A Partner may
voluntarily withdraw from the Partnership upon thirty (30) days written notice
to the Partners. Such notice requirement may be shortened or waived by the
Partners, in their sole discretion. Upon the withdrawal of a General Partner,
the withdrawing General Partner shall not be deemed to be liable with respect to
any debts or liabilities that the Partnership incurs subsequent to the date of
withdrawal, provided that such withdrawal shall not diminish or in any way
affect any debts or liabilities (including contingent liabilities) that the
Partnership incurred prior to such date.
ARTICLE III
MANAGEMENT AND OPERATION
3.1. Managing Partner. At all times during the term of the Partnership,
the Managing Partner shall be the sole manager of the Partnership and shall have
the sole, absolute, and exclusive power, authority and discretion in the conduct
of the business and affairs of the Partnership without the concurrence,
agreement or confirmation of any Limited Partner, except as expressly provided
in Section 3.4 of this Agreement.
3.2. Successor Managing Partner. In the event of: (i) the death or
incapacity of the Managing Partner; or (ii) the removal or withdrawal of the
Managing Partner, the other Partners shall elect, by a Simple Majority Vote, a
successor Managing Partner,
3.3. Managing Partner to Manage. The Managing Partner shall make all
decisions affecting the business and affairs of the Partnership and shall use
its best efforts to carry out the purposes for which the Partnership was
organized. In addition to
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any other rights and powers which it may possess under applicable law or
pursuant to this Agreement, the Managing Partner shall have all specific rights,
powers, and authorities required or appropriate to the management of the
Partnership which shall include, without limitation, the following rights,
powers, and authorities to be exercised in such manner, in such form, at such
times, and to such extent as the Managing Partner, in its sole discretion,
determines:
(a) to acquire, hold, lease, encumber, pledge, option, sell, exchange,
transfer, dispose of or otherwise deal with real or personal property (or
rights or interests therein) of any nature whatsoever as may be necessary or
advisable for the operation of the Partnership;
(b) to borrow or lend money for Partnership purposes and, if security is
required for the borrowing thereof, to execute and deliver all instruments,
deeds of trust, mortgages, security agreements, assignments, and other
security documents relating to all or a portion of the assets of the
Partnership as may be necessary or advisable for the operation of the
Partnership. For purposes hereof, the borrowing or lending of money for
Partnership purposes shall include: (i) lending money to Partners,
Affillates or other persons or entities, whether related or unrelated, or
borrowing from any of the foregoing, upon such terms and conditions as the
Partners shall determine in their sole and absolute discretion; and (ii) the
guaranteeing of, or pledging the Partnership Property for any of the
foregoing loans, or for loans to or from Partners, to or from Affiliates, or
to or from other persons or entities, all as determined in the sole and
absolute discretion of the Partners;
(c) to negotiate and enter into contracts. agreements, or arrangements
concerning the purposes for which the Partnership is organized and/or
concerning assets of the Partnership as may be necessary or advisable for
the operation of the Partnership, including, but not limited to purchase,
joint venture, development, management and option agreements, deeds,
assignments and leases;
(d) to employ persons, agents, outside consultants, and independent
contractors as may be necessary or advisable for the operation of the
Partnership;
(e) to pay all expenses reasonably incurred in the operation or
administration of the Partnership and to establish reserves for liabilities
and obligations of the Partnership whether contingent or otherwise,
including but not limited to expenses, charges and fees relating to:
(1) the acquisition, preservation, protection or perfection of
title to the Partnership's Property, including insurance thereon;
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(2) the maintenance, operation or management of any Partnership
Property;
(3) travel expenses, professional fees, attorneys fees and court
costs;
(4) taxes on real or personal property owned by the Partnership:
(5) interest on any loan to the Partnership;
(6) normal closing costs (in the event of a sale or transfer of
all or any part of the Partnership's Property); and
(7) expenses incurred in connection with the negotiation for, or
consummation of financing or renewing, rearranging or refinancing any
indebtedness on the Partnership's Property.
(f) to pay on behalf of the Partnership (and be reimbursed for) any and
all organizational expenses incurred in the creation of the Partnership
including, without limitation, legal and accounting fees;
(g) to take and hold title to property, execute evidences of
indebtedness or other obligations or instruments in its name or the name of
a nominee all on behalf of the Partnership and with or without disclosing
the true owner or party in interest thereto. The Partnership shall be solely
entitled to all rights, titles and interests held by a Partner or nominee on
behalf of the Partnership and solely liable for all expenses, costs and
other obligations incurred in connection therewith. All such instruments so
executed may be transferred into the name of the Partnership by assignment
or otherwise or held in the name of a Partner or nominee as a Partner
determines; provided, always, that the Partners shall keep as part of the
books and records of the Partnership and properly account on its books for
each such contract, deed, note or other instrument indicating the nominee
parties thereto, date thereof and general description of such document;
(h) to execute and deliver any and all instruments to effectuate the
foregoing and to take all such actions as may be necessary or advisable for
the operation of the Partnership;
(i) to determine the use of the revenues of the Partnership for
Partnership purposes;
(j) to control any matters affecting the rights and obligations of the
Partnership, including the employment of attorneys to advise and represent
the
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Partnership, the conduct of any litigation and the settlement thereof,
and an other incurring of legal expenses;
(k) to execute powers of attorney consents, waivers and other documents
that may be necessary before any court, administrative board or agency of
any governmental authority, affecting the properties owned by the
Partnership.
3.4 Acts Not Authorized. The Managing Partner is expressly prohibited
from doing any act or entering into any contract or other transaction that
would:
(a) Make it impossible to carry on the ordinary business of the
Partnership, provided, however, the sale or other disposition of all or any
portion of the Partnership Property shall not be deemed to be an act making
it impossible for the Partnership to carry on its ordinary business;
(b) Confess a judgment against the Partnership, except by a Simple
Majority Vote of the Partners;
(c) Result in a possession of Partnership Property or assignment of the
Partnership's rights in specific partnership property, other than for a
Partnership purpose; or
(d) Admit or substitute a Person as a partner of the Partnership, except
with a Simple Majority Vote of the Limited Partners.
ARTICLE IV
TRANSFER AND ASSIGNMENT OF PARTNERSHIP INTERESTS
4.1. Assignment. A Partner shall have the right to assign, transfer,
encumber or pledge (herein, for purposes of this Article IV, "assign") the whole
or any number of his Partnership Units by a written assignment, provided that:
(i) the terms of such assignment are not in contravention of any of the
provisions of this Agreement; (ii) such assignment is fully executed by the
assignor and assignee; (iii) such assignment is received by the Partnership and
recorded on the books thereof, and (iv) the transfer is approved by a Simple
Majority Vote of the Partners. In the event of such an assignment, the following
rules shall govern:
(a) Restrictions on Interests During Lifetime. A Partner shall not
during his or her lifetime transfer, encumber of alienate any of his or her
Units in the Partnership except as provided by this Agreement.
(i) Immediate Family. A Partner's Units in the Partnership may be freely
transferred during life or at death to a spouse, children and/or
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grandchildren of the Partner, or to any trust for the benefit of such
persons if the Partners, by a Simple Majority Vote, consent to such
transfer. In the event of such transfer, the transferee becomes a Partner of
the Partnership and shall be bound by this Agreement.
(ii) Sale or Transfer to Persons Other than Immediate Family,
(A) If any Partner should during his or her lifetime desire to
transfer, encumber or alienate any of his or her Units in the
Partnership, he or she shall first offer, in writing, to sell all of his
or her Units in the Partnership to the remaining Partners of the
Partnership at the price specified in Section 4.1(c). Each remaining
Partners of the Partnership shall then have thirty (30) days within
which to purchase the Units offered on the basis of a fraction, the
numerator of which is the number of Units owned by the purchasing
Partner and the denominator is the total number of Units owned by all of
the purchasing Partners. If the offered Units are not purchased by the
remaining Partners of the Partnership by the end of that thirty (30) day
period, such Units not purchased shall be offered at the same price to
the Partnership. The Partnership shall then have thirty (30) days within
which to purchase such portion of the remaining Units offered. Any Units
not purchased by the remaining Partners or the Partnership may then be
transferred, encumbered or alienated within thirty (30) days following
the expiration of the time hereinabove provided for purchase by the
Partnership, but only upon the same terms and conditions as offered to
the remaining Partners and the Partnership.
(B) If any Partner has received a bona fide offer for all or any
part of his or her Units in the Partnership which the Partner desires to
accept, he or she shall first offer in writing to sell all of his or her
Units to the remaining Partners of the Partnership at the price
specified in such bona fide offer or at the price specified in Section
4.1 (c), whichever is the lesser. Attached to such written offer to the
remaining Partners of the Partnership shall be a written notice that the
Partner has received a bona fide offer for the purchase of all or some
part of his or her Units in the Partnership, stating the name and
address of the prospective purchaser, the Units to be sold, the sales
price, and the terms and conditions of such sale. A copy of the written
offer to such Partner, if any, shall also be attached to such written
offer to the remaining Partners of the Partnership. The remaining
Partners of the Partnership and the Partnership shall then have the
right to purchase all or any part of such Units in accordance with the
procedure set forth in Section 4.1 (a)(ii) above.
(C) Any Units in the Partnership which are transferred,
encumbered or alienated pursuant to the terms of Section 4.1(a)(ii)
shall continue to be subject to all terms and conditions of this
Agreement.
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(b) Death. Upon the death of any Partner, all or any Units in
the Partnership owned by the decedent at the time of his or her death
may be transferred to a spouse, children, and/or grandchildren of the
decedent, or to any trust for the benefit of such persons if the
Partners, by a Simple Majority Vote, agree to such transfer within one
hundred eighty (180) days of the Partner's date of death. If such
transfer is approved, the transferee becomes a Partner of the
Partnership and shall be bound by this Agreement. If any Units in the
Partnership owned by the decedent at the time of his or her death are
not transferred to a spouse, children, and/or grandchildren of the
decedent, or to any trust for the benefit of such persons, the remaining
Partners of the Partnership and the Partnership shall have an
irrevocable option to purchase any and all of such Units in accordance
with the procedure set forth in Section 4.1(a)(ii) of this Agreement.
(c) Purchase Price. The purchase price for each Unit in the
Partnership shall be equal to the value of each such Unit, as mutually
agreed upon by the remaining Partners of the Partnership and the
Partnership, whichever or whoever is purchasing the Units in the
Partnership. If the selling Partner, the remaining Partners, or the
Partnership, as the case may be, cannot agree on the value of each Unit
to be sold, then the fair market value of such Unit shall be determined
by a qualified appraiser mutually agreeable to the selling Partner, the
remaining Partners, and the Partnership, whichever or whoever is
purchasing such Units in the Partnership. The appraiser's opinion as to
fair market value shall be binding upon all parties. The date of
valuation of the fair market value by the appraiser shall be the date
the selling Partner offers in writing to sell all or any portion of his
or her Units in the Partnership to the remaining Partners of the
Partnership. The appraiser shall render his opinion as to the fair
market value of the Units to be sold within thirty (30) days of being
appointed. The cost of the appraiser shall be shared by the selling
Partner paying one-half (1/2) of such costs and the remaining Partners
of the Partnership and the Partnership paying one-half (1/2) of such
costs, each to the extent they are purchasing such Units.
(d) Payment of the Purchase Price. The purchase price of the
Units in the Partnership shall be payable in full in cash within fifteen
(15) days after the expiration of the thirty (30) day period mentioned
above for acceptance of an offer to sell by either the remaining
Partners and the Partnership; provided, however, in the event of the
death of a Partner, the purchase price shall be payable in full in cash
within one hundred eighty (180) days after the date of a Partner's
death.
(e) Transfer of Units. Upon receipt of the cash by the selling
Partner, legal representative of the estate, named legatees or heirs of
the deceased Partner, as the case may be, the Partner, or such legal
representative, named legatees or heirs of the Partner shall deliver the
certificates for the Units in the Partnership purchased, duly endorsed
in blank or with an executed Units assignment in proper form attached,
to the purchasing Partners or the Partnership, as the case may be,
together with any and all other documents necessary to carry out the
terms of this Agreement. The legal
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representative of the estate, named legatees or heirs of the deceased Partners
shall pay all state and federal taxes imposed upon the transfer of such Units.
(f)Remedies for Enforcement of Agreement. Each Partner to this Agreement
shall have the right to an injunction to prevent any breach of the terms of
Section 6.1 and the right to specific performance to enforce compliance with any
agreement or covenant contained therein. The prevailing Partner shall be
entitled to reimbursement from the nonprevailing party for costs and expenses
(including, without implied limitation, reasonable attorneys' fees) incurred in
connection with the enforcement of this Section 4.1. Such remedies shall be
cumulative and in addition to any rights or remedies which may otherwise be
available to any party by law.
(g) General. All Units in the Partnership owned by the Partners, whether
acquired before or after the execution of this Agreement, shall be subject to
all of the terms and conditions of this Agreement. This Agreement shall inure to
the benefit of and be binding upon the Partners and the Partnership, their
respective heirs, successors, assigns and legal representatives.
(h) Effective Date, The effective date of an assignment of a Unit shall
be the date set forth in Section 2.2.1.
(i) Treatment Of Assignor. Notwithstanding anything herein to the
contrary, the Partnership and the Partners shall be entitled to treat the
assignor of such Units as the absolute owner thereof in all respects and shall
incur no liability for distributions of cash or other property made in good
faith to him until such time as the written assignment has been received by and
recorded on the books of the Partnership and is otherwise effective in
accordance herewith.
(j) Assignee Distributions. Except as provided in Section 4.1(i) above,
the assignee of a Unit shall be entitled to receive distributions of cash or
other property from the Partnership attributable to the Unit acquired by reason
of such assignment from and after the effective date of the assignment of such
Unit to him.
(k) Allocation of Profits and Losses. The division and allocation of
Profits and Losses attributable to the Units between assignor and assignee
during any fiscal year of the Partnership shall be in accordance with the
provisions of Section 6.6.6.
4.2. Substitution. No assignee of the whole or any portion of a Unit
shall have the right to become a Substituted Partner in place of his assignor
unless all of the following conditions are satisfied:
(a) the assignor executes and acknowledges a written instrument
of assignment together with such other instruments as the Partners may
deem necessary or desirable to effect the admission of the assignee as a
Substituted Partner;
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(b) such instrument of assignment has been delivered to,
received and approved in writing by the Partners; and
(c) the unanimous written consent of all Partners to such
substitution has been obtained, the granting or denial of which shall be
within the sole and absolute discretion of each Partner and must be
given by each Partner free of duress and of each Partner's free will.
4.3. Involuntary Assignment by a Partner. In the event a Partner's Units
are taken or are affected by levy, foreclosure, charging order, execution, or
other similar proceeding, the Partnership shall not dissolve. The assignee of
that Partner's Units shall receive only that Partner's rights to distributions
and allocations of Federal Income Tax Items of the Partnership and shall, in no
event, have the right to interfere in the management or the administration of
the Partnership business or affairs or to act as a General Partner. The assignee
shall only have the right to receive distributions and allocations of Federal
Income Tax Items attributable to the Partner's Units in the Partnership.
Any entity to which Units under this Agreement are transferred pursuant
to the provisions of the United States Bankruptcy Code, 11 U.S.C. Section 101 et
seq. , shall be deemed without further act to have assumed all of the
obligations arising under this Agreement on or after the date of such
assignment. Upon demand, any such assignees shall execute and deliver to each
other party to this Agreement an instrument confirming such assumption. Failure
to deliver such instrument shall be deemed a default hereunder by the assignee.
4.4. Death, Incapacity or Dissolution Partner. Upon the death,
adjudication of bankruptcy or Incapacity of a Partner who is an individual, his
legally authorized personal representative shall have all the rights of a
Partner for the sole purposes of settling or managing his estate and shall have
only such power as the Partner possessed to make an assignment of his Units in
accordance with the terms hereof and to join with any assignee in making
application to substitute such assignee as a Substitute Partner.
Upon the adjudication of bankruptcy, dissolution or other cessation to
exist as a legal entity of any Partner which is not an individual, the
authorized representative of such entity, possessed of the rights of such
Partner for the sole purposes of winding up in an orderly fashion and disposing
of the business of such entity, shall have only such power as such entity
possessed to make an assignment of its Units in accordance with the terms hereof
and to join with such assignee in making application to substitute such assignee
as a Substitute Partner.
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ARTICLE V
ACCOUNTING, RECORDS AND REPORTS
5.1. Books, Records and Reports. The Managing Partner shall maintain at
the principal office of the Partnership or at such other place as the Managing
Partner determine:
(a) the books and records of the Partnership, 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 as set forth in Article VIII hereof;
(b) an executed counterpart of this Agreement and all amendments
thereto; and
(c) a list of the names, residence addresses and Partnership
Units held by each Partner and assignee.
Such information shall be open to reasonable inspection and
examination by any of the Partners, their agents, accountants, attorneys
and other duly authorized representatives during regular business hours
upon not less than forty-eight (48) hours prior written request.
5.2. Accounting Method. The books and records of the Partnership shall
be kept in accordance with the terms of this Agreement and in a manner
sufficient to meet the reporting requirements of the Internal Revenue Service.
The accounting year of the Partnership shall be the calendar year.
5.3. Financial Statements and Tax Returns. At the expense of the
Partnership, the Partners may engage an accountant or other qualified
professional to prepare the Partnership's annual income tax return, the return
required by Code Section 6050K relating to sales and exchanges of Units, and
such financial statements, if any, as the Partners in their sole discretion
determine appropriate.
The Partners, in their sole and absolute discretion, may determine the
form and amount of detail to be contained in the financial statements and
whether or not such financial statements shall be audited or unaudited. Within a
reasonable time after the close of each accounting year, the Partners shall
transmit to each person who was a partner (or assignee) during such accounting
year, a copy of the Partnership Tax Return (IRS Form 1065) and a report (which
may be in the form Schedule K-1 to IRS Form 1065) indicating such persons'
respective share of Federal Income Tax Items, tax preference items and
investment credits, if any, for such year. Any financial statements
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which the Partners cause to be prepared shall be available for inspection at the
principal offices of the Partnership.
5.4. Tax Elections. In the event of a transfer any Units of a Partner,
the Partnership may elect, pursuant to Sections 743 and 754 of the Code, to
adjust the basis of the Partnership property if, in the opinion of the Partners,
based upon the advice of the tax counsel for the Partnership, such election
would be most advantageous to the Partners. Except insofar, as an election
pursuant to Section 754 has been made with respect to the Units of any Partner,
the determination of Profits, Losses and cash distributions shall be made as
provided for in this Agreement. With respect to any Partner whose Units has been
affected by an election pursuant to Section 754, appropriate adjustments may be
made with respect to the determination of Profits, Losses and cash
distributions. Each Partner agrees to furnish the Partnership with all
information necessary to give effect to such election. Each Partner benefiting
from the election will pay or reimburse the Partnership for all additional
accounting expenses occasioned by such election. The Partnership may elect to
make any other election permitted under any provision of the Code if in the
opinion of the Partners, based upon the advice of the tax counsel for the
Partnership, such election would be advantageous to the Partners as a group or
to any Partner without being disadvantageous to any Partner.
5.5. Banks. All funds of the Partnership shall be deposited in a
separate bank account or accounts in the name of the Partnership or such other
name as may be determined from time to time by the Partners. Withdrawals from
such account or accounts shall be made upon checks or other withdrawal orders
executed by a duly authorized representative of the General Partners.
ARTICLE VI
DISTRIBUTIONS AND ALLOCATIONS TO PARTNERS
6.1, Distributions of Net Cash Flow and Net Proceeds. Net Cash Flow and
Net Proceeds shall be distributed as follows:
(a) First, such amounts as the Partners, in their sole
discretion, shall determine, taking into account the reasonable business
needs of the Partnership (including plan for expansion of the
Partnership's business), shall be retained by the Partnership.
(b) The balance of such items shall be distributed to the
Partners in proportion to their percentage ownership interests.
A Partner's determination regarding whether or not to make distributions
and the amount of distributions to be made shall be final and binding on
all Partners.
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Such distributions shall be made no less than once a year to each
Partner in accordance with such Partner's number of Units in the
Partnership.
6.2. Distributions in Kind. Assets of the Partnership may be distributed
in kind.
6.3. Liquidating Distributions. Notwithstanding Section 6.2, liquidating
distributions may be made and shall be governed by Article VII.
6.4 Limitations On Cash In Return of Capital. No Partner shall be
entitled to demand and receive property other than cash in return for his
capital contribution to the Partnership, and no Partner shall have the right to
sue for a partition of Partnership property.
6.5. No Priority in Distributions Among Partners. Except as otherwise
provide in this Agreement, no Partner shall have any priority over any other
Partner as to any Partnership distributions or to the return of his
contributions to the Partnership capital.
6.6. Allocation of Federal Income Tax Items. Except to the extent
provided in Subsections 6.6.3 through 6.6.7, the Federal Income Tax Items of the
Partnership shall be allocated in the following order and priority:
6.6. 1. Profits and Gain from Capital Transactions:
(a) First, an amount of Profits and Gain from Capital
Transactions equal to the aggregate sum of all the Adjusted Deficit
Capital Account balances shall be allocated among those Partners with
Adjusted Capital Account Deficit balances, in proportion that each such
Partner's Adjusted Capital Account balance bears to the aggregate sum of
all the Adjusted Capital Account Deficit; balances and
(b) Second, any Profits and Gain from Capital Transactions in
excess of the amount allocated in 6.6.1(a) shall be allocated among all
Partners in accordance with each Partner's respective percentage
ownership interest in the Partnership.
6.6.2. Losses and Loss from Capital Transactions:
(a) First, except as provided in 6.6.2(b) with respect to
allocations which would cause a Partner to have an Adjusted Capital
Account Deficit, all Losses and Loss from Capital Transactions shall
first be allocated in an amount equal to the aggregate sum of the
Capital Account balances with a positive balance shall be allocated
among those Partners with a positive Capital Account balance, in
proportion that each such Partner's positive Capital Account balance
bears to the aggregate sum of all the Capital Account balances with a
positive balance; and
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(b) Second, except as provided in 6.6.2(c) with respect to
allocations which would cause a Partner to have an Adjusted Capital
Account Deficit, all Losses and Loss from Capital Transactions shall be
allocated to and among the Partners in proportion to their respective
percentage ownership interests in the Partnership;
(c) Third, Losses and Loss allocated to pursuant to Section
6.6.2(a) hereof shall not exceed the maximum amount of Losses from
Capital Transactions which can be allocated without causing any Partner
to have a Adjusted Capital Account Deficit at the end of any fiscal
year. In the event some, but not all of the Partners would have Adjusted
Capital Account Deficits as a consequence of an allocation of Losses and
Loss from Capital Transactions pursuant to Section 6.6.2(a) hereof, the
limitations set forth in this Section 6.6.2(c) shall be applied on a
Partner basis so as to allocate the maximum permissible Losses to each
Partner under Section 1.704-1(b)(2)(ii)(d) of the Regulations. Any
Losses and Loss from Capital Transactions in excess of the amount
allocated in 6.6.2(c) shall be allocated to the Partners in accordance
with each General Partner's respective percentage ownership interest in
the Partnership.
6.6.3. Qualified Income Offset. If a Partner unexpectedly
receives any adjustments, allocations, or distributions described in
Treasury Regulation Section 1.7041-1(b)(2)(ii)(d)(4), (5), or (6),
which creates a deficit balance in a Partner's Capital Account, such
Partner shall be allocated items of Profits and Gains From Capital
Transactions of the Partnership in an amount and manner sufficient to
eliminate such deficit Capital Account balance as quickly as possible.
6.6.4. Minimum Gain. If there is a net decrease in Partnership
"minimum gain" during a taxable year of the Partnership, any Partner
with a deficit balance in its Capital Account at the end of that year
(in excess of its proportionate share of remaining minimum gain at such
time) shall be specially allocated, before any other allocation is made
under Code Section 704(b), Profits and Gain From Capital Transactions
for that taxable year in the amount and proportions necessary to
eliminate such deficit as quickly as possible.
6.6.5. Transfer of Units. If a Unit is transferred during a
fiscal year of the Partnership, the Partnership's taxable year shall not
close with respect to that Unit. Instead, all Profits and Losses
otherwise attributable to such Unit for the entire taxable year shall be
apportioned between the assigning Partner and his assignee on the basis
of the number of days the Partner or his assignee was the Holder of
Record during the fiscal year. Gain From Capital Transactions and Loss
From Capital Transactions shall be allocated to the Holder of Record on
the date of such Capital Transaction.
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6.6.6. Tax Allocation. In accordance with Code Section 704(c)
and the Treasury regulations thereunder, Federal Income Tax Items
generated with respect to any property contributed to the capital of the
Partnership shall, solely for tax purposes, be allocated among the
Partners in a manner so as to take account any variation between the
adjusted basis of such property to the Partnership for federal income
tax purposes and its fair market value at the time of contribution. If
the Partners' Capital Accounts are adjusted because of any of the events
described in Treasury Regulation Section 1.704-1(b)(2)(iv)(f),
subsequent allocations of Federal Income Tax Items with respect to the
assets giving rise to such adjustment shall take into account any
variation between the adjusted basis of such assets and their fair
market value at the time of the adjustment in the same manner as under
Code Section 704(c) and the regulations thereunder.
6.7. Compliance with Treasury Regulations. The foregoing provisions and
other provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Treasury Regulations Section 1.704-1(b),
and shall be interpreted and applied in a manner consistent with such
Regulations. In the event the Partners determine that it is prudent to modify
the manner in which the Capital Accounts, or any debits or credits thereto, are
computed in order to comply with such Regulations, the Partners may make such
modifications, provided that it is not likely to have a material effect on the
amounts distributable to any Partner pursuant to Article VII hereof upon the
dissolution and liquidation of the Partnership. The Partners shall have the
authority in their sole and absolute discretion to make any appropriate
modifications if events might otherwise cause this Agreement not to comply with
Treasury Regulations Section 1.704-1(b).
ARTICLE VII
TERMINATION AND DISSOLUTION
7.1. Causes for Termination. The Partnership shall be dissolved and
terminated on the date set forth in Section 1.6 of this Agreement. The
Partnership shall be terminated and dissolved prior to such date upon the
happening of any of the following events:
(a) a determination by a Simple Majority Vote of the Partners
that the Partnership should be dissolved;
(b) the decision of the Partners to dissolve the Partnership
after the disposition and sale of all or substantially all of the assets
of the Partnership;
(c) an entry of judicial dissolution under the Act;
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(d) death, insolvency, bankruptcy, removal or withdrawal of all
of the General Partners, unless within thirty (30) days of such event,
the Limited Partners elect, by a Simple Majority Vote, to continue the
business of the Partnership as set forth in Section 2.9 herein.
The Partnership shall not be terminated upon the happening of the
insolvency or bankruptcy of the Partnership.
7.2. Liquidation. Upon dissolution and termination of the Partnership
for any reason, the Partnership shall engage in no further business other than
such business as may be necessary to wind up its affairs and to distribute its
assets. Such liquidation shall be handled by the Partners, as Liquidator.
Liquidators may be Partners or qualified third parties. No person who is a
creditor of the Partnership, a creditor of any Partner or a trustee in a
bankruptcy proceeding involving any Partner or the Partnership shall ever serve
as a Liquidator.
7.3. Disposition of Assets. On the liquidation and dissolution of the
Partnership, the Liquidator shall, by the later of the end of the taxable year
in which the liquidation occurs or six (6) months after the date of
liquidation:
(a) Determination of Partnership Assets. Determine the interest
of the Partnership in each Partnership property.
(b) Valuation of Partnership Assets. Determine the value of the
Partnership's Properties and adjust the Capital Accounts of the
Partners.
(c) Final Statement of Account. As promptly as possible after
dissolution, cause a final statement of account to be prepared, which
shall show with respect to each Partner the status of such Partner's
Capital Account. Such statement of each Partner's Capital Account shall
reflect the allocations set forth in Article VI and the allocation of
the gain and losses to the Capital Accounts as provided in subsection
(b) above.
(d) Payment of Third Party Debts. Pay all Partnership debts
owing to creditors other than Partners, or otherwise make adequate
provision therefor.
(e) Repayment of Loans From Partners. Obtain repayment of loans,
if any, from the Partners to the Partnership, or otherwise make adequate
provision therefor.
(f) Repayment of Capital Accounts. To the extent of
Partnership Property (or cash realized from a sale thereof) available
therefor, distribute to each Partner an amount equal to any remaining
positive balance of his Capital Account. If Partnership Property (or
cash received from a sale thereof) is insufficient to repay in full the
positive Capital Account balances of all Partners
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<PAGE> 22
the total amount available for such purpose shall be distributed
among the Partners in the proportion that the positive Capital Account
balance of each Partner bears to the total positive Capital Account
balances of all Partners.
(g) Indebtedness Owed by Partners. Notwithstanding the
foregoing, if any Partner is indebted to the Partnership, the Liquidator
shall, until such debtor-Partner has repaid the Partnership, retain such
Partner's distributive share of Partnership properties and apply the
same to the full discharge and repayment of such indebtedness, and the
balance of such distributive share, if any, shall be delivered to such
Partner. On dissolution or liquidation of the Partnership, each Partner
shall be obligated to restore any negative balance in its Capital
Account. No Partner shall be personally liable to return the capital
contributions of any other Partner. Capital contributions shall be
repaid solely from Partnership assets, if any, that may be available for
such purpose pursuant to the terms of this Agreement.
(h) Compliance Provisions. The Liquidator shall comply with any
requirements of the Act or other applicable law, pertaining to the
winding up of a limited partnership, at which time the Partnership shall
stand terminated.
7.4. No Recourse. On liquidation and dissolution of the Partnership, the
Partners shall look solely to the assets of the Partnership for the return of
their investment. If the Partnership assets remaining after payment and
discharge of debts and liabilities of the Partnership, including any debts and
liabilities owed to any one or more of the Partners, is insufficient to satisfy
the rights of the Partners, the Partners shall have no recourse or further right
or claim against the Partnership or the Partners.
7.5. Reserves. In winding up the affairs of the Partnership and
distributing its assets, the Liquidator shall set up a reserve to meet any
contingent or unforeseen liabilities or obligations and deposit funds for such
purpose, together with funds held by the Partnership for distribution to
Partners which remain unclaimed after a reasonable period of time, with an
escrow agent for the purpose of disbursing such reserves and funds. At the
expiration of such period, if the Liquidator deems it advisable, the escrow
agent shall be authorized and directed to distribute the balance remaining in
the manner provided in Section 7.3 above.
7.6. Statement of Termination. The Liquidator shall furnish each of the
Partners, at the Partnership's expense, with a statement which shall set forth
the assets and liabilities of the Partnership as of the date of complete
liquidation and distribution as herein provided. Such statement shall also
schedule the receipts and disbursements made with respect to the termination
hereunder and shall be final and binding upon all persons, except such persons
who may file a specific and detailed written protest thereof within ninety (90)
days of his receipt of the statement.
22
<PAGE> 23
7.7. Deficit Capital Accounts. Each Partner with a deficit balance in
his Capital Account shall have the obligation to restore such deficit balance,
or to make a contribution to restore such deficit balance.
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnification. The Partnership shall indemnify any Partner (or
employee of a Partner) against reasonable expenses incurred in connection with
the defense of any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit or proceeding,
where the Person who was, is, or is threatened to be made a named defendant or
respondent in a proceeding was named because the Person is or was a Partner of
the Partnership (or employee of the same).
8.2. Conditions. The indemnification contained in Section 8.2, is
conditioned upon a Simple Majority Vote that such Person:
(a) conducted himself in good faith;
(b) reasonably believed, in the case of conduct in his official
capacity as a Partner of the Partnership, that his conduct was in the
Partnership's best interest, and in all other cases, that his conduct
was at least not opposed to the Partnership's best interest; and
(c) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
8.3. Successful Defense. Notwithstanding Section 10.2, the Partnership
shall indemnify each Partner (or employee of a Partner) against reasonable
expenses incurred in connection with a proceeding in which he is a party because
he is or was a Partner (or employee of a Partner) if he has been wholly
successful, on the merits or otherwise, in the defense of the proceeding.
8.4. Exclusions. A Partner (or employee of Partner) may not be
indemnified under this Article VIII for obligations resulting from a proceeding:
(a) in which the Person is found liable on the basis that
personal benefit was improperly received by him, whether or not the
benefit resulted from an action taken in the person's official capacity;
or
(b) in which the Person is found liable to the Partnership.
23
<PAGE> 24
8.5. Expenses. "Expenses" as used herein means court costs, attorneys'
fees, judgments, penalties (including excise and similar taxes), fines,
settlements and other reasonable expenditures actually incurred by the Person in
connection with the proceeding; provided however, if the proceeding is brought
by or in behalf of the Partnership, the indemnification is limited to reasonable
expenses actually incurred by the Person in connection with the proceeding.
Determination of reasonableness of expenses shall be made in the same manner as
the determination contained in Section 8.6.
9.6. Advance Reimbursement. Reasonable expenses incurred by a Partner
who was, is or is threatened to be named a defendant or respondent in a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding after:
(a) the Partnership receives a written affirmation by the
Partner of his good faith belief that he has met the standard of conduct
necessary for indemnification under this Article VIII and a written
undertaking by or on behalf of the Partner to repay the amount paid or
reimbursed if it is ultimately determined that he has not met those
requirements, and
(b) a determination is made under Section 8.2 that the facts
then known to those making the determination would not preclude
indemnification under this Article VIII.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Notice. Any notice, payment, demand or communication required or
permitted to be given by any provision of this Agreement shall be in writing and
shall be deemed to have been duly given and received for all purposes on the
date delivered personally to the party or to an officer of the party to whom the
same is directed, or when deposited by registered or certified mail, postage and
charges prepaid and addressed as follows:
9.1.1. Partnership or Partners. If to the Partnership or to the
Partners, then to the address of the principal place of business of the
Partnership or addresses of the Partners set forth on Exhibit "A"
attached hereto.
Any party hereto may change his or its address to which notice shall
thereafter be given by furnishing written notice to all the Partners and the
Partnership in the manner set forth in this Section 9.1.
9.2. Integration. This Agreement, constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof. No amendment,
modification,
24
<PAGE> 25
or alteration of the terms of this Agreement shall be binding unless the same is
in writing, dated subsequent to the date hereof and duly adopted by the
Partners, a provided herein.
9.3. Severability. Each provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
enforceability of the remainder of this Agreement.
9.4. Applicable Law. This Agreement and the application or
interpretation hereof shall exclusively be governed by and construed in
accordance with the laws of the State of Florida. This Agreement shall be deemed
to be performable in and venue shall be mandatory in Pinellas County, Florida.
9.5. Execution in Counterparts. This Agreement, the Certificate to be
filed as provided herein, and any amendment hereto may be executed in any number
of counterparts, either by the parties hereto or their duly authorized
aftorney-in-fact, with the same effect as if all parties had signed the same
document. All counterparts shall be construed as and shall constitute one and
the same Agreement.
9.6. Descriptive Headings. The captions included herein are for
administrative convenience only and shall not be considered in interpreting any
of the terms or provisions of this Agreement.
9.7. Gender and Number. Whenever the context requires, all words used
herein in the male, female or neuter gender shall be deemed to include the
male, female or neuter gender; all singular words shall include the plural, and
all plural shall include the singular, as the context may require.
9.9. Binding Agreement. Except as otherwise provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties hereto their personal representatives, successors, assigns, and legal
representatives.
9.10. Amendments to Partnership Agreement. This Agreement may be amended
only by the Simple Majority Vote of the Partners.
25
<PAGE> 26
IN WITNESS WHEREOF, this Agreement has been executed by the Partners as
of the 21 day of February, 1994.
WITNESSES: THE SIEGEL REVOCABLE FAMILY
TRUST AS AMENDED AND
RESTATED JULY 10, 1992
By: /s/ Todd E. Siegel
- -------------------------------- --------------------------
TODD SIEGEL AS TRUSTEE
- --------------------------------
/s/ Todd E. Siegel
- -------------------------------- --------------------------
TODD SIEGEL
- --------------------------------
/s/ Mindy Jo Garth
- -------------------------------- --------------------------
MINDY JO GARTH
- --------------------------------
/s/ Todd E. Siegel
- -------------------------------- --------------------------
TODD SIEGEL AS GUARDIAN FOR
- -------------------------------- JORDAN SIEGEL AND ERIC SIEGEL
/s/ Mindy Jo Garth
- -------------------------------- --------------------------
MINDY JO GARTH AS GUARDIAN
- -------------------------------- FOR AARON BARTH AND DANIEL
BARTH
<PAGE> 27
EXHIBIT "A" TO PARTNERSHIP AGREEMENT OF
JADE PARTNERS, DATED FEBRUARY 21, 1994
Name of Partner Number of Partnership Units
--------------- ---------------------------
Siegel Family QTIP Trust 74.689124
Siegel Family By-Pass Trust 16.140271
Sally Siegel 2.705329
Todd Siegel 1.077546
Mindy Jo Barth 1.077546
Daniel Barth 1.077546
Aaron Barth 1.077546
Eric Siegel 1.077546
Jordan Siegel 1,077546
--------
TOTAL 100.00
<PAGE> 28
EXHIBIT "A" TO PARTNERSHIP AGREEMENT
DATED FEBRUARY 21, 1994
(CONTINUED)
<TABLE>
<CAPTION>
Name of Partner Shares of MTS Stock Value of Shares
--------------- ------------------- ---------------
Contributed Contributed
----------- -----------
<S> <C> <C>
Siegel Family QTIP Trust 274,638.563 $ 2,374,604.51
Siegel Family By-Pass 59,615.179 476,921.43
Trust
Sally Siegel 9,992.318 79,938.54
Todd Siegel 3,979.990 31,839.92
Mindy Jo Barth 3,979.990 31,839.92
Daniel Barth 3,979.990 31,839.92
Aaron Barth 3,979.990 31,839.92
Eric Siegel 3,979.990 31,839.92
Jordan Siegel 3,979.990 31,839.92
----------- ------------
Totals 368,126,000 $ 3,122,504.00
</TABLE>
<PAGE> 1
Exhibit 5
Joint Filing Agreement
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the persons named below agree to the joint filing on behalf
of each of them of an amendment to the statement on Schedule 13D filed on
January 29, 1997 including any amendment thereto. This Joint Filing Agreement
shall be included as an Exhibit to such joint filing. In evidence thereof,
each of the undersigned, being duly authorized, hereby executed this Agreement
this 29th day of January, 1997.
/s/ TODD E. SIEGEL
-------------------------------------------------
Todd E. Siegel
JADE PARTNERSHIP
By: /s/ TODD E. SIEGEL
-----------------------------------------------
Todd E. Siegel, as Trustee of the Siegel Family
QTIP Trust, the Managing General Partner
SIEGEL FAMILY QTIP TRUST
By: /s/ TODD E. SIEGEL
-------------------------------------------------
Todd E. Siegel, Trustee
