<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)
VISTA RESOURCES, INC.
---------------------
(Name of Issuer)
Common Stock, par value $2.50 per share
---------------------------------------
(Title of Class of Securities)
928384-10-6
--------------
(CUSIP Number)
J. Rex Fuqua
One Atlantic Center
1201 West Peachtree Street
Suite 5000
Atlanta, Georgia 30309
Telephone: (404) 815-2000
------------------------------------------------------------
(Name, Address, and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 19, 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 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 [ ].
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<TABLE>
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- ----------------------------------
CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
J. B. Fuqua
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
------------
(b)
------------
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
United States
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 693,917
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 435,698
Person With --------------------------
9. Sole Dispositive Power
693,917
--------------------------
10. Shared Dispositive Power
435,698
--------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
J. B. Fuqua may be deemed to own beneficially (through the power to direct the vote and disposition thereof)
1,129,615 shares of the Common Stock (372,232 individually, 160,843 as trustee for The Jennifer Calhoun Fuqua Trust,
160,842 shares as trustee for The Lauren Brooks Fuqua Trust, 69,698 as an officer and director of The J. B. Fuqua
Foundation, Inc., and 366,000 as an officer and director of Fuqua Holding, Inc.).
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 30.0%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
IN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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- ----------------------------------
CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
J. Rex Fuqua
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
---------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
United States
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 280,142
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 435,698
Person With --------------------------
9. Sole Dispositive Power
280,142
--------------------------
10. Shared Dispositive Power
435,698
--------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
J. Rex Fuqua may be deemed to own beneficially (through the power to direct the vote and disposition thereof)
715,840 shares of the Common Stock (280,142 individually, 69,698 as an officer and director of The J. B. Fuqua
Foundation, Inc. and 366,000 as an officer and director of Fuqua Holdings, Inc.).
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 19.0%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
IN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Fuqua Holdings, Inc.
I.D. No. applied for.
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Georgia
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 366,000
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 0
Person With ----------------------------------
9. Sole Dispositive Power
366,000
--------------------------
10. Shared Dispositive Power
0
----------------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
Fuqua Holdings, Inc., the general partner of Fuqua Holdings - I, L.P., may be deemed to own beneficially
(through the power of its sole directors and shareholders, J. B. Fuqua and J. Rex Fuqua, to direct the vote and
disposition thereof) 366,000 shares of the Common Stock.
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 9.7%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
CO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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- ----------------------------------
CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Fuqua Holdings - I, L.P.
I.D. No. applied for.
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Georgia
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 366,000
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 0
Person With ----------------------------------
9. Sole Dispositive Power
366,000
--------------------------
10. Shared Dispositive Power
0
----------------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
Fuqua Holdings - I, L.P. may be deemed to own beneficially (through the power of J. B. Fuqua and J. Rex Fuqua
as the sole directors and shareholders of Fuqua Holdings, Inc., the general partner of Fuqua Holdings-I, L.P.,
to direct the vote and disposition thereof) 366,000 shares of the Common Stock.
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 9.7%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
PN
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
The Jennifer Calhoun Fuqua Trust
IRS I.D. No. 58-6163768
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Georgia
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 160,843
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 0
Person With ----------------------------------
9. Sole Dispositive Power
160,843
--------------------------
10. Shared Dispositive Power
0
----------------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
The Jennifer Calhoun Fuqua Trust may be deemed to own beneficially (through the power of its sole trustee, J.
B. Fuqua, to direct the vote and disposition thereof) 160,843 shares of the Common Stock.
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 4.3%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
OO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
The Lauren Brooks Fuqua Trust
IRS I.D. No. 58-6163767
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Georgia
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 160,842
Beneficially --------------------------
Owned by 8. Shared Voting Power
Each Reporting 0
Person With ----------------------------------
9. Sole Dispositive Power
160,842
--------------------------
10. Shared Dispositive Power
0
----------------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
The Lauren Brooks Fuqua Trust may be deemed to own beneficially (through the power of its sole trustee, J. B.
Fuqua, to direct the vote and disposition thereof) 160,842 shares of the Common Stock.
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 4.3%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
OO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<TABLE>
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- ----------------------------------
CUSIP NO. 928384-10-6
- ----------------------------------
- ---------------------------------------------------------------------------------------------------------------
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
The J. B. Fuqua Foundation, Inc.
IRS I.D. No. 23-7122039
- ---------------------------------------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a) X
-----
(b)
-----
- ---------------------------------------------------------------------------------------------------------------
3. SEC Use Only
- ---------------------------------------------------------------------------------------------------------------
4. Source of Funds
Not applicable.
- ---------------------------------------------------------------------------------------------------------------
5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
--------
- ---------------------------------------------------------------------------------------------------------------
6. Citizenship or Place of Organization
Georgia
- ---------------------------------------------------------------------------------------------------------------
Number of 7. Sole Voting Power
Shares 69,698
Beneficially ----------------------------------
Owned by 8. Shared Voting Power
Each Reporting 0
Person With ----------------------------------
9. Sole Dispositive Power
69,698
----------------------------------
10. Shared Dispositive Power
0
----------------------------------
- ---------------------------------------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person
The J. B. Fuqua Foundation, Inc. may be deemed to own beneficially (through the power of its directors and
officers to direct the vote thereof) 69,698 shares of the Common Stock.
- ---------------------------------------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------
- ---------------------------------------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11)
Approximately 1.9%
- ---------------------------------------------------------------------------------------------------------------
14. Type of Reporting Person
CO
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE> 9
Introduction
This Statement constitutes Amendment No. 4 ("Amendment No. 4")
to a Schedule 13D, dated March 27, 1989 (the "Schedule 13D"), of J. B. Fuqua,
J. Rex Fuqua and certain other entities, with respect to the common stock par
value $2.50 per share (the "Common Stock") of Vista Resources, Inc., a Delaware
corporation ("Vista"). Because this Amendment No. 4 constitutes the first
electronically filed amendment to the Schedule 13D, it amends and restates the
Schedule 13D.
On July 19, 1995, J. Rex Fuqua and J. B. Fuqua transferred,
for estate planning purposes, certain assets, including a total of 366,000
shares of Common Stock (256,000 shares and 110,000 shares, respectively) to
Fuqua Holdings - I, L.P., a Georgia limited partnership ("Holdings Limited
Partnership") in exchange for limited partnership interests equaling 99% of the
total outstanding partnership interests. In addition, on July 19, 1995, J. B.
Fuqua and J. Rex Fuqua sold and made gifts of their limited partnership
interests in Holdings Limited Partnership to various Fuqua family trusts. The
general partner of the limited partnership is Fuqua Holdings, Inc., a Georgia
corporation ("Holdings Corporation"). Holdings Corporation is owned equally by
J. Rex Fuqua and J. B. Fuqua, and Messrs. Fuqua constitute the entire board of
directors.
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the Common Stock of Vista. Vista has its principal executive offices at One
Atlantic Center, 1201 West Peachtree Street, Suite 5000, Atlanta, Georgia
30309.
Item 2. Identity and Background.
This statement is being filed by J. B. Fuqua, J. Rex Fuqua,
Holdings Corporation, Holdings Limited Partnership, The Jennifer Calhoun Fuqua
Trust, The Lauren Brooks Fuqua Trust, and The J. B. Fuqua Foundation
(collectively, the "Reporting Persons").
I. (a) J. B. Fuqua(1)(2)(3)
(b) J. B. Fuqua's business address is One
Atlantic Center, 1201 West Peachtree Street,
Suite 5000, Atlanta, Georgia 30309.
(c) J. B. Fuqua is a Director and Chairman of the
Board of Directors of Vista, the address of
which is One Atlantic Center, 1201 West
Peachtree Street, Suite 5000, Atlanta,
Georgia 30309.
(f) J. B. Fuqua is a citizen of the United States.
II. (a) J. Rex Fuqua(1)(3)
(b) J. Rex Fuqua's business address is One
Atlantic Center, 1201 West Peachtree Street,
Suite 5000, Atlanta, Georgia 30309.
(c) J. Rex Fuqua is President and Chief Executive
Officer of Realan Capital Corp., a investment
company, the address of which is One Atlantic
Center, 1201 West Peachtree Street, Suite
5000, Atlanta, Georgia 30309.
(f) J. Rex Fuqua is a citizen of the United
States.
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<PAGE> 10
III. (a) Fuqua Holdings, Inc.
(b) The address of the principal office and of
the principal business of Fuqua Holdings,
Inc. is One Atlantic Center, 1201 West
Peachtree Street, Suite 5000, Atlanta,
Georgia 30309.
(c) The principal business of Fuqua Holdings,
Inc. is to serve as the general partner of
Fuqua Holdings - I, L.P., the address of
which is One Atlantic Center, 1201 West
Peachtree Street, Suite 5000, Atlanta,
Georgia 30309.
(f) Fuqua Holdings, Inc. is organized under the
laws of the State of Georgia.
IV. (a) Fuqua Holdings - I, L.P.
(b) The address of the principal office and of
the principal business of Fuqua Holdings - I,
L.P. is One Atlantic Center, 1201 West
Peachtree Street, Suite 5000, Atlanta,
Georgia 30309.
(c) The principal business of Fuqua Holdings - I,
L.P. is to acquire and hold for investment
intangible assets; and generally to engage in
any and all lawful business activities that
its general partner may from time to time
determine.
(f) Fuqua Holdings - I, L.P. is organized under
the laws of the State of Georgia.
V. (a) The Jennifer Calhoun Fuqua Trust (the "JCF
Trust")
(b) The principal office of the JCF Trust is One
Atlantic Center, 1201 West Peachtree Street,
Suite 5000, Atlanta, Georgia 30309.
(c) Not applicable.
(f) The JCF Trust is organized under the laws of
the State of Georgia.
VI. (a) The Lauren Brooks Fuqua Trust (the "LBF
Trust")
(b) The principal office of the LBF Trust is One
Atlantic Center, 1201 West Peachtree Street,
Suite 5000, Atlanta, Georgia 30309.
(c) Not applicable.
(f) The LBF Trust is organized under the laws of
the State of Georgia.
VII. (a) The J. B. Fuqua Foundation (the "Foundation")
(b) The address of the principal office and of
the principal business of the Foundation is
One Atlantic Center, 1201 West Peachtree
Street, Suite 5000, Atlanta, Georgia 30309.
(c) The principal business of the Foundation is
to conduct charitable activities in
accordance with its charter.
(f) The Foundation is organized under the laws of
the State of Georgia.
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<PAGE> 11
VIII. (a) Dorothy C. Fuqua(1)
(b) Dorothy C. Fuqua's residential address is
3574 Tuxedo Road, Atlanta, Georgia 30305.
(c) Not applicable.
(f) Dorothy C. Fuqua is a citizen of the United
States.
______________________
(1) An officer and director of the Foundation.
(2) Sole trustee of the JCF Trust and the LBF Trust.
(3) An officer and director of Holdings Corporation.
(d)-(e) During the last five years none of the Reporting
Persons has been (i) convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) party to a civil proceeding of a
judicial or administrative body of competent jurisdiction, and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration.
J. Rex Fuqua and J. B. Fuqua transferred to Holdings Limited
Partnership 256,000 shares and 110,000 shares of Vista Common Stock,
respectively, and certain other assets in exchange for Holdings Limited
Partnership interests equaling 99% of the total outstanding limited partnership
interests of Holdings Limited Partnership.
Item 4. Purpose of Transaction.
The transactions consummated by J. B. Fuqua and J. Rex Fuqua
in this Amendment No. 4 were made for estate planning purposes. As stated in
the Schedule 13D dated March 27, 1989, certain of the Reporting Persons
acquired shares of Common Stock for the purpose of acquiring control of Vista.
The Reporting Persons may change any of their current
intentions, acquire additional shares of Common Stock or sell or otherwise
dispose of all or any part of the Common Stock beneficially owned by them, or
take any other action with respect to Vista or any of its debt or equity
securities in any manner permitted by law. None of the Reporting Persons has
any current plans or proposals which relate to or would result in any of the
events described in items (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a)-(b) The Reporting Persons collectively own of record
1,409,757 shares of Common Stock, which amounts to approximately 37.4% of the
total number of shares of Common Stock which Vista had issued and outstanding
as of July 19, 1995 (3,772,169 shares).
(c) Except as described in this Amendment No. 4, none of
the persons listed in Item 2 above has effected any transaction in the Common
Stock during the past sixty days.
(d) Except for certain rights of the limited partners of
Holdings Limited Partnership (each of whom is identified in Exhibit 3 hereto),
in the event of liquidation of Holdings
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<PAGE> 12
Limted Partnership, no other person is known to have the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the
sale of, such securities.
(e) Not applicable.
The foregoing response to this Item 5 is qualified in its
entirety by reference to the Limited Partnership Agreement of Holdings Limited
Partnership, the full text of which is filed as Exhibit 2 hereto, and to the
Amendment to Agreement of Limited Partnership of Holdings Limited Partnership,
the full text of which is filed as Exhibit 3 hereto.
Item 6. Contracts, Arrangements, Understandings, or Relationship with
Respect to Securities of the Issuer.
As described in the second paragraph of the Introduction to
this Amendment No. 4, the text of which is incorporated herein by reference, J.
B. Fuqua and J. Rex Fuqua, on July 19, 1995, transferred an aggregate of
366,000 shares of Common Stock to Holdings Limited Partnership. Except as
stated in the preceding sentence, to the best knowledge of each of the persons
signing this Schedule 13D, no person listed in Item 2 hereof has any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
other person with respect to the Common Stock, including, but not limited to,
any agreements concerning (i) transfer or voting of any of the securities, (ii)
finder's fees, (iii) joint ventures, (iv) loan or option arrangements, (v) puts
or calls, (vi) guarantees of profits, (vii) division of profits or losses or
(viii) the giving or withholding of proxies.
The foregoing response to this Item 6 is qualified in its
entirety by reference to the Limited Partnership Agreement of Holdings Limited
Partnership, the full text of which is filed as Exhibit 2 hereto, and to the
Amendment to Agreement of Limited Partnership of Holdings Limited Partnership,
the full text of which is filed as Exhibit 3 hereto.
Item 7. Material to be Filed as Exhibits.
(1) Joint Filing Agreement.
(2) Agreement of Limited Partnership of Fuqua Holdings -
I, L.P.
(3) Amendment to Agreement of Limited Partnership of
Fuqua Holdings - I, L.P.
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<PAGE> 13
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.
Date: July 25, 1995
/s/ J. B. Fuqua
--------------------------------------------------
J. B. FUQUA
/s/ J. Rex Fuqua
--------------------------------------------------
J. REX FUQUA
FUQUA HOLDINGS, INC.
By: /s/ J. Rex Fuqua
-----------------------------------------------
Name: J. Rex Fuqua
---------------------------------------------
Title: President
--------------------------------------------
FUQUA HOLDINGS - I, L.P.
By: FUQUA HOLDINGS, INC., its General Partner
By: /s/ J. Rex Fuqua
-----------------------------------------------
Name: J. Rex Fuqua
---------------------------------------------
Title: President, Fuqua Holdings, Inc.
--------------------------------------------
THE JENNIFER CALHOUN FUQUA TRUST
By: /s/ J. B. Fuqua
-----------------------------------------------
Name: J. B. Fuqua
---------------------------------------------
Title: Trustee
--------------------------------------------
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<PAGE> 14
THE LAUREN BROOKS FUQUA TRUST
By: /s/ J. B. Fuqua
-----------------------------------------------
Name: J. B. Fuqua
---------------------------------------------
Title: Trustee
--------------------------------------------
THE J. B. FUQUA FOUNDATION, INC.
By: /s/ J. B. Fuqua
-----------------------------------------------
Name: J. B. Fuqua
---------------------------------------------
Title: Chairman/President
--------------------------------------------
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<PAGE> 15
EXHIBIT INDEX
EXHIBIT EXHIBIT NO.
- ------- -----------
Joint Filing Agreement. 1
Agreement of Limited Partnership of Fuqua
Holdings - I, L.P. 2
Amendment to Agreement of Limited Partnership of
Fuqua Holdings - I, L.P. 3
<PAGE> 16
Exhibit 1
JOINT FILING AGREEMENT
This will confirm the agreement by and among all of the undersigned
that the Schedule 13D filed on or about this date with respect to the
beneficial ownership by the undersigned of shares of common stock, par value
$2.50 per share ("Common Stock"), of Vista Resources, Inc. is being filed on
behalf of each of the undersigned.
Furthermore, each of the undersigned does hereby make, constitute and
appoint J. B. Fuqua and J. Rex Fuqua, or any of them, their true and lawful
attorneys-in-fact to execute any and all instruments in his or her name,
necessary or advisable to comply with Section 13(d) of the Securities Exchange
Act of 1934, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission promulgated pursuant thereto, in connection
with his or her ownership of common stock, and any and all amendments thereto
and to file the same with all exhibits thereto and other documents in
connection therewith.
- 1 -
<PAGE> 17
This Agreement may be executed in one or more counterparts by each of
the undersigned, and each of which, taken together, shall constitute but one
and the same instrument.
Date: July 25, 1995
/s/ J. B. Fuqua
---------------------------------------------------
J. B. FUQUA
/s/ J. Rex Fuqua
---------------------------------------------------
J. REX FUQUA
FUQUA HOLDINGS, INC.
By: /s/ J. Rex Fuqua
------------------------------------------------
Name: J. Rex Fuqua
----------------------------------------------
Title: President
---------------------------------------------
FUQUA HOLDINGS - I, L.P.
By: FUQUA HOLDINGS, INC., its General Partner
By: /s/ J. Rex Fuqua
------------------------------------------------
Name: J. Rex Fuqua
----------------------------------------------
Title: President, Fuqua Holdings, Inc.
---------------------------------------------
THE JENNIFER CALHOUN FUQUA TRUST
By: /s/ J. B. Fuqua
------------------------------------------------
Name: J. B. Fuqua
----------------------------------------------
Title: Trustee
---------------------------------------------
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<PAGE> 18
THE LAUREN BROOKS FUQUA TRUST
By: /s/ J. B. Fuqua
------------------------------------------------
Name: J. B. Fuqua
----------------------------------------------
Title: Trustee
---------------------------------------------
THE J. B. FUQUA FOUNDATION, INC.
By: /s/ J. B. Fuqua
------------------------------------------------
Name: J. B. Fuqua
----------------------------------------------
Title: Chairman/President
---------------------------------------------
- 3 -
<PAGE> 19
Exhibit 2
AGREEMENT OF LIMITED PARTNERSHIP
OF
FUQUA HOLDINGS - I, L. P.
- 1 -
<PAGE> 20
TABLE OF CONTENTS
<TABLE>
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PAGE
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ARTICLE I -- DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Usage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II -- THE PARTNERSHIP AND ITS BUSINESS . . . . . . . . . . . . . . . . . . . . . . 4
2.01 Formation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.02 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.03 Registered Office and Agent; Principal Place of Business
and Other Offices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.04 Business Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.05 Term of Partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III -- RIGHTS, PROHIBITIONS AND LIABILITIES OF LIMITED PARTNERS . . . . . . . . . . 5
3.01 Rights of Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . 5
3.02 Prohibitions with Respect to Limited Partners . . . . . . . . . . . . . . 5
3.03 Liabilities of Limited Partners. . . . . . . . . . . . . . . . . . . . . . 5
3.04 Other Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV -- MANAGEMENT OF THE PARTNERSHIP BUSINESS . . . . . . . . . . . . . . . . . . . 5
4.01 Authority of the General Partner . . . . . . . . . . . . . . . . . . . . . 5
4.02 Compensation to General Partner. . . . . . . . . . . . . . . . . . . . . . 7
4.03 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.04 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.05 Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V -- PARTNERSHIP BOOKS AND FINANCIAL RECORDS . . . . . . . . . . . . . . . . . . . 8
5.01 Partnership Books of Account . . . . . . . . . . . . . . . . . . . . . . . 8
5.02 Annual Audit of Books of Account; Reports . . . . . . . . . . . . . . . . 8
5.03 Accounting Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.04 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI -- PARTNERSHIP CAPITAL; ALLOCATIONS; DISTRIBUTIONS . . . . . . . . . . . . . . . 9
6.01 Capital Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.02 Additional Capital Contributions . . . . . . . . . . . . . . . . . . . . . 9
6.03 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
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<PAGE> 21
<TABLE>
<S> <C>
6.04 Interest on and Return of Capital . . . . . . . . . . . . . . . . . . . . 10
6.05 Loans to the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.06 Allocation of Profits, Losses, and Tax Items . . . . . . . . . . . . . . . 10
6.07 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.08 Consequences of Distributions . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII -- WITHDRAWAL; ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.01 In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.02 General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.03 Continuation of Partnership . . . . . . . . . . . . . . . . . . . . . . . 13
7.04 Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.05 Substitution of a Limited Partner . . . . . . . . . . . . . . . . . . . . 14
7.06 Certain Events as to Limited Partners . . . . . . . . . . . . . . . . . . 14
7.07 Purchase of Partnership Interest by General Partner . . . . . . . . . . . 15
7.08 Transfers from Custodianships . . . . . . . . . . . . . . . . . . . . . . 15
7.09 Transfer Upon Death of Limited Partner . . . . . . . . . . . . . . . . . . 15
7.10 Value of Interest After Death . . . . . . . . . . . . . . . . . . . . . . 15
7.11 Appraisal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII -- PARTNERSHIP EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.01 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.02 Type of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IX -- TERMINATION OF PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.01 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.02 Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.03 Distributions upon Termination . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE X -- MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.01 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.02 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.03 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.04 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.05 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.06 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.07 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.08 Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<PAGE> 22
<TABLE>
<S> <C> <C>
10.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.10 Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.11 Covenant to Sign Documents . . . . . . . . . . . . . . . . . . . . . . . . 19
10.12 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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<PAGE> 23
PURCHASERS OF PARTNERSHIP INTERESTS IN FUQUA HOLDINGS - I, L. P. ("INTERESTS"),
WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENTS FOR AN INDEFINITE PERIOD
OF TIME. THE INTERESTS HAVE NOT BEEN REGISTERED (I) UNDER ANY STATE SECURITIES
LAW (THE "STATE ACT") OR (II) UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "FEDERAL ACT"), AND NEITHER THE INTERESTS NOR ANY PART THEREOF
MAY BE SOLD, EXCHANGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF ARTICLE VII OF THIS AGREEMENT, WHICH RESTRICT THE
TRANSFER OF INTERESTS, AND (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER EACH APPLICABLE STATE ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER SUCH STATE ACT OR FOR WHICH SUCH REGISTRATION OTHERWISE IS
NOT REQUIRED, AND (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
FEDERAL ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE
FEDERAL ACT OR FOR WHICH SUCH REGISTRATION OTHERWISE IS NOT REQUIRED.
AGREEMENT OF LIMITED PARTNERSHIP
OF
FUQUA HOLDINGS - I, L. P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is
made and entered into as of the 19th day of July, 1995, by and among FUQUA
HOLDINGS, INC., a Georgia corporation, as general partner (the "General
Partner"), and the persons listed on the signature pages, as limited partners
(collectively the "Limited Partners"). The General Partner and the Limited
Partners shall be collectively referred to as the "Partners."
ARTICLE I
DEFINITIONS
1.01 TERMS. When used in this Agreement, the following terms
shall have the following meanings unless the context requires otherwise:
"Accounting Period" means the Fiscal Year or such other period
as to which an accounting is to be made.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments:
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<PAGE> 24
(I) Credit to such Capital Account any amounts
which such Partner is obligated to restore or is deemed to be
obligated to restore pursuant to Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
(II) Debit to such Capital Account the items
described in Treasury Regulations Section 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 of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury
Regulations and shall be so interpreted.
"Agreement" means this Agreement of Limited Partnership, as
amended.
"Assets" means any interest in any property of any nature
whatsoever owned by the Partnership. "Capital Account" means the capital
account established and maintained for each Partner pursuant to Section 6.03.
"Capital Contribution" means the capital contribution of each
Partner described in Section 6.01 and any additional Capital Contribution
permitted under this Agreement.
"Certificate" means the Certificate of Limited Partnership
described in Section 2.01, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, or
corresponding provisions of subsequent U.S. revenue laws.
"Distributions" means the amount distributed to Partners in
accordance with Section 6.07 or Section 9.03.
"Fiscal Year" means the fiscal year of the Partnership
described in Section 5.04.
"General Partner" means Fuqua Holdings, Inc., a Georgia
corporation, and any other person from time to time admitted to the Partnership
as an additional or substituted General Partner in accordance with this
Agreement, and such persons' permitted successors and assigns.
"Limited Partners" means the limited partners identified on
the signature pages.
"Majority in Interest" means more than fifty percent (50%) of
the relevant Partnership Interests.
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<PAGE> 25
"Net Cash Flow" means gross receipts of or to the Partnership,
including all income generated by the Partnership or received from any source
whatsoever and including Capital Contributions or proceeds of debt refinancing,
less (a) cash expenditures of the Partnership, including, but not limited to,
debt service (and including in debt service all indebtedness secured by the
property leased by the Partnership and guaranteed for any time by any partner)
and operating expenses, including without limitation any management fees paid
to the General Partner, and (b) amounts retained in connection with the
creation of or addition to reserves for working capital, maintenance, repairs,
capital expenditure or other items and the satisfaction of liabilities,
including contingent liabilities, as they come due or may come due, in such
amounts as the General Partner, in its sole discretion, determines are
necessary or appropriate.
"Net Income" and "Net Loss" mean the taxable income or loss,
as the case may be, of the Partnership for a period as determined in accordance
with Code Section 703(a) (for this purpose, all items of income, gain, loss, or
deduction required to be separately stated pursuant to Code Section 703(a)(1)
shall be included in taxable income or loss) computed with the following
adjustments: (i) any tax-exempt income received by the Partnership shall be
included as an item of gross income; and (ii) any expenditure of the
Partnership described in Code Section 705(a)(2)(B) (including any expenditures
treated as being described in Section 705(a)(2)(B) pursuant to Treasury
Regulations under Code Section 704(b)) shall be treated as a deductible
expense.
"Partners" means the General Partner and the Limited Partners.
"Partnership" means Fuqua Holdings - I, L.P., a Georgia
limited partnership created pursuant to this Agreement and the Certificate.
"Partnership Business" means the business of the Partnership
described in Section 2.04.
"Partnership Interest" means each Partner's percentage of
participation in the Partnership. The initial Partnership Interest of each
Partner shall be the percentage set forth below opposite the Partner's name:
<TABLE>
<CAPTION>
PARTNER PARTNERSHIP INTEREST
------- --------------------
<S> <C>
Fuqua Holdings, Inc., as general partner 1.0%
J. Rex Fuqua, as limited partner 69.5%
J. B. Fuqua, as limited partner 29.5%
-----
TOTAL 100.0%
</TABLE>
A Partner's Partnership Interest will be adjusted from time to
time if and as additional Partners are admitted to the Partnership in
accordance with the terms of this Agreement.
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<PAGE> 26
"Partnership Law" means the Georgia Revised Uniform Limited
Partnership Act, O.C.G.A.. Section Section 14-9-100 through 14-9-1204, as
amended.
"Substituted Limited Partners" means the transferees of any
Partnership Interest that acquired full rights of a Limited Partner pursuant to
Section 7.05.
"Tax Matters Partner" means the Partner so designated pursuant
to Section 4.03.
1.02 USAGE. All references to Article or Section numbers,
unless otherwise indicated, refer to articles or sections of this Agreement.
Headings are used for convenience only and do not form a part of this
Agreement. All pronouns shall be deemed to refer to the masculine, feminine or
neuter, and to the singular or plural, as the identity of the person, persons,
entity or entities to whom or which they refer may require.
ARTICLE II
THE PARTNERSHIP AND ITS BUSINESS
2.01 FORMATION. The Partners hereby form a limited
partnership pursuant to the Partnership Law. The rights and liabilities of the
Partners shall be as provided under the Partnership Law, except as otherwise
expressly provided in this Agreement. The General Partner shall, as she deems
appropriate, execute, file, report and publish a Certificate of Limited
Partnership in accordance with the provisions of the Partnership Law and
execute, file, record and publish such amendments to the Certificate and other
relevant documents as the General Partner determines are or become necessary or
advisable from time to time.
2.02 NAME. The name of the Partnership shall be FUQUA
HOLDINGS - I, L. P.
2.03 REGISTERED OFFICE AND AGENT; PRINCIPAL PLACE OF BUSINESS
AND OTHER OFFICES. The principal place of business and registered office of
the Partnership shall initially be located at Fuqua Capital Corporation, 1201
West Peachtree Street, N.W., Suite 5000, Atlanta, Fulton County, Georgia 30309,
or at such other location as the General Partner may designate upon thirty (30)
days written notice to the Partners. The Partnership may in addition maintain
such other offices or places of business as the General Partner deems
advisable. J. Rex Fuqua shall be the registered agent at the registered
office.
2.04 BUSINESS PURPOSE. The business of the Partnership (the
"Partnership Business") shall be to acquire and hold for investment intangible
Assets; and generally to engage in any and all lawful business activity that
the General Partner may from time to time deem to be in the best interests of
the Partnership.
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<PAGE> 27
2.05 TERM OF PARTNERSHIP. The term for which the Partnership
is to exist shall begin when the Certificate of Limited Partnership is filed
for record with the Secretary of State of Georgia, and shall continue until
terminated pursuant to Section 9.01.
ARTICLE III
RIGHTS, PROHIBITIONS AND LIABILITIES OF LIMITED PARTNERS
3.01 RIGHTS OF LIMITED PARTNERS. Limited Partners shall be
entitled to the rights provided by the Partnership Law as the same may be
lawfully modified by the terms of this Agreement.
3.02 PROHIBITIONS WITH RESPECT TO LIMITED PARTNERS. No
Limited Partner shall have the right:
(a) To withdraw from the Partnership; or
(b) To have his original investment repaid except to the
extent such repayment takes place by virtue of lawful distributions provided
for in this Agreement; or
(c) To require partition of the Partnership property or
compel any sale or appraisal of Partnership assets.
3.03 LIABILITIES OF LIMITED PARTNERS. No Limited Partner
shall be personally liable for any debts of the Partnership, except to the
extent provided by law where such Limited Partner has inappropriately received
a return of his contribution to the Partnership.
3.04 OTHER ACTIVITIES. Each Limited Partner in his or her
individual capacity or otherwise, shall be free to engage in, conduct, or to
participate in any business or activity whatsoever, without any accountability,
liability or obligation whatsoever to the Partnership or to any other Partner,
even if such business or activity competes with or is enhanced by the business
of the Partnership.
ARTICLE IV
MANAGEMENT OF THE PARTNERSHIP BUSINESS
4.01 AUTHORITY OF THE GENERAL PARTNER. Except as otherwise
specifically set forth in this Agreement, management, operation and the control
of the Partnership and the Partnership Business shall be vested in the General
Partner, who shall have all rights, authority and power generally conferred by
law or otherwise necessary, on behalf and in the name of the Partnership, to
carry out any and all of the purposes of the Partnership and the Partnership
Business, to perform all acts and enter into and perform all contracts and
other undertakings which it may deem necessary or advisable. Without limiting
the
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<PAGE> 28
generality of the foregoing and in addition to the general powers granted
pursuant to the Partnership Law, and other powers set forth elsewhere in this
Agreement, the General Partner is hereby authorized and empowered on behalf of
the Partnership:
(A) To carry on any Partnership Business and to execute
any instrument or do any act of any kind or character that the General Partner
determines to be necessary or appropriate in connection with the Partnership
Business or the implementation of this Agreement, including, but not limited
to, the acquisition, management, sale, exchange, transfer or other transaction
associated with any of the Assets (which terms shall include short sales or
margin transactions and the maintenance and operation of margin accounts with
broker-dealers and the voting of any shares or other securities owned by the
Partnership);
(B) To employ or consult such persons, firms or
corporations as she shall deem advisable for the operation and management of
the Partnership and the Partnership Business, including persons who may be
Partners of or affiliated with or controlled by the General Partner;
(C) To deposit funds of the Partnership in the
Partnership name in any bank, brokerage firm or trust company and to entrust to
such bank or brokerage firm any of the monies, documents and papers belonging
to or relating to the Partnership;
(D) To possess, transfer, dispose of, mortgage, pledge or
otherwise deal in, and to exercise all rights, powers, privileges and other
incidents of ownership or possession with respect to, the Assets;
(E) To borrow or raise monies and, from time to time
without limit as to amount, to issue, accept, endorse and execute promissory
notes, drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or nonnegotiable instruments and evidences of indebtedness, and to
secure the payment of any of the foregoing debts and of the interest thereon by
mortgage upon or pledge, conveyance or assignment in trust of the whole or any
part of the property of the Partnership, whether at the time owned or
thereafter acquired;
(F) To commence or defend any litigation involving the
Partnership, or its affiliates, the Partners or the General Partner, and to
retain legal counsel; and
(G) To cause the Partnership to purchase outstanding
interests in the Partnership from willing or defaulting Partners at any such
time or times and under such terms as the General Partner may determine to be
in the best interest of the Partnership. In connection with any such purchase
the General Partner may provide for a payment or payments to the selling
Partner with respect to his interest in the Partnership, and in such event this
Agreement shall be automatically and appropriately amended to provide for such
payment or payments.
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<PAGE> 29
The General Partner shall devote to the Partnership only such
time as is necessary to carry out the business of the Partnership.
4.02 COMPENSATION TO GENERAL PARTNER. The Partnership may
pay to the General Partner a management fee for its services to the Partnership
in a reasonable amount as determined from time to time by agreement of the
General Partner and Limited Partners holding a Majority in Interest.
4.03 TAX MATTERS. The General Partner is designated the Tax
Matters Partner as defined in Code Section 6231(a)(7). In such capacity, the
General Partner shall have the authority to represent the Partnership in all
matters before the Internal Revenue Service and any state taxing authority and
to exercise all rights, powers and obligations outlined in Chapter 63,
Subchapter C of the Code. Without limiting the generality of the foregoing,
the Tax Matters Partner shall have the right to extend the statute of
limitations for assessing or computing any tax liability against the
Partnership or the amount of any tax item or to file a petition for
readjustment of any Partnership tax item in accordance with Code Section
6226(a). Any reasonable professional fees and costs incurred by the Tax
Matters Partner for retaining accountants and lawyers on behalf of the
Partnership in connection with any Internal Revenue Service audit of the
Partnership shall be an expense of the Partnership. The General Partner, in
its discretion, shall decide whether, in applicable circumstances, the
Partnership will file an election, in accordance with applicable Treasury
Regulations, to cause the basis of its Partnership property to be adjusted for
federal income tax purposes as provided by Code Section Section 734, 743 and
754. In addition, the General Partner shall make any and all decisions
regarding all other tax elections and positions in tax returns, before taxing
authorities, or otherwise.
4.04 BANK ACCOUNTS. All funds belonging to the Partnership,
whether contributed by the Partners, borrowed on account of the Partnership or
received by the Partnership from any source, shall be deposited into an insured
commercial bank in the name of the Partnership. Any funds in excess of the
funds needed for current operation of the Partnership may be invested in
short-term interest-bearing obligations. All withdrawals from Partnership
accounts shall be made only upon the signature of persons designated by the
General Partner. All funds withdrawn from any such account shall be used only
for the purposes of the Partnership.
4.05 POWER OF ATTORNEY. In connection with the authority of
the General Partner, the Partners hereby appoint the General Partner as their
true and lawful representative and attorney-in-fact, to make, execute, sign,
acknowledge, verify, deliver and file, in all necessary or appropriate places,
in their name, place and stead (a) any application, certificate, certification,
report or similar instrument or document, or amendments thereto, required to be
submitted by or on behalf of the Partnership to any governmental or
administrative agency, officer or body, in furtherance of the Partnership
Business or to effect this Agreement; (b) any amendments to this Agreement,
whether requiring approval of the Limited Partners or expressly permitted
pursuant to the terms of this Agreement, and all other instruments, documents
and certificates that in the opinion of the General Partner or legal counsel
for the Partnership may from time to time be required
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<PAGE> 30
by the laws of the United States, the State of Georgia or any other state,
political subdivision or agency to effect such amendment or to effectuate,
implement and continue the valid existence and business of the Partnership; and
(c) all conveyances, agreements, certificates, and other instruments which the
General Partner deems appropriate to carry on the Partnership Business, or to
reflect the dissolution and termination of the Partnership. Each power of
attorney granted under this Agreement (a) is a special power of attorney
coupled with an interest and is irrevocable; (b) may be exercised by such
attorney-in-fact by listing all of the principals executing any agreement,
certificate, instrument or document with the single signature of such
attorney-in-fact acting as attorney-in-fact for all of them; (c) shall survive
dissolution of the Partnership through winding up to termination or through
reconstitution and thereafter, as applicable; and (d) shall survive the
delivery of an assignment by a Partner of the whole or a portion of his
interest in the Partnership, except that, where such assignment is of such
Partner's entire interest in the Partnership and the purchaser, transferee or
assignee thereof is admitted as a Substituted Partner, the power of attorney
shall survive the delivery of such assignment for the sole purpose of enabling
such attorney-in-fact to execute, swear to, acknowledge, and file any such
agreement, certificate, instrument or document necessary to effect such
substitution.
ARTICLE V
PARTNERSHIP BOOKS AND FINANCIAL RECORDS
5.01 PARTNERSHIP BOOKS OF ACCOUNT. Accurate, full and
complete books of account and records, wherein all transactions of the
Partnership shall be entered, shall be kept by the Partnership on a basis
consistent with this Agreement, including the provisions of Article VI
concerning allocations and distributions. Upon a Partner's reasonable request,
the books of account and records of the Partnership shall be open to inspection
by such Partner during ordinary business hours at the registered office of the
Partnership. The recipients of any information pursuant to this Section shall
keep confidential all such information unless the General Partner determines
that any of such information need not be treated as confidential.
5.02 ANNUAL AUDIT OF BOOKS OF ACCOUNT; REPORTS. The General
Partner upon the request of a Majority in Interest of the Limited Partners
shall, have the books of account and records of the Partnership audited in
accordance with generally accepted auditing standards by a firm of independent
certified public accountants selected by the General Partner. As soon as
practical after the end of each Fiscal Year, the General Partner shall furnish
each Partner appropriate distributive share statements of such Partner's share
of the Partnership's tax items for such Fiscal Year for both federal and state
tax purposes.
5.03 ACCOUNTING EXPENSES. All expenses in connection with
the keeping of the books and records of the Partnership and the preparation of
audited or unaudited financial statements required to implement the provisions
of this Agreement or required by any governmental authority with jurisdiction
over the Partnership shall be borne by the
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<PAGE> 31
Partnership as an ordinary expense of its business. Notwithstanding the
foregoing, if the books and records so kept by the Partnership or the financial
statements so prepared are challenged by any Partner or his legal
representatives, then the entire cost and expense to the Partnership of all
additional outside accounting work resulting from such challenge shall be paid
and borne solely by the person(s) so challenging the books and records or
financial statements.
5.04 FISCAL YEAR. The Fiscal Year of the Partnership shall
be the period ending on December 31 of each year, except that the final Fiscal
Year of the Partnership shall end on the date of termination of the
Partnership.
ARTICLE VI
PARTNERSHIP CAPITAL; ALLOCATIONS; DISTRIBUTIONS
6.01 CAPITAL CONTRIBUTIONS. The General Partner has
contributed to the capital of the Partnership intangible property having a fair
market value of $100,000. Each Limited Partner has contributed to the capital
of the Partnership intangible property having a fair market value equal to the
amount set forth opposite such Partner's name below:
J. Rex Fuqua $6,950,000
J. B. Fuqua $2,950,000
6.02 ADDITIONAL CAPITAL CONTRIBUTIONS. No Partner, including
the General Partner, shall be obligated or required to make any additional
Capital Contributions to the Partnership.
6.03 CAPITAL ACCOUNTS. Separate Capital Accounts shall be
maintained for each Partner in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv). Without limiting the generality of the foregoing, the
Capital Accounts shall be adjusted as follows:
(A) To each Partner's Capital Account there shall be
credited the fair market value such Partner's initial Capital Contribution, the
fair market value of any additional Capital Contributions by such Partner, such
Partner's distributive share of profits, and the amounts of any Partnership
liabilities that are assumed by such Partner or secured by any property
distributed to such Partner.
(B) To each Partner's Capital Account there shall be
debited the amount of cash and the fair market value of any property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of losses, and the amount of any liabilities of
such Partner that are assumed by the Partnership or that are secured by any
property contributed by such Partner to the Partnership.
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<PAGE> 32
In the event any interest in the Partnership is
transferred in accordance with this Agreement, the transferee shall succeed to
the Capital Account of the transferor to the extent it relates to the
transferred interest.
6.04 INTEREST ON AND RETURN OF CAPITAL. No Partner shall be
entitled to any interest on such Partner's Capital Account or contributions to
the capital of the Partnership; and, except as otherwise provided in this
Agreement, no Partner shall have the right to demand or to receive the return
of all or any part of such Partner's Capital Account or contributions.
6.05 LOANS TO THE PARTNERSHIP. In the event the Partnership
has insufficient funds to meet its obligations as they come due and to carry
out its routine, day-to-day affairs, then in lieu of obtaining required funds
from third parties or selling its assets in order to provide required funds,
the Partnership may, but shall not be required to, borrow necessary funds from
one or more of the Partners as designated by the General Partner and agreed by
the designated Partner; provided that the terms of such borrowing shall be
commercially reasonable and the Partnership shall not pledge its assets to
secure such borrowing. In the event the General Partner is required, as a
result of its general liability for Partnership debts and obligations, to pay a
Partnership debt or obligation, such payment shall be treated as a loan by the
General Partner to the Partnership, which loan shall be payable on demand of
the General Partner and shall bear interest at a commercially reasonable rate.
6.06 ALLOCATION OF PROFITS, LOSSES, AND TAX ITEMS.
(A) Except as otherwise provided in this Section 6.06,
all Net Income and Net Loss and all Partnership items of income, gain, loss,
deduction, or credit (the "Tax Items") for each fiscal year shall be allocated
to the Partners in accordance with their Partnership Interests.
(B) Upon the assignment or transfer of a Partnership
Interest pursuant to this Agreement, the books and records of the Partnership
shall be closed, and Tax Items shall be allocated to each Partner who held such
Partnership Interest in accordance with the portion of the year during which
such Partner held such Partnership Interest determined as though such portion
of the year was a separate taxable period. Notwithstanding the foregoing, the
Partner who held such Partnership Interest and the Partner receiving such
Partnership Interest may agree to make the allocation of Tax Items in
accordance with any other method permitted by applicable rules and Treasury
Regulations.
(C) In accordance with Code Section 704(c) and the
Treasury Regulations thereunder, income, gain, loss and deduction with respect
to any property contributed (or deemed contributed pursuant to the provisions
of Code Section 708) 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
- 10 -
<PAGE> 33
to the Partnership for federal income tax purposes and its fair market value at
the time of contribution (the "Book/Tax Disparity").
(D) Any elections or other decisions relating to
allocations shall be made by the Partners in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations pursuant to
Section 6.06(c) and 6.06(d) are solely for purposes of federal, state and local
income taxes and shall not affect, or in any way be taken into account in
computing, any Partner's Capital Account or share of Net Income or Net Loss, or
other items or distributions pursuant to any provisions of this Agreement.
Except to the extent that Treasury Regulations promulgated after the date of
this Agreement require otherwise, the Partners agree to treat such items for
tax purposes as described below.
(I) Depreciation or cost recovery deductions and
amortization deductions with respect to property contributed (or
deemed contributed) to the Partnership at a basis lower than the value
credited to such Partner's Capital Account shall be allocated to the
Partner who did not contribute such property to the extent required by
applicable Treasury Regulations.
(II) Gains upon the sale or other disposition of
such contributed (or deemed contributed) property shall be allocated
to the contributing Partner, solely for federal income tax purposes,
in the amount necessary to take into account any Book/Tax Disparity
that has not previously been eliminated pursuant to this Section.
(E) In the event that the Limited Partner unexpectedly
receives any adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Treasury Regulations and such
adjustments, allocations and/or distributions result in an Adjusted Capital
Account Deficit, 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 Treasury Regulations, such Adjusted
Capital Account Deficit as quickly as possible. This Section 6.06(e) is
intended to comply with the qualified income offset requirement of Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be so interpreted.
(F) Notwithstanding any other provision of this
Agreement, other than Section 6.06(e), Section 6.06(e) shall be taken into
account in allocating items of income, gain, loss and deduction between the
General Partner and the Limited Partners so that, to the extent possible, the
net amount of such allocations of other items and Section 6.06(e) to the
General Partner and the Limited Partners shall be equal to the net amount that
would have been allocated to each such Partner if the allocations under Section
6.06(e) had not occurred. The General Partner shall have reasonable
discretion, to the extent permitted by Treasury Regulations, with respect to
each fiscal year of the Partnership, to (i) apply the provisions of this
Section 6.06(f) in whatever order is likely to minimize the economic
distortions that might otherwise result from Section 6.06(e) and (ii) divide
all
- 11 -
<PAGE> 34
allocations pursuant to this Section 6.06(f) among the Partners in a manner
that is likely to minimize those economic distortions.
6.07 DISTRIBUTIONS.
(A) DISTRIBUTIONS OF NET CASH FLOW. The General Partner
shall cause the Net Cash Flow of the Partnership, as defined in this Agreement,
to be distributed to the Partners in proportion to their Partnership Interests
within sixty (60) days after the end of the Partnership's Fiscal Year, or upon
more frequent intervals as the General Partner in its sole discretion shall
determine.
(B) DISTRIBUTIONS IN KIND. Distributions in kind of
Partnership Assets, in liquidation or otherwise, shall be made only on a pro
rata basis with the consent of a Majority in Interest of the Partners and only
at a value approved by a Majority in Interest of the Partners. Prior to any
such distribution in kind, the difference between such established value and
the book value of the property to be distributed shall be credited or charged,
as is appropriate, to the Partners' Capital Accounts in proportion to their
Partnership Interests. Upon the distribution of such Assets, such agreed upon
value shall be charged to the Capital Accounts of the Partners.
6.08 CONSEQUENCES OF DISTRIBUTIONS. Upon the determination
to distribute funds in any manner expressly provided in this Article VI, made
in good faith, the General Partner shall incur no liability on account of such
distribution, even though such distribution may have resulted in the
Partnership's retaining insufficient funds for the operation of its business,
which insufficiency resulted in loss to the Partnership or necessitated the
borrowing of funds by the Partnership.
ARTICLE VII
WITHDRAWAL; ASSIGNMENT
7.01 IN GENERAL. A Partner may not sell, assign, transfer or
otherwise dispose of, or pledge, hypothecate or otherwise encumber all or any
part of his or her interest in the Partnership except as permitted in this
Article VII, and any act in violation of this Article VII shall be null and
void ab initio.
7.02 GENERAL PARTNER.
(A) A General Partner may not mortgage or pledge its
interest as General Partner in the Partnership and may not sell or otherwise
transfer its interest as General Partner in the Partnership unless a Majority
in Interest of the Limited Partners (exclusive of Limited Partner Interests of
the General Partner) consent to such disposition. A General Partner may not
voluntarily withdraw or resign from the Partnership without the prior written
consent of a Majority in Interest of Limited Partners (exclusive of Limited
Partner Interests of the General Partner).
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<PAGE> 35
(B) Upon the death, dissolution, insanity, bankruptcy,
retirement, withdrawal, resignation, nor expulsion of a General Partner, or
other incapacity which prevents the General Partner from effectively
discharging its duties (collectively "Withdrawal") the withdrawing General
Partner (or its successor) shall become a Limited Partner, retaining in that
capacity the economic interest in the Partnership formerly owned by it as a
general partner but not continuing participation in control of the Partnership.
Upon the Withdrawal of a General Partner or upon a permitted transfer by a
General Partner of its interest as such in the Partnership, at a time when
there are remaining one or more General Partners, such remaining General
Partner(s) shall continue the business of the Partnership and the Partnership
shall not dissolve. Upon the Withdrawal of a General Partner at a time when no
remaining General Partner exists, subject to the provisions of Section 7.03,
the Partnership shall dissolve.
7.03 CONTINUATION OF PARTNERSHIP. In the event of the
Withdrawal of the sole remaining General Partner, the Partnership shall
dissolve unless, within ninety (90) days after the Partnership receives notice
of such Withdrawal, all of the Partners agree in writing to continue the
business of the Partnership and to appoint one or more new general partners.
If at any time the sole remaining General Partner otherwise ceases to be a
General Partner, the Partners may, by unanimous consent within ninety (90) days
following such occurrence, elect to continue the Partnership and elect one or
more successor general partners to continue the business of the Partnership,
which successor general partner(s) will be permitted to purchase such
interest(s), if any, in the Partnership as a Majority in Interest of the
Partners may determine. Such election to continue the Partnership and election
of one or more successor General Partners shall be reflected in an amendment or
amendments to this Agreement. Upon such election to continue the Partnership,
all of the assets and liabilities of the Partnership shall be deemed
contributed to the new Partnership which shall be formed, and all parties to
this Agreement as it may hereafter be amended from time to time shall become
parties to such new Partnership and this Agreement shall govern such new
partnership. Expenses incurred in the continuation, or attempted continuation,
of the Partnership shall be expenses of the Partnership.
7.04 LIMITED PARTNERS. Each Limited Partner affirms that he
or she has purchased and now holds his or her interest in the Partnership for
his or her own account, solely for investment and not with any intention of
distributing, dividing, or reselling the same. The whole or any portion of the
interest of a Limited Partner may be sold, transferred, assigned, pledged or
subjected to a security interest (collectively referred to as a "disposition")
only with the consent of the General Partner, and only upon compliance with the
following conditions:
(A) Such disposition is not made to any person who is
incompetent or has not attained his or her majority, or to any person not
lawfully empowered to own such interest;
(B) Such Limited Partner, and the person to whom such
disposition was made, execute, swear to, and deliver to the General Partner
such instruments in
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<PAGE> 36
connection with the disposition as are in form satisfactory to the General
Partner and counsel for the Partnership;
(C) No such disposition shall be effective if it would
result in a violation of any federal or state securities law; and
(D) Any such person to whom such disposition was made
(including any such person who purchases such interest in the Partnership upon
foreclosure of a pledge or security interest) shall not become a Substituted
Limited Partner with respect to such Limited Partner's interest except pursuant
to the provisions of Section 7.05. An assignee who does not become a
Substituted Limited Partner is only entitled to receive that portion of the
distribution of Cash Flow to which his or her assignor would otherwise be
entitled; all other rights and duties incident to the interest so assigned
shall remain in the assignor.
Any attempted disposition not strictly in accordance with this
section 7.04 shall be null and void.
7.05 SUBSTITUTION OF A LIMITED PARTNER. An assignee of an
interest of a Limited Partner may become a Substituted Limited Partner with
respect to such interest only with the consent of the General Partner. No
Limited Partner need consent to such substitution in order to render it
effective. When there has been obtained consent to the admission of a person
as a Substituted Limited Partner and such person:
(A) Executes and swears to such instruments as the
General Partner may deem necessary or advisable to effect the admission of such
person as a Substituted Limited Partner;
(B) Assumes all obligations of the Limited Partner, as
such, for whom he or she is being substituted; and
(C) Pays for all expenses incurred by the Partnership in
connection with such person's becoming a Substituted Limited Partner, such
person shall thereupon become a Substituted Limited Partner and shall enjoy all
of the rights and duties of a Limited Partner and those incident to the
Interest with respect to which the substitution has occurred; provided,
however, that neither the assignment of an interest of a Limited Partner, nor
the admission of an assignee as a Substituted Limited Partner, shall relieve
the assignor of any duties or obligations as such theretofore incurred except
to the extent provided in a writing signed by the persons affected thereby.
7.06 CERTAIN EVENTS AS TO LIMITED PARTNERS. The legal
incompetency or bankruptcy or death of a Limited Partner who is not a General
Partner (or in the case of a Limited Partner that is a corporation,
association, partnership, joint venture or trust, the dissolution of such
Partner) shall not dissolve the Partnership. In any such event, the personal
representative, guardian or other successor in interest, or the estate of such
Limited Partner, may (1) hold the interest of the Limited Partner as only an
assignee
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<PAGE> 37
thereof, (2) assign, subject to Section 7.04, any or all of the interest, or
(3) be substituted, subject to Section 7.05, as a Substituted Limited Partner
in the Partnership.
7.07 PURCHASE OF PARTNERSHIP INTEREST BY GENERAL PARTNER.
The General Partner may, but shall not be obligated to, acquire Partnership
Interests from any willing Limited Partner. If with respect to such
Partnership Interests a General Partner becomes a Substituted Limited Partner,
such General Partner shall, with respect to the interests purchased, enjoy all
the rights and be subject to all the obligations and duties of a Limited
Partner.
7.08 TRANSFERS FROM CUSTODIANSHIPS. Any interest as a
Limited Partner which is held by a custodian or trustee for a minor under the
laws of Georgia or any other state shall be fully transferable and assignable
to the minor when he or she reaches the age of termination of such
custodianship or trust for such minor.
7.09 TRANSFER UPON DEATH OF LIMITED PARTNER. Upon the death
of a Limited Partner, if any interest in the Partnership by will or intestacy
passes to or for the benefit of any person not a permitted transferee under
Section 7.04, each Limited Partner other than the estate of the deceased
Limited Partner or purported transferee of the deceased Limited Partner shall
have an option to acquire from such estate or purported transferee the
Partnership Interest of such deceased Limited Partner in that proportion which
the Partnership Interest of each purchasing Limited Partner bears to the
aggregate Partnership Interests of all purchasing Limited Partners. The option
to acquire shall be exercised by giving written notice to the legal
representative of the estate of the deceased Limited Partner within thirty (30)
days after the last to occur of the qualification of such legal representative
before the Probate Court and the determination of the value of such deceased
Limited Partner's Partnership Interest in the manner specified by section 7.10.
The closing of such purchase upon exercise of such option shall take place at
the office of the Partnership at the time set forth in the notice of exercise,
but no later than sixty (60) days after such exercise.
7.10 VALUE OF INTEREST AFTER DEATH. The purchase price for
purposes of section 7.09 above of the Partnership Interest of a deceased
Limited Partner shall be 60% of the amount which would have been received by
the estate of such Partner under section 9.03 if all of the Partnership
property had been sold for its fair market value in cash and had the
Partnership then paid in full all of its debts and liabilities and distributed
the cash remaining to Partners under 9.03 (there being a 40% discount for lack
of marketability and lack of control). The fair market value of the assets of
the Partnership shall be determined by an appraisal of the assets of the
Partnership and by deducting from such appraised value if not previously
deducted all liabilities of the Partnership, such appraisal to be made in
accordance with section 7.11, and the cost of which shall be borne by the
Partnership. The purchase price shall be paid to the legal representative of
the estate of the deceased Limited Partner in cash on the date of closing. If
no Limited Partner purchases the Partnership Interest as provided in sections
7.09 and 7.10, the legal representative of the estate of the deceased Limited
Partner may transfer the interest of the deceased in accordance with the will
or by intestacy. Each Limited Partner grants to the General
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<PAGE> 38
Partner the power of attorney described in section 4.05 above to consummate the
sale on behalf of the legal representative of such Partner if such legal
representative fails or refuses to consummate such sale.
7.11 APPRAISAL PROCEDURE. Whenever an appraisal is required
by section 7.10 above, it shall be accomplished by two appraisers, one selected
by the legal representative of the estate of the deceased Limited Partner and
one by the General Partner, such selections being made within ten (10) days
after it is determined that an appraisal is required and notice of such
determination has been given to the Partners. The two appraisers shall submit
their report as soon as feasible after their selection; provided, however, that
if they cannot mutually agree on the value of the assets being appraised within
a reasonable time, they shall select a third appraiser. Should the two
appraisers fail to select a third appraiser, they or either of them shall
request a Judge of the Superior Court of Fulton County, Georgia to appoint such
third appraiser. As soon as feasible after such appointment, the three
appraisers shall submit their report and the appraised value shall be
determined by a majority vote of the three appraisers. Should the appraisers
fail to submit a report or reach a majority determination of the appraised
value, the determination of the third appraiser alone shall be binding on all
of the parties. Notwithstanding the above, if the legal representative for any
reason fails to select an appraiser within the 10-day period described in the
first sentence of this section 7.11, the value shall be determined by the
appraiser selected by the General Partner, which appraiser shall submit its
report as soon as feasible after its selection. If the General Partner fails
to select an appraiser, the Limited Partners will be deemed to have declined to
purchase the Partnership Interest of the estate of the deceased Limited
Partner.
ARTICLE VIII
PARTNERSHIP EXPENSES
8.01 GENERAL. The Partnership shall reimburse the General
Partner for any and all of its costs incurred in connection with the business
of the Partnership, including, but not limited to, those expenses outlined in
Section 8.02 below.
8.02 TYPE OF EXPENSES. The Partnership shall pay expenses of
the Partnership, which may include, but are not limited to: (i) all
compensation of personnel employed by the Partnership or involved in the
Partnership Business; (ii) all costs of borrowed money, taxes and assessments
on Assets and other taxes applicable to the Partnership; (iii) legal, audit,
accounting, consulting and brokerage fees; (iv) expenses and taxes incurred in
the distribution, transfer and recording of documents evidencing ownership of
an interest in the Partnership or in the Partnership business; (v) expenses for
the preservation, utilization, repair, remodeling, leasing, refinancing and
operation of Assets; and (vi) any other expenses directly attributable to the
Partnership.
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<PAGE> 39
ARTICLE IX
TERMINATION OF PARTNERSHIP
9.01 TERMINATION. The Partnership shall be dissolved and its
affairs wound up upon the first to occur of (i) December 31, 2085, (ii) the
concurrence of the General Partner and a Majority in Interest of the Limited
Partners, (iii) the sale of all or substantially all of the Assets of the
Partnership, and the distribution of Net Cash Flow and remaining Assets of the
Partnership to the Partners (if all or any portion of the proceeds from any
sale of any Assets is evidenced by notes or other debt instruments payable in
installments, the Partnership shall continue until payment in full or other
disposition of such notes or other debt instrument is made), (iv) entry of a
decree of judicial dissolution under Section 14-9-802 of the Partnership Law,
or (v) dissolution under Section 7.03 without continuation.
9.02 LIQUIDATION. Upon termination of the Partnership, the
General Partner or, if none, a person selected by a Majority in Interest of the
Limited Partners, shall wind up the affairs of the Partnership, with full power
and authority to liquidate the assets of the Partnership. The liquidator shall
continue to serve as such until the completion of the winding-up and
liquidation of the Partnership. The liquidator may also employ such assistance
as it deems appropriate. Notwithstanding any other terms or provisions of this
Agreement, any General Partner with a negative Capital Account upon a
"liquidation" as described in Treasury Regulation Section 1.704-1(b)(2)(ii)(g)
shall be obligated to restore the amount of such deficit to the Partnership
within ninety (90) days.
9.03 DISTRIBUTIONS UPON TERMINATION. On termination of the
Partnership, the liquidator shall apply distributions out of the properties and
assets of the Partnership in the following order of priority:
(A) To the payment and discharge of the claims of all
creditors of the Partnership who are not Partners;
(B) To the establishment of such reserves as the
liquidator may deem necessary or advisable in order to provide for contingent
liabilities of the Partnership to all persons who are not Partners;
(C) To the payment and discharge pro-rata of the claims
of all creditors of the Partnership who are Partners;
(D) To the establishment of such reserves as the
liquidator may deem necessary or advisable in order to provide for contingent
liabilities of the Partnership to Partners; and
(E) To the Partners in proportion to their respective
positive Capital Account balances.
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<PAGE> 40
The liquidator may use its discretion in making the
liquidating distributions in cash or in kind, but if in kind all Partners shall
be treated ratably in proportion to their interests in the Partnership.
ARTICLE X
MISCELLANEOUS
10.01 HEADINGS. The titles and headings of various
paragraphs in this Agreement are intended solely for convenience of reference
and are not intended to explain, modify or place any interpretation upon any of
the provisions of this Agreement.
10.02 TIME OF THE ESSENCE. All time and dates in this
Agreement shall be of the essence.
10.03 ENTIRE AGREEMENT. This Agreement constitutes the
entire understanding and agreement among the parties and supersedes any prior
agreement and understanding among the parties with respect to the Partnership
or the Assets.
10.04 AMENDMENT. The General Partner may not unilaterally
amend or modify any provision of this Agreement except (i) to take or reflect
any action for which Limited Partner consent is not required by this Agreement;
(ii) without Limited Partner consent to comply with any securities, tax or
other legal requirement, so long as such amendment does not change the
substance of this Agreement; or (iii) without Limited Partner consent to change
this Agreement to reflect future amendments or changes in the Partnership Law,
which changes do not materially affect the rights of Limited Partners. A
Partnership Interest may be reduced ratably by admission of new Partners or
otherwise only with the consent of the Partner whose interest is reduced. Any
other provision of this Agreement may be amended with the consent of the
General Partner and Limited Partners holding a Majority in Interest.
10.05 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Georgia.
10.06 SEVERABILITY. If any part of this Agreement is
determined to be illegal or unenforceable, all other parts shall be given
effect separately and shall not be affected.
10.07 NOTICES. Notices given under this Agreement shall be
in writing and shall either be served personally or delivered by first class
mail, registered or certified, return receipt requested, U.S. Mail, postage
prepaid. Notices shall be deemed received at the earlier of actual receipt or
three days following deposit in U.S. Mail, postage prepaid. Notices shall be
directed to the addresses shown on the Partnership records, provided that (i) a
Limited Partner may change his or her address for notice by giving written
notice to the General Partner, and (ii) the General Partner may change its
address by giving written notice to all Limited Partners, in either case, in
accordance with this notice section.
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<PAGE> 41
10.08 GENDER AND NUMBER. As used in this Agreement, the
masculine, feminine, or neuter gender, and the singular or plural number, shall
each include the others whenever the context so indicates.
10.09 COUNTERPARTS. This Agreement may be signed in
counterpart or duplicate copies, and any signed counterpart or duplicate copy
shall be equivalent to a signed original for all purposes.
10.10 CROSS-REFERENCES. All cross-references in this
Agreement, unless specifically directed to another agreement or document, refer
to provisions in this Agreement, and shall not be deemed to be references to
the overall transaction or to any other agreements or documents.
10.11 COVENANT TO SIGN DOCUMENTS. Each Partner shall
execute, with acknowledgment or affidavit, if required, all documents and
writings reasonably necessary or expedient in the creation of this Partnership
and the achievement of its purpose.
10.12 SUCCESSORS. This Agreement shall be binding on and
inure to the benefit of the respective successors, permitted assigns, and
personal representatives of the Partners.
IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of the Partners as of the date first above written.
GENERAL PARTNER:
FUQUA HOLDINGS, INC.
By: /s/ J. Rex Fuqua
---------------------------------------
J. REX FUQUA, President
ATTEST: /s/ J. B. Fuqua
-----------------------------------
J. B. FUQUA, Secretary
LIMITED PARTNERS:
/s/ J. Rex Fuqua
------------------------------------------
J. REX FUQUA
/s/ J. B. Fuqua
------------------------------------------
J. B. FUQUA
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<PAGE> 42
EXHIBIT 3
AMENDMENT TO AGREEMENT
OF LIMITED PARTNERSHIP
OF
FUQUA HOLDINGS-I, L.P.
This Amendment is made and entered into as of the 19th day of July,
1995, by and among the undersigned partners.
1. ADMISSION OF NEW LIMITED PARTNERS. To reflect the sale of certain
limited partnership interests by J. Rex Fuqua and J. B. Fuqua, gifts of certain
limited partnership interests by J. Rex Fuqua, and the admission to the
Partnership of Substituted Limited Partners, Article I of the Agreement is
hereby amended, in pertinent part, as follows:
<TABLE>
<CAPTION>
PARTNER PARTNERSHIP INTEREST
- ------- --------------------
<S> <C>
Fuqua Holdings, Inc., as general partner 1.0%
The John Rex Fuqua, Jr. Trust,
Dated July 19, 1995, as limited partner 26.4%
The Ruth Duvall Fuqua Trust,
Dated July 19, 1995, as limited partner 26.4%
The Frances Hattaway Fuqua Trust,
Dated July 19, 1995, as limited partner 26.4%
The John Rex Fuqua, Jr. and Descendants Trust,
Dated July 19, 1995, as limited partner 6.6%
The Ruth Duvall Fuqua and Descendants Trust,
Dated July 19, 1995, as limited partner 6.6%
The Frances Hattaway Fuqua and Descendants Trust,
Dated July 19, 1995, as limited partner 6.6%
</TABLE>
2. AGREEMENT TO BE BOUND. The Substituted Limited Partners, by their
signatures hereto, agree to be bound by all of the terms, conditions, and
restrictions contained in the Agreement.
3. CAPITALIZED TERMS. All capitalized terms used herein shall have the
same meanings ascribed to them in the Agreement of Limited Partnership of Fuqua
Holdings-I, L.P.
- 1 -
<PAGE> 43
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
<TABLE>
<CAPTION>
GENERAL PARTNER: LIMITED PARTNERS:
<S> <C>
FUQUA HOLDINGS, INC. THE JOHN REX FUQUA, JR. TRUST,
Dated July 19, 1995
By: /s/ J. Rex Fuqua By: /s/ S. Taylor Glover
-------------------------------------- ----------------------------------
J. REX FUQUA, President S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
Attest: /s/ J. B. Fuqua LAWRENCE P. KLAMON, Trustee
---------------------------------
J. B. FUQUA, Secretary
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
THE RUTH DUVALL FUQUA TRUST,
Dated July 19, 1995
By: /s/ S. Taylor Glover
----------------------------------
S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
LAWRENCE P. KLAMON, Trustee
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
THE FRANCES HATTAWAY FUQUA TRUST,
Dated July 19, 1995
By: /s/ S. Taylor Glover
----------------------------------
S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
LAWRENCE P. KLAMON, Trustee
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
</TABLE>
- 2 -
<PAGE> 44
<TABLE>
<S> <C>
THE JOHN REX FUQUA, JR.
AND DESCENDANTS TRUST,
Dated July 19, 1995
By: /s/ S. Taylor Glover
----------------------------------
S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
LAWRENCE P. KLAMON, Trustee
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
THE RUTH DUVALL FUQUA
AND DESCENDANTS TRUST,
Dated July 19, 1995
By: /s/ S. Taylor Glover
----------------------------------
S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
LAWRENCE P. KLAMON, Trustee
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
THE FRANCES HATTAWAY FUQUA
AND DESCENDANTS TRUST,
Dated July 19, 1995
By: /s/ S. Taylor Glover
----------------------------------
S. TAYLOR GLOVER, Trustee
By: /s/ Lawrence P. Klamon
----------------------------------
LAWRENCE P. KLAMON, Trustee
By: /s/ Frances M. Schultz
----------------------------------
FRANCES M. SCHULTZ, Trustee
</TABLE>
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