THIRD AMENDMENT TO KEITHLEY INVESTMENT CO. LIMITED PARTNERSHIP LIMITED PARTNERSHIP AGREEMENT
Exhibit 2
THIS AMENDMENT (this “Amendment”) is made and entered into on the 1st day of April,
2010, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the “General Partner”) and (i) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988
Family Trust f/b/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88, (ii) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family
Trust f/b/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88, and (iii) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family Trust
f/b/o ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88 (the “Limited Partners”), and it amends the Limited
Partnership Agreement originally entered into on April 12, 1988, as amended and restated by the
Amended and Restated Limited Partnership Agreement dated August 1, 1997, as amended by the Second
Amendment dated July 1, 2000 (the “Original Agreement”). The Original Agreement, as amended
hereby, is referred to as “the Agreement”. Except as specifically modified by this Amendment, the
Agreement shall contain and be subject to the same terms and conditions as the Original Agreement.
WHEREAS, the General Partner and the Limited Partners agree that amending the Original
Agreement to clarify and/or modify (i) the definition and succession of the General Partner, (ii)
the term of the Partnership, (iii) the procedures for dissolution of the Partnership and related
matters, (iv) the transfer of a Partner’s Partnership Interest, and (v) a reduction in the minimum
per share price of Company Stock referred to in Section 4.5 of the Original Agreement to correspond
with similar modifications set forth in the Second Amendment dated July 1, 2000 relating to the 2:1
split of the stock of ▇▇▇▇▇▇▇▇ Instruments, Inc. on June 2, 2000, would be mutually beneficial; and
NOW THEREFORE, the Original Agreement (pursuant to the authority under Article 10 thereof) is
amended as follows:
1. Section 1.9 of the Original Agreement is amended and restated so as to provide in its
entirety as follows:
“Section 1.9 Term of Partnership. The term of the Partnership began on April 12,
1988, and the Partnership shall continue in existence until the earlier of (i) December 21, 2018,
or (ii) the date upon which the Partnership no longer owns any Company Stock.”
2. The language in Section 4.1 of the Original Agreement that precedes Section 4.1(a) is
amended and restated so as to provide in its entirety as follows:
“Net Operating Income in respect of a fiscal year shall be distributed to the successor
General Partner (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ if she immediately succeeds ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as
General Partner and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ has transferred his General Partnership Interest to her), if
any, in an amount equal to the “Annual Profit Interest” (as defined in Section 8.5(d)), for the
fiscal year of such distribution, plus any accrued but unpaid Annual Profit Interests owed to such
successor General Partner from previous fiscal years, and the balance of
said Net Operating Income shall be distributed in the following proportions and order of
priority:”.
3. Section 4.3 of the Original Agreement is amended and restated so as to provide in its
entirety as follows:
“Section 4.3 Sales of Company Stock. During the fourth fiscal quarter of each fiscal
year the General Partner shall act in good faith and use reasonable efforts to sell a sufficient
number of shares of Company Stock at a price not less than $3.75 per share in order to generate
sufficient funds to make the Annual Profit Interest distribution and the distributions set forth in
Section 4.1(a).”
4. The last sentence of Section 4.5 of the Original Agreement is amended and restated so as to
provide in its entirety as follows:
“Before March 31 following such March 15 the Partnership shall distribute to each Partner in
respect of such fiscal year, but only after giving priority to the Annual Profit Interest and the
distributions provided for in Section 4.1(a), an amount equal to the excess (if any)
of such marginal taxes over the aggregate amount otherwise distributed to such
Partner in respect of such fiscal year.”
5. Section 5.4(b) of the Original Agreement is amended and restated so as to provide in its
entirety as follows:
“(b) admit additional, substitute or successor Partners, except as otherwise provided
in Article 8 of this Agreement;”.
6. Section 6.3(a) of the Original Agreement is amended and restated so as to provide in its
entirety as follows:
“Section 6.3 Voting of Limited Partners.
| (a) | Limited Partners shall have the right to vote upon the matters listed below: |
| (i) | Election of a successor General Partner as
provided in Section 8.5(a)(v); |
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| (ii) | Removal of a successor General Partner as
provided in Section 8.5(a); |
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| (iii) | Removal of a Liquidation Manager as provided
in Section 9.2(b)(i); |
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| (iv) | Amendment of this Agreement; |
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| (v) | Extension of the term of the Partnership; and |
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| (vi) | Any matter requiring the vote of the Limited
Partners as set out elsewhere in this Agreement or in the Act.” |
7. Sections 8.1, 8.2 and 8.3 of the Original Agreement are amended and restated so as to
provide in their entireties as follows:
“Section 8.1 General Partner.
(a) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. Without the express written consent of a majority in
interest of the Limited Partners, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇’▇ General Partnership Interest in the
Partnership shall not be transferable, and any attempted assignment shall be ineffective to
transfer such interest; provided, however, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may transfer his General
Partnership Interest in the Partnership to a Permitted Transferee without approval. If
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ transfers his General Partnership Interest to a Person other than the
successor General Partner, the transferred interest will be converted into a Class C Limited
Partnership Unit. If the conversion occurs, the Class C Limited Partnership Unit will
retain the economic interest in the Partnership of the General Partner and the
pre-conversion General Partnership Interest. A successor General Partner (other than ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ if she immediately succeeds ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as General Partner and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ has transferred his General Partnership Interest to her) shall receive an Annual
Profit Interest for serving as General Partner.
(b) Successor General Partners. Without the express written consent of a
majority in interest of the Limited Partners, a General Partnership Interest in the
Partnership held by a successor General Partner shall not be transferable by the successor
General Partner to any Person other than the successor General Partner, and any attempted
assignment shall be ineffective to transfer such interest. When the successor General
Partner no longer serves as General Partner, the successor General Partnership Interest
shall be purchased by the Partnership unless it has been transferred to the successor
General Partner. The purchase price of the interest shall be One Dollar ($1.00), plus any
accrued but unpaid Annual Profit Interests then due to the successor General Partner.
Section 8.2 Limited Partner. Without the express written consent of the General
Partner, the interests of the Limited Partners in the Partnership shall not be transferable, and
any attempted assignment shall be ineffective to transfer such interest; provided, however, a
Limited Partner may transfer his/her/its Limited Partnership Interest to a Permitted Transferee
without approval.
Section 8.3 Transferees. Interests transferred pursuant to Section 8.2 shall be and
remain subject to all of the provisions of this Agreement, and the transferee of any such interest
shall, upon the consent of the General Partner (but no consent shall be required for a transfer
made to a Permitted Transferee) become or remain a Limited Partner hereunder, and this
Partnership shall be deemed to continue with the remaining Partners on the same term (except
as the Partner’s percentages may thereby be affected) as in this Agreement set forth. The
transferee must sign a counterpart signature page thereby agreeing to join the Partnership and be
bound by the terms of the Agreement.”
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8. New Section 8.5 is hereby added to the Original Agreement, to be inserted immediately after
Section 8.4, to provide in its entirety as follows:
“Section 8.5 General Partner. There shall always be one General Partner. The
following rules shall apply to appoint and remove General Partners.
(a) Identity of the Initial General Partner and Designation of Successor General
Partners. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is the initial General Partner. When ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
dies, resigns, or becomes permanently incapacitated, or if there is ever no General Partner,
the successor General Partner shall be the first Person named (or designated as provided)
below who then can and will so serve:
| (i) | ▇▇▇ ▇. ▇▇▇▇▇▇▇▇; |
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| (ii) | ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; |
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| (iii) | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; |
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| (iv) | designee of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ may prospectively stipulate an order of succession, or a
mechanism or procedure for the selection, of designees; or |
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| (v) | designee of the Limited Partners, acting by
unanimous vote. |
The Limited Partners may, by unanimous vote, remove any General Partner, other than ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, for any reason.
(b) Resignation. Any General Partner may resign after 30 days notice so long
as a successor General Partner has agreed to serve.
(c) Procedures. The appointment, acceptance of appointment, removal or
resignation of a General Partner shall be in a signed and witnessed writing filed with the
Partnership records and the Partners. An appointment shall not be effective unless and
until accepted by the General Partner so appointed and, even after acceptance, the
appointment shall be revocable unless and until the appointment has taken effect. The
writing with the latest date shall control. A successor General Partner shall be admitted
as General Partner upon the filing of the acceptance of appointment with the Partnership
records and the Partners.
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(d) Annual Profit Interest. A successor General Partner (other than ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ if she immediately succeeds ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as General Partner and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ has transferred his General Partnership Interest to her) will not assume the
economic interest of the original General Partner (i.e., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) or the original
General Partner Interest (i.e., the interest initially held by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇). Under
such circumstances, said economic interests shall be retained by the Class C Limited
Partnership Unit. A successor General Partner (other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ if she
immediately succeeds ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as General Partner and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ has
transferred his General Partnership Interest to her) will: (i) be entitled to only an
Annual Profit Interest, and (ii) have no economic interest in the Partnership other than the
Annual Profit Interest. “Annual Profit Interest” means the first One-Thousand Dollars
($1,000) of Net Operating Income for the fiscal year for which said successor General
Partner serves in the capacity of General Partner. The Annual Profit Interest shall have
the first priority in Section 4.1. The Annual Profit Interest shall be prorated for partial
year service.”
9. Sections 9.1 and 9.2 of the Original Agreement are amended and restated so as to provide in
their entireties as follows:
“9.1 Dissolution. The Partnership shall be dissolved upon the expiration of the term
specified in Section 1.9.
9.2 Winding Up and Termination.
(a) Procedure and Delegation of Power and Authority. Upon the dissolution of
the Partnership (as defined in Section 9.1), the affairs and business of the Partnership
shall be wound up and terminated, the Partnership’s liabilities shall be discharged, and the
Partnership’s Property shall be liquidated and distributed in the manner hereinafter
described. A reasonable time shall be allowed for the orderly winding up of the affairs and
business of the Partnership so as to enable the Partnership to minimize any losses attendant
to the winding up and termination period, to maximize (and stabilize) the value of the
Company Stock, and to assure the Company’s management and investors that the Company remains
in good hands during such transition period. A reasonable estimate for the duration of such
transition period is 18 to 24 months.
If a Liquidation Manager is appointed pursuant to Section 9.2(b) and is a Person other
than the General Partner, then the Liquidation Manager shall have the exclusive power and
authority to act on behalf of the Partnership to wind up and terminate the affairs of the
Partnership, to sell and convey the Partnership Property to such Persons (including, without
limitation, any Partner or any Affiliate thereof) for such consideration and upon such terms
and conditions as it deems necessary or appropriate, to discharge the Partnership’s
liabilities, and to establish any reserves that it deems necessary or appropriate for any
contingent or unforeseen liabilities or obligations of the Partnership. If there is no
Liquidation Manager, these responsibilities shall belong to the General Partner.
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Upon completion of the winding up of the affairs and business of the Partnership, the
liquidation proceeds shall be distributed by the General Partner in the following manner and
order of priority:
(i) First, such liquidation proceeds shall be applied to the payment of debts
and liabilities of the Partnership (excluding any loans from any Partner to the
Partnership) and the payment of expenses of the winding up of the affairs and
business of the Partnership;
(ii) Next, such liquidation proceeds shall be applied to the repayment of any
loans made by and Partner to the Partnership;
(iii) Next, such liquidation proceeds shall be applied to the setting up of any
reserves (to be held by the General Partner in an interest-bearing account) which
the General Partner may deem necessary or appropriate for any contingent or
unforeseen liabilities or obligations of the Partnership; provided, however, that at
the expiration of such time as the General Partner deems necessary or appropriate,
the balance of such reserves remaining after payment of such liabilities or
obligations shall be distributed by the General Partner in the manner hereinafter
set forth in this Section 9.2(a);
(iv) Next, such liquidation proceeds shall be applied to the payments of any
accrued but unpaid Annual Profit Interests;
(v) Next, such liquidation proceeds shall be applied to the payment of any
accrued but unpaid Cumulative Minimum Distributions; and
(vi) The remaining assets shall then be distributed to the Partners in
accordance with the Partner’s positive capital account balances, after
making the adjustments for allocations under Article 3 and in compliance with the
distribution priorities set forth in Article 4.
The General Partner may delegate his/her/its responsibilities under this Section 9.2(a)
to the Liquidation Manager (if any).
(b) Liquidation Manager. The following rules shall apply to appoint and remove
Liquidation Managers:
(i) Appointment and Removal. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may, from time to
time, exercise an overriding authority to remove any Liquidation Manager and also to
appoint successor or additional Liquidation Managers or prospectively stipulate an
order of succession, or a mechanism or procedure for the appointment and removal, of
Liquidation Managers. After ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇’▇ death or permanent incapacity, the
Limited Partners may, by unanimous vote, remove any Liquidation Manager, for any
reason.
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(ii) If No Liquidation Manager. If there is no Liquidation Manager and
none is appointed within 30 days of the occurrence of the vacancy (or if it earlier
becomes apparent that none will be appointed), the Liquidation Manager shall be the
General Partner.
(iii) Resignation. Any Liquidation Manager may resign after 30 days
notice.
(iv) Procedures. The appointment, acceptance of appointment, removal
or resignation of a Liquidation Manager shall be in a signed and witnessed writing
filed with the Partnership records and the Partners. An appointment shall not be
effective unless and until accepted by the Liquidation Manager so appointed and,
even after acceptance, the appointment shall be revocable unless and until the
appointment has taken effect. The writing with the latest date shall control.”
10. Section (14) of Exhibit 2 to the Original Agreement is amended and restated so as to
provide in its entirety as follows:
“(14) “General Partner” means initially ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and if he ceases to serve, any
successor General Partner designated and admitted to the Partnership pursuant to Section 8.5.”
11. New Section (18.5) is hereby added to Exhibit 2 to the Original Agreement, to be inserted
immediately after Section (18) and before Section (19), to provide in its entirety as follows:
“(18.5) “Permitted Transferee” means: (a) the beneficiaries of (i) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
1988 Family Trust f/b/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88, (ii) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family
Trust f/b/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88, (iii) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family Trust f/b/o
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88, and (iv) any subtrust created under the trusts listed in
(i), (ii) and (iii), in accordance with the terms of said trusts; (b) the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇; (c) spouses or surviving spouses of the children of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and (d) any trust
established for the primary benefit of an individual listed in (b) or (c).”
[SIGNATURES ARE ON THE FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties have hereunto set their hands to duplicate originals as of the
day and year first written above, thereby consenting and agreeing to the modifications set forth in
this Amendment to the Original Agreement, effective as of the day and year first written above.
Further, for convenience, the Agreement (as amended) may be restated in its entirety to reflect the
foregoing changes. This Amendment has been executed with counterpart signature pages; a complete
original shall include the signature pages which, collectively, include the signatures of all
parties.
| GENERAL PARTNER: |
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| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| LIMITED PARTNERS: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family Trust f/b/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88 |
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| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family Trust f/b/o ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88 |
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| /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
| ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1988 Family Trust f/b/o ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ u/a/dtd 4/12/88 |
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| /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
| ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee | ||||
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