1
EXHIBIT 4.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of the
____ day of __________, 1997, by and among SLI TRANSITORY, L.P., a Delaware
limited partnership ("Transitory"), STAFF CAPITAL, L.P., a Delaware limited
partnership ("Capital"), STAFF ACQUISITION, INC., a Delaware corporation (the
"General Partner"), and STAFF LEASING, INC., a Florida corporation (the
"Company").
WHEREAS, Transitory and Capital are both duly organized and validly
existing limited partnerships organized under the laws of the State of
Delaware; and
WHEREAS, the General Partner, as the sole general partner of
Transitory and Capital, has determined that it is in the best interests of
Transitory and Capital for Transitory to merge with and into Capital upon the
terms and conditions provided in this Agreement; and
WHEREAS, in accordance with Delaware law and the Partnership
Agreements (as hereinafter defined), the necessary general partners and limited
partners of Transitory and Capital have duly approved this Agreement and
directed that it be executed by the General Partner, acting on behalf of
Transitory and Capital as the sole general partner of Transitory and Capital;
and
WHEREAS, as contemplated by the Partnership Agreements (as hereinafter
defined) and in furtherance of the purposes for which the Company was formed,
it is intended (a) that the hereinafter defined Limited Partnership Interests
(other than the hereinafter defined Common Limited Partnership Interests) in
Capital will, concurrently with the Merger, be redeemed for, exchanged for, or
converted to cash, Shares (as hereinafter defined), warrants for Shares of the
Company, or some combination thereof and (b) that all Common Limited
Partnership Interests in Capital will, immediately upon consummation of the
Merger, be converted to Shares of the Company in accordance with the terms of
this Agreement; and
WHEREAS, it is intended that the Merger, together with the conversion
of partnership interests as provided in Section 3.4 hereof, will qualify as a
reorganization entitled to tax-free treatment under Section 351 of the Internal
Revenue Code of 1986, as amended, and that all terms and conditions set forth
herein will be interpreted to effectuate such intent;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and conditions contained herein and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
2
ARTICLE 1
DEFINITIONS
1.1 Terms. The following terms used in this Agreement shall have the
meanings set forth below:
(a) Capital Partnership Agreement. Amended and Restated Agreement
of Limited Partnership of Staff Capital, L.P., dated as of
April 26, 1996, by and among the General Partner and the
other Persons set forth on Schedule A thereto, as amended by
Amendment No. 1 to Partnership Agreement, effective as of
February 28, 1997, by and among the General Partner and the
Limited Partners, as defined therein, together with Capital's
Certificate of Limited Partnership, as the same may have been
amended through the date hereof.
(b) Effective Date. The date upon which the Merger becomes
effective under the Partnership Act and pursuant to the
Certificate of Merger which is dated as of ______ __, 1997
and which will be filed by the General Partner with the
Secretary of State of the State of Delaware in connection
with the Merger.
(c) Limited Partnership Interests, Common Limited Partnership
Interests, Preferred Limited Partnership Interests, Class A
Preferred Limited Partnership Interests, and Class B
Preferred Limited Partnership Interests. As defined in the
Capital Partnership Agreement.
(d) Merger. The merger of Transitory with and into Capital as
contemplated by this Agreement and each of the Operative
Documents.
(e) Operative Documents. This Agreement and each other agreement,
instrument, or other document executed and delivered pursuant
hereto or in connection herewith.
(f) Partnership Act. The Delaware Revised Uniform Limited
Partnership Act, Delaware Code Annotated, Title 6, Chapter
17, as amended.
(g) Partnership Agreements. The Capital Partnership Agreement and
the Transitory Partnership Agreement.
(h) Person. An individual, corporation, joint venture,
partnership, trust, limited liability company, unincorporated
association, government, or any department or agency thereof,
or other entity.
(i) Shares. Shares of the common stock of the Company, $.01 par
value.
- 2 -
3
(j) Surviving Limited Partnership. Capital, as the surviving
limited partnership in the Merger.
(k) Transitory Partnership Agreement. Agreement of Limited
Partnership of SLI Transitory, L.P., dated as of ______ ___,
1997, by and among the General Partner and the Company,
together with Transitory's Certificate of Limited
Partnership, as the same may have been amended through the
date hereof.
1.2 Singular/Plural; Gender. Where the context so requires or
permits, the use of the singular form includes the plural, and the use of the
plural form includes the singular, and the use of any gender includes any and
all genders.
ARTICLE 2
TERMS AND CONDITIONS OF THE MERGER
2.1 Performance of Agreement of Merger. Upon the terms and subject
to the conditions hereof, Transitory shall be merged with and into Capital in
accordance with applicable law. Capital shall survive the Merger, and the
separate legal existence and organization of Transitory shall cease upon
consummation of the Merger. The Merger shall be effective on the Effective
Date. Prior to the Effective Date, the parties shall take all actions necessary
in accordance with applicable law and their respective Partnership Agreements
to cause the Merger to be consummated. Transitory and Capital hereby approve
the agreement of merger set forth herein.
2.2 Surviving Limited Partnership Documents. The Capital Partnership
Agreement as in effect immediately prior to consummation of the Merger shall,
upon the consummation of the Merger, be amended and restated in the form
attached as Exhibit I attached hereto and by this reference incorporated
herein, and thereafter shall be the Agreement and Certificate of Limited
Partnership of the Surviving Limited Partnership.
2.3 General Partner of the Surviving Limited Partnership. The sole
general partner of the Surviving Limited Partnership upon consummation of the
Merger shall be the General Partner.
2.4 Rights of Surviving Limited Partnership. Upon consummation of
the Merger: (a) the Surviving Limited Partnership shall possess all the rights,
privileges, powers, and franchises of a public as well as a private nature, and
shall be subject to all the restrictions, disabilities, and duties, in each
case of each of Transitory and Capital, and all property (real, personal and
mixed) and all debts, choses in action, and other interests due or belonging to
Transitory and Capital, or either of them, shall be vested in the Surviving
Limited Partnership; (b) all properties, rights, privileges, powers, and
franchises, and all and every other interest, shall thereafter be the property
of the Surviving Limited Partnership as they were of Transitory or Capital, and
the title to any real estate vested by deed or otherwise in either Transitory
or Capital shall not revert or in any way be impaired by reason of the Merger;
(c) all rights of creditors and all liens upon any property of either
- 3 -
4
of Transitory or Capital shall be preserved unimpaired, and all debts,
liabilities, and duties of each of Transitory and Capital shall thenceforth
attach to the Surviving Limited Partnership, and may be enforced against it to
the same extent as if said debts, liabilities, and duties had been incurred by
the Surviving Limited Partnership.
2.5 Agreement of Merger. All documents required to effect the Merger
under the Partnership Act shall be authorized, executed, and delivered by each
of Transitory and Capital; and Transitory and Capital shall cause each of such
documents to be filed in all appropriate places to the extent necessary or
desirable to effect the Merger.
ARTICLE 3
MANNER AND BASIS OF CONVERTING INTERESTS OF THE PARTNERS
3.1 Pre-Merger Partnership Interests of Transitory Partners. Prior
to the consummation of the Merger, the following Persons have the following
partnership interests in Transitory:
TRANSITORY
TRANSITORY PARTNER PARTNERSHIP INTEREST
------------------ --------------------
Staff Acquisition, Inc. (General Partner) 1.0% general partnership interest
Staff Leasing, Inc. (Company) 99.0% limited partnership interest
3.2 Post-Merger Partnership Interests of Transitory Partners. Upon
consummation of the Merger, the partners of Transitory shall be deemed to have
exchanged their partnership interests in Transitory for partnership interests
in Capital, so that immediately after the consummation of the Merger the
following Persons shall have the following partnership interests in the
Surviving Limited Partnership:
SURVIVING LIMITED PARTNERSHIP
SURVIVING LIMITED PARTNERSHIP PARTNER PARTNERSHIP INTEREST
------------------------------------- -----------------------------
Staff Acquisition, Inc. (General Partner) 1.0% general partnership interest
Staff Leasing, Inc. (Company) 99.0% limited partnership interest
3.3 Pre-Merger Partnership Interests of Capital Partners. As of the
date hereof, the partnership interests in Capital are owned by Persons in
accordance with the Capital Partnership Agreement. Schedule A, attached hereto
and by this reference incorporated herein, sets forth such partnership
interests and the owners thereof after giving effect to the elections made by
Persons owning Class A Preferred Limited Partnership Interests in Capital.
3.4 Conversion of Partnership Interests. Upon the Merger, and
without any further action on the part of each Limited Partner, the Limited
Partnership Interests and warrants to purchase
- 4 -
5
Limited Partnership Interests beneficially owned by each of the Limited
Partners whose names appear on Schedule A shall be converted into the right to
receive Shares, cash or warrants to purchase Shares ("Warrants") in the form
and content of Exhibit II attached hereto and by this reference incorporated
herein, as the case may be, as more particularly shown on Schedule A. The
general partnership interests in Capital held by the General Partner shall
remain outstanding.
3.5 Payment of Fixed Return Amount. Upon the Merger, the accrued and
undistributed Fixed Return Amount as of the Effective Date shall be paid in the
manner hereinafter provided to the holders of Preferred Limited Partnership
Interests in accordance with their proportionate interests therein, as provided
in the Capital Partnership Agreement. Such payments shall be made by check
mailed by the Company to such holders within thirty (30) days following the
Effective Date. No interest shall accrue on such Fixed Return Amount paid in
accordance with the provisions hereof.
3.6 Rights and Obligations of Partners of Surviving Limited
Partnership. The rights and, subject to Section 17-211 of the Partnership Act,
obligations of the partners of the Surviving Limited Partnership shall be as
set forth in the Agreement and Certificate of Limited Partnership of the
Surviving Limited Partnership.
3.7 Demand Notes. The General Partner currently holds promissory
notes from the holders of the Limited Partnership Interests, in the aggregate
principal amount of $__________. Upon the merger, such promissory notes will be
cancelled by the General Partner, and the Company, as the sole limited partner
of the Surviving Limited Partnership, shall deliver to the General Partner a
promissory note in the principal amount of $__________, payable to the General
Partner on the same terms and conditions as the cancelled promissory notes.
ARTICLE 4
MISCELLANEOUS
4.1 Registration Rights Agreement. The Registration Rights Agreement
dated as of April 26, 1996 between Capital and the other persons set forth on
the signature page thereof shall be amended as of the Effective Date as
required in Section 2.01 thereof to provide for registration rights applicable
to shares issued upon the Merger or issuable upon the exercise of Warrants.
Certificates evidencing Shares and Warrants issuable upon the Merger or upon
the exercise of Warrants shall bear appropriate legends as to the
non-registration of such Shares and Warrants under the Securities Act of 1933,
as amended.
4.2 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware without reference to the
conflict of law principles thereof.
4.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
- 5 -
6
4.4 Captions and Section Headings. Captions and section headings
used herein are for convenience only and shall not have any effect in the
interpretation or enforcement hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SLI TRANSITORY, L.P.
BY: STAFF ACQUISITION, INC.,
GENERAL PARTNER
BY:
---------------------------------------
NAME: XXXXXXX X. XXXXX
TITLE: CHAIRMAN OF THE BOARD OF
DIRECTORS
STAFF CAPITAL, L.P.
BY: STAFF ACQUISITION, INC.,
GENERAL PARTNER
BY:
---------------------------------------
NAME: XXXXXXX X. XXXXX
TITLE: CHAIRMAN OF THE BOARD OF
DIRECTORS
STAFF ACQUISITION, INC.
BY:
------------------------------------------------
NAME: XXXXXXX X. XXXXX
TITLE: CHAIRMAN OF THE BOARD OF DIRECTORS
STAFF LEASING, INC.
BY:
------------------------------------------------
NAME: XXXXXXX X. XXXXXXX
TITLE: PRESIDENT
- 6 -
7
SCHEDULE A
SCHEDULE OF OWNERSHIP OF PARTNERSHIP INTERESTS
IN CAPITAL AS OF , 1997
----------------
I. General Partnership Interest Staff Acquisition, Inc. 1.0000%
II. Limited Partnership Interests:
A. Common limited partnership interests:
Name of Holder Participation Percentage
B. Class A limited partnership interests with respect to which
an election pursuant to Section 3A.6 of the Capital
Partnership Agreement has been made ("Section 3A.6 Limited
Partnership Interests"):
Name of Holder Participation Percentage
C. Class A limited partnership interests with respect to which
an election under Section 3A.8 of the Capital Partnership
Agreement has been made ("Section 3A.8 Limited Partnership
Interests"):
Name of Holder Participation Percentage
D. Class B limited partnership interests:
Name of Holder Participation Percentage
- 7 -
8
SCHEDULE OF CONSIDERATION RECEIVED
PURSUANT TO MERGER
1. Common Limited Partnership Interests:
Name of Holder Number of Shares
2. Section 3A.6 Limited Partnership Interests:
Warrant to Purchase
Name of Holder Amount of Cash Number of Shares Indicated
3. Section 3A.8 Limited Partnership Interests:
Name of Holder Amount of Cash Number of Shares
4. Class B Limited Partnership Interests:
Name of Holder Amount of Cash
- 8 -
9
EXHIBIT II
FORM OF WARRANT
(EXPIRES MARCH 31, 2001)
See Exhibit 4.4
To Registration Statement
10
EXHIBIT "I"
TO MERGER AGREEMENT
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
STAFF CAPITAL, L.P.
by and between
STAFF LEASING, INC.
and
STAFF ACQUISITION, INC.
11
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................. 2
1.1 Act......................................................................................... 2
1.2 Affiliate................................................................................... 2
1.3 Agreement................................................................................... 2
1.4 Bankruptcy Action........................................................................... 2
1.5 Certificate................................................................................. 3
1.6 Event of Withdrawal......................................................................... 3
1.7 Fiscal Year................................................................................. 3
1.8 Interim Period.............................................................................. 3
1.9 Liquidating Partner......................................................................... 3
1.10 Operating Partnerships...................................................................... 3
1.11 Original Partnership Agreement.............................................................. 3
1.12 Partner, Limited Partner, and General Partner............................................... 3
1.13 Percentage Interests........................................................................ 3
1.14 Person...................................................................................... 3
1.15 Third Party................................................................................. 3
ARTICLE II ............................................................................................ 4
2.1 Formation................................................................................... 4
2.2 Name........................................................................................ 4
2.3 Character of Business....................................................................... 4
2.4 Principal Office; Registered Office......................................................... 5
2.5 Fiscal Year; Fiscal Period.................................................................. 5
2.6 Filing...................................................................................... 5
2.7 Title to Property........................................................................... 5
2.8 Payments of Individual Obligations.......................................................... 5
ARTICLE III PURPOSE AND POWERS.......................................................................... 6
3.1 Purpose..................................................................................... 6
3.2 Powers...................................................................................... 6
ARTICLE IV CAPITALIZATION, ALLOCATIONS AND DISTRIBUTIONS............................................... 6
4.1 Capital Accounts............................................................................ 6
4.2 Repayment of Partners' Capital.............................................................. 6
4.3 Allocations................................................................................. 6
4.4 Distributions............................................................................... 6
4.5 Distribution Upon Dissolution and Liquidation............................................... 7
4.6 Accounting Method........................................................................... 7
i
12
ARTICLE V COSTS AND EXPENSES.......................................................................... 7
5.1 Organizational and Other Costs.............................................................. 7
5.2 Operating Costs............................................................................. 7
ARTICLE VI MANAGEMENT.................................................................................. 8
6.1 Rights and Duties of the Limited Partners................................................... 8
6.2 Powers of the General Partner............................................................... 8
6.3 Exculpation................................................................................. 10
6.4 Other Activities............................................................................ 11
6.5 Reliance by Third Parties................................................................... 11
ARTICLE VII COMPENSATION................................................................................ 12
ARTICLE VIII ACCOUNTS.................................................................................... 12
8.1 Books and Records........................................................................... 12
8.2 Reports, Returns and Audits................................................................. 12
ARTICLE IX TRANSFERS................................................................................... 14
9.1 Transfer of General Partner's Interest...................................................... 14
9.2 Transfer of Limited Partner's Interest...................................................... 14
ARTICLE X DISSOLUTION................................................................................. 15
10.1 Events of Dissolution....................................................................... 15
10.2 Appointment of Liquidating Partner.......................................................... 15
10.3 Distributions and Other Matters............................................................. 16
10.4 Distributions of Property................................................................... 16
10.5 Actions of the Liquidating Partner; Statements of Accounts.................................. 17
ARTICLE XI MISCELLANEOUS............................................................................... 17
11.1 Headings.................................................................................... 17
11.2 Waivers and Amendments...................................................................... 17
11.3 Severability................................................................................ 17
11.4 Governing Law............................................................................... 17
11.5 Successors; Assignability................................................................... 18
11.6 Entire Agreement............................................................................ 18
11.7 Waiver of Action for Partition.............................................................. 18
11.8 Grammar..................................................................................... 18
11.9 Counterparts................................................................................ 18
11.10 Notices..................................................................................... 18
ii
13
ARTICLE I DEFINITIONS................................................................................. 2
1.1 Act......................................................................................... 2
1.2 Affiliate................................................................................... 2
1.3 Bankruptcy Action........................................................................... 2
1.4 Certificate................................................................................. 3
1.5 Event of Withdrawal......................................................................... 3
1.6 Fiscal Year................................................................................. 3
1.7 Interim Period.............................................................................. 3
1.8 Liquidating Partner......................................................................... 3
1.9 Operating Partnerships...................................................................... 3
1.10 Partner, Limited Partner, and General Partner............................................... 3
1.11 Percentage Interests........................................................................ 3
1.12 Person...................................................................................... 3
1.13 Third Party................................................................................. 3
ARTICLE II...................................................................................................... 3
2.1 Formation................................................................................... 3
2.2 Name........................................................................................ 4
2.3 Character of Business....................................................................... 4
2.4 Principal Office; Registered Office......................................................... 4
2.5 Fiscal Year; Fiscal Period.................................................................. 5
2.6 Filing...................................................................................... 5
2.7 Title to Property........................................................................... 5
2.8 Payments of Individual Obligations.......................................................... 5
ARTICLE III PURPOSE AND POWERS.......................................................................... 5
3.1 Purpose..................................................................................... 5
3.2 Powers...................................................................................... 5
ARTICLE IV CAPITALIZATION, ALLOCATIONS AND DISTRIBUTIONS............................................... 6
4.1 Capital Accounts............................................................................ 6
4.2 Repayment of Partners' Capital.............................................................. 6
4.3 Allocations................................................................................. 6
4.4 Distributions............................................................................... 6
4.5 Distribution Upon Dissolution and Liquidation............................................... 6
4.6 Accounting Method........................................................................... 7
ARTICLE V COSTS AND EXPENSES.......................................................................... 7
5.1 Organizational and Other Costs.............................................................. 7
5.2 Operating Costs............................................................................. 7
iii
14
ARTICLE VI MANAGEMENT.................................................................................. 7
6.1 Rights and Duties of the Limited Partners................................................... 7
6.2 Powers of the General Partner............................................................... 8
6.3 Exculpation................................................................................. 10
6.4 Other Activities............................................................................ 10
6.5 Reliance by Third Parties................................................................... 10
ARTICLE VII COMPENSATION................................................................................ 11
ARTICLE VIII ACCOUNTS.................................................................................... 11
8.1 Books and Records........................................................................... 11
8.2 Reports, Returns and Audits................................................................. 11
ARTICLE IX TRANSFERS................................................................................... 13
9.1 Transfer of General Partner's Interest...................................................... 13
9.2 Transfer of Limited Partner's Interest...................................................... 14
ARTICLE X DISSOLUTION................................................................................. 14
10.1 Events of Dissolution....................................................................... 14
10.2 Appointment of Liquidating Partner.......................................................... 14
10.3 Distributions and Other Matters............................................................. 15
10.4 Distributions of Property................................................................... 16
10.5 Actions of the Liquidating Partner; Statements of Accounts.................................. 16
ARTICLE XI MISCELLANEOUS............................................................................... 16
11.1 Headings.................................................................................... 16
11.2 Waivers and Amendments...................................................................... 16
11.3 Severability................................................................................ 16
11.4 Governing Law............................................................................... 17
11.5 Successors; Assignability................................................................... 17
11.6 Entire Agreement............................................................................ 17
11.7 Waiver of Action for Partition.............................................................. 17
11.8 Grammar..................................................................................... 17
11.9 Counterparts................................................................................ 17
11.10 Notices..................................................................................... 17
EXHIBIT A: Capital Accounts
EXHIBIT B: Operating Partnerships
iv
15
SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF
STAFF CAPITAL, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
("Agreement") OF STAFF CAPITAL, L.P. (the "Partnership") is made as of
the ____ day of _______, 1997, by and between STAFF LEASING, INC., a Florida
corporation (the "Limited Partner"), and STAFF ACQUISITION, INC., a Delaware
corporation (the "General Partner"). The Limited Partner and the General
Partner may be referred to collectively herein as the Partners.
RECITALS
WHEREAS, the Partnership has been duly organized as a limited
partnership under the laws of the State of Delaware pursuant to the Agreement
of Limited Partnership, dated as of November 1, 1993, as amended by the First
Amendment, dated as of April 15, 1996, as amended and restated by the Amended
and Restated Agreement of Limited Partnership of Staff Capital, L.P., dated as
of April 26, 1996, as amended by Amendment No. 1 to Partnership Agreement,
dated as of February 28, 1997 (collectively, the "Original Partnership
Agreement"); and
WHEREAS, the Certificate of Limited Partnership of the Partnership was
filed on September 13, 1993 with the Secretary of State of the State of
Delaware pursuant to the Delaware Revised Uniform Limited Partnership Act, as
amended; and
WHEREAS, upon consummation of the merger of SLI Transitory, L.P., a
Delaware limited partnership, with and into the Partnership and the
consummation of certain concurrent transactions, the Partners became the sole
general and limited partners of the Partnership; and
WHEREAS, the Partners desire to amend and restate the Original
Partnership Agreement to give effect to, among other things, such merger and
other concurrent transactions; and
WHEREAS, the Partners wish to set forth their understandings and
agreements with respect to the organization and operation of the Partnership
and certain other matters.
16
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises of the parties hereto, and of other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree and certify as
follows, and the Original Partnership Agreement is hereby amended and restated
in its entirety as hereinafter provided:
ARTICLE I
DEFINITIONS
The following terms as used in this Agreement shall have the
respective meanings specified below:
1.1 Act: As defined in Section 2.1(a).
1.2 Affiliate: As to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction
of the management or policies (whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise).
1.3 Agreement: As defined in the preamble of this Agreement.
1.4 Bankruptcy Action: Any of the following:
(i) Taking any action that might cause such Person to
become insolvent;
(ii) Commencing any case, proceeding or other action on
behalf of such Person under any existing or future
law of any jurisdiction relating to bankruptcy,
insolvency, reorganization or relief of debtors;
(iii) Instituting proceedings to have such Person
adjudicated as bankrupt or insolvent;
(iv) Consenting to the institution of bankruptcy or
insolvency proceedings against such Person;
(v) Filing a petition or consent to a petition seeking
reorganization, arrangement, adjustment, winding-up,
dissolution, composition, liquidation or other
relief
-2-
17
on behalf of such Person of its debts under any
federal or state law relating to bankruptcy;
(vi) Seeking or consenting to the appointment of a
receiver, liquidator, assignee, trustee,
sequestrator, custodian or similar official for such
Person or a substantial portion of its properties;
(vii) Making any assignment for the benefit of such
Person's creditors; or
(viii) Taking any action in furtherance of any of the
foregoing.
1.5 Certificate: As defined in Section 2.1(a).
1.6 Event of Withdrawal: As defined in Section 10.1(b).
1.7 Fiscal Year: As defined in Section 2.5.
1.8 Interim Period: As defined in Section 2.5.
1.9 Liquidating Partner: As defined in Section 10.2(a).
1.10 Operating Partnerships: Those partnerships listed in Exhibit
B, attached hereto and by this reference incorporated herein,
together with any other partnership(s) organized to engage in
the employee leasing business and operations related thereto
if the Partnership hereafter acquires a limited partnership
interest therein.
1.11 Original Partnership Agreement: As defined in the first
recital of this Agreement.
1.12 Partner, Limited Partner, and General Partner: As defined in
the preamble of this Agreement.
1.13 Percentage Interests: As defined in Section 2.1(b).
1.14 Person: An individual, corporation, partnership, trust,
association, limited liability company or other entity.
1.15 Third Party: As defined in Section 6.5.
-3-
18
ARTICLE II
2.1 Formation.
(a) The Partners hereby authorize, adopt, ratify and
approve in all respects the preparation, execution
and filing by the General Partner of the Certificate
of Limited Partnership of the Partnership (the
"Certificate"), and all other actions of the General
Partner with respect to the formation of the
Partnership as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act, as
amended (the "Act") and its qualification as a
foreign limited partnership as deemed necessary by
the General Partner, and further authorize the
General Partner to prepare, execute and file in the
name and on behalf of the Partnership such
amendments to the Certificate of Limited Partnership
of the Partnership, such additional applications for
qualification as a foreign limited partnership, and
such amendments to applications heretofore or
hereafter filed, all as the General Partner may deem
necessary or advisable, including, without
limitation, such applications, amendments and other
instruments as may be necessary or appropriate to
give effect to the amendment and restatement of the
Original Partnership Agreement pursuant to this
Agreement.
(b) The Partners of the Partnership have the following
percentage interests in the Partnership (the
"Percentage Interests"):
Percentage Interest
Partner in Partnership
------- --------------
Staff Acquisition, Inc. 1%
(general partnership
interest)
Staff Leasing, Inc. 99%
(limited partnership of
interest)
Total 100%
2.2 Name. The name of the Partnership shall be Staff Capital, L.P.,
or such other name or names as designated by the General Partner from time to
time.
2.3 Character of Business. The business of the Partnership shall be:
(a) to purchase and hold (i) the sole limited
partnership interest in each of the Operating
Partnerships and (ii) any equity interest in each
other partnership
-4-
19
organized to engage in the employee leasing business
and operations related thereto; and
(b) to exercise all rights, powers and privileges
incident thereto and to conduct any other business
or activity which may lawfully be conducted by a
limited partnership under the Act.
2.4 Principal Office; Registered Office.
(a) The location of the principal office of the
Partnership shall be 600 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxx 00000, or such other place as the
General Partner deems advisable from time to time.
(b) The initial address of the Partnership's registered
office in Delaware shall be 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, and
its registered agent for service of process in
Delaware shall be CT Corporation System located at
such address.
2.5 Fiscal Year; Fiscal Period. The fiscal year of the Partnership
(the "Fiscal Year") for Partnership accounting and tax purposes shall be the
calendar year. A fiscal period of the Partnership (a "Fiscal Period") shall
mean each period that starts on the first day of a Fiscal Year or on an Interim
Date (as hereinafter defined) and ends on the last day of a Fiscal Year or on
the day before an Interim Date, without any intervening Interim Dates. An
"Interim Date" shall mean any day of any Fiscal Year after the beginning of
such Fiscal Year if a contribution to capital is made as of such date or the
day following any date other than the last day of a Fiscal Year on or as of
which a withdrawal or distribution of capital is made.
2.6 Filing. The Partners shall execute such further documents
(including amendments to the Certificate) and take such further action as is
appropriate to comply with the requirements of law for the formation or
operation of a partnership in all states and countries where the Partnership
may conduct its business. Upon the dissolution of the Partnership, the General
Partner shall promptly execute and cause to be filed certificates of
dissolution in accordance with the Act and the laws of any other states or
jurisdictions in which the Partnership has filed certificates.
2.7 Title to Property. All real and personal property owned by the
Partnership shall be owned by the Partnership as an entity, and no Partner
shall have any ownership interest in such property in its individual name or
right. Each Partner's interest in the Partnership shall be personal property
for all purposes.
2.8 Payments of Individual Obligations. The Partnership's credit and
assets shall be used solely for the benefit of the Partnership, and no asset of
the Partnership shall be transferred or encumbered for or in payment of any
individual obligation of any Partner unless all Partners consent thereto.
-5-
20
ARTICLE III
PURPOSE AND POWERS
3.1 Purpose. The Partnership was formed for the purpose of engaging in
any lawful act or activity for which partnerships may be organized under the
Act. In relation to the foregoing, the Partnership may make any expenditures or
investments, take any and all action, and engage in any and all activity
incidental or reasonably related to any purpose of the Partnership.
3.2 Powers. Subject to all the terms and provisions hereof, the
Partnership shall have the power to make and perform all contracts and engage
in all activities and transactions necessary or advisable to carry out the
purposes of the Partnership including all powers available to it as a
partnership under the Act and the laws of the State of Delaware.
ARTICLE IV
CAPITALIZATION, ALLOCATIONS AND DISTRIBUTIONS
4.1 Capital Accounts. Each Partner's capital account as of the date of
this Agreement shall be as set forth opposite such Partner's name on Exhibit A,
attached hereto and by this reference incorporated herein. From time to time as
necessary, the General Partner shall make capital contributions to the
Partnership in cash, check or other property, in an amount necessary to
maintain the General Partner's capital account balance, as determined under
Treasury Regulation Section 1.704-1(b)(2)(iv), at a level that equals one
percent (1%) of the aggregate amount of the capital accounts, as determined
under Treasury Regulation Section 1.704-1(b)(2)(iv), of all the Partners. The
Partnership shall maintain capital accounts for each Partner in accordance with
such Treasury Regulation Section. The Partners shall otherwise make capital
contributions in such other amounts as may be agreed to by the Partners.
4.2 Repayment of Partners' Capital. No specific time has been agreed
upon for the repayment of the Partners' capital accounts with the Partnership,
and no Partner or any successor-in-interest shall have any right to withdraw or
reduce such Partner's capital account. The Partners shall receive no interest
on account of their respective capital account balances. The Partners shall
have no personal liability for the repayment of any other Partner's capital
account or any returns thereon.
4.3 Allocations. Except as otherwise required by Internal Revenue Code
Section 704(b) and the Treasury Regulations promulgated thereunder, all items
of income, gain, loss or deduction shall be allocated among the Partners in
proportion to their respective Percentage Interests.
4.4 Distributions. Except as contemplated under Section 4.5, the
Partners hereby agree that the Partnership shall make distributions during the
term of this Agreement only as follows:
-6-
21
(a) The Partnership shall make all such distributions as
the Limited Partner shall authorize and approve in
writing.
(b) The Partnership shall distribute, on a quarterly
basis which is timely and appropriate for each
Partner, an amount intended to enable the Partners
(or any Person whose tax liability is determined by
reference to the income of the Partners) to
discharge their United States federal and
approximate state income tax liabilities arising
from the recognition of taxable income and gain of
the Partnership by such Partners, taking into
account the need to pay estimated taxes. Each
distribution in respect of taxes made hereunder
shall be allocated in a manner that takes into
account the type and amounts of taxable income and
gain allocated to the Partners for the period with
respect to which such distribution is being made.
4.5 Distribution Upon Dissolution and Liquidation. Upon the
dissolution and liquidation of the Partnership, all proceeds from liquidation
and other property of the Partnership shall be distributed in accordance with
Article X.
4.6 Accounting Method. The books and records of account of the
Partnership shall be maintained in accordance with the accrual method of
accounting.
ARTICLE V
COSTS AND EXPENSES
5.1 Organizational and Other Costs. The Partnership shall pay or
cause to be paid all costs and expenses incurred in connection with the
formation and organization of the Partnership and with this Agreement and the
transactions contemplated hereby. Such costs and expenses shall in each case
include, without limitation, any and all related legal, accounting, consulting,
filing and registration costs. The Partnership shall reimburse the General
Partner for any out-of-pocket costs and expenses described in this Section 5.1
and incurred by the General Partner.
5.2 Operating Costs. The Partnership shall (a) pay or cause to be
paid all costs and expenses of the Partnership incurred in pursuing and
conducting, or otherwise related to, the business of the Partnership, and (b)
reimburse the General Partner for any out-of-pocket costs and expenses incurred
by it in connection therewith.
-7-
22
ARTICLE VI
MANAGEMENT
6.1 Rights and Duties of the Limited Partners.
(a) Except as permitted by the Act and provided in this
Agreement, the Limited Partner shall take no part
whatever in the control, management, direction or
operation of the affairs of the Partnership and
shall have no power to act for or bind the
Partnership.
(b) Pursuant to and except as provided by the Act (and
provided that the Limited Partner does not, in
addition to the exercise of its rights and powers as
a Limited Partner, take part in the control of the
business of the Partnership), the Limited Partner
shall not be liable for losses or debts of the
Partnership beyond the aggregate amount of the
Limited Partner's Capital Account.
6.2 Powers of the General Partner.
(a) The General Partner shall have full and complete
charge of all affairs of the Partnership, and the
management and control of the Partnership's business
shall rest exclusively with the General Partner,
subject to the terms and conditions of this
Agreement. Except as otherwise provided in this
Agreement, the General Partner shall possess all of
the rights and powers under Delaware law of a
partner in a partnership without limited partners.
The General Partner shall be required to devote to
the conduct of the business of the Partnership only
such time and attention as it determines, in its
sole and absolute discretion, to be necessary to
accomplish the purposes, and to conduct properly the
business, of the Partnership.
(b) Subject to the limitations set forth in this
Agreement, the General Partner shall perform or
cause to be performed all management and operational
functions relating to the business of the
Partnership. The General Partner's board of
directors shall oversee the management of the
Partnership and shall have the power to appoint
officers to manage and direct the day-to-day
operations of the Partnership. By executing this
Agreement, each Limited Partner shall be deemed to
have consented to any exercise by the General
Partner of such powers.
(c) Notwithstanding anything in this Agreement to the
contrary, the General Partner shall not take or
cause to be taken the following actions without the
prior written consent of the Limited Partner:
-8-
23
(i) The dissolution, winding up, merger or
consolidation of the Partnership or the
sale of all or a material portion of the
assets of the Partnership or of the
Operating Partnerships (taken as a whole);
(ii) A material change in the general nature of
the business of the Partnership or a
material change in the general nature of
the businesses of the Operating
Partnerships (taken as a whole);
(iii) Admission of additional Limited Partners;
(iv) Admission of additional limited partners to
any of the Operating Partnerships;
(v) Entering into any transaction with any
Affiliate of the General Partner;
(vi) Establishing any limitations on the
distribution of cash flow;
(vii) Amending the Certificate or this Agreement;
(viii) Guarantying, directly or indirectly, any
Person's obligation, including but not
limited to, entering into agreements to
purchase an obligation of any Person;
(ix) Effecting any other transaction not in the
ordinary course of business that results in
the Partnership's receipt (other than as
capital contributions) or payment of cash
or other consideration;
(x) Confession of any judgment against the
Partnership or compromise of any claim
against the Partnership;
(xi) Causing the Partnership to dissolve or
terminate prior to December 31, 2023;
(xii) Performance of any act in contravention of
this Agreement or any act that makes it
impossible to carry on the business of the
Partnership;
(xiii) Action to initiate, defend, adjust, settle,
compromise, or pay any material claim,
obligation, debt, demand, suit, litigation,
or judgment by or against the Partnership;
-9-
24
(xiv) Any Bankruptcy Action;
(xv) Borrowing funds or incurring expenditures
(whether on a secured or unsecured basis);
and
(d) The General Partner, to the extent the General
Partner determines that it is required or otherwise
in the best interests of the Partnership, may
acquire, hold and transfer, or cause to be acquired,
held and transferred, any property of the
Partnership in the name of the Partnership or a
nominee, agent or trustee for the Partnership
(including the General Partner acting as such) and
enter into, or cause to be entered into, agreements
or transactions for and on behalf of the
Partnership, in the name of the General Partner or
such nominee, agent or trustee; provided, however,
that the General Partner or such nominee, agent or
trustee, in so acting, shall act solely as agent
for, and on behalf of, the Partnership and shall use
its best efforts to conduct the business of the
Partnership so as to ensure that each party to any
such material agreement or transaction will be given
actual notice that the entire beneficial interest in
such agreement or transaction (including without
limitation any assets covered thereby) is in the
name of the Partnership, rather than in the name of
the General Partner or any such other person; and
provided, further, however, that the Partnership's
limited partnership interest in the Operating
Partnership shall not be held in any name other than
that of the Partnership. All title to property
beneficially owned by the Partnership and held by
the General Partner or such nominee, agent or
trustee shall be held in the name of the latter
solely as nominee, agent or trustee for, and on
behalf of, the Partnership. The General Partner
shall have no power or authority to hold or own, or
to cause to be held or owned, any title or interest
in any such property on behalf of itself or any such
nominee, agent or trustee.
6.3 Exculpation. Neither the General Partner nor its Affiliates, nor
any of their respective officers, directors, shareholders, partners, employees
or agents, shall be liable, in damages or otherwise, to the Partnership or any
of the Partners for any act or omission performed or omitted by the General
Partner pursuant to the authority granted by this Agreement, except if such act
or omission primarily results from the General Partner's or such other Person's
own fraud, bad faith, gross negligence, or willful misconduct. The Partnership
shall indemnify, defend and hold harmless the General Partner, its Affiliates
and their respective officers, directors, shareholders, partners, employees and
agents, from and against any and all claims or liabilities of any nature
whatsoever, including reasonable attorneys' fees, arising out of or in
connection with any action taken or omitted by the General Partner, its
Affiliates or their respective officers, directors, shareholders, partners,
-10-
25
employees or agents pursuant to the authority granted by this Agreement, except
where primarily attributable to the fraud, bad faith, gross negligence, or
willful misconduct of the General Partner, its Affiliates or their respective
officers, directors, shareholders, partners, employees or agents. The General
Partner shall be entitled to rely on the advice of counsel, public accountants
or other independent experts experienced in the matter at issue, and any act or
omission of the Partnership pursuant to such advice shall in no event subject
the General Partner to liability to the Partnership or any Partner.
6.4 Other Activities. Any Partner may engage in or possess an interest
in other business ventures of any nature or description, independently or with
others, whether presently existing or hereafter created, and neither the
Partnership nor any Partner shall have any rights in or to such independent
ventures or the income or profits derived therefrom.
6.5 Reliance by Third Parties. Notwithstanding any other provision of
this Agreement to the contrary, no third-party lender or purchaser, including
any purchaser of property from the Partnership or any other Person dealing with
the Partnership (a "Third Party"), shall be required to look to the application
of proceeds hereunder or to verify any representation by the General Partner as
to the extent of the interest in the assets of the Partnership that the General
Partner is entitled to encumber, sell or otherwise use, and any such lender or
purchaser shall be entitled to rely exclusively on the representations of the
General Partner as to its authority to enter into such financing or sale
arrangements and shall be entitled to deal with the General Partner as if it
were the sole party in interest therein, both legally and beneficially. Each
Limited Partner and any assignee thereof hereby waives any and all defenses or
other remedies that may be available against any Third Party dealing with the
Partnership to contest, negate or disaffirm any action of the General Partner
in connection with any sale or financing. In no event shall any Person dealing
with the General Partner or the General Partner's representative with respect
to any business or property of the Partnership be obligated to ascertain that
the terms of this Agreement have been complied with, or be obligated to inquire
into the necessity or expediency of any act or action of the General Partner or
the General Partner's representative; and every contract, agreement, deed,
mortgage, security agreement, promissory note or other instrument or document
executed by the General Partner or the General Partner's representative with
respect to any business or property of the Partnership shall be conclusive
evidence in favor of any and every Person relying thereon or claiming
thereunder that (a) at the time of the execution and/or delivery thereof this
Agreement was in full force and effect, (b) such instrument or document was
duly executed in accordance with the terms and provisions of this Agreement and
is binding upon the Partnership, and (c) the General Partner or the General
Partner's representative was duly authorized and empowered to execute and
deliver any and every such instrument or document for and on behalf of the
Partnership.
-11-
26
ARTICLE VII
COMPENSATION
The General Partner shall be entitled, in accordance with Article V,
to reimbursement of all of its expenses attributable to the performance of its
obligations hereunder. No amount so paid to the General Partner shall be deemed
to be a distribution of Partnership assets for purposes of this Agreement or
the Act. Except for reimbursement of its expenses and its right to
distributions and share of profits and losses as provided in this Agreement,
the General Partner shall not receive any compensation for its services as
such.
ARTICLE VIII
ACCOUNTS
8.1 Books and Records. The General Partner shall maintain
appropriate books and records with respect to the Partnership's affairs at the
Partnership's principal office or other offices. Upon reasonable notice to the
General Partner, each Limited Partner shall have the rights of access to
information regarding the Partnership as set forth in Section 17-305 of the Act
or otherwise required by law.
8.2 Reports, Returns and Audits.
(a) The books of account shall be closed promptly after
the end of each Fiscal Year. Within ninety days
thereafter, the General Partner shall deliver a
written report to each Person who was a Partner at
any time during such Fiscal Year, which shall
include a statement of profits and losses and a
statement of cash flows for the Fiscal Year, and a
balance sheet as of the close of the Fiscal Year,
none of which need be audited. The report shall also
contain statements describing transactions by the
Partnership with the General Partner or its
Affiliates and such additional statements with
respect to the status of the Partnership business
and the distribution of Partnership funds as are
considered necessary by the General Partner in its
sole discretion to advise all Partners properly
about their investments in the Partnership.
(b) Prior to March 1 of each calendar year, each Partner
shall be provided with an information letter with
respect to its distributive share of income, gains,
deductions, losses and credits for income tax
reporting purposes for the previous Fiscal Year
together with any other information concerning the
Partnership necessary for the preparation of a
Partner's income tax return(s). With the sole
exception of mathematical errors in computation, the
information contained therein shall be deemed
conclusive and binding upon
-12-
27
such Partner unless written objection shall be
lodged with the General Partner within ninety days
after the giving of such reports to such Partner.
(c) The General Partner shall also furnish the Partners
with (i) such periodic reports concerning the
Partnership's business and activities as are
considered necessary by the General Partner in its
sole discretion, both as to content and frequency of
reports, to advise all Partners properly regarding
their respective investments in the Partnership,
available to (ii) copies of all reports and
information filed by the Partnership with the U.S.
Securities and Exchange Commission, and (iii) such
other information reasonably requested by the
Limited Partner regarding the business and assets of
the Partnership which is regularly prepared by the
management of the Partnership. Such information will
be held in confidence by the Limited Partner and
will not be disclosed to any third party without the
consent of the Partnership, unless required by law
to be so disclosed.
(d) The General Partner shall prepare or cause to be
prepared all federal, state and local tax returns of
the Partnership for each year for which such returns
are required to be filed under applicable law; it
being understood that, to the extent permitted by
law, for purposes of preparing such returns, the
Partnership shall use the Fiscal Year. The
Partnership shall prepare and furnish to the
Partners all foreign tax returns on behalf of the
Partners, if necessary where the obligation to file
results from the ownership of Partnership interests.
The General Partner may (but need not), in its sole
and absolute discretion, make any elections under
the Code, including the election under Section 754
of the Code, and the General Partner shall be
absolved from all liability for any and all
consequences to any previously admitted or
subsequently admitted Partners resulting from its
making or failing to make any such election;
provided that in connection with the transfer of the
Limited Partner's Partnership interest hereunder, if
requested in writing by the transferring Limited
Partner to make an election under Section 754 of the
Code, the General Partner shall cause such election
to be made; and provided, further, that the General
Partner shall only be obligated to make such
election if the Limited Partner requesting that such
election be made agrees in writing to reimburse the
Partnership for all of its out-of-pocket expenses,
including accounting, legal and appraisal fees,
incurred by the Partnership in connection with the
making of such election.
(e) Each Partner agrees that, in respect of any period
in which it has or had any interest in the
Partnership, it shall not (i) treat on its income
tax returns any item of income, gain, loss,
deduction or credit relating to its interest in the
Partnership in a manner inconsistent with the
treatment of such item by the Partnership as
reflected on the Form K-1 or other information
statement furnished by the Partnership to such
Partner for use in preparing its income
-13-
28
tax returns or (ii) file any claim for refund
relating to any such item based upon, or which would
result in, such inconsistent treatment.
(f) The General Partner shall be the "tax matters
partner" as that term is defined inss.6231(a)(7) of
the Code. In that capacity, in the event of an
income tax audit of any Partnership return, to the
extent the Partnership is treated as an entity for
purposes of the audit, including administrative
settlement and judicial review, the General Partner
shall be authorized to act for and represent the
Partnership, and to enter into a settlement
agreement within the meaning ofss.6224(c)(1) of the
Code (or comparable provisions under state or local
law) to which each Partner agrees to be bound. All
elections permitted to be made by the Partnership
under federal, state or other applicable laws shall
be made by the General Partner in its sole
discretion. All expenses incurred in connection with
any such audit shall be expenses of the Partnership.
ARTICLE IX
TRANSFERS
9.1 Transfer of General Partner's Interest. The General
Partner shall have the right at any time, subject to obtaining the prior
written consent of the Limited Partner, to (a) withdraw from the Partnership
or (b) transfer all or any portion of its general partnership interest and
admit the transferee thereof as the General Partner. If the General Partner
wishes to withdraw or to transfer any portion of its general partnership
interest, it must give written notice of such intention to the Limited Partner,
which shall have twenty (20) days to reply after such notice has been sent.
Neither a merger of the General Partner with and into another person or of
another person with and into the General Partner, a change in the holders of
the capital stock of the General Partner, nor an assignment or transfer of a
general partnership interest (including the admission of such transferee as
the General Partner) upon any foreclosure or similar action pursuant to any
pledge thereof or grant of any security interest or lien therein or thereon,
shall constitute an assignment or transfer by the General Partner of its
interest in the Partnership.
9.2 Transfer of Limited Partner's Interest.
[ANY LIMITATIONS]
-14-
29
ARTICLE X
DISSOLUTION
10.1 Events of Dissolution. The Partnership shall continue until
December 31, 2023, unless sooner dissolved upon the earliest to occur of the
following events, which shall cause an immediate dissolution of the
Partnership:
(a) at any time, with the prior written consent of the
General Partner and the Limited Partner; or
(b) upon the occurrence of an event of withdrawal of the
General Partner (other than a permitted withdrawal
pursuant to Section 9.1 hereof) specified in
Sections 17-402 of the Act (an "Event of
Withdrawal"); provided, however, that upon the
occurrence of an Event of Withdrawal, the
Partnership shall not be dissolved if, within 120
days after the occurrence of such Event of
Withdrawal, the Limited Partner agrees in writing to
continue the business of the Partnership and to
select a successor general partner.
Notwithstanding anything to the contrary contained herein, the Partnership
shall not terminate until its affairs have been wound up and its assets
distributed as provided herein.
10.2 Appointment of Liquidating Partner.
(a) Upon the dissolution of the Partnership, if the
Partnership's business is not continued pursuant to
Section 9.1 hereof, the General Partner (provided it
then is a general partner of the Partnership) shall
act as Liquidating Partner on the terms hereinafter
set forth; or if it no longer is a general partner
of the Partnership, then the Limited Partner shall
select a Person (the "Liquidating Partner") to wind
up the affairs of the Partnership and to distribute
the Partnership's assets. Another Liquidating
Partner shall be selected (in the same manner and
for the same purpose) to succeed the Liquidating
Partner originally selected or any subsequently
selected successor whenever the Liquidating Partner
originally selected or any such subsequently
selected successor, as the case may be, fails for
any reason to carry out such purpose. The
Liquidating Partner so selected and acting hereunder
from time to time may be any general partner of the
Partnership or any other individual, corporate, or
general or limited partnership, shall be reasonably
compensated for its services hereunder (as and to
the extent authorized by the General Partner), and
shall proceed diligently to wind up the affairs of
the Partnership and distribute its assets in the
manner hereinafter provided.
(b) No Partner (other than the General Partner or any
other general partner of the Partnership) shall be
required to accept appointment as Liquidating
Partner.
-15-
30
10.3 Distributions and Other Matters. Promptly upon the
dissolution of the Partnership, if the Partnership's business is not continued
pursuant to Section 10.1 hereof, the Liquidating Partner (or its legal
representatives, heirs, successors or assigns) shall cause the cancellation of
the Certificate, and the Liquidating Partner shall liquidate the assets of the
Partnership and apply and distribute the proceeds of liquidation in the
following order of priority to the extent available:
(a) to payment of the debts and liabilities of the
Partnership (other than those to Partners) in the
order of priority provided by law; provided that the
Liquidating Partner shall first pay, to the extent
permitted by law, liabilities with respect to which
any Partner is or may be personally liable;
(b) to payment of the expenses of liquidation of the
Partnership in the order of priority provided by
law, provided that the Liquidating Partner shall
first pay, to the extent permitted by law, expenses
with respect to which any Partner is or may be
personally liable;
(c) to the setting up of such reserves as the
Liquidating Partner may deem reasonably necessary
for any contingent or unforeseen liabilities or
obligations of the Partnership arising out of or in
connection with the Partnership business, provided
that any such reserve shall be held by the
Liquidating Partner for the purposes of disbursing
such reserves in payment of any of the
aforementioned contingencies, and also provided that
at the expiration of such period as the Liquidating
Partner shall deem advisable (but in no case to
exceed sixty (60) months from the date of
dissolution unless an extension of time is consented
to by the Limited Partner), the remaining balance of
any such reserves shall be distributed in the manner
hereinafter provided;
(d) to the repayment of loans made by Partners to the
Partnership, first on account of interest and then
on account of principal;
(e) to the General Partner and the Limited Partner in
accordance with the positive balances of each
Partner's capital account [as determined under
Treasury Regulation Section 1.704-1(b)(2)(iv), after
giving effect to all contributions, distributions
and allocations for all periods] (with all of the
amounts determined under this Section 10.3 being
determined after taking into account all capital
account adjustments for the Partnership's taxable
year during which the liquidation occurs) and
otherwise in accordance with their respective
Percentage Interests.
10.4 Distributions of Property. If any property is distributed in
kind to any Partner, such property will be deemed to be sold for its fair
market value.
-16-
31
10.5 Actions of the Liquidating Partner; Statements of Accounts.
(a) During the period of liquidation (which will be such
reasonable time as may be required for the orderly
completion of liquidation and distribution as set
forth above), the Liquidating Partner, as trustee
for the benefit of all Partners as tenants in
common, will take any and all action necessary or
appropriate to complete such liquidation and
distribution as provided in this Article X, having
for such purpose all of the powers enumerated in
this Agreement and permitted under the Act necessary
or appropriate to accomplish the same.
(b) The Liquidating Partner will prepare a final
statement of the accounts of the Partnership as of
the date of termination, and, as promptly as
possible thereafter, a copy thereof will be
furnished to each Partner. Such statement will set
forth the actual or contemplated application and
distribution of the assets of the Partnership. Upon
completion of distribution as required hereby, a
further statement for the period of liquidation will
be so prepared by the Liquidating Partner and
furnished to each Partner.
ARTICLE XI
MISCELLANEOUS
11.1 Headings. The section headings of this Agreement do not form a
part of it, but are for convenience only and shall not limit or affect the
meaning of the provisions hereof.
11.2 Waivers and Amendments. No waiver by any Partner of any default
hereunder by the other Partner shall operate as a waiver of any other default
or of a similar default on a future occasion. No waiver of any term or
condition hereof by any Partner shall be effective unless the same shall be in
writing and signed by such Partner. No amendments, modifications or changes to
this Agreement shall be effective unless reduced to writing and signed by all
Partners.
11.3 Severability. In the event that any provision of this Agreement
is declared invalid, unenforceable or void to any extent by a court of
competent jurisdiction, such provision shall be modified, if possible, by
reducing its duration and scope to allow enforcement of the maximum permissible
duration and scope. In any event, such declaration shall not affect the
remaining provisions; and this Agreement shall be enforced as modified, or if
no modification is enforceable, as if such invalid clause had not been
included.
11.4 Governing Law. This Agreement, the rights and obligations of the
parties, and any claims and disputes relating thereto shall be subject to and
governed by the Act and the other laws of the State of Delaware, and such laws
shall govern all aspects of this Agreement.
-17-
32
11.5 Successors; Assignability. This Agreement shall be binding upon
and inure to the benefit of the Partners and their respective permitted
successors and permitted assigns. [This Agreement may not be assigned (in whole
or in part) by any Partner without the prior written consent of the other
Partner.]
11.6 Entire Agreement. This Agreement shall supersede all prior
agreements, communications, representations and understandings, either oral or
written, between the Partners with respect to the subject matter hereof.
11.7 Waiver of Action for Partition. Each of the parties hereto
irrevocably waives during the term of the Partnership any right that it may
have to maintain any action for partition with respect to the property of the
Partnership.
11.8 Grammar. When the context in which words are used in this
Agreement indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
11.9 Counterparts. This Agreement may be executed in any number of
counterparts; and all counterparts so executed shall constitute one agreement,
binding on all the parties hereto, notwithstanding that all of the parties are
not signatory to the original or the same counterpart.
11.10 Notices. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be
in writing and sent by overnight courier, or by telephone or facsimile, if such
telephone conversation or facsimile is followed by a hard copy of the telephone
conversation or facsimile communication sent by overnight courier, charges
prepaid and addressed to the recipient Partner's address as set forth on the
signature page hereof, or to such other address as such Partner may from time
to time specify by notice to the other Partner. Any such notice shall be deemed
to be delivered, given, and received for all purposes as of the date so
delivered.
[Remainder of Page Intentionally Left Blank]
-18-
33
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first hereinabove set forth.
GENERAL PARTNER:
STAFF ACQUISITION, INC., a Delaware corporation
By:
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board of Directors
Address:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Telephone:
-----------------------------------------------
Telecopy:
-----------------------------------------------
LIMITED PARTNER:
STAFF LEASING, INC., a Florida corporation
By:
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
Address:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Telephone:
-----------------------------------------------
Telecopy:
-----------------------------------------------
-19-
34
Exhibit A
CAPITAL ACCOUNTS AS OF _________ ___, 1997
Percentage
Interest in Capital
Partner Partnership Account
------- ----------- -------
Staff Acquisition, Inc. 1% $
(General Partner) ------------
Staff Leasing, Inc. 99% $
(Limited Partner) ------------
$
------------
Total 100%
-20-
