<PAGE>
Exhibit 3.1
THE JONES FINANCIAL COMPANIES, L.L.L.P.
SIXTEENTH
AMENDED AND RESTATED
AGREEMENT OF REGISTERED
LIMITED LIABILITY LIMITED PARTNERSHIP
Dated as of May 12, 2006
23
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TABLE OF CONTENTS
ARTICLE ONE DEFINED
TERMS.....................................................3
ARTICLE TWO CONTINUATION, NAME AND OFFICE, PURPOSES, TERM AND
DISSOLUTION,
REGISTERED AGENT, PARTNER
LIST.......................................7
2.1
Continuation................................................7
2.2 Name,
Place of Business and Office..........................7
2.3
Purposes....................................................7
2.4 Term and
Dissolution........................................7
2.5 Registered
Office and Agent.................................7
2.6 Amendment
to Certificate of Limited Partnership.............8
ARTICLE THREE PARTNERS AND
CAPITAL............................................8
3.1 General
Partners............................................8
3.2 Admission
of Additional General Partners....................8
3.3 Limiteds
and Contained Payments to Limited Partners.........8
3.4 Admission
of Limiteds.......................................9
3.5
Partnership Capital.........................................9
3.6 Liability
of Limiteds.......................................9
3.7
Participation in Partnership Business by Limiteds...........9
3.8 Priority
Among Limiteds.....................................9
ARTICLE FOUR RIGHTS, POWERS AND DUTIES OF THE GENERAL
PARTNERS...............10
4.1 Authorized
Acts; Management and Control....................10
4.2
Restrictions on Authority of the Managing Partner and
Executive Committee........................................11
4.3 Removal or
Dismissal of Certain Partners...................11
4.4 Executive
Committee........................................11
4.5 Guaranteed
Draw; Time and Effort; Independent Activities...12
4.6 Duties and
Obligations of the Managing Partner.............13
4.7 Liability
for Acts and Omissions; Indemnification..........14
4.8 Dealing
with an Affiliate..................................14
4.9 General
Partners' Responsibility...........................14
4.10
Responsibilities of Partnership Leaders....................14
ARTICLE FIVE MEETINGS AND VOTING OF
PARTNERS.................................15
5.1 Meetings
of General Partners; Voting at Such Meetings......15
5.2 Percentage
of Voting Power for Partnership Decisions.......15
5.3 Robert's
Rules to Govern...................................15
5.4 Consent of
General Partners in Lieu of a Meeting...........15
ARTICLE SIX EVENT OF WITHDRAWAL OF A PARTNER AND CONVERSION OF
CLASS II
SUBORDINATED LIMITED PARTNER CAPITAL TO CLASS I SUBORDINATED
LIMITED PARTNER
CAPITAL.............................................16
6.1 Voluntary
Event of Withdrawal..............................16
6.2 Withdrawal
Upon Request....................................16
6.3 Return of
Capital and Purchase of Interest.................16
6.4 Death of a
Limited.........................................18
6.5 Death or
Disability of a General Partner...................18
6.6 General
Partner Interest - 56th Birthday...................19
6.7
Restriction on Capital Contribution Return.................19
24
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6.8 Liability
of a Withdrawn General Partner...................20
6.9 Effect of
Event of Withdrawal..............................20
6.10
Conversion from Class II to Class I Subordinated
Limited Partner............................................20
ARTICLE SEVEN TRANSFERABILITY OF PARTNER
INTERESTS...........................21
7.1
Restrictions on Transfer...................................21
7.2
Substituted Limited Partners...............................21
ARTICLE EIGHT DISTRIBUTIONS AND ALLOCATIONS; LIABILITY OF GENERAL
PARTNERS...21
8.1
Distribution of Net Income.................................22
8.2
Distributions Upon Dissolution.............................23
8.3
Distribution of Frozen Appreciation Amount.................24
8.4 Sale of
Assets to Third Party..............................24
8.5 Other
Sales or Dispositions to Third Party.................25
8.6 Allocation
of Profits and Losses for Tax Purposes..........25
8.7 Liability
of General Partners..............................27
ARTICLE NINE BOOKS, RECORDS AND REPORTS, ACCOUNTING, TAX ELECTIONS,
ETC......27
9.1 Books,
Records and Reports.................................27
9.2 Bank
Accounts..............................................28
9.3
Depreciation and Elections.................................28
9.4 Fiscal
Year................................................28
ARTICLE TEN
MEDIATION/ARBITRATION............................................28
10.1
Mediation/Arbitration......................................28
10.2
Forum Selection............................................30
10.3
Statute of Limitations.....................................30
10.4
Other Agreements...........................................31
ARTICLE ELEVEN GENERAL
PROVISIONS............................................31
11.1
Appointment of Attorneys-in-Fact...........................31
11.2
Word Meanings..............................................32
11.3
Binding Provisions.........................................32
11.4
Applicable Law.............................................32
11.5
Counterparts...............................................32
11.6
Entire Agreement...........................................32
11.7
Separability of Provisions.................................32
11.8
Representations............................................33
11.9
Section Titles.............................................33
11.10
Partition..................................................33
11.11 No
Third Party Beneficiaries...............................33
11.12
Amendments.................................................33
11.13
Revocable Trusts...........................................33
25
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THE JONES FINANCIAL COMPANIES, L.L.L.P.
(a Missouri Registered Limited Liability Limited Partnership)
SIXTEENTH
AMENDED AND RESTATED
AGREEMENT OF REGISTERED
LIMITED LIABILITY LIMITED PARTNERSHIP
THIS
SIXTEENTH AMENDED AND RESTATED AGREEMENT OF REGISTERED LIMITED
LIABILITY LIMITED PARTNERSHIP of The Jones Financial Companies,
L.L.L.P. entered into as of this 12 day of May, 2006, by and
among
James D. Weddle as General Partner, and James D. Weddle as the
Attorney-In-Fact for
all of the other General Partners, all of the Limited
Partners, all of
the Class I Subordinated Limited Partners (none at the
date of
this Agreement) and all of the Class II Subordinated Limited
Partners
(formerly referred to as the "Subordinated Limited Partners").
W I T N E S S E T H:
WHEREAS, the Partnership was formed as a limited
partnership under the Missouri Revised Uniform Limited Partnership
Act
pursuant to an Agreement and Certificate of Limited Partnership
dated June
5, 1987;
WHEREAS, the Partnership filed on July 15, 1987 its
Amended and Restated Agreement and Certificate of Limited
Partnership dated
July 15, 1987 (the "Restated Agreement");
WHEREAS, the Partnership filed on August 28, 1987,
November 16, 1987, August 5, 1988, August 29, 1988, January 31,
1989, March
21, 1989 and August 10, 1989 its Amendments No. 1, 2, 3, 4, 5, 6
and 7
respectively, to its Restated Agreement;
WHEREAS, the Partnership filed on June 22, 1989 its Partner
List as of May 31, 1989;
WHEREAS, the Restated Agreement as amended is hereinafter
referred to as the "First Restated Agreement";
WHEREAS, the First Restated Agreement was amended and
restated in its entirety pursuant to a Second Amended and Restated
Agreement
and Certificate of Limited Partnership dated as of January 31, 1990
(the
"Second Restated Agreement");
WHEREAS, the Missouri Revised Uniform Limited Partnership
Act was amended in August of 1990 and no longer requires certain
information
in certificates of limited partnership (filed with the Secretary of
State)
and now requires corresponding amendments to be made to agreements
of
limited partnership;
WHEREAS, the Partnership desired that the aforesaid Second
Restated Agreement become two separate documents, namely a Third
Amended and
Restated Agreement of Limited Partnership (the "Third Restated
Agreement")
and a separate restated Certificate of Limited Partnership;
WHEREAS, the Second Restated Agreement was amended and
restated in its entirety pursuant to said Third Restated Agreement
dated as
of January 31, 1991;
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WHEREAS, the Third Restated Agreement was amended and
restated in its entirety pursuant to the Fourth Amended and
Restated
Agreement of Limited Partnership (the "Fourth Restated Agreement")
dated as
of January 1, 1993;
WHEREAS, the Fourth Restated Agreement was amended and
restated in its entirety pursuant to the Fifth Amended and
Restated
Agreement of Limited Partnership (the "Fifth Restated Agreement")
dated as
of May 24, 1993;
WHEREAS, the Fifth Restated Agreement was amended and
restated in its entirety pursuant to the Sixth Amended and
Restated
Agreement of Limited Partnership (the "Sixth Restated Agreement")
dated as
of October 1, 1993;
WHEREAS, the Sixth Restated Agreement was amended and
restated in its entirety pursuant to the Seventh Amended and
Restated
Agreement of Limited Partnership (the "Seventh Restated Agreement")
dated as
of August 31, 1996;
WHEREAS, the Seventh Restated Agreement was amended and
restated in its entirety to register the Partnership as a
registered limited
liability partnership pursuant to the Eighth Amended and Restated
Agreement
of Limited Partnership (the "Eighth Restated Agreement") dated as
of
November 1, 1996;
WHEREAS, the Partnership filed as of February 26, 1998 an
Amendment to the Certificate of Limited Partnership changing
the
Partnership's name from The Jones Financial Companies, L.P., LLP to
The
Jones Financial Companies, L.L.L.P.;
WHEREAS, the Eighth Restated Agreement was amended and
restated in its entirety pursuant to the Ninth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership (the
"Ninth
Restated Agreement") dated as of April 1, 1998; and
WHEREAS, the Ninth Restated Agreement was amended and
restated in its entirety pursuant to the Tenth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership (the
"Tenth
Restated Agreement") dated as of February 25, 1999; and
WHEREAS, the Tenth Restated Agreement was amended and
restated in its entirety pursuant to the Eleventh Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership (the
"Eleventh
Restated Agreement") dated as of May 23, 2000; and
WHEREAS, the Eleventh Restated Agreement was amended and
restated in its entirety pursuant to the Twelfth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership (the
"Twelfth
Restated Agreement") dated as of June 15, 2001; and
WHEREAS, the Twelfth Restated Agreement was amended and
restated in its entirety pursuant to the Thirteenth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership
(the
"Thirteenth Restated Agreement") dated as of February 11, 2003;
and
WHEREAS, the Thirteenth Restated Agreement was amended and
restated in its entirety pursuant to the Fourteenth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership
(the
"Fourteenth Restated Agreement") dated as of January 1, 2004;
27
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WHEREAS, the Fourteenth Restated Agreement was amended and
restated in its entirety pursuant to the Fifteenth Amended and
Restated
Agreement of Registered Limited Liability Limited Partnership
(the
"Fifteenth Restated Agreement") dated as of May 14, 2004; and
WHEREAS, the parties now desire to amend and restate said
Fifteenth Restated Agreement in its entirety pursuant to this
Sixteenth
Amended and Restated Agreement of Registered Limited Liability
Limited
Partnership.
NOW, THEREFORE, pursuant to the terms, covenants and
conditions set forth herein and the mutual promises contained
herein, the
parties hereto agree as follows:
ARTICLE ONE
DEFINED TERMS
-------------
The defined terms used in this Agreement shall have the
meanings
specified below:
"Affiliate" of a specified person (the "Specified Person")
means any Person (a) who directly or indirectly controls, is
controlled by,
or is under common control with the Specified Person; (b) who owns
or
controls ten percent (10%) or more of the Specified Person's
outstanding
voting securities or equity interests; (c) in whom such Specified
Person
owns or controls ten percent (10%) or more of the outstanding
voting
securities or equity interests; (d) who is a director, partner,
manager,
executive officer or trustee of the Specified Person; (e) in whom
the
Specified Person is a director, partner, manager, executive officer
or
trustee; or (f) who has any relationship with the Specified Person
by blood,
marriage or adoption, not more remote than first cousin.
"Agreement" means this Sixteenth Amended and Restated
Agreement of Registered Limited Liability Limited Partnership, as
amended
from time to time.
"Capital Account" means an account established by the
Partnership and maintained for each Partner, for federal income
tax
purposes, which account shall be credited with:
(i) the amount
of the Partner's Capital Contributions; and
(ii) the amount of
Partnership income (including income
exempt from federal income tax) and gain (or items thereof)
allocated to the Partner pursuant to Article Eight hereof;
and which shall be debited by:
(iii) the amount of Partnership losses and deductions (or
items thereof) allocated to the Partner pursuant to Article
Eight
hereof;
(iv) the amount of
Partnership expenditures described in
Treasury Regulations Section 1.704-1(b)(2)(iv)(i) allocable to
the
Partner in the same proportion as that in which the Partner
bears
the economic burden of those expenditures; and
(v) the amount
of all distributions to the Partner
pursuant to Article
Eight hereof.
In addition, the Capital Account of each Partner shall be
adjusted as necessary to comply with Treasury Regulations
Section
1.704-1(b)(2)(iv). In the event the Managing Partner shall
determine that it
is prudent to modify the manner in which the Capital Accounts or
any debits
or credits thereto are
28
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completed in order to comply with such regulations, the Managing
Partner may
amend this Agreement to reflect such modification, provided that it
is not
likely to have a material effect on the amounts distributable to
the
Partners pursuant to Article Eight upon dissolution of the
Partnership.
If any Partner would otherwise have a negative balance in
his Capital Account, the amount of any such negative balance shall
be
reduced (but not in excess of such negative balance) by the amount
of such
Partner's share of Partnership Minimum Gain (determined in
accordance with
Treasury Regulations Section 1.704-1(b)(4)(iv)(f)) after taking
into account
all increases and decreases to such Partnership Minimum Gain during
the
taxable year.
In the event that the Partnership is deemed to be
terminated for federal income tax purposes due to the sale or
exchange of
fifty percent (50%) or more of the Partnership interests within a
twelve
(12) month period, appropriate adjustment shall be made to the
Capital
Accounts to reflect such termination as required by the Internal
Revenue
Code and applicable Treasury Regulations.
In the event that interests in the Partnership are sold,
exchanged or otherwise transferred, and the transfer is recognized
under
Article Six or Article Seven hereof, or by operation of law, the
Capital
Account of the transferee will equal the Capital Account of the
transferor
immediately before the transfer. However, if such a sale or
exchange, either
alone or in combination with other sales or exchanges within a
twelve-month
period results in a transfer of fifty percent (50%) or more of
the
Partnership interests causing a termination of the Partnership for
federal
income tax purposes, the adjustment required by the immediately
preceding
paragraph shall be made.
"Capital Contribution" means the total amount of cash or
property contributed as equity to the Partnership by each Partner
pursuant
to the terms of this Agreement. The Capital Contributions of the
Partners
have been previously set forth on exhibits to this Agreement. From
the date
hereof, the Capital Contributions of the Partners shall be
reflected in the
books and records of the Partnership.
"Certificate of Limited Partnership" means the document,
as amended or restated from time to time, filed as a certificate of
limited
partnership under the Missouri Limited Partnership Act.
"Class I Subordinated Limited Partners" means those
persons whose names are set forth in the books and records of
the
Partnership as Class I Subordinated Limited Partners, and any other
person
who becomes a Class I Subordinated Limited Partner of the
Partnership as
provided herein.
"Class II Subordinated Limited Partners" means those
persons whose names are set forth in the books and records of
the
Partnership as Class II Subordinated Limited Partners, and any
other person
who becomes a Class II Subordinated Limited Partner of the
Partnership as
provided herein.
"Dispute" shall have the meaning set forth in Section 10.1A.
"EDJ" shall have the meaning set forth in Section 2.3.
"Event of Withdrawal" means, as to a General Partner, the
occurrence of death, adjudication of mental incompetence,
bankruptcy,
dissolution, or voluntary or involuntary withdrawal or removal from
the
Partnership or any other event of withdrawal set forth in the
Missouri
Limited Partnership Act.
"Frozen Appreciation Amount" means each General Partner's
share of the unrealized appreciation of certain real estate (the
"Real
Estate") owned by EDJ Leasing Co. on the date such General
Partner
contributes his general partnership interest in EDJ Leasing Co. to
the
Partnership. The Frozen Appreciation Amount shall be maintained in
the books
and the records of the Partnership. The Real
29
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Estate currently consists of the land and improvements located at
201
Progress Parkway, 141 Progress Parkway, 158 Progress Parkway, 115
Progress
Parkway, 135 Progress Parkway, 9 American Industrial Dr. and 20
American
Industrial Dr., all in St. Louis County, Missouri. Each year, as of
December
31, if in the opinion of the Managing Partner there has been a
material
diminution in the value of the Real Estate, the Partnership shall
appraise
(to the extent not previously sold) the Real Estate and the shares
of
unrealized appreciation shall be appropriately and proportionately
adjusted
for each General Partner on the books of the Partnership. The
unrealized
appreciation per each separate tract of Real Estate as set forth on
the
books of the Partnership may never exceed the amount used in making
the
original calculation even if a given appraised value later exceeds
such
amount. When, as and if a given tract of Real Estate is sold, the
unrealized
appreciation then attributable to such tract of Real Estate shall
no longer
be included in the calculation of the Frozen Appreciation Amount on
the
books of the Partnership.
"General Partners" means those persons whose names are set
forth in the books and records of the Partnership as being General
Partners,
and any other Person who becomes a successor or additional General
Partner
of the Partnership as provided herein.
"General Partner's Adjusted Capital Contribution" means
the Capital Contribution of the General Partner plus all Net
Income
thereafter allocated to the account of the General Partner minus
(a) all Net
Loss thereafter allocated to the account of the General Partner,
and (b) any
cash or property thereafter distributed to (or for the benefit of)
the
General Partner. Payments of salaries, bonuses or expenses to a
General
Partner by the Partnership shall not affect such General Partner's
Adjusted
Capital Contribution.
"General Partner Interest" means a General Partner's
entire ownership interest in the Partnership.
"General Partner Percentage" means a percentage determined
by dividing a General Partner's Adjusted Capital Contribution by
the
Adjusted Capital Contributions of all of the General Partners.
"Grantors" shall have the meaning set forth in Section 11.13.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"Limited Partner Withdrawal Notice" shall have the meaning
set forth in Section 6.1B.
"Limited Partners" means those persons whose names are set
forth in the books and records of the Partnership as being Limited
Partners,
and any other person who becomes a Limited Partner of the
Partnership as
provided herein.
"Limiteds" means those persons whose names are set forth
in the books and records of the Partnership as being the Limited
Partners,
Class I Subordinated Limited Partners and the Class II Subordinated
Limited
Partners, and any other person who becomes a Limited of the
Partnership as
provided herein.
"Mandatory Withdrawal Notice" shall have the meaning set
forth in Section 6.2.
"Missouri Limited Partnership Act" means the Missouri
Revised Uniform Limited Partnership Act, as amended from time to
time.
30
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"Missouri Partnership Act" means the Missouri Uniform
Partnership Law, as amended from time to time.
"NASD" shall have the meaning set forth in Section 10.1E.
"Net Income or Net Loss" means, with respect to any fiscal
period, the net income or the net loss of the Partnership,
determined in
accordance with generally accepted accounting principles modified
to exclude
the application of Statement of Financial Accounting Standards No.
150;
provided, however, there shall be excluded from such net income or
net loss
(after deduction of the guaranteed payments required by Section
3.3B hereof
and the bonus compensation provided for in Section 4.1B(v) hereof)
any
unrealized gains or losses on securities or rights or options to
acquire
securities held by the Partnership (or by any entity whose
financial
statements are consolidated with the financial statements of
the
Partnership) as (a) a hedge against fixed rate borrowings or (b) as
long
term passive investments (usually minority interests) (in the case
of both
(a) and (b), as opposed to other securities held by the Partnership
[or by
any entity whose financial statements are consolidated with the
financial
statements of the Partnership] as inventory for resale in the
ordinary
course of business).
"Notice" means a writing, containing the information
required by this Agreement to be communicated to a party,
delivered
personally or sent by U.S. mail, postage prepaid, to such party at
the last
known address of such party as shown on the records of the
Partnership, the
date of personal delivery or the date of mailing thereof being
deemed the
date of receipt thereof.
"Partner" means any General Partner or Limited.
"Partnership" means the limited partnership (originally
formed as a limited partnership which is now registered as a
registered
limited liability limited partnership) continued by this Agreement
by the
parties hereto, as said limited partnership may from time to time
be
constituted.
"Partnership Minimum Gain" means, for Partnership tax
purposes, as set forth in Treasury Regulations Section
1.704-1(b)(4)(iv)(c),
the amount of gain, if any, that would be realized by the
Partnership if it
were to sell or dispose of (in a taxable transaction) property
subject to a
non-recourse liability of the Partnership, in full satisfaction of
such
liability.
"Party" shall have the meaning set forth in Section 10.1A.
"Person" means a natural person, partnership, limited
partnership (domestic or foreign), limited liability partnership,
limited
liability limited partnership, limited liability company, trust,
estate,
association or corporation.
"Premium" shall have the meaning set forth in Section 8.4D.
"Price" shall have the meaning set forth in Section 6.3A.
"Proceeds of Liquidation" shall have the meaning set forth
in Section 8.2A.
"Profits and Losses For Tax Purposes" means, for
Partnership accounting and tax purposes, the various items set
forth in
Section 702(a) of the Internal Revenue Code and all applicable
regulations
or any successor law, and shall include, but not be limited to,
each item of
income, gain, deduction, loss, preference or credit.
"Reduced Amount" shall have the meaning set forth in
Section 8.1A(iii).
31
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"Requested Withdrawal Amount" shall have the meaning set
forth in Section 6.3G.
"Retiring Interest" shall have the meaning set forth in
Section 6.6.
"Sale" shall have the meaning set forth in Section 8.4A.
"Treasury Rate" shall have the meaning set forth in
Section 8.1A(ii).
"Trusts" shall have the meaning set forth in Section 11.13.
"Withdrawal Notice" shall have the meaning set forth in
Section 6.3G.
"Valuation Date" means as of the last Friday of each month
except for the month of December in which case it means as of the
last day
of the month.
ARTICLE TWO
CONTINUATION, NAME AND OFFICE, PURPOSES,
----------------------------------------
TERM AND DISSOLUTION,
---------------------
REGISTERED AGENT, PARTNER LIST
------------------------------
2.1
Continuation.
------------
The parties hereto hereby continue the Partnership as a
registered limited liability limited partnership pursuant to the
provisions
of the Missouri Limited Partnership Act and the Missouri
Partnership Act.
2.2 Name, Place
of Business and Office.
----------------------------------
The Partnership shall be conducted under the name of "The
Jones Financial Companies, L.L.L.P.". The principal office and
place of
business shall be 12555 Manchester Road, Des Peres, Missouri 63131.
The
General Partners may at any time change the location of such
principal
office. Notice of any such change shall be given to the Partners on
or
before the date of any such change.
2.3
Purposes.
--------
The
purposes of the Partnership shall be to act as a
limited partner in Edward D. Jones & Co., L.P. ("EDJ"), to act
as a general
partner, limited partner, guarantor, stockholder or holding
partnership for
any other limited partnership, general partnership, limited
liability
partnership, limited liability limited partnership, limited
liability
company, corporation or other entity and to engage in such other
activities
as may be approved by the General Partners.
2.4 Term and
Dissolution.
--------------------
A. The
Partnership shall continue in full force and effect
until December 31, 2199, or until dissolution prior thereto upon
the
happening of any of the following events:
(i)
the sale of all
of the assets of the Partnership;
(ii) an Event of
Withdrawal of a General Partner if no
General Partner remains; or
(iii) the dissolution of the Partnership by the General
Partners.
32
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B. Upon
dissolution of the Partnership, the General
Partners shall cause the cancellation of the Partnership's
Certificate of
Limited Partnership, liquidate the Partnership's assets and apply
and
distribute the proceeds thereof in accordance with Section 8.2
hereof.
2.5 Registered
Office and Agent.
---------------------------
The name and address of the Registered Agent and
Registered Office for service of process on the Partnership are as
set forth
in the Certificate of Limited Partnership.
2.6 Amendment to
Certificate of Limited Partnership.
-----------------------------------------------
The Certificate of Limited Partnership shall be amended
within thirty days of the admission or withdrawal of a General
Partner.
ARTICLE THREE
PARTNERS AND CAPITAL
--------------------
3.1 General
Partners.
----------------
A. The
name, last known mailing address and current
Capital Contribution of each General Partner are reflected in the
books and
records of the Partnership.
B. Any
General Partner, in addition to being a General
Partner, may also become a Limited by complying with the provisions
of
Section 3.4 hereof. In such event, said General Partner shall have
all the
rights and powers and be subject to all the restrictions of a
General
Partner, except that, in respect to his Capital Contribution as a
Limited,
he shall have the rights against the other Partners which he would
have had
if he were not also a General Partner.
C. From
time to time, the Managing Partner may allow one
or more General Partners to increase their Capital Contributions.
Such
increased Capital Contributions shall be made in such amount and
manner and
at such time as determined by the Managing Partner and the General
Partner's
Percentages shall be appropriately adjusted and transferred. All
such
changes shall be reflected in the books and records of the
Partnership.
3.2 Admission of
Additional General Partners.
----------------------------------------
A. The
Managing Partner may at any time designate
additional General Partners with such interest in the Partnership
as the
Managing Partner and such additional General Partners may agree
upon. The
additional General Partner shall make his Capital Contribution to
the
Partnership in such manner and at such time as determined by the
Managing
Partner and the General Partner Percentages shall be appropriately
adjusted
and transferred. All such changes shall be reflected in the books
and
records of the Partnership. The Managing Partner may admit
additional
General Partners to the Partnership at any time without the consent
of any
current General Partner or Limited.
B. Each
additional General Partner shall agree, as a
condition to becoming an additional General Partner, to be bound by
the
terms and provisions of this Agreement and any other agreement
(including
cash subordination agreements) as deemed appropriate by the
Managing
Partner.
33
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3.3 Limiteds and
Contained Payments to Limited Partners.
---------------------------------------------------
A. There
shall be three classes of Limiteds, namely,
Limited Partners, Class I Subordinated Limited Partners and Class
II
Subordinated Limited Partners. The name, last known mailing address
and
current Capital Contribution of each Limited Partner, Class I
Subordinated
Limited Partner and Class II Subordinated Limited Partner are
reflected in
the books and records of the Partnership.
B. Each
Limited Partner shall be paid 7-1/2 % per annum,
on the principal amount of his Capital Contribution. Such payments
shall be
made yearly or more frequently, as determined by the Managing
Partner. All
such payments shall be treated as guaranteed payments.
3.4 Admission of
Limiteds.
---------------------
A. The
Managing Partner is authorized to admit to the
Partnership Limiteds who may be admitted as Limited Partners, Class
I
Subordinated Limited Partners or as Class II Subordinated Limited
Partners,
at the discretion of the Managing Partner.
B. The
Capital Contributions of the Limiteds shall be made
in such manner and at such time as determined by the Managing
Partner. All
such changes shall be reflected in the books and records of the
Partnership.
C. Each
Limited shall agree, as a condition to becoming a
Limited, to be bound by the terms and provisions of this Agreement
and any
other agreements (including cash subordination agreements) as
deemed
appropriate by the Managing Partner.
3.5 Partnership
Capital.
-------------------
A. The
total capital of the Partnership shall be the
aggregate amount of the Capital Contributions of the Partners as
provided
for herein.
B. Except
as provided herein, or as otherwise determined
by the Managing Partner, no Partner shall be paid interest on any
Capital
Contribution to the Partnership.
C. Except
as otherwise provided herein, prior to
dissolution of the Partnership, no Partner shall have the right to
demand
the return of his Capital Contribution. No Partner shall have the
right to
demand and receive property other than cash in return for his
Capital
Contribution.
D. The
General Partners shall have no personal liability
for the repayment of the Capital Contribution of any Limited.
3.6 Liability of
Limiteds.
---------------------
A Limited shall only be liable to make the payment of his
Capital Contribution. Except as provided in the Missouri Limited
Partnership
Act, no Limited shall be liable for any obligations of the
Partnership.
After his Capital Contributions shall be paid to the Partnership,
no Limited
shall be required to make any further Capital Contribution or lend
any funds
to the Partnership, except as otherwise expressly provided in
this
Agreement.
3.7
Participation in Partnership Business by Limiteds.
-------------------------------------------------
No Limited (except one who may also be a General Partner,
and then only in his capacity as a General Partner) shall
participate in or
have any control over the Partnership business (except as required
by law)
or shall have any authority or right to act for or bind the
partnership. The
Limiteds
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hereby consent to the exercise by the Managing Partner and the
General
Partners of the powers conferred on them by this Agreement.
3.8. Priority Among
Limiteds.
-----------------------
Priorities as between classes of Limiteds as to
distributions are set forth in Article Eight hereof.
ARTICLE FOUR
RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNERS
-------------------------------------------------
4.1 Authorized
Acts; Management and Control.
---------------------------------------
A. Subject
to the other provisions set forth below, the
General Partners have the exclusive right to manage the business of
the
Partnership and are hereby authorized to take any action
(including, but not
limited to, the acts authorized by Section 4.1C below) of any kind
and to do
anything and everything in accordance with the provisions of this
Agreement.
B. James
D. Weddle is hereby designated by the General
Partners as the Managing Partner of the Partnership. As the
Managing Partner
he shall serve as Chairman of the Executive Committee. As Managing
Partner,
he shall have the absolute right (subject to Section 4.4C hereof)
to manage
the business of the Partnership on behalf of the General Partners
and is
hereby authorized to take on behalf of the Partnership and the
General
Partners any action (including, but not limited to, the acts
authorized by
Section 4.1C below) of any kind and to do anything and everything
in
accordance with the provisions of this Agreement. The Managing
Partner shall
have all the rights, powers and duties usually vested in the
managing
partner of a partnership including the administration of this
Partnership's
business and the determination of its business policies and he
shall control
the management and conduct of all of the business transacted by
the
Partnership. In particular, but not in limitation of the foregoing,
the
Managing Partner for, in the name and on behalf of, the Partnership
and the
General Partners is hereby specifically authorized (i) to admit to
the
Partnership any General Partner or Limited; (ii) to dismiss (in
accordance
with Section 6.2 hereof) from the Partnership any General Partner
or
Limited; (iii) to determine the General Partner's Adjusted
Capital
Contribution (and the related General Partner Percentage) that each
General
Partner (including the Managing Partner) shall be entitled to
maintain; (iv)
to determine the guaranteed draw (described in Section 4.5A hereof)
to be
paid to each General Partner (which guaranteed draw shall be set
forth on a
list to be maintained in the Managing Partner's office which list
shall be
available for inspection by the General Partners); (v) to determine
the
amount, if any, of bonus compensation (in addition to the funds
provided for
in Section 8.1A(iv) to be paid to one or more Partners to assist
such
Partner(s) in maintaining or making initial or additional
Capital
Contributions to the Partnership, provided, however, such aggregate
bonus
compensation in any calendar year shall not exceed $1,500,000; (vi)
to
determine the amount, if any, of the Capital Contribution that each
General
Partner or Limited shall be entitled to maintain; (vii) to
determine all
amounts, if any, to be distributed to the Limiteds pursuant to
Section 8.5
hereof; (viii) to convey title to any assets of the Partnership;
and (ix) to
execute all documents (including, but not limited to, any loan
documents or
guarantees) on behalf of the Partnership and (x) to sign on behalf
of the
Partnership and each of its Partners, all documents and forms
required by
(A) any domestic or foreign jurisdiction where the Partnership is
engaged in
business so as to qualify as a registered limited liability
limited
partnership or comparable entity and (B) any
35
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governmental agency requiring the Partnership to appoint a
registered agent
and/or office for service of process in such jurisdictions.
C. The
General Partners for, in the name and on behalf of,
the Partnership are hereby authorized to take any and all actions,
and to
engage in any kind of activity and to perform and carry out all
functions of
any kind necessary to, or in connection with, the business of
the
Partnership (including but not limited to): (i) executing any
instruments on
behalf of the Partnership; (ii) acquiring or selling assets of
the
Partnership; (iii) entering into loans, guarantees in connection
with the
business of the Partnership; (iv) acting as a partner or
shareholder of, or
adviser to, any other organization; (v) contributing capital, as a
limited
partner or as a general partner, or purchasing other securities in
or
otherwise investing in EDJ or any other limited partnership,
general
partnership, corporation or other entity and taking all actions
required as
a partner, shareholder or investor in any such entity.
D. The
special authority granted herein to the Managing
Partner shall not be construed to restrict the authority of any
General
Partner to act as the agent of the Partnership and to execute
instruments in
the Partnership name for the purpose of carrying on the ordinary
business of
the Partnership.
E. The
Managing Partner may delegate to any General
Partner the authority from time to time to execute documents or
otherwise
exercise the authority of the Managing Partner, but such authority
shall not
include the authority to increase the capital or change the
business
policies of the Partnership unless such authority is expressly
and
specifically granted in writing to such General Partner.
F.
Whenever authority is herein conferred upon the
Managing Partner or the General Partners, any person, other than a
General
Partner, dealing with the Partnership may rely conclusively upon
the
authority and signature of the Managing Partner or any one other
General
Partner to exercise such authority without determining that such
Managing
Partner or such General Partner is acting with the approval of the
other
General Partners. In addition, third parties dealing with the
Partnership
may rely upon the certification of the Managing Partner or any
other General
Partner as to the continued existence of the Partnership, the
identity of
its current Partners and the authority of any Partner to execute
any
document.
4.2 Restrictions
on Authority of the Managing Partner
-------------------------------------------------
and Executive Committee.
-----------------------
In the event that a meeting of General Partners is called
by the General Partners in accordance with Section 5.1 hereof to
vote upon
the removal of the Managing Partner or an Executive Committee
member,
neither the Managing Partner nor the Executive Committee shall from
the time
of notice of such meeting until after adjournment thereof: (i)
change the
General Partner Percentage of any General Partner or (ii) admit or
dismiss
any General Partner as a Partner.
4.3 Removal or
Dismissal of Certain Partners.
----------------------------------------
The Managing Partner may be removed from such office and
any General Partner may be dismissed as a General Partner (in
accordance
with Section 6.2 hereof) by a vote of General Partners holding a
majority of
the General Partner Percentages in the Partnership.
4.4 Executive
Committee.
-------------------
A. An
Executive Committee is hereby created consisting of
the Managing Partner and five (5) to nine (9) additional General
Partners,
the number thereof to be determined from time to time by the
Managing
Partner. There shall be maintained in the office of the General
Counsel of
the Partnership a list, certified by the Managing Partner as being
true and
correct, of the General Partners,
36
<PAGE>
who in addition to the Managing Partner, constitute the current
Executive
Committee of the Partnership. Among the purposes of the Executive
Committee
is to provide counsel and advice to the Managing Partner in
discharging his
functions.
B. Each
member of the Executive Committee shall have one
vote.
C. Upon
the majority vote of the Executive Committee, the
Executive Committee may override any determination made by the
Managing
Partner as to (i) the General Partner's Adjusted Capital
Contribution (and
the related General Partner Percentage) that each General Partner
(including
the Managing Partner) shall be entitled to maintain, (ii) the
admission of a
new General Partner and (iii) the dismissal of a General
Partner.
D. Upon
the majority vote of the Executive Committee, the
Managing Partner may be removed from his office as the Managing
Partner.
E. At any
time during which there is no Managing Partner
the Executive Committee shall succeed to all of the powers and
duties of the
Managing Partner.
F. Upon
the majority vote of the Executive Committee, a
new Managing Partner shall be elected whenever the office of the
Managing
Partner is vacant. Such vote shall be taken within two (2) weeks
after such
office becomes vacant.
G. If the
Executive Committee believes that the office of
the Managing Partner may become vacant, for any reason
whatsoever,
including, but not limited, to retirement or resignation of the
current
Managing Partner, then the Executive Committee may establish
procedures (as
it shall determine appropriate, in its sole discretion) to review
potential
candidates and then to choose from such candidates the person to be
the new
Managing Partner when the office of the Managing Partner becomes
vacant.
H. The
Managing Partner shall have the right to appoint
and dismiss any member of the Executive Committee; provided however
that the
Managing Partner shall not have the right to dismiss any member of
the
Executive Committee or increase or decrease the number of General
Partners
on the Executive Committee from the time Notice is given of a
meeting of the
Executive Committee until the adjournment thereof if the purpose of
such
meeting is to vote upon one or more of the matters set forth in
Sections
4.4C or 4.4D hereof.
I. By a
vote of the General Partners holding a majority of
the General Partner Percentages in the Partnership, the General
Partners may
remove any Executive Committee member from his position as an
Executive
Committee member and elect in his place a new Executive Committee
member.
J. If the
General Partners remove any Executive Committee
member from his position as an Executive Committee member, the
Managing
Partner may not appoint such removed Executive Committee member to
the
Executive Committee for a period of six (6) months thereafter. Any
Executive
Committee member elected to the Executive Committee by a vote of
the General
Partners may not be dismissed as an Executive Committee member by
the
Managing Partner.
K. A
meeting of the Executive Committee shall be held (i)
at any time on call of the Managing Partner after one (1) day's
Notice has
been delivered to the Executive Committee members or (ii) on at
least ten
(10) day's Notice in advance to the Executive Committee members,
jointly
signed by any two (2) Executive Committee members, specifying the
date,
place, hour and purpose of the meeting.
37
<PAGE>
4.5 Guaranteed
Draw; Time and Effort; Independent
---------------------------------------------
Activities.
----------
A. Each
General Partner shall receive a guaranteed draw
for his services as determined by the Managing Partner in his
sole
discretion. Such guaranteed draw shall be treated by the
Partnership as a
guaranteed payment. Such guaranteed draw shall be reduced by any
net
commissions earned by any such General Partner (and paid to such
General
Partner by EDJ) who is principally engaged in the sale of
securities to the
public. If any such General Partner who is principally engaged in
the sale
of securities to the public at EDJ incurs any reasonable expenses
through
usual and ordinary means of generating the sales upon which such
General
Partner is entitled to receive commissions from EDJ, then such
General
Partner must personally and individually pay, without reimbursement
from the
Partnership or from EDJ, such expense but such General Partner
shall be
entitled to deduct such expenses on his personal income tax return,
all as
permitted by the Internal Revenue Code.
B. Each
General Partner shall devote his entire time,
energy, skill and ability to the duties of operating the
Partnership and the
entities it owns. General Partners shall not engage in outside
business
activities without the prior written consent of the Managing
Partner. Each
General Partner agrees not to use the name or property of the
Partnership or
any entity it owns for his own private business, nor for any
purpose
whatsoever except those that may be incidental to the conduct and
management
of the Partnership, nor shall any General Partner use the name of
the
Partnership or any entity it owns for the use or accommodation of
any other
person. No General Partner shall incur any obligation in the name
of the
Partnership or transfer Partnership property except in connection
with
Partnership business.
C. Each
General Partner agrees that he will not, without
the written consent of the Managing Partner (i) become a guarantor
or surety
for any person, firm or corporation; (ii) in the name of the
Partnership or
any entity it owns or in his own name buy or sell stocks,
securities or
commodities on margin, either for the account of the Partnership or
for his
own account; or (iii) pledge or hypothecate any of the property of
the
Partnership or any entity it owns for any purpose whatsoever.
D. Each
General Partner shall submit, upon request by the
Managing Partner, a copy of any of his current personal income tax
returns
(for any time period during which such Partner was a Partner of
the
Partnership) for inspection by independent accountants selected by
the
Managing Partner. In addition, each General Partner agrees, if
requested by
the Managing Partner, to have such General Partner's income tax
returns
prepared by an entity (which could be the Partnership itself or
independent
accountants) selected by such General Partner and acceptable to the
Managing
Partner.
E. Each
Partner is expected, and it is regarded as such
Partner's duty, to supplement expenses reimbursable to such Partner
by the
Partnership by additional expenditures of such Partner's personal
funds in
the furtherance of the Partnership's business which expenditures
such
Partner shall be entitled to deduct on his personal income tax
return, all
as permitted by the Internal Revenue Code. In this connection, as
deemed
appropriate under the circumstances, such additional expenditures
have
included in the past and shall include in the future, but shall not
be
limited to (a) subscribing to professional and business journals,
(b)
maintaining active memberships in professional associations and
other
associations, luncheon clubs and other clubs where the Partner will
have an
opportunity to further the development of, and to maintain the
Partnership's
relationship with, its customers, (c) providing space, facilities
and
communication equipment and related telephone lines or high speed
Internet
connections in the Partner's home in order that the Partner may
work on the
Partnership's business while at home, (d) purchasing necessary
supplies,
books, furniture, computers, fax machines, cell phones, other
wireless
communication devices and other items, (e) providing for
transportation to
customers' offices, (f) entertaining customers and prospective
customers and
(g) continuing the Partner's business related education,
including
attendance at seminars and obtaining advanced educational
degrees.
38
<PAGE>
F. In the
event any Partner becomes a party in any
lawsuit, arbitration or other similar proceeding, such Partner
agrees to
notify promptly the Managing Partner of such event.
4.6 Duties and
Obligations of the Managing Partner.
----------------------------------------------
A. The
Managing Partner shall prepare (or cause to be
prepared) and file such amendments to this Agreement or any
certificate of
limited partnership or any certificate of limited liability
partnership as
are required by law or as he deems necessary to cause this
Agreement or any
certificate of limited partnership or any certificate of limited
liability
partnership to reflect accurately the agreement of the Partners,
the
identity of the Limiteds or the General Partners and the amounts of
their
respective Capital Contributions.
B. The
Managing Partner shall prepare (or cause to be
prepared) and file such tax returns
