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Exhibit 10(jj)
ANNEX A
AMENDMENT TO ALBRIGHT & WILSON COMPANY
GENERAL PARTNERSHIP AGREEMENT
This Agreement amending the Albright & Wilson Company General
Partnership Agreement (as amended, the "PARTNERSHIP AGREEMENT") is entered into
as of March 23, 2000, between Albright & Wilson Americas Inc., a Delaware
corporation ("A&W INC."), PCS Phosphate Company, Inc., a Delaware corporation
("PCSP") and PCS Industrial Products, Inc., a Delaware corporation ("NEW
PARTNER").
WHEREAS, A&W Inc. and PCSP are parties to the Partnership Agreement,
which created Albright & Wilson Company ("A&W CO.") as a Virginia general
partnership;
WHEREAS, A&W Inc. and PCSP believe it is in the best interests of A&W
Co. to admit New Partner as a general partner of A&W Co. with a percentage
interest equal to the percentage interest set forth next to New Partner's name
on Schedule 1 attached hereto;
WHEREAS, the New Partner desires to become a general partner of A&W Co.
and to have all the rights and be subject to all the obligations of a general
partner under the Partnership Agreement;
WHEREAS, A&W Inc. and PCSP desire to make certain amendments to the
Partnership Agreement to provide for the admission of the New Partner as a
general partner;
WHEREAS, A&W Inc. and PCSP wish to amend the Partnership Agreement in
order to establish the rights and obligations of an A&W Co. member after its
partnership interest has been transferred;
WHEREAS, A&W Inc. and PCSP also believe that it is in the best interest
of A&W Co. to provide for distributions by A&W Co. to Partners other than in
accordance with Section 5.02 of the Partnership Agreement, which provides for
distributions on a "pro rata" basis in accordance with the Partner's respective
Shares as of that time, so long as such alternative method of distribution is
agreed to by vote of the Partners;
WHEREAS, A&W Inc. and PCSP wish to amend the Partnership Agreement in
order to provide for agreement among Partners with regard to distributions which
are other than "pro rata" in accordance with Share ownership; and
WHEREAS, A&W Inc. and PCSP desire to change the name of A&W Co.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties agree as follows:
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1. Definitions. Unless otherwise defined herein, all defined
terms used in this Agreement shall have the same definitions as contained in the
Partnership Agreement.
2. Amendments to Partnership Agreement.
A. Unless otherwise provided in this Agreement, throughout the
entirety of the Partnership Agreement, each usage of A&W Co. shall be
replaced with "PCS Purified Phosphates."
B. Section 2.02. Section 2.02 (Shares) of the Partnership
Agreement is hereby amended in its entirety to read as follows:
"2.02 Shares. Except as otherwise provided in Article
VIII or IX of this Agreement, the percentage interest of each
Partner in PCS Purified Phosphates shall be as set forth on
Schedule 1 attached hereto."
C. Section 4.01. Section 4.01 (Capital Contributions) of the
Partnership Agreement is hereby amended by adding the following
paragraph (d) to the end of Section 4.01:
"(d) On March 23, 2000, PCS Industrial Products,
Inc. shall contribute to PCS Purified Phosphates the amount of
$450,000 which will represent the capital contribution of PCS
Industrial Products, Inc. to PCS Purified Phosphates and will
entitle PCS Industrial Products, Inc. to the percentage
interest in PCS Purified Phosphates set forth next to PCS
Industrial Product, Inc.'s name on Schedule 1 attached
hereto."
D. Sub-section 1.01(s). Sub-section 1.01(s) (Definitions;
Partner) is hereby amended in its entirety to read as follows:
"(s) "Partner" shall mean PCS Phosphate Company, Inc.,
Albright and Wilson Americas Inc., or PCS Industrial Products,
Inc., as the case may be, and the term "Partners" shall mean
all of the Partners."
E. Section 6.02. Section 6.02 (Distributions) of the
Partnership Agreement is hereby amended by placing the phrase "as
otherwise agreed by unanimous vote of the Partners or" after the word
"Except" in the first sentence.
F. Article VIII. Article VIII (Transfer of Interest) is hereby
amended by adding the following new Section 8.03 after existing Section
8.02:
"8.03 Dissociation.
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(a) Upon the transfer by a Partner of its
entire interest in PCS Purified Phosphates pursuant
to Section 8.01 hereof, the
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remaining non-transferring Partners (the
"CONTINUING PARTNERS") shall dissociate the
transferring Partner (the "DISSOCIATED PARTNER") from
PCS Purified Phosphates by filing a statement of
dissociation with the Virginia State Corporation
Commission.
(b) Effective upon the filing of the notice
of dissociation pursuant to Section 8.03(a) hereof:
(i) PCS Purified Phosphates shall
not be dissolved under the Act and shall
continue in existence as a Virginia general
partnership;
(ii) The Dissociated Partner will
cease to be a general partner in PCS
Purified Phosphates, and shall have no
further rights, no partnership interests, no
obligations, no liabilities and no duties
under this Agreement, including, but not
limited to, (A) any and all rights in PCS
Purified Phosphates partnership property,
(B) any and all partnership interests in PCS
Purified Phosphates, including, but not
limited to, profits and losses, and (C) any
and all management rights with respect to
PCS Purified Phosphates, including but not
limited to, the right to appoint members to
the PCS Purified Phosphates Management
Committee pursuant to Section 3.01 hereof;
(iii) The Dissociated Partner shall
not be entitled to indemnification as
provided in Section 50-73.112 of the Act;
(iv) The Dissociated Partner shall
not have any duties under the New Chapter,
including the duties of care and loyalty set
forth under Section 50-73.102 of the New
Chapter; and
(v) The Dissociated Partner waives
any entitlement it may have to a buyout
price of its shares under Section 50-73-112
of the New Chapter. In lieu thereof, the
Dissociated Partner and the Continuing
Partners may fix a method or formula for
determining the buyout price and all other
terms and conditions of the buyout right of
the Dissociated Partner's partnership
interest whether in connection with a
transfer under Section 8.01 hereof or
otherwise to the fullest extent permitted
under the law of the Commonwealth of
Virginia.
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(c) In connection with any transfer under
Section 8.01 hereof, PCS Purified Phosphates, the
Continuing Partners and the Dissociated Partner shall
agree to all liabilities and obligations of each of
PCS Purified Phosphates, the Continuing Partners and
the Dissociated Partner with respect to one another,
in a written agreement, for the periods prior to and
after the dissociation of the Dissociated Partner
(the "CONTINUING OBLIGATIONS"). Notwithstanding
anything in this Agreement to the contrary, except
for those Continuing Obligations expressly agreed to
by the Partners, (A) the Dissociated Partner shall
not have any other Continuing Obligations, and shall
not have any other liabilities or obligations, to PCS
Purified Phosphates and the Continuing Partners, and
(B) PCS Purified Phosphates and the Continuing
Partners shall have no other Continuing Obligations
to the Dissociated Partner.
3. Acceptance and Acknowledgment of New Partner. New Partner
acknowledges receipt of the Partnership Agreement and all amendments thereto, a
copy of which is attached hereto as Exhibit A, and hereby specifically accepts,
adopts, and agrees to each and every provision of the Partnership Agreement. By
execution of this Amendment, New Partner agrees that it shall be deemed to have
executed the Partnership Agreement.
4. Removal of References to A&W Inc. Effective immediately upon the
dissociation of the Selling Partner (as defined in the Distribution and Sale
Agreement dated as of March 23, 2000 by and among A&W Inc., PCSP, New Partner,
PCS Purified Phosphates and Rhodia Inc., a Delaware corporation), PCSP and New
Partner shall amend and restate the Partnership Agreement in its entirety (the
"AMENDED AND RESTATED PARTNERSHIP AGREEMENT"). PCSP and New Partner hereby
covenant that the Amended and Restated Partnership Agreement shall not contain
any references to A&W Inc. (including, without limitation, all references to
Albright & Wilson Americas Inc.) or any corresponding references to rights,
interests, obligations, liabilities, duties and responsibilities of A&W Inc.
5. Reaffirmation. Except as specifically amended herein, all terms and
conditions of the Partnership Agreement in effect prior to this Agreement
thereto remain in full force and effect.
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(SIGNATURE PAGE FOR AMENDMENT TO ALBRIGHT & WILSON COMPANY
GENERAL PARTNERSHIP AGREEMENT)
IN WITNESS WHEREOF, the Partners hereto have executed this Agreement as
of the day and year first above written.
ALBRIGHT & WILSON AMERICAS INC.
By: /s/ L. WORK
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Name: Lyall Work
Title: President
PCS PHOSPHATE COMPANY, INC.
By: /s/ T.J. REGAN, JR.
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Name: Thomas J. Regan, Jr.
Title: President
PCS INDUSTRIAL PRODUCTS, INC.
By: /s/ T.J. REGAN, JR.
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Name: Thomas J. Regan, Jr.
Title: President
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(SIGNATURE PAGE FOR AMENDMENT TO ALBRIGHT & WILSON COMPANY
GENERAL PARTNERSHIP AGREEMENT, PAGE 2)
ALBRIGHT & WILSON COMPANY
By: ALBRIGHT & WILSON AMERICAS
INC., a General Partner
By: /s/ L. WORK
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Name: Lyall Work
Title: President
By: PCS PHOSPHATE COMPANY, INC.,
a General Partner
By: /s/ T.J. REGAN, JR.
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Name: Thomas J. Regan, Jr.
Title: President
By: PCS INDUSTRIAL PRODUCTS, INC.,
a General Partner
By: /s/ T.J. REGAN, JR.
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Name: Thomas J. Regan, Jr.
Title: President
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SCHEDULE 1
NAME PERCENTAGE INTEREST IN PCS PURIFIED
- ---- PHOSPHATES
-----------------------------------
Albright & Wilson Americas, Inc. 49.75%
PCS Phosphate Company, Inc. 49.75%
PCS Industrial Products, Inc. 0.5%
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EXHIBIT A
A&W CO. GENERAL PARTNERSHIP AGREEMENT AND AMENDMENTS
[AS SEPARATELY PROVIDED]