Exhibit 3.3
EXECUTION COPY
PARTNERSHIP AGREEMENT
OF
XXXXXX XXXXXXX PARTNERS
THIS PARTNERSHIP AGREEMENT ("Agreement") of Xxxxxx Xxxxxxx
Partners (the "Partnership") is made as of November 17, 1998, by and among
Xxxxxx Xxxxxxx Group Limited, a company with limited liability organized under
the laws of England and Wales ("WCG"), and Xxxxxx Xxxxx UK Group Limited, a
company with limited liability organized under the laws of England and Wales
("WF"), each of which is hereinafter sometimes referred to as a "Partner," and
both of which are hereinafter collectively referred to as "Partners."
WITNESSETH:
WHEREAS, the parties hereto desire to establish their
interests as among themselves in the Partnership.
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties hereto hereby agree as follows:
1. FORMATION. The parties hereby form a general partnership
under and pursuant to the provisions of the Delaware Uniform Partnership Law, 6
Del. C. Sections 1501 (as amended from time to time and any successor statute
thereto, the "GP Act"). The name of the Partnership shall be, and the business
of the Partnership shall be conducted under the name of, "Xxxxxx Xxxxxxx
Partners." The Partnership name shall be duly registered as required by 6 Del.
C. Section 3101.
2. PURPOSES. The purposes of the Partnership are (a) to
acquire, hold and sell investments, including shares of corporate or other
investment securities, to borrow money and issue evidences of indebtedness, to
secure the payment of that indebtedness and to lend money to its affiliates, (b)
to engage in such other activities necessary, appropriate or incidental to any
of the above-mentioned purposes, and (c) to engage in all other activities that
may be conducted by a general partnership under the GP Act as the Partners may
hereafter, from time to time, determine.
3. PARTNERS; PERCENTAGE INTERESTS. The Partners of the
Partnership shall consist of the parties hereto and such additional or
substitute persons as shall be admitted as Partners from time to time by
unanimous consent of all persons who are then Partners or as otherwise provided
in this Agreement. The Partners' interests in the Partnership are hereinafter
referred to as the "Partnership Interests." Schedule I, attached hereto, sets
forth the percentage interest of each Partner (the "Percentage Interest").
Schedule I shall be amended from time to time in accordance with the terms
hereof to reflect changes in Percentage Interests resulting from the admission
of additional or substitute Partners, the withdrawal of Partners or the transfer
of Partnership Interests. The combined Percentage Interest of all Partners shall
at all times equal 100%.
4. TERM. The term of the Partnership shall begin on the date
of this Agreement and shall continue to the fullest extent permitted by the GP
Act until dissolved:
(i) by the unanimous vote of the Partners;
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(ii) pursuant to the entry of a decree of judicial
dissolution;
(iii) by the failure of the Partners to come to an
agreement, within seven (7) days of the emergence of
a disagreement between them, in connection with a
matter that concerns the Partnership; or
(iv) by the bankruptcy, dissolution or death of a Partner,
except that the Partnership shall not be dissolved
upon the occurrence of such event if, within ninety
(90) days after such event, the remaining Partners
holding 66% of the remaining Percentage Interests
agree to continue the business of the Partnership and
to the appointment of one or more additional
Partners, effective as of the date of such event;
unless it is dissolved earlier as provided in the GP Act. On the expiration of
its term, the Partnership shall be dissolved and its affairs shall be wound up.
5. CAPITAL CONTRIBUTIONS. The Partnership's initial capital
shall consist of the capital contributions set forth on Schedule I (the "Capital
Contributions"). Each Partner's contribution to the Partnership shall be paid in
full or conveyed within 3 days after the date of this Agreement. Except as
otherwise agreed by all Partners, no Partner shall have the right or obligation
to make any further Capital Contributions to the Partnership. Persons or
entities hereafter admitted as Partners shall make such contributions of cash
(or promissory obligations), property or services to the Partnership as shall be
determined by the Partners, acting unanimously, at the time of each such
admissions. Unless otherwise agreed by all Partners, no interest shall be paid
upon any contributions of capital to the Partnership or upon the balances of the
Capital Account (as defined in Section 6 of this Agreement). Any advance of
money to the Partnership by a Partner hereafter made shall not be deemed to be a
capital contribution unless specifically designated as such with the consent of
all Partners, but shall be deemed a loan made to the Partnership by such
Partner.
6. CAPITAL ACCOUNTS; PROFITS AND LOSSES. (a) A single,
separate capital account (a "Capital Account") shall be maintained for each
Partner. Each Partner's Capital Account shall be credited with the amount of
money and the fair market value of property (net of any liabilities assumed by
the Partnership or to which the contributed property is subject) contributed by
that Partner to the Partnership; the amount of any Partnership liabilities
assumed by such Partners (other than in connection with a distribution of
Partnership property), and such Partner's allocation of Partnership profits.
Each Partner's Capital Account shall be debited with the amount of money and the
fair market value of property (net of any liabilities that such Partner assumes
or takes subject to) distributed to such Partner, the amount of any liabilities
of such Partner assumed by the Partnership (other than in connection with a
contribution), and such Partner's distributive share of Partnership losses.
(b) Any Partner who shall receive a Partnership Interest (or
whose interest shall be increased) by means of a transfer to it of all or a part
of the Partnership Interest of another Partner shall have a Capital Account that
reflects the Capital Account associated with the transferred Partnership
Interest (or the applicable percentage thereof in case of a transfer of a part
of an interest).
(c) Each Partner shall be entitled to such Partner's share of
all Partnership items of profits, losses, deductions, expenses, credit or
allowance, if any, for any period or year pro rata in accordance with the
Partner's respective Percentage Interests.
(d) Each Partner shall, with the agreement of all other
Partners, be entitled to receive within 10 working days of such agreement his
entitlement to his share of the accumulated Partnership profit. In the event
that the Partnership has a net loss, the Partner shall, upon request, be obliged
within
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10 working days to make good his share of the accumulated Partnership loss, such
request coming from the Partnership.
(e) No Partner shall be entitled to withdraw any part of its
Capital Contribution or its Capital Account or to receive any distribution from
the Partnership, except as provided in Section 12 of this Agreement.
7. PARTNERSHIP PROPERTY. All property and rights and interests
in property originally brought into the Partnership or acquired, whether by
purchase or otherwise, on account of the Partnership, or for the purposes and in
the cause of the Partnership business, are called "Partnership Property," and
will be held and applied by the Partnership exclusively for the purposes of the
Partnership and in accordance with this Agreement. Each Partner shall be
regarded as owning a proportionate share of the jointly held assets of the
Partnership and, subject to Section 1515(a) of the GP Act, is liable to a
proportionate share of the joint liabilities of the Partnership, based on its
respective Capital Account balances at any time and accordingly in line with its
right to surplus assets on dissolution of the Partnership in accordance with
Section 12 of this Agreement.
8. MANAGEMENT. Except as set forth in this Agreement and
Section 1509 (a) of the GP Act, the Partners shall have full, exclusive and
complete discretion in the management and control of the business of the
Partnership for the purposes herein stated and subject to the terms hereof,
shall make all decisions affecting the business of the Partnership and may take
such actions as they deem necessary or appropriate to accomplish the purposes of
the Partnership as set forth herein. In connection with such management and
control, the Partners shall have the power and authority to do or cause to be
done any and all acts deemed by the Partners to be necessary or appropriate to
carry out the purposes of the Partnership, including, without limitation, the
following:
. (i) to enter into and perform any contract, lease,
arrangement or course of dealing with any Partner or
Partners, or with any person, firm or corporation
controlled by, under common control with, controlling
or otherwise affiliated with any Partner or Partners;
(ii) to borrow funds, lend Partnership funds, obligate the
Partnership as a surety, guarantor or accommodation
party to any obligation, including an obligation of
any Partner, to give security on any Partnership
Property, including real estate and in general, to
enter into all such financial arrangements and pay
all such expenses of the Partnership as the Partners
shall deem appropriate;
(iii) to acquire by purchase, lease, exchange or otherwise,
any real or personal property;
(iv) to dispose of, sell, exchange, lease, mortgage or
otherwise transfer any assets of the Partnership in
the ordinary course of business;
(v) to deposit, withdraw, invest, pay, retain and
distribute the Partnership's funds in any manner
consistent with the provisions of this Agreement;
(vi) to employ agents, employees, managers, accountants,
attorneys, consultants and other persons necessary or
appropriate to carry out the business and operations
of the Partnership and to pay fees, expenses,
salaries, wages and other compensation to such
persons;
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(vii) to pay, extend, renew, modify, adjust, submit to
arbitration, prosecute, defend or compromise, upon
such terms as it may determine and upon such evidence
as it may deem sufficient, any obligation, suit,
liability, cause of action or claim, including taxes,
either in favor of or against the Partnership;
(viii) to determine the appropriate accounting method or
methods to be used by the Partnership;
(ix) to maintain or cause to be maintained records of all
rights and interests acquired for or disposed of by
the Partnership, all correspondence relating to the
Partnership business and the original records of all
statements, bills and other instruments furnished to
the Partnership in connection with its business;
(x) to purchase and maintain, at their discretion and at
the expense of the Partnership, liability, casualty
and other insurance sufficient to protect the
Partners, any person or persons employed or engaged
by the Partners, the Partnership and its property
from and against those liabilities and hazards which
may be insured against in the conduct of the
Partnership's business;
(xi) to make, execute, assign, acknowledge and file on
behalf of the Partnership, any and all documents or
instruments of any kind which the Partners may deem
appropriate in carrying out the purposes and
businesses of the Partnership, including, without
limitation, powers of attorney, agreements of
indemnification, sales contracts, deeds, options,
loan agreements, mortgages, deeds of trust, notes,
documents or instruments of any kind or character and
amendments thereto. Any person dealing with the
Partners shall not be required to determine or
inquire into the authority or power of the Partners
to bind the Partnership and to execute, acknowledge
and deliver any and all documents in connection
therewith; and
(xii) to exercise any right or power granted or permitted
under the GP Act and not specifically enumerated in
this Agreement.
Notwithstanding anything in this Agreement to the contrary,
the Partnership, and each Partner on behalf of the Partnership, is hereby
authorized to execute, deliver and perform:
(i) the Assumption Agreement, pursuant to which the
Partnership will assume $400 million of indebtedness
under the Credit Agreement, dated as of July 22,
1998, among Trinity Acquisition plc, Xxxxxx Xxxxxxx
Group Limited, Xxxxxx Xxxxxxx Corporation, the
lenders from time to time parties thereto and The
Chase Manhattan Bank (as amended, the "Tender Offer
Facility") from Xxxxxx Xxxxxxx Group Limited;
(ii) the Senior Subordinated Loan Agreement, to be entered
into by the Partnership, Xxxxxx Xxxxxxx Corporation,
Xxxxxx Xxxxxxx Group Limited, the lenders parties
thereto, The Chase Manhattan Bank and Chase
Securities, Inc. (together with the exhibits thereto,
the "Senior Subordinated Loan Agreement");
(iii) the Guarantee to be executed in connection with the
Senior Subordinated Loan Agreement;
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(iv) the Guarantee to be executed in connection with the
Credit Agreement, dated as of July 22, 1998, among
Trinity Acquisition plc, Xxxxxx Xxxxxxx Corporation,
Xxxxxx Xxxxxxx Group Limited, the several lenders
from time to time parties thereto, and The Chase
Manhattan Bank (as amended, the "Senior Credit
Agreement");
(v) the supplement to the Pledge Agreement executed in
connection with the Senior Credit Agreement;
(vi) the $190 million Promissory Note and the $210 million
Promissory Note in favor of Xxxxxx Xxxxxxx Group
Limited, in exchange for its obligations under the
Tender Offer Facility;
all without the need for any additional consent or act of any person.
9. PARTNERS. (a) The Partners shall devote such time
and attention to the business of the Partnership as may be reasonably necessary
to the conduct of such business and shall act as mutual agents of each other in
their relationship as Partners.
(b) The Partners may, directly or indirectly (including,
without limitation, through an entity in which the Partners hold a material
ownership interest), deal with the Partnership in connection with the
construction, management, acquisition, operation or disposition of any assets of
the Partnership or otherwise, as an independent contractor or as an agent for
others, and may receive from such others or the Partnership normal profits,
compensation, commissions or other income incident to such dealings without
having to account to the Partnership therefor provided that such profits,
compensation, commissions or other income shall be commensurate with commercial
terms generally prevalent in the industry in question.
(c) The Partners shall be reimbursed by the Partnership
for expenses incurred in connection with the formation of the Partnership and,
from time to time, for expenses incurred in connection with the operation and
management of the Partnership.
10. APPOINTMENT OF A GENERAL MANAGER. (a) The Partners
have the power and authority to delegate their rights and powers as Partners to
perform managerial duties in relation to the business of the Partnership to a
general manager (the "General Manager") who shall have the authority to perform,
subject to any limitations imposed on such authority by the Partners, managerial
duties in relation to the business of the Partnership.
(b) The appointment of a General Manager shall not cause
the Partners to cease to be Partners of the Partnership.
(c) Until such time as the Partners shall otherwise
agree, C. Xxxxxxx Xxxxxx is hereby appointed as General Manager of the
Partnership to perform managerial duties in relation to the business of the
Partnership, subject to the limitations set out below.
(d) Subject to the express limitations contained in this
Agreement, the General Manager shall have the right and authority to perform all
the managerial duties in relation to the business of the Partnership provided
for in this Agreement to be performed by the Partners including, without
limitation, maintaining the accounts of the Partnership and providing such
accounts on an annual basis to the Partners.
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(e) Notwithstanding the foregoing, the General Manager
shall not, without the consent of the Partners:
(i) sell, assign, transfer or otherwise dispose of all or
any substantial part of the assets of the Partnership
or cause the Partnership to merge, consolidate or
convert with or into any other entity or
organization;
(ii) guarantee the debt of, or cause the Partnership to
incur indebtedness for borrowed funds to,
unaffiliated third parties in an amount in excess of
$10,000 at any time outstanding;
(iii) do any act which would make it impossible to carry on
the ordinary business of the Partnership;
(iv) take any action which, under the other provisions of
this Agreement, or by subsequent agreement of the
Partners, requires the consent of all Partners, or
which is inconsistent with any Partnership action
taken by consent of all Partners;
(v) amend this Agreement;
(vi) admit any new partner to the Partnership;
(vii) permit the transfer by a Partner of its interest in
the Partnership;
(viii) dissolve the Partnership other than pursuant to
Section 12 of this Agreement; or
(ix) commence a voluntary proceeding seeking
reorganization or other relief with respect to the
Partnership under the bankruptcy or similar law.
11. BOOKS, RECORDS AND REPORTS. (a) At all times during
the continuance of the Partnership, the Partnership, acting through the General
Manager, shall keep or cause to be kept full and true books of account, in which
shall be entered fully and accurately each transaction of the Partnership. Such
books of account, together with a copy of this Agreement, and any amendments
hereto, shall at all reasonable times be open to inspection and examination by
each Partner and its duly authorized representatives.
(b) The Partnership books of account shall be closed and
balanced at the end of each fiscal year. Annual statements showing the
Partnership gross receipts and expenses for the fiscal year shall be prepared by
the Partnership's accountants (or by the General Manager, with the consent of
the Partners) and shall be transmitted to each Partner within a reasonable
period of time after the close of each fiscal year. Further, as soon as possible
after the close of each Partnership taxable year, a report shall be transmitted
to each Partner indicating its share of Partnership profit or loss. On the
demand of either Partner, the books of account of the Partnership shall be
audited by a certified public accountant chosen by the Partners. The cost of any
such audit shall be borne solely by the Partner demanding the audit, unless the
other Partner agrees that such cost should be treated as a Partnership expense.
12. DISSOLUTION. (a) In the event of the dissolution of
the Partnership subject to Section 4 of this Agreement, the Partnership shall
immediately commence to wind up its affairs; however, a reasonable time shall be
allowed for the orderly liquidation of the assets of the Partnership and the
discharge of liabilities to creditors so as to enable the Partners to minimize
the normal losses attendant upon a liquidation. The Partners shall continue to
share net profits and net losses during
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liquidation in the same proportions as before liquidation. The General Manager
shall furnish to each Partner a statement prepared by the Partnership's
accountants (or prepared by the General Manager, with the consent of the
Partners) that shall set forth the assets and liabilities of the Partnership as
of the date of complete liquidation. The proceeds of liquidation shall be
distributed, as realized, in payment of the liabilities of the Partnership in
the following order:
(i) To satisfy (by payment or reasonable provision for
payment) creditors of the Partnership other than Partners;
(ii) To satisfy (by payment or reasonable provision for
payment) any indebtedness of the Partnership to the Partners; and
(iii) To distribute to the Partners the remaining proceeds
of liquidation in accordance with the Percentage Interests of the Partners.
(b) The Partnership may be liquidated by either:
(i) selling the Partnership assets and distributing the net proceeds therefrom
in the manner provided in paragraph (a) of this Section 12; or (ii) distributing
the Partnership assets to the Partners in kind with each Partner accepting an
undivided interest in the Partnership assets, subject to Partnership
liabilities, in satisfaction of its proportionate interest in the Partnership.
For the purpose of determining the amount distributed to each Partner, any
property distributed in kind in the liquidation shall be valued at fair market
value as of the date of distribution by the General Manager acting reasonably
and such property shall be treated as though the property had been sold by the
Partnership for such value and the cash proceeds distributed to the Partners.
(c) The Partners may establish reserves that the Partners
may deem reasonably necessary for any contingent, conditional or unmatured
liabilities or obligations of the Partnership to creditors of the Partnership
other than the Partners. The funds constituting reserves shall be paid over by
the Partnership to an attorney-in-fact (which may be the General Manager), bank,
trust company or title insurance company, as escrowee, to be held and applied by
him or it during such period as the General Manager deems advisable in payment
of the obligations and liabilities in respect of which such reserves were
created, and at the end of such period the amount of any such reserves then
remaining shall be distributed in the manner provided above.
13. RESTRICTION ON TRANSFER OF PARTNERS' INTERESTS.
Partnership Interests may not be sold, transferred, assigned, mortgaged,
pledged, alienated, disposed of or encumbered, in whole or in part, without the
unanimous consent of the Partners, except for pledges or transfers contemplated
by the Pledge Agreement.
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14. NOTICES. All notices or other communications provided
for in this Agreement shall be in writing, duly signed by the party giving such
notice, and shall be delivered, or mailed by registered or certified mail, at
the address set forth below:
(a) if to the Partnership:
Xxxxxx Xxxxxxx Partners
c/o Xxxxxx Xxxxxxx Group Limited
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Company Secretary
(b) if to a Partner:
Xxxxxx Xxxxxxx Group Limited
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Company Secretary
or
Xxxxxx Xxxxx UK Group Limited
Xxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Attention: Company Secretary
15. BINDING EFFECT. This Agreement shall be binding upon
each Partner and its respective successors and assigns.
16. SEVERABILITY. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision had been omitted.
17. NO THIRD-PARTY BENEFICIARIES. None of the provisions
of this Agreement shall be for the benefit of or enforceable by any third
parties, including, without limitation creditors of the Partnership or of the
Partners.
18. NO WAIVER. No failure by any party to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or of any covenant, agreement, term
or condition. Any Partner by an instrument in writing may, but shall be under no
obligations to, waive any of its rights or any conditions to its obligations
hereunder, or any duty, or obligation or covenant of any other Partner, but no
waiver shall be effective unless in writing and signed by the Partner making
such waiver. No waiver shall affect or alter the remainder of the terms of this
Agreement but each and every covenant, agreement, term and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach.
19. APPLICABLE LAW. ALL MATTERS IN CONNECTION WITH THE
POWER, AUTHORITY AND RIGHTS OF THE PARTNERS AND ALL MATTERS PERTAINING TO THE
OPERATION, CONSTRUCTION, INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT SHALL
BE GOVERNED AND DETERMINED BY THE INTERNAL LAWS OF THE
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STATE OF DELAWARE. THE PARTIES ARE ENTERING INTO THIS AGREEMENT IN EXPRESS
RELIANCE ON 6 DEL. C. Sections 2708 AND ACKNOWLEDGE THAT THIS AGREEMENT
INVOLVES AT LEAST $100,000.
20. JURISDICTION. EACH PARTNER (A) HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF THE STATE OF DELAWARE OR THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FOR THE PURPOSES OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT WHICH IS BROUGHT BY OR
AGAINST THE PARTNERSHIP OR ANY PARTNER, (B) HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND (C) TO THE EXTENT THAT IT HAS ACQUIRED, OR
HEREAFTER MAY ACQUIRE, ANY IMMUNITY FROM JURISDICTION OF ANY SUCH COURT OR FROM
ANY LEGAL PROCESS THEREIN, HEREBY WAIVES SUCH IMMUNITY TO THE FULLEST EXTENT
PERMITTED BY LAW. EACH PARTNER HEREBY WAIVES, AND HEREBY AGREES NOT TO ASSERT,
IN ANY SUCH SUIT, ACTION OR PROCEEDING, IN EACH CASE TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (i) IT IS NOT PERSONALLY SUBJECT TO
THE JURISDICTION OF ANY SUCH COURT, (ii) IT IS IMMUNE FROM ANY LEGAL PROCESS,
(iii) ANY SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM,
(iv) VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER OR (v) THIS
AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURT. EACH PARTNER AGREES THAT
PROCESS AGAINST IT OR THE PARTNERSHIP, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING FILED IN ANY SUCH REFERENCED COURT ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY BE SERVED ON IT, OR THE PARTNERSHIP, BY MAILING THE SAME TO SUCH
PARTNER OR THE PARTNERSHIP BY REGISTERED MAIL, RETURN RECEIPT REQUESTED,
ADDRESSED TO SUCH PERSON OR THE PARTNERSHIP AT ITS ADDRESS FOR NOTICES SET FORTH
HEREIN, WITH THE SAME EFFECT IN EITHER CASE AS THOUGH SERVED UPON SUCH PERSON
PERSONALLY. IN ADDITION, EACH PARTY HEREBY APPOINTS RL&F SERVICE CORP. AS ITS
AGENT FOR SERVICE OF PROCESS ON SUCH PARTY FOR ANY SUIT, ACTION OR OTHER
PROCEEDING FILED IN ANY SUCH REFERENCED COURT ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
21. CERTIFICATED INTERESTS. The Partnership interests
shall be represented by a certificate substantially in the form attached hereto
as Exhibit A (each, a "Partnership Certificate," and collectively, the
"Partnership Certificates"). Each Partnership Certificate shall be issued in
fully registered form. The Partnership Certificates shall be executed on behalf
of the Partnership by the manual or facsimile signature of at least one Partner.
Partnership Certificates bearing the manual or facsimile signature of a person
who was, at the time when such signature shall have been affixed, authorized to
sign on behalf of the Partnership, shall be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such person shall have ceased
to be authorized prior to the delivery of such Partnerships Certificates.
22. UNIFORM COMMERCIAL CODE. It is hereby expressly
provided that without further action by the Partnership or any Partner and for
purposes of Article 8 of the Uniform Commercial Code as in effect in the State
of Delaware (the "Delaware UCC"), the Partnership Interests shall be governed by
Article 8 of the Delaware UCC, including, without limitation: (i) for purposes
of the definition of "security" thereunder, the Partnership Interest of each
Partner in the Partnership shall be a "security" governed by Article 8 of the
Delaware UCC; (ii) for purposes of the definition of "security certificate"
under the Delaware UCC, the Partnership Certificate representing the Partnership
Interest of each Partner in the Partnership shall be a "security certificate"
governed by Article 8 of the Delaware UCC; and (iii) for purposes of the
definition of "certificated security" under the Delaware UCC, the
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Partnership Interest of each Partner in the Partnership shall be a "certificated
security" governed by Article 8 of the Delaware UCC.
23. COUNTERPARTS. This Agreement may be executed in two
(2) counterpart copies each of which together shall constitute one Agreement
binding on both parties hereto notwithstanding that both parties have not signed
the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXXX XXXXXXX GROUP LIMITED
By: ------------------------
Name:
Title:
XXXXXX XXXXX UK GROUP LIMITED
By: ------------------------
Name:
Title:
SCHEDULE I
CAPITAL PERCENTAGE
PARTNER CONTRIBUTIONS INTEREST
Xxxxxx Xxxxxxx Group Limited 3,338 shares of common stock 9.9%
of Xxxxxx Xxxxxxx Corporation,
subject to $400 million of
indebtedness under the Tender
Offer Facility (net value of
approximately $100 million)
Xxxxxx Xxxxx UK Group Limited $100,000 0.1%
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN ACCORDANCE WITH THE
PARTNERSHIP AGREEMENT (AS DEFINED BELOW)
CERTIFICATE EVIDENCING PARTNERSHIP INTEREST
OF
XXXXXX XXXXXXX PARTNERS
Xxxxxx Xxxxxxx Partners, a general partnership formed under
the laws of the state of Delaware (the "Partnership"), hereby certifies that
_________________________(the "Holder") is the registered owner of ___%
partnership interest in the Partnership (the "Partnership Interest"). Subject to
the terms of the Partnership Agreement (as defined below), the Partnership
Interest is transferable on the books and records of the Partnership, in person
or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Partnership
Interest are set forth in, and this certificate and the Partnership Interest
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Partnership Agreement of the Partnership, dated as of
____________, 1998, by and between Xxxxxx Xxxxxxx Group Limited and Xxxxxx Xxxxx
UK Group Limited, as the same may be amended from time to time (the "Partnership
Agreement"). The Partnership will furnish a copy of the Partnership Agreement to
the Holder without charge upon written request to the Partnership by contacting
one of the Partners.
Upon receipt of this certificate, the Holder is bound by the
Partnership Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth
in the Partnership Agreement.
IN WITNESS WHEREOF, one of the Partners of the Partnership has
executed this certificate this __ day of _______, 1998.
XXXXXX XXXXXXX PARTNERS
By: [PARTNER]
By:_____________________________
Name:
Title:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Partnership
Interest to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints________________________________________________________
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agent to transfer this certificate on the books of the Partnership. The agent
may substitute another to act for him or her.
Date: _________________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this certificate)
