AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT
This Amended and Restated Subscription Agreement (the
"Agreement") is made this 23rd day of May, 2000 by and between Xxxxxxx
Management Company, L.L.C. (the "Company") and Xxxxx X. Xxxxxx, Xx. ("Xxxxxx").
RECITALS
WHEREAS, the Company and Xxxxxx (collectively the "Parties" or individually a
"Party") entered into a subscription agreement dated as of September 9, 1997
(the "Original Agreement");
WHEREAS, the Parties desire to effect certain amendments to the Original
Agreement; and
WHEREAS, the Parties desire to set forth their entire agreement in one document,
upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, agree as
follows:
I. INCORPORATION OF RECITALS
A. The above recitals are hereby incorporated as an integral part
of this Agreement and not as mere introductory material.
II. SUBSCRIPTION FOR MEMBERSHIP INTEREST
X. Xxxxxx hereby subscribes for a membership interest
("Interest") in the Company representing 52.14% of the total
of all Interests in the Company.
B. This subscription is based on the terms and conditions
described in this Agreement and in the Company's Second
Revised Amended and Restated Operating Agreement dated as of
April 12, 2000 (the "Operating Agreement").
III. CONSIDERATION
A. As consideration for his Interest, Xxxxxx has (i) contributed
his industry expertise in the development of the Xxxxxx
International Commodity Index (the "Index"), (ii) assigned to
the Company all of his right, title and interest in and to the
Index, and (iii) licensed to the Company for its nonexclusive
use for as long as Xxxxxx has an Interest in the Company the
name "Xxxxxx," Xxxxxx' likeliness and Xxxxxx' signature for
the development and marketing purposes of the Company,
including but not limited to, marketing of the "Xxxxxx Raw
Materials Fund, L.P."; "Xxxxxx International
Commodity Index"; the "Xxxxxx International Raw Materials
Fund, L.P."; "Xxxxxx Index Funds"; and any other commodity
pool (as that term is defined in the Commodity Exchange Act),
or any product or fund administered by the Company based on
the Index.
B. As additional compensation for his Interest, Xxxxxx agrees to
maintain control over the use of the name Xxxxxx, his likeness
and his signature by continuing to provide consulting services
for as long as he has an Interest in the Company.
X. Xxxxxx acknowledges and agrees that the Company has entered
into this Agreement based on Xxxxxx' above-described
consideration. Xxxxxx' Interest shall constitute security for
the continuing obligations of Xxxxxx to the Company as
provided in this Agreement.
IV. OWNERSHIP OF TRADEMARKS
A. It is agreed that the names and trademarks "Xxxxxx Raw
Materials Fund, L.P."; "Xxxxxx International Commodity Index";
"Xxxxxx Index Funds"; "Xxxxxx International Commodity Fund,
L.P."; and "Xxxxxx International Raw Materials Fund, L.P." and
any other names or trademarks developed for marketing purposes
of the Company which consist of, in whole or in part, the name
Xxxxxx shall be owned the Company for as long as Xxxxxx has an
Interest in the Company. Upon expiration of the Term of the
Company (as defined in the Operating Agreement) and/or upon
termination of Xxxxxx' Interest in the Company, all trademarks
which consist, in whole or in part, of the name Xxxxxx shall
be assigned to Xxxxxx. The Parties agree to execute and
deliver the necessary documents to effect the assignments of
such trademarks.
B. In addition, upon expiration of the Term of the Company (as
defined in the Operating Agreement) and/or upon termination of
Xxxxxx' Interest in the Company, the Company shall immediately
cease and desist all use of (i) any names or trademarks which
consist, in whole or in part, of the name "Xxxxxx" and (ii)
Xxxxxx' likeness and Xxxxxx' signature
V. REPRESENTATIONS AND WARRANTIES
X. Xxxxxx' represents and warrants to the Company that the
"Xxxxxx" name has not been licensed to any other person or
entity and its use by the Company is not restricted by any
contract, agreement or indenture to which Xxxxxx is a party or
otherwise bound.
VI. ACCEPTANCE OF OPERATING AGREEMENT
Xxxxxx agrees that upon acceptance of this Agreement and the entry of
Xxxxxx' name in the records of the Company as a Member (as that term is defined
the Operating Agreement), Xxxxxx shall become a Member of the Company, and
hereby
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agrees to each and every term and provision in and of the Operating Agreement
as if his signature were subscribed thereto.
VII. GRANT OF POWER OF ATTORNEY
Xxxxxx does hereby irrevocably constitute and appoint the Company,
through any one of the Managing Members thereof, with full power of
substitution, as his true and lawful representative and
attorney-in-fact with respect to the Company, granting unto such
attorney-in-fact full power and authority on behalf and in the name,
place and stead of Xxxxxx to make, execute, acknowledge, deliver, swear
to, file and record in all necessary or appropriate places any
documents, certificates or instruments which may be considered
necessary or desirable by the Company to carry out fully its duties.
The foregoing special power of attorney coupled with an interest is
irrevocable, and shall survive the dissolution, death, incompetence or
incapacity of Xxxxxx. The Company may exercise such power of attorney,
as attorney-in-fact, by listing all of the Members executing any
agreements, certificates, instruments or documents with the single
signature of such attorney-in-fact for all of them.
VIII. WAIVER & MODIFICATION
No waiver, alteration or modification of any of the provisions of this
Agreement shall be valid unless in writing and signed by the Parties
hereto. Either of Xxxxx X. Xxxxxxxx or Xxxxxxx X. Xxxxxxxx, as Managing
Members of the Company, are designated to act on behalf of the Company.
If Xx. Xxxxxxxx and Xx. Xxxxxxxx cease to be Managing Members of the
Company, one of the then Managing Members shall be designated by the
Company 's Members to act on behalf of the Company.
IX. NOTICES
All notices, requests, demands and other communications shall be in
writing and be deemed given when delivered personally (or when personal
delivery thereof is refused) or three (3) days after deposited in the
United States mail, registered or certified, return receipt requested,
to the other Party hereto at the address set forth below or at such
other address as either Party may give in writing to the other Party.
If to Company: If to Xxxxxx:
Xx. Xxxxxxx X. Xxxxxxxx Xx. Xxxxx X. Xxxxxx, Xx.
Xxxxxxx Management Company, L.L.C. Xxxxxxx Interests, Inc,
0000 Xxxx Xxxx, Xxxxx 000 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxx Xxxx, XX 00000
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with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Wildman, Harrold, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
X. BINDING NATURE/ASSIGNMENT
A. This Agreement shall inure to the benefit of and shall be
binding upon the executors, administrators, successors and
assigns of the Parties.
B. This Agreement is not transferable or assignable by Xxxxxx
except with the prior written consent of the Company. Any
transfer or assignment in violation of this provision shall be
null and void.
XI. GOVERNING LAW AND ARBITRATION
A. This Agreement and the rights and obligations of the Parties
hereunder shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to the
laws regarding conflict of laws.
B. In the event of any dispute between the Parties arising out of
this Agreement, both Parties agree to submit such dispute to
the arbitration facilities of the National Futures Association
for resolution, the results of which shall be final, binding
and conclusive on the parties.
XII. MISCELLANEOUS
A. Titles or headings in this Agreement are for convenience only
and shall have no substantive effect.
B. The waiver by a party of a breach or violation of any
provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same
or any other provision hereof. Delay in the enforcement of or
the insistence on the performance of any right which arises
upon the breach or violation of this Agreement shall not
operate as a waiver of such or any subsequent breach or
violation.
C. In the event any provision of this Agreement is held to be
invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall, in no event, affect, prejudice or
disturb the validity of the remainder of this Agreement, which
shall remain in full force and effect, enforceable in
accordance with its terms.
D. This Agreement may be executed through the use of separate
signature pages or in any number of counterparts, and each of
such counterparts shall, for all purposes, constitute one
agreement binding on the Parties,
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not withstanding that all Parties and not signatories to the
same counterpart.
E. Whenever the context of this Agreement requires, the gender of
all terms herein shall include the masculine, feminine and
neuter, and the reference to the singular of a term shall also
include the plural thereof.
IN WITNESS HEREOF, the parties have set their hands to this Agreement
as of the date first above written.
XXXXXXX MANAGEMENT COMPANY, L.L.C. XXXXX X. XXXXXX, XX.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------- ------------------------
One of its Managing Members
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