EXHIBIT 3
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AMENDED AND RESTATED
MANAGEMENT AGREEMENT
BETWEEN
XXXXX & PARTNERS AND
VALUE PARTNERS, LTD.
AGREEMENT dated effective as of January 1, 1998, by and between Xxxxx
& Partners, a Texas general partnership (the "Management Company"), and
Value Partners, Ltd., a Texas limited partnership (the "Partnership").
1. The capitalized terms used without definition in this Agreement
have the respective meanings specified in the Limited Partnership agreement
governing the Partnership (the "Partnership Agreement") as in effect on the
date hereof.
2. The Partnership agrees to bear all Operating Expenses (as
hereinafter defined) of the Management Company which are attributable to
the Partnership on the terms and conditions herein set forth. To the
extent that the Management Company pays or has paid such Operating Expenses
attributable to the Partnership, the Partnership will reimburse the
Management Company. Operating Expenses include all expenses incident to
operating the business of the Partnership including, but not limited to,
expenses incurred in investigating and monitoring investments for the
Partnership; any taxes which may be assessed against the Partnership;
outside accountants and auditing expenses; custodian's fees; commissions or
brokerage fees or similar charges incurred in connection with the purchase
and sale of securities (including any merger fees payable to third
parties); interest expense for borrowed money; all expenses attributable to
the Partnership relating to litigation and threatened litigation involving
the Partnership; normal and extraordinary investment banking, legal and
accounting services provided to the Partnership, unless such services are
provided by employees of the Management Company; all expenses incurred in
connection with the organization of the Partnership; and all other
nonrecurring or extraordinary expenses attributable to the business of the
Partnership. In addition, if the Management Company's duties under this
Agreement necessitate the renting of office space in addition to the
premises already occupied by the Management Company, or the purchase of
additional equipment, such expenses shall be considered operating expenses
of the Partnership. Expenses payable by the Management Company for which
it will not be reimbursed by the Partnership include compensation of
employees of the Management Company (including salaries of the general
partners of the Management Company in their capacity as employees of the
Management Company) and expenses associated with the Management Company's
office space, equipment and facilities (including its telephone system).
3. The Management Company agrees to maintain a staff trained and
experienced in the business of providing financial support and business
counsel. Such staff shall be adequate for the performance of the
Management Company's duties under this Agreement. Services to be rendered
by the Management Company shall include identification of potential
investments to be made by the Partnership, the provision of administrative,
accounting and clerical services to the Partnership, the coordination of
consultants in connection with the acquisition of investment opportunities,
and the provision of advisers and consultants for the management of
investment opportunities acquired by the Partnership. The Management
Company shall also render assistance within the areas of expertise of its
staff. In addition to the services of its own staff, the Management
Company will arrange for and coordinate the services of other professionals
and consultants as the General Partner of the Partnership may deem
appropriate. The management, policies and operations of the Partnership
shall be the responsibility of the General Partner acting pursuant to and
in accordance with the Partnership Agreement and all decisions relating to
Partnership matters, including the selection and management of the
Partnership's investments, shall be made by the General Partner acting
pursuant to and in accordance with the Partnership Agreement.
4. Subject to the limitations set forth below, the Partnership shall
pay the Management Company a quarterly management fee (the "Management
Fee") which shall be, for each fiscal quarter, an amount equal to 0.25% of
the Net Asset Value of the Partnership as of the last day of the fiscal
quarter. The Management Fee is payable as of the close of the last day of
the fiscal quarter and is subject to year-end adjustment in connection with
the Partnership's audit.
5. Commencing on the date hereof, services shall be performed
hereunder for the term of the Partnership as set forth in the Partnership
Agreement (including any extensions thereof) plus one year from the end of
said term or until such time as liquidation of the Partnership is
completed, whichever is sooner. However, if the Partnership is dissolved
prior to expiration of its specified term, this Agreement shall terminate
one year from the date of such dissolution or upon completion of the
liquidation of the Partnership, whichever is sooner.
6. This Agreement may also be terminated without cause and without
penalty at any time on 180 day's prior written notice to the Partnership.
7. To the extent permitted by state or federal law, the Management
Company shall have no liability to the Partnership or to any Partner for
any loss suffered by the Partnership which arises out of any action or
inaction by the Management Company if the Management Company, in good
faith, determined that such course of conduct was in the best interests of
the Partnership and such course of conduct did not constitute gross
negligence or misconduct of the Management Company. To the extent
permitted by state or federal law, the Management Company shall be
indemnified by the Partnership against any losses, judgments, liabilities,
expenses, and amounts paid in settlement of any claims sustained by it in
connection with the Partnership, including but not limited to any judgment,
award, settlement, reasonable attorneys' fees, and other costs or expenses
incurred in connection with the defense or settlement of any actual or
threatened action, proceeding or claim, provided that the same was not the
result of gross negligence or misconduct on the part of the Management
Company.
8. This Agreement can be modified or amended only by a writing
signed by the parties hereto and only with the written consent of a
Majority in Interest of the Limited Partners of the Partnership, determined
as provided in the Partnership Agreement.
XXXXX & PARTNERS
By: /S/XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Managing Partner
VALUE PARTNERS, LTD.
By: Xxxxx & Partners,
General Partner
By: /S/XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx, Managing Partner
