AMENDED AND RESTATED
ARTICLES OF PARTNERSHIP
OF
XXXXXXXXX & CO.
Amended and Restated Articles of Partnership of XxXxxxxxx & Co., a New York
limited partnership, made as of August __, 1999, by and among, LaB Investing Co.
L.L.C., a New York limited liability company, as the general partner (the
"GENERAL PARTNER"), and XxXxxxxxx & Co Inc., a Delaware corporation, as the
limited partner (the "LIMITED PARTNER") (the General Partner and the Limited
Partner being collectively referred to herein as the "PARTNERS").
W I T N E S S E T H
WHEREAS, XxXxxxxxx & Co. (the "PARTNERSHIP") has conducted business as a
New York limited partnership pursuant to Articles of Partnership dated as of
January 1, 1989, which were amended as of January 1, 1990, January 1, 1991,
January 1, 1992, July 1, 1992, January 1, 1993, January 1, 1994, January 1,
1995, April 1, 1995, January 1, 1996, July 1, 1996, January 1, 1997, July 1,
1997 and August 1, 1997, amended and restated as of January 1, 1998 and further
amended as of July 1, 1998 and January 1, 1999 (the Articles of Partnership, as
amended, are referred to as the "AGREEMENT");
WHEREAS, the General Partner, the Limited Partner and the former limited
partners of the Partnership entered into a Plan of Incorporation, dated as of
June 17, 1999 (the "PLAN OF INCORPORATION"), pursuant to which each of the
former limited partners exchanged his, her or its entire limited partnership
interest in the Partnership for cash and/or securities of the Limited Partner;
WHEREAS, the Limited Partner, as a result of the transactions contemplated
by the Plan of Incorporation, has become the sole limited partner of the
Partnership; and
WHEREAS, the Partners now wish to further amend and restate the Agreement
in order to reflect the foregoing and to reflect their agreement regarding
certain other matters pertaining to the operation of the Partnership;
NOW, THEREFORE, it is agreed that the Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
ORGANIZATION
SECTION 1.1. The Partnership is organized pursuant to the provisions
of Article 8-A of the Partnership Law of the State of New York, and the rights
and liabilities of the Partners shall be as provided therein, except as
otherwise expressly provided in this Agreement.
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ARTICLE II
NAME
SECTION 1.2. The Partnership shall conduct business under the name of
XxXxxxxxx & Co.
ARTICLE III
PURPOSES
SECTION 1.3. The purposes of the Partnership are to carry on and
transact the business of dealers and brokers, for the account of the Partnership
and on commission for others, in stocks, bonds and other securities, commodities
and options, including put and call options or any combination thereof written
by the Partnership or by others, in respect of securities and commodities, to
act as a specialist on the New York Stock Exchange (the "EXCHANGE"), to engage
in a general brokerage business and do all business necessary or incident
thereto as a member firm of the Exchange, to engage as principal or agent in any
other business or activity consistent with the Constitution and Rules of the
Exchange, and to engage in such other related business as may be determined by
the General Partner.
ARTICLE IV
PRINCIPAL PLACE OF BUSINESS; FISCAL YEAR
SECTION 1.4. The principal place of business of the Partnership shall
be at Xxx Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location or
locations as may be designated by the General Partner.
SECTION 1.5. Unless changed by the General Partner, the fiscal and
taxable year of the Partnership shall be the calendar year.
ARTICLE V
TERM
SECTION 1.6. The Partnership shall continue until its termination or
dissolution in accordance with the provisions of this Article V or, if earlier,
as required by the laws of the State of New York.
SECTION 1.7. The General Partner may liquidate and dissolve the
Partnership at any time upon notice to the Limited Partner, and the assets of
the Partnership shall then be applied in accordance with Article XXII hereof.
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SECTION 1.8. Upon the withdrawal of the General Partner from the
Partnership at any time, notwithstanding anything to the contrary contained in
this Agreement, the Partnership shall be liquidated and dissolved, and the
assets of the Partnership shall be applied in accordance with Article XXII.
ARTICLE VI
MANAGEMENT; LIABILITY
SECTION 1.9. The management of the Partnership business shall be the
full and complete responsibility of the General Partner alone, and the Limited
Partner as such shall take no part in or interfere in any manner with the
management, conduct or control of the Partnership business and shall have no
right or authority to act for or bind the Partnership. The management of the
General Partner shall be vested in a Managing Committee, as provided for in the
Amended and Restated Operating Agreement of the General Partner, dated as of the
date hereof, as it may be amended from time to time. The Managing Committee
shall designate two or more persons who are members or allied members of the
Exchange, and who are otherwise acceptable to the Exchange, to act on behalf of
the Partnership in connection with the Partnership's day-to-day dealings with
the Exchange.
SECTION 1.10. The Limited Partner shall have no liability for the
contractual obligations and other liabilities of the Partnership.
ARTICLE VII
CAPITAL CONTRIBUTIONS
SECTION 1.11. As of the date hereof, the Partners shall be credited
with having made the following contributions to the capital of the Partnership:
GENERAL PARTNER:
LaB Investing Co. L.L.C. $ ___________
LIMITED PARTNER:
XxXxxxxxx & Co Inc. $___________
SECTION 1.12. If the General Partner, at any time or from time to
time, determines, in its sole discretion, that the Partnership requires an
additional capital contribution of cash or securities to enable the Partnership
to conduct its business operations, then the Limited Partner shall make such
additional capital contribution at such time or times and in such amounts as
shall be specified by the General Partner.
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SECTION 1.13. With the prior consent of the General Partner, the
Limited Partner may make an additional capital contribution to the Partnership.
Any additional contributions referred to in the preceding sentence may be made
in cash or in such securities as may be approved by the General Partner.
SECTION 1.14. No Partner may withdraw any portion of its capital
contribution, and no Partner shall be entitled to the return of its contribution
to capital, except as provided in this Agreement or upon dissolution.
SECTION 1.15. A capital account shall be maintained for each Partner
and shall be credited with such Partner's contributions of capital to the
Partnership and its allocable share of Partnership income and gain (or items
thereof), and shall be debited by the amount of money distributed to that
Partner by the Partnership, the fair market value of any property distributed to
it by the Partnership, and its allocable share of Partnership loss and deduction
(or items thereof), both as determined under Section 8.02 hereof.
SECTION 1.16. Notwithstanding anything to the contrary contained in
this Agreement, all withdrawals of capital shall be subject to the limitations
set forth in Section 14.01 hereof.
SECTION 1.17. The Partners shall not be paid interest on their capital
contributions.
ARTICLE VIII
PROFITS AND LOSSES
SECTION 1.18. Net profits or net losses of the Partnership shall be
determined in accordance with generally accepted accounting principles, and
shall be allocated to the Partners for each calendar quarter or for any shorter
period as the General Partner may determine from time to time. Allocated profits
shall be distributed to each of the Partners at such times as the General
Partner shall determine.
SECTION 1.19. Net profits and net losses of the Partnership for each
fiscal year or portion thereof shall be allocated among the Partners in the
following percentages:
GENERAL PARTNER:
LaB Investing Co. L.L.C. ______%
LIMITED PARTNER:
XxXxxxxxx & Co Inc. ______%
SECTION 1.20. Notwithstanding anything to the contrary contained in
this Agreement, if the Limited Partner unexpectedly receives an adjustment,
allocation or distribution described in Treas. Reg. Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) which creates or increases a deficit
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balance in its capital account, it shall be allocated all income (gross
income if required by Treasury Regulations and net profits if not so
required) of the Partnership in proportion to its negative capital account
balance in an amount and manner sufficient to eliminate such deficit balance
as quickly as possible. Such allocation of net profits or income is herein
termed a "QUALIFIED INCOME OFFSET" within the meaning of Treas. Reg. Section
1.704-1(b)(2)(ii)(d), and shall comply with such provision in all respects.
In any such case, the General Partner shall be allocated in each subsequent
period all net profits otherwise allocable to the Limited Partner until the
aggregate amount of the net profits so allocated to the General Partner shall
equal the amount of net profits which would otherwise have been allocated to
the General Partner absent the allocation of net profits or gross income to
the Limited Partner pursuant to the Qualified Income Offset, after which
allocations of net profits and net losses of the Partnership shall be made in
accordance with Section 8.02 hereof.
SECTION 1.21. For Federal income tax purposes, net profits and net
losses, and any item of income, gain, loss, deduction or credit, including,
without limitation, net long-term capital gain, net long-term capital loss,
net short-term capital gain, net short-term capital loss, ordinary income and
ordinary loss shall be allocated so as to take account of the variation
between the adjusted tax basis and the book value of any property contributed
by the Partners to the Partnership in accordance with the principles of
Section 704(c) of the Internal Revenue Code of 1986, as amended (the "CODE"),
as prescribed by Xxxxx. Reg. Section 1.704-1(b)(4)(i), and subject to the
limitations of Treas. Reg. Section 1.704-1(c)(2). All such allocations shall,
in addition, take account of each Partner's varying interest for any
particular fiscal year and withdrawals made under this Agreement in
accordance with Section 706 of the Code.
SECTION 1.22. The provisions of this Agreement are intended to
comply with Treas. Reg. Section 1.704-1(b) issued pursuant to Section 704(b)
of the Code and shall be interpreted in a manner consistent with such
Treasury Regulations. The General Partner may, without the consent of the
Limited Partner, amend the provisions of this Agreement and the manner in
which net profits and net losses (or other items) are allocated to the extent
(but only to the extent) necessary to comply with Treas. Reg. Section
1.704-1(b). In addition, the capital accounts of the Partners shall at all
times be adjusted and maintained in accordance with the requirements of
Treas. Reg. Section 1.704-1(b)(2)(iv), and the provisions of this Agreement
shall be construed in a manner consistent therewith, and shall be adjusted as
required by Treas. Reg. Section 1.704-1(b)(2)(iv)(g).
ARTICLE IX
ADMISSION OF ADDITIONAL PARTNERS
SECTION 1.23. Subject to compliance with the foregoing terms of
this Agreement, additional limited partners may be admitted to the
Partnership upon such terms and conditions as the General Partner shall
determine, such admission shall occur immediately upon the consent of the
General Partner, and no other consent of the Limited Partner shall be
required for the admission of additional limited partners. Upon the admission
of a new limited partner to the Partnership, the existing Partners'
respective percentage interests in the profits and losses of the Partnership,
as determined pursuant to Article VIII hereof, shall be adjusted
proportionately to reflect the admission of such new limited partner and the
dilution of the respective percentage interests of
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all the other existing Partners. The admission of a new limited partner shall
not dissolve the Partnership, and the continuing Partnership shall be the same
firm for all purposes.
SECTION 1.24. The consent of the Limited Partner will be required for
the admission of a new or additional general partner, other than in accordance
with Article XVI hereof.
ARTICLE X
WITHDRAWAL
SECTION 1.25. With the prior written consent of the General Partner,
the Limited Partner may withdraw from the Partnership effective as of the end of
any calendar quarter, or effective as of such other date as the General Partner
and the Limited Partner may mutually agree, provided, however, that any
withdrawal of capital hereunder shall be subject to the limitations set forth in
Section 14.01 hereof.
SECTION 1.26. At any time, the General Partner may, by written notice
(a "WITHDRAWAL NOTICE") given to the Limited Partner, require the Limited
Partner to withdraw from the Partnership effective upon the close of business on
the date specified in the Withdrawal Notice.
SECTION 1.27. The term "INVENTORY DATE" shall mean the effective date
of the Limited Partner's withdrawal.
SECTION 1.28. The General Partner shall not withdraw from the
Partnership without the consent of the Limited Partner.
ARTICLE XI
FINAL PAYMENT
SECTION 1.29. In the event the Limited Partner withdraws from the
Partnership, a payment (the "FINAL PAYMENT") shall be made to the Limited
Partner in an amount representing the value of its interest in the Partnership.
The Final Payment shall be determined as of the Inventory Date applicable to the
Limited Partner and, subject to the provisions of Article XIV hereof, shall be
made ninety (90) days after the Inventory Date or on such earlier date as the
General Partner shall determine. The Final Payment shall be made without
interest, except that payment of the capital account of the Limited Partner
shall be made with interest from the Inventory Date at the broker's call rate,
as in effect from time to time. The Final Payment shall be made in cash, unless
the General Partner determines to make payment, in whole or in part, in kind.
SECTION 1.30. The amount of the Final Payment shall be determined by
the General Partner in accordance with generally accepted accounting principles
consistently applied and with such reserves for any obligations, claims, causes
of action, liabilities or other contingencies as the General Partner may deem
necessary or proper, subject to the following provisions: (i) each position in
listed securities, whether long or short, shall be marked to market on the
Inventory Date
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at the closing price on the principal exchange on which such securities are
traded, but, if there were no sales in such securities on the Inventory Date,
then such securities shall be marked to either the mean between the bid and
asked prices thereof on such date or, in the sole discretion of the General
Partner, the last closing price of such securities on the principal exchange
on which such securities are traded; (ii) each position in over-the-counter
securities, whether long or short, shall be marked to the market on the
Inventory Date at the last sales price thereof as reported by the National
Association of Securities Dealers Automated Quotation System or, if not so
reported, to the mean between the high bid and low asked prices in the
quotations furnished by the National Association of Securities Dealers, Inc.,
where available, or in the quotations furnished by one or more of the
principal dealers in such securities; (iii) each position in securities which
are not readily marketable shall be valued as of the Inventory Date by the
General Partner in its sole, absolute and final discretion; (iv) although the
Partnership's fiscal year may not have closed for other purposes, the
Partnership's fiscal year shall be deemed to have closed on the Inventory
Date for the limited purpose of determining the value of the interest of the
Limited Partner; (v) allocation of unrealized gains or losses in securities
held by the Partnership shall be made on the basis that such securities were
sold on the Inventory Date at the market value thereof; (vi) no value will be
placed upon or will any allowance be made for or on account of the goodwill
or trade name of the Partnership; and (vii) all furniture, fixtures,
leasehold improvements, prepaid expenses and similar items capitalized on the
books of the Partnership and any memberships purchased by the Partnership
will be valued at the book value thereof, except that depreciation,
amortization or other allowances for exhaustion of such items between the
first day of the fiscal year in which the Inventory Date occurs and the
Inventory Date shall be taken into account at the rates then employed by the
Partnership for such items, whether or not the books of the Partnership
actually reflect such depreciation, amortization or other allowance on the
Inventory Date. No value will be placed upon nor will allowance be made for
or on account of printing and stationery and other consumable assets charged
as an expense by the Partnership upon acquisition.
SECTION 1.31. In determining the value of the interest in the
Partnership of the Limited Partner, the General Partner may establish such
reserves as it deems prudent to provide for items of expense and loss relating
to the portion of the fiscal year of the Partnership prior to the Inventory
Date, and for all liabilities, contingent or otherwise, attributable to such
period or to any or all prior periods during which the Limited Partner was a
Partner or the interest of the Limited Partner continued at the risk of the
business of the Partnership.
SECTION 1.32. A statement of the amount due from the Partnership in
respect of the Final Payment of the Limited Partner shall be promptly prepared.
A copy of the statement shall be furnished to the Limited Partner. In the event
any amount shall be due from the Limited Partner to the Partnership, the same
shall be remitted to the Partnership promptly.
SECTION 1.33. Reserve accounts shall be applied or liquidated with
all due expedition, as determined by the General Partner in conjunction with the
Partnership's accountants. To the extent that any reserve account shall exceed,
or shall be estimated by the General Partner to exceed, the amount of the
obligations, claims, causes of action or other contingencies for which it was
established, the Limited Partner shall be paid its share of any such excess
without interest. To the extent, if at all, that the reserve account proves
insufficient or no reserve account was established
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therefor, the Limited Partner shall promptly remit to the Partnership its share
of such shortfall, without interest.
SECTION 1.34. Any dispute arising out of, or connected with,
determinations reflected in any statement furnished pursuant to this Article XI
shall, unless resolved by the parties, be submitted to the Partnership's
accountants, and any determination by such accountants shall be final, binding
and conclusive on the Partnership and the Limited Partner.
SECTION 1.35. In no event shall the Limited Partner be required to
remit to the Partnership any amount in excess of the Final Payment, or to remit
any amount to the Partnership after the expiration of the statute of limitations
applicable to any claim or potential claim with respect to an action, omission
to act, event or occurrence which took place prior to the Limited Partner's
withdrawal from the Partnership.
ARTICLE XII
ALLOCATION OF FORMER PARTNERS' PROFITS AND LOSSES
SECTION 1.36. At such time as the Limited Partner shall no longer be
entitled to participate in the profits and losses of the Partnership, its
interest in future profits and losses of the Partnership shall be allocated in
such manner and in such proportions as shall be determined by the General
Partner, provided, however, that no allocation shall be made to the Limited
Partner without its consent.
ARTICLE XIII
BOOKS OF ACCOUNT
SECTION 1.37. Complete and accurate books of account of the business
of the Partnership shall be kept by or under the supervision of the General
Partner at the principal place of business of the Partnership and shall be open
to inspection by the Limited Partner, or by its accredited representatives, at
any reasonable time during normal business hours.
ARTICLE XIV
POSTPONEMENT OF PAYMENT
SECTION 1.38. Notwithstanding any other provision of this
Agreement, any payment to be made by the Partnership pursuant to Article XI
hereof or otherwise hereunder to, or withdrawal of capital by, any Partner
shall be postponed if, but only to the extent that, after giving effect to
the payment or withdrawal, such payment or withdrawal, or any part thereof,
would be prohibited by the provisions of Securities and Exchange Commission
Rule 15c3-1 (or any successor Rule), or any Rule of the Exchange, or would
render the Partnership unable to meet its capital requirements as a
specialist firm on the Exchange. Any such postponement shall be until such
time as the payment or withdrawal could be made pursuant to the provisions of
said Rule 15c3-1 (or any
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successor Rule) and any Rule of the Exchange and until the Partnership, after
giving effect to the payment or withdrawal, would be in compliance with its
capital requirements as a specialist firm on the Exchange. In addition, any
payment to be made by the Partnership pursuant to Article XI hereof or
otherwise hereunder to, or withdrawal of capital by, any Partner shall be
postponed if, but only to the extent that, after giving effect to the payment
or withdrawal, such payment or withdrawal, or any part thereof, would
contravene, result in any breach of, or constitute a default under, or result
in the creation of any lien in respect of the property of the Partnership
under, any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, organizational document, or any other agreement or
instrument to which the Partnership is bound or by which the Partnership or
any of its properties may be bound or affected. In accordance with Rule
313.11 of the Exchange, all withdrawals of capital hereunder shall be made
only with the prior written approval of the Exchange and upon six months
written notice to the Partnership given no sooner than six months after such
contribution was first made, unless a different period of notice is consented
to by the General Partner and approved by the Exchange.
SECTION 1.39. In determining for purposes of Section 14.01 hereof
whether any payment or withdrawal can be made and the extent thereof, any
amounts due from the Partnership to or in respect of any Partner which other
amounts are payable at or prior to the date on which such payment or withdrawal
was initially scheduled (disregarding any postponement of the Partnership's
obligation to make such payment), shall be deemed to have been paid and the net
capital of the Partnership appropriately reduced.
SECTION 1.40. Interest at the broker's call rate, as in effect from
time to time, shall be payable in respect of payments postponed pursuant to the
provisions of this Article XIV.
ARTICLE XV
COMPLIANCE WITH THE EXCHANGE
SECTION 1.41. This Agreement and all matters and things to be done
and performed in connection with the Partnership business shall be subject to
the Constitution, Rules, requirements and regulations, so far as applicable
thereto, of the Exchange and shall be conducted strictly in compliance
therewith. If any of the terms, covenants and conditions of this Agreement shall
be in conflict with any provision of the Constitution, Rules, requirements or
regulations of the Exchange, the same shall be deemed modified so as to conform
therewith.
ARTICLE XVI
INSOLVENCY OF GENERAL PARTNER
SECTION 1.42. Notwithstanding any other provision in this Agreement,
if at any time it shall be determined that the General Partner is insolvent (as
such term is used in Title 11 of the United States Code), the Partnership shall
be dissolved, unless the Limited Partner appoints another subsidiary of the
Limited Partner to serve as the general partner of the Partnership and such
subsidiary is admitted as the general partner of the Partnership.
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USE OF NAME
SECTION 1.43. No person, other than the General Partner, the Limited
Partner or a subsidiary or affiliate of either of them shall have any rights to
the use of the name "XxXxxxxxx" or "XxXxxxxxx & Co." in any business other than
the business of the Partnership.
ARTICLE XVII
ASSIGNMENT
SECTION 1.44. No Partner may assign or encumber its interest in the
Partnership without the prior written consent of the Exchange and of the General
Partner.
ARTICLE XVIII
ARBITRATION
SECTION 1.45. In the event that any dispute or controversy arises
under or in connection with this Agreement, such dispute or controversy, except
as otherwise expressly provided herein, shall be submitted for binding
arbitration to the Exchange in accordance with the Rules and Procedures of the
Exchange then obtaining.
ARTICLE XIX
ADMINISTRATIVE CONVENIENCE
SECTION 1.46. The General Partner has full power and authority on
behalf of all the Partners, at any time and from time to time, in accordance
with the rules of any national securities exchange (a) to designate one or
more persons (i) to assign securities registered in the name of the
Partnership, (ii) to execute powers of substitution, (iii) to guarantee the
signatures of others to assignments of securities, and (iv) to make any
certification or guarantee of any signature on documents submitted in support
of the transfer of any securities, all with the same effect as if the name of
the Partnership had been signed under like circumstances by the General
Partner, (b) to adopt and authorize the use of a mechanically reproduced
facsimile signature of the Partnership in connection with (i) the assignment
of securities registered in the name of the Partnership, and (ii) the
execution of powers of substitution, (c) to designate one or more of the
employees of the Partnership to sign written contracts covering "seller
option", "when issued" and "when distributed" transactions in the name of the
Partnership with the same effect as if the name of the Partnership had been
signed under like circumstances by the General Partner, and (d) to execute
and file with any national securities exchange, in the name and on behalf of
the Partnership, and the Partners severally, any and all such powers of
attorney, agreements and other instruments (including agreements of
indemnification) as may by such exchange be required to evidence or support
action under Section 20.01(a), (b) or (c) hereof. The Limited Partner, by its
execution of this Agreement, specifically ratifies and approves all such
powers of attorney, agreements and other instruments
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(including agreements of indemnification) as may heretofore have been executed
and filed on behalf of the Partnership with any national securities exchange and
which are still in force in connection with any matter described in Section
20.01(a), (b) or (c) hereof.
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ARTICLE XX
PROXY AND POWER OF ATTORNEY
SECTION 1.47. Each of the parties to this Agreement does hereby
irrevocably constitute and appoint Xxxxxx X.X. XxXxxxxxx, XX and Xxxxx X.
Xxxxxxxxx, each acting singly, its true and lawful representative and
attorney-in-fact, in its name, place and stead, to execute and deliver any
certificate amending the Amended Certificate of Limited Partnership of the
Partnership and any amendments thereto required by law or necessary to reflect
this Agreement or any amendment of this Agreement and to execute and deliver
such other instruments, documents, certificates or other writings, which may
from time to time be necessary under the laws of the United Sates of America,
the State of New York or any other jurisdiction or under the rules of any
political subdivision or agency thereof, to effectuate, implement and continue
the valid and subsisting existence of the Partnership with the same force and
effect as if such instrument, document, certificate or other written instrument
had been personally executed by such party. Such representatives and
attorneys-in-fact shall not, however, have any right, power or authority
themselves to amend or modify this Agreement when acting in such capacities.
This power of attorney is coupled with an interest and shall continue in full
force and effect notwithstanding the subsequent bankruptcy of the Limited
Partner.
ARTICLE XXI
DISSOLUTION
SECTION 1.48. In the event of the dissolution of the Partnership, (i)
the Managing Committee shall select one or more of its members or one or more
others to act as liquidators; (ii) the liquidators shall promptly marshal the
Partnership assets and pay the Partnership debts; (iii) the respective interests
of the Partners shall be determined on the date of dissolution; (iv) the
proceeds of liquidation shall be distributed in the following order: (A) to
creditors of the Partnership, (B) to the Limited Partner in respect of its
contribution to the capital of the Partnership, (C) to the General Partner in
respect of its capital contribution to the Partnership, and (D) to each Partner
in accordance with its positive capital account balance; (v) any interest in the
Partnership of the Limited Partner held at the risk of the business pursuant to
Article XI hereof shall not be given the status of the Limited Partner's
contribution of capital for purposes of distribution of the proceeds of
liquidation; (vi) the liquidators shall pay or distribute to the Partners their
respective interests in the Partnership, less the aggregate of reserves which
have been established to pay or provide for creditors, as soon as possible and
shall have the right to make distributions of assets in cash or in kind; (vii)
the liquidators shall receive reasonable compensation and the necessary and
reasonable out-of-pocket expenses of dissolution and liquidation, all of which
shall be a charge against the Partnership assets in liquidation; and (viii) the
liquidators shall render an account to the Partnership.
SECTION 1.49. Notwithstanding anything to the contrary contained
herein, in the event of the dissolution of the Partnership upon the expiration
of the term of this Agreement, or any extension or renewal thereof, each Partner
agrees that any withdrawal of capital upon any such
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dissolution which would cause the Partnership's "aggregate indebtedness" to
exceed the percentages specified in Rules 326(a) and 326(b) of the Rules of the
Board of Directors of the Exchange during the six months immediately preceding
the date of the dissolution, may be postponed for a period of up to (6) six
months of the stated date of dissolution, as the General Partner may deem
necessary to ensure compliance with said rules, and any such capital so retained
by the Partnership after the date of dissolution shall continue to be subject to
all debts and obligations of the Partnership.
ARTICLE XXII
NOTICE
SECTION 1.50. All notices permitted or required hereunder shall be in
writing and shall be deemed duly given if (a) delivered personally to the person
for whom intended or (b) mailed to the person for whom intended, by registered
or certified mail, return receipt requested, addressed to the address shown on
the Partnership records to be the addressee's then current address. Such notice
shall be deemed to have been given when so delivered personally or upon mailing.
Notice given to any two members of the Managing Committee shall constitute
notice to the Partnership.
ARTICLE XXIII
MISCELLANEOUS
SECTION 1.51. ENTIRE AGREEMENT. This Agreement (i) reflects the
entire agreement among the parties and the breach by any party of any one of
such agreements shall constitute a breach of all such agreements, (ii) from and
after the effective date hereof, supersedes all prior partnership agreements
among the parties hereto, (iii) shall be construed in accordance with the laws
of the State of New York, and (iv) shall be binding upon and inure to the
benefit of the parties hereto, their respective legal representatives, heirs,
executors and administrators and any continuing or successor partnerships or
corporation succeeding to substantially all the business of the Partnership.
Terms such as "herein", "hereof," "hereinafter" refer to this Agreement as a
whole and not to the particular sentence or paragraph where they appear, unless
the context otherwise requires. Terms used in the plural include the singular
and vice versa unless the context otherwise requires. The term "person" or
"persons" includes natural persons, corporations and other legal entities unless
the context otherwise requires. For purposes of this Agreement, the term
"affiliate" shall mean any person directly or indirectly controlling, controlled
by or under direct or indirect common control with any other person and shall
include any person who is a partner, officer or director of any other person,
and the term "control" shall have the meaning ascribed to it in Rule 405 under
the Securities Act of 1933.
SECTION 1.52. AMENDMENT. No provision of this Agreement shall be
amended without the written consent of each of the Partners.
SECTION 1.53. MEANINGS. As used herein, unless the context
otherwise requires, the singular shall include the plural, and the term legal
representatives shall include
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testamentary trustees or the curator, committee or other representative of an
incompetent or bankrupt Partner.
SECTION 1.54. EFFECTIVE DATE. This Agreement shall be and becomes
effective as of the date first above written, subject to approval by the
Exchange.
SECTION 1.55. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, all of which taken together shall constitute but one and
the same agreement.
IN WITNESS WHEREOF, the General Partner and the Limited Partner have
executed this Agreement as of the date first set forth hereinabove.
LaB INVESTING CO. L.L.C., as general partner
By:
------------------------------------------
Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Managing Committee member
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Committee member
By:
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Committee member
XxXXXXXXX & CO INC., as limited partner
By:
------------------------------------------
Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Chairman and Chief Executive Officer
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