Exhibit 10.3
OPERATING AGREEMENT
OF
THE JORDAN COMPANY LLC
OPERATING AGREEMENT of The Jordan Company LLC, a New York limited
liability company (the "LLC"), dated as of July 23, 1998, among THE XXXX X.
XXXXXX XX REVOCABLE TRUST, XXXXX X. XXXXXXXXX and LEUCADIA, INC., a New York
corporation (hereinafter referred to collectively as the "Members" and
individually as a "Member").
WHEREAS, effective as of February 1, 1982, The Jordan Company, a New
York general partnership (the "Partnership"), was formed pursuant to the
Articles and Agreement of General Partnership, as amended and restated by the
Fourth Restatement, dated as of December 31, 1996, of the Articles and Agreement
of General Partnership, as further amended to date (the "Partnership
Agreement"); and
WHEREAS, the partners of the Partnership are The Xxxx X. Xxxxxx XX
Revocable Trust, Xxxxx X. Xxxxxxxxx and Leucadia, Inc., a New York corporation
(in such capacity, the "Partners"); and
WHEREAS, pursuant to that certain Agreement of Conversion, dated as
of July 22, 1998 among the Partners, the Partners have agreed to convert the
Partnership into a limited liability company pursuant to Section 1006 of the
NYFS04...:\30\76830\0001\1197\AGR0247V.40D
Limited Liability Company Law of the State of New York (the
"NYLLC Law") (the "Conversion"); and
WHEREAS, a Certificate of Conversion of Partnership to a Limited
Liability Company was filed with the Department of State of the State of New
York by the Partnership on July 23, 1998; and
WHEREAS, in accordance with the Conversion, the Partners desire to
amend the Partnership Agreement for the purpose of converting the Partnership
Agreement into an Operating Agreement and to make such other changes to the
Partnership Agreement in accordance with the NYLLC Law.
WHEREAS, all references to the LLC contained herein are deemed to be
references to the Partnership for periods prior to the effective time of this
Operating Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
ORGANIZATION
Section 1.1. Formation and Name of LLC
The parties do hereby convert the Partnership into a limited
liability company pursuant to the provisions of the NYLLC Law to engage, for the
period and upon the terms and conditions hereinafter set forth, in the business
of
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generating fees by seeking out attractive businesses for acquisition; arranging
the terms of acquisition and the financing thereof and assisting the management
of such businesses after acquisition (the companies acquiring such businesses
are hereinafter collectively called the "Clients" and individually as a
"Client"). The business of the LLC shall be conducted under the name "The Jordan
Company LLC."
Section 1.2. Purposes and Powers
The purposes for which the LLC is formed are as follows:
(a) to seek out attractive businesses (other than in the financial
services area) for acquisition (herein referred to as "Buy-Outs") for Clients,
to arrange the terms of the Buy-Outs, to arrange financing to effect the
Buy-Outs for Clients, to negotiate opportunities to invest in Clients in
connection with the Buy-Outs, to assist Clients in the management and financing
of their businesses after Buy-Outs, and to perform investment banking services
generally;
(b) to hold, maintain and/or invest all or any part of the assets,
properties or funds of the LLC in cash or in cash equivalents, including,
without limitation, interest-bearing securities of the United States of America
or any agency or instrumentality thereof, or other
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governmental securities, high-rated state and municipal bonds and debt
obligations of U.S. national banks;
(c) to lend (for any term or period, whether or not beyond the term
of the LLC hereunder) any of its assets, properties or funds, either with or
without security;
(d) to open, maintain and close accounts, including margin accounts,
with brokers;
(e) to open, maintain and close bank accounts and draw checks and
other orders for the payment of monies;
(f) to engage appraisers, accountants, custodians, investment
advisors, attorneys and all other agents and assistants, both professional and
nonprofessional, and to compensate them in such amounts as may be necessary or
advisable;
(g) to enter into, make and perform all contracts, agreements and
other undertakings as may be reasonably necessary or advisable or incident to
carrying out its purposes; and
(h) to xxx, prosecute, settle or compromise claims against third
parties, to compromise, settle or accept judgment or claims against the LLC and
to execute all documents and to make all representations and waivers in
connection therewith.
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In furtherance of the aforesaid purposes, the LLC shall have all
powers necessary, suitable or convenient for the accomplishment thereof, alone
or with others, as principal or agent.
Section 1.3. Principal Office
The principal place of business of the LLC shall be at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such place as may be designated by a
Managing Director (hereinafter defined).
Section 1.4. Term
The LLC shall commence as of the date of filing of the Certificate
of Conversion of Partnership to a Limited Liability Company with the Department
of State of the State of New York and shall continue until dissolved as provided
in Section 5.4 hereof.
Section 1.5. Definitions
(a) For purposes of this Agreement, the following terms (in addition
to other terms defined herein) shall have the following meanings:
"Additional Capital Contributions" shall have the meaning set forth
in Section 3.3 hereof.
"Affiliate" shall mean a natural person, partnership, corporation or
other entity that, directly or indirectly, through one or more intermediaries,
controls or
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is controlled by or is under common control with another person, partnership,
corporation or other entity.
"Bankruptcy" with respect to any Member shall mean an adjudication
that the Member is bankrupt or insolvent, the admission by the Member of
inability to pay debts as they mature, the making by the Member of an assignment
for the benefit of creditors, the filing by the Member of a petition in
bankruptcy or a petition for relief under any section of the United States
Federal Bankruptcy Act or any other applicable state insolvency statute or an
answer admitting or failing to deny the allegations of such petition, the filing
against the Member of any such petition unless such petition is discharged,
vacated or stayed within 60 days from the date of filing thereof, the
appointment of a trustee, conservator or receiver for all or a substantial part
of the Member's assets unless such appointment is discharged, vacated or stayed
within 60 days from its effective date, or the imposition of a judicial or
statutory lien on all or a substantial part of the Member's assets unless such
lien is discharged or vacated or the enforcement thereof stayed within 60 days
from its effective date.
"Capital Accounts" shall have the meaning set forth in Section 3.1
hereof.
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"Capital Contributions" shall mean, with respect to any Capital
Account, the sum of the Initial Capital Contribution and any Additional Capital
Contributions made with respect to such Capital Account.
"Committee" shall mean the four individuals then serving, one of
whom shall be appointed by each Managing Director so long as there are two
Managing Directors (initially Xxxx X. Xxxxxx XX as appointee of The Xxxx X.
Xxxxxx XX Revocable Trust and Xxxxx X. Xxxxxxxxx as appointee of Xxxxx X.
Xxxxxxxxx) and two of whom shall be appointed by Leucadia, Inc. (initially Xxx
X. Xxxxxxx and Xxxxxx X. Xxxxxxxxx). If, at any time, there shall only be one
Managing Director, he shall have the right to appoint two members of the
Committee.
"Initial Capital Contribution" shall have the meaning set forth in
Section 3.2 hereof.
"Legal Representative" shall mean any and all executors,
administrators, personal representatives, committees, guardians, receivers,
fiduciaries, conservators or trustees, in Bankruptcy or otherwise, of a Member.
"Leucadia Committee Members" shall mean Xxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxxxx, or such other members of the Committee as shall be appointed by
Leucadia, Inc.
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"Liquidating Agent" shall have the meaning set forth in subsection
(b) of Section 5.4 hereof.
"Manager" shall mean the Managing Directors and any member of the
Committee, in each case acting in such capacity.
"Managing Director" shall mean each of The Xxxx X. Xxxxxx XX
Revocable Trust and Xxxxx X. Xxxxxxxxx and, unless the context indicates
otherwise, shall include any successor Managing Director. Where action is
required to be taken under this Agreement by a Managing Director, the Managing
Directors shall mutually agree on which Managing Director shall so act. If the
Managing Directors are unable to so agree, the Managing Director to take action
shall be determined by the Leucadia Committee Members.
"Permanent Disability" shall mean, with respect to any natural
person, (i) his inability, by reason of illness, insanity or incompetence
(whether or not adjudicated) or otherwise to perform his principal duties and
functions hereunder for a period of four consecutive months or (ii) the earlier
adjudication of his insanity or incompetency.
"Termination" shall mean, with respect to The Xxxx X. Xxxxxx XX
Revocable Trust, (i) the revocation or other termination of such trust, (ii) the
failure of Xxxx X. Xxxxxx XX to be sole trustee or (iii) the death or Permanent
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Disability of Xxxx X. Xxxxxx XX, unless in the case of (ii) and (iii) the
Members, each in the exercise of its sole discretion, shall have unanimously
approved a substitute therefor.
(b) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole as the same may from time to
time be amended or supplemented, and not to any particular Article, Section or
subsection contained in this Agreement.
Section 1.6. Fiscal Year
The fiscal year of the LLC for financial, accounting and tax
purposes shall end upon each December 31.
ARTICLE II
MANAGEMENT OF BUSINESS
Section 2.1. Services of Messrs. Jordan and Zalaznick
Throughout the term of the LLC:
(a) Leucadia, Inc. shall include Messrs. Jordan and Zalaznick and
the LLC's other employees under its medical and other employee benefit plans
(other than pension, stock option, retirement, bonus and similar plans) if
arrangements toward that end can be effected with the carriers and the LLC shall
reimburse Leucadia, Inc. for the incremental costs thereof;
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(b) The Xxxx X. Xxxxxx XX Revocable Trust agrees to use its best
efforts to cause Xxxx X. Xxxxxx XX (or, in the event of his death or Permanent
Disability, such substitute, if any, as the Members shall unanimously approve)
to fulfill the obligations set forth in Section 2.1(c) hereof; and
(c) Each of Messrs. Jordan (or his substitute, if any) and
Zalaznick, and any other individual retained pursuant to Section 2.2 hereof
shall, for the term of the LLC, not be obligated to devote full time to the
conduct of the LLC's affairs but shall devote so much of his business time as
shall be necessary for the proper conduct of the LLC's affairs, to implement the
purposes set forth in Section 1.2 hereof and to perform services for The
Jordan/Zalaznick Capital Company ("JZCC"), JZ Equity Partners PLC,
Jordan/Zalaznick Advisers, Inc., Jordan Industries, Inc. ("JII") and any other
partnerships or entities of which The Xxxx X. Xxxxxx XX Revocable Trust, Xxxxx
X. Xxxxxxxxx and Leucadia, Inc. are the sole general partners or controlling
shareholders.
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Section 2.2. Managing Directors
Third parties dealing with the LLC may rely conclusively upon the
power and authority of a Managing Director as herein set forth.
A Managing Director shall have the right to manage the LLC's
business including the right to (i) sign, endorse, negotiate, and transfer any
check, draft or other instrument of the LLC; and (ii) take all other action on
behalf of the LLC authorized by this Agreement to be taken by a Managing
Director. A Managing Director shall have the right to select an individual to be
retained by the LLC to perform services in implementation of the purposes set
forth in Section 1.2 hereof, subject to the terms set forth in Section 2.1
hereof.
A Managing Director shall not, without the written consent of three
other members of the Committee, have the authority to do any of the following:
(i) to pledge, hypothecate, assign, encumber or otherwise so act with respect to
LLC assets; (ii) to borrow on behalf of the LLC; (iii) to take any action in
contravention of this Agreement; (iv) to taken any action which would make it
impossible to carry on the LLC's business; (v) to sell or exchange all or
substantially all of the LLC's assets; (vi) to admit any additional Members;
(vii) to amend this Agreement or to
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change or reorganize the LLC into any other legal form; or (viii) modify the
terms under which Messrs. Jordan and Zalaznick are retained by the LLC.
Section 2.3. Delegation of Authority
Each of the Managing Directors is delegated the authority to cause
or permit the LLC to do any and all other things not specifically permitted in
Section 2.2 as in his judgment shall be necessary or desirable for the benefit
of the LLC, with the prior written consent of at least three members of the
Committee; provided the LLC shall not without the unanimous prior written
consent of the Members engage in any business activity other than as set forth
in Section 1.2.
Section 2.4. Permitted Transactions
(a) Each of the Members consents that any Member and any Affiliate
of any Member may, directly or indirectly, engage in or possess an interest in
any other present or future business venture of any nature or description for
his or its own account, independently or with others, including, without
limitation, any aspect of the securities or financing business; and neither the
LLC nor any Member shall have any rights in or to such independent venture or
the outcome or profit derived therefrom. Notwithstanding the foregoing, neither
the Xxxx X. Xxxxxx XX Revocable Trust,
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Xxxx X. Xxxxxx XX nor Xxxxx X. Xxxxxxxxx shall, during the term hereof, engage
in any activities of the nature set forth in Section 1.2 except (i) for the
account of and on behalf of the LLC, the Jordan/Zalaznick Capital Company or any
other partnership of which The Xxxx X. Xxxxxx XX Revocable Trust, Xxxxx X.
Xxxxxxxxx and Leucadia, Inc. are the sole general partners or (ii) as set forth
in Exhibit A hereto.
(b) The fact that any employee, partner, officer or director of
either a Member or an Affiliate of a Member, or that any Member, Affiliate of a
Member or member of any individual Member's family, is employed by, or is
directly or indirectly interested in or connected with, or is, any person, firm
or corporation employed by the LLC to render or perform a service, or from or
through whom the LLC may make any sale or purchase, shall not prohibit the LLC
from engaging in any transaction with such person, firm or corporation, or
create any duty of legal justification additional to that which would exist if
such person, firm or corporation was not so related to the LLC, and neither the
LLC nor any other Member shall have any rights in or to any income or profit
derived from such transaction by such Member, person, firm or corporation.
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(c) The LLC is specifically authorized to utilize any Affiliate of
an LLC, or any of the legal counsel, accountants and/or other experts or
advisers heretofore or hereafter utilized by a Member or any of his or its
Affiliates, to provide services to the LLC. Each Managing Director is
specifically authorized to cause the LLC to pay any such Affiliate, legal
counsel, accountant and/or other expert or adviser a fee for any such services
to the LLC, provided that the Managing Director, in good faith, determines that
such fee is comparable to that which would be charged to customers not
affiliated with a Member for similar services.
(d) The retention by the LLC of the services of any Affiliates of a
Member shall not constitute any such Affiliate a co-partner or joint venturer
with the LLC, and the relationship of the LLC to each such Affiliate shall at
all times remain that of principal and independent contractor, respectively.
Section 2.5. Loans
Any Member may, but shall not be required to, make loans to the LLC
and in respect of such loans shall, to the extent permitted by applicable law,
be treated as a creditor of the LLC. Such loans and interest thereon (at terms
agreed upon by the lending Member and at least three members
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of the Committee) shall constitute obligations of the LLC. Any such loans shall
not increase such Member's capital contribution or entitle him or it to any
increase in his or its share of the profits of the LLC nor subject him or it to
any greater allocated portion of losses which he or it may sustain as provided
herein.
Section 2.6. Liability of Members; Exculpation of Manager;
Indemnification
(a) The Members shall not have any liability for the obligations or
liabilities of the LLC except to the extent provided in the NYLLCL.
(b) No Manager (which shall include a Member in his or its capacity
as a Manager) shall be liable, in damages or otherwise, to the LLC or to any of
the Members, for any act or omission on his or its part, or any act or omission
of any employee, agent or attorney-in-fact of the LLC, except for the results of
his or its own gross negligence, willful misconduct or bad faith. The LLC shall
indemnify, defend and hold harmless each Member or Manager (including a Managing
Director) from and against any costs, expenses, damages, claims, and personal
liability including judgments, fines, amounts paid in settlement (with the
consent of three members of the Committee) and related expenses (including fees
and expenses of counsel) arising
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out of any claim or liability of any nature whatsoever in respect of the assets
or business of the LLC, except where attributable to the gross negligence,
willful misconduct or bad faith of the Member or the Manager (including a
Managing Director).
(c) The indemnification permitted under Section 420 of the NYLLC Law
shall be in addition to any other rights to which each Member and Manager (an
"Indemnitee") may be entitled under any agreement or vote of the Members, as a
matter of law or otherwise, both (i) as to action in the Indemnitee's capacity
as a Member, Manager or as an officer, director, shareholder, member or partner
of a Member, Manager or of an Affiliate, and (ii) as to action in another
capacity, and shall continue as to an Indemnitee who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors, assigns,
administrators and personal representatives of the Indemnitee.
(d) The LLC may purchase and maintain insurance on behalf of one or
more Indemnitees and other persons against any liability which may be asserted
against, or expense which may be incurred by, any such person in connection with
the LLC's activities, whether or not the LLC would have the power to indemnify
such person against such liability under the provisions of this Agreement.
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(e) Any indemnification hereunder shall be satisfied only out of the
assets of the LLC, and the Members and the Manager shall not be subject to
personal liability by reason of these indemnification provisions.
(f) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 2.6 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted or not prohibited by the terms of this Agreement.
(g) The provisions of this Section 2.6 are for the benefit of each
Indemnitee and his heirs, successors, assigns, administrators and personal
representatives as provided herein, and shall not be deemed to create any rights
for the benefit of any other persons.
Section 2.7. Other Matters Concerning the Members
(a) Each Member or Manager may rely on, and shall be protected in
acting or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document reasonably believed by him to be genuine and to have
been signed or presented by the proper party or parties.
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(b) For purposes of this Agreement, each Member or Manager may
consult with legal counsel, accountants, appraisers, management consultants,
investment bankers, other consultants and advisers selected by it, any one or
more agents or employees of the LLC and any advice or opinion of any such person
as to matters which such Member reasonably believes to be within such person's
professional or expert competence, and any act or omission, if done or omitted
to be done in reliance upon any such advice or opinion, will be conclusively
presumed to have been done or omitted to be done in good faith and not to
constitute fraud, gross negligence or willful or wanton misconduct.
ARTICLE III
CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS
Section 3.1. Capital Accounts
There shall be one class of capital account ("Capital Accounts")
maintained on the books of the LLC. Separate Capital Accounts shall be
maintained for each Member for the Member's respective capital contributions to
the LLC. Each Capital Account for a Member shall consist of (i) the Initial
Capital Contribution with respect to such Capital Account, (ii) increased by (a)
any Additional Capital Contributions to such Capital Account made by the Member
and (b) the Member's share of income and gains
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allocated to such Capital Account and (iii) decreased by (a) any distributions
made to the Member with respect to such Capital Account and (b) the Member's
share of losses and deductions with respect to such Capital Account.
Section 3.2. Initial Capital Contributions
The initial Capital Contributed in cash on behalf of each Member
with respect to each Capital Account (the "Initial Capital Contribution") was as
follows: The Xxxx X. Xxxxxx XX Revocable Trust - $1; Xxxxx X. Xxxxxxxxx - $1;
and Leucadia, Inc. - $75,000.
Section 3.3. Additional Capital Contributions
During the time of the LLC, Leucadia, Inc. shall make additional
cash contributions to the LLC with respect to its Capital Account as follows:
(i) on each of January 2, 1990, April 1, 1990, July 1, 1990 and October 1, 1990
- $625,000; (ii) on each of January 2, 1991, April 1, 1991, July 1, 1991 and
October 1, 1991 - $687,500 and (iii) on each of January 2, 1992, 1993, 1994,
1995 and 1996, April 1, 1992, 1993, 1994, 1995 and 1996, July 1, 1992, 1993,
1994, 1995 and 1996 and October 1, 1992, 1993, 1994, 1995 and 1996, - $750,000;
on each of January 2, 1997, 1998 and 1999, April 1, 1997, 1998 and 1999, July 1,
1997, 1998, and 1999 and October 1, 1997, 1998 and 1999 - $1,000,000.
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Section 3.4. No Interest on or Withdrawal of Capital Contributions
No interest shall be paid to any Member on his or its Capital
Contributions to the LLC. No Member shall be entitled to withdraw any of his or
its Capital contributions to the LLC, nor shall any Member have any right to
receive any funds or property of the LLC, except as provided in this Agreement.
ARTICLE IV
ADMISSION AND WITHDRAWAL OF MEMBERS
Section 4.1. Withdrawal by Member
Without the written consent of at least three members of the
Committee, no Member shall withdraw from the LLC prior to its dissolution
pursuant to subsection (a) of Section 5.4 hereof.
Section 4.2. Admission of Additional Members
Except as provided in Section 4.3 hereof or as otherwise agreed to
in writing by all Members, no additional Member shall be admitted to the LLC.
Section 4.3. Sale of LLC Interest; Substituted Member
Without the written consent of all members of the Committee, no
Member may sell, assign, transfer, pledge, hypothecate or encumber all or any
part of his interest (including a beneficial interest in the right to receive
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distributions and allocations of profit and loss) in the LLC.
Section 4.4. Resignation, Removal, Termination, Bankruptcy, Death or
Permanent Disability of a Managing Director
(a) A Managing Director shall be removed as Managing Director by a
writing signed by at least three members of the Committee.
(b) In the event of the resignation, removal, Bankruptcy,
Termination, death or Permanent Disability of all Managing Directors, if at such
time there is more than one Managing Director, or, if there is only one Managing
Director at such time, in the event of such sole Managing Director's
resignation, removal, Bankruptcy, Termination, death or Permanent Disability,
the LLC shall dissolve; provided, however, that the Members acting unanimously
may appoint a successor Managing Director(s) within 60 days of the resignation,
removal, Bankruptcy, Termination, death or Permanent Disability of the Managing
Director(s) to continue the business of the LLC. For purposes of the appointment
of a successor Managing Director, a Managing Director who has been removed or
otherwise is no longer serving as such pursuant to (a) above shall be deemed to
have appointed such successor as shall have been designated by the other
Members.
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(c) Notwithstanding anything to the contrary contained herein, a
Managing Director who has resigned or been removed shall have the right to
retain his interest in the LLC, and the Legal Representative of such a Managing
Director shall succeed to the rights of the Managing Director to receive
allocations and distributions hereunder. In the event that the Members elect to
continue the business of the LLC in accordance with subsection (b) above
following the Termination, death or Permanent Disability of the Managing
Director, the right of the Managing Director (or his Legal Representative) to
receive distributions pursuant to Section 5.1(a) shall be limited to, and shall
terminate in full upon payment of, (i) Net Buy-Out Fees and Net Investment
Banking Fees in respect of Buy-Outs completed on or before the date of
Termination, death or Permanent Disability or for which a definitive agreement
had been executed on or before such date and (ii) Net Consulting Fees (and
directors fees) accrued to the date of Termination, death or Permanent
Disability.
Section 4.5. Bankruptcy, Dissolution, Liquidation, Termination, Death or
Permanent Disability of a Member
(a) In the event of the Bankruptcy, dissolution, liquidation,
Termination, death or Permanent Disability of a Member (other than an event
dealt with under Section 4.4
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hereof) (the "Withdrawing Member"), the LLC shall dissolve; provided, however,
that the remaining Members acting unanimously shall have the right, but not the
obligation, to continue the business of the LLC by notifying a Managing Director
within 60 days after the Bankruptcy, dissolution, liquidation, Termination,
death or Permanent Disability of the Withdrawing Member. In the event that the
Members so elect to continue the business of the LLC, the Legal Representative
of the Withdrawing Member shall succeed to the rights of such Withdrawing Member
hereunder.
(b) In the event that the Members elect to continue the business of
the LLC in accordance with subsection (a) above following the Termination, death
or Permanent Disability of a Member other than the Managing Director, the right
of the Withdrawing Member to receive distributions pursuant to Section 5.1(a)
shall be limited to, and shall terminate in full upon payment of, (i) Net
Buy-Out Fees and Net Investment Banking Fees in respect of Buy-Outs completed on
or before the date of Termination, death or Permanent Disability or for which a
definitive agreement had been executed on or before such date and (ii) Net
Consulting Fees (and directors fees) accrued to the date of Termination, death
or Permanent Disability.
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ARTICLE V
DISTRIBUTIONS AND EXPENSES;
ALLOCATION OF PROFIT AND LOSS; OPPORTUNITIES;
DISSOLUTION AND LIQUIDATION; RESERVES
Section 5.1. Distributions
(a) A Managing Director, upon the written consent of at least three
members of the Committee, may cause the LLC to make distributions to the
Members. The amount of distributions to which each Member shall be entitled
shall be calculated by the Managing Director based on fees received to date.
Specifically, the Managing Director shall allocate fees to the Members as
follows:
(i) Fees received by the LLC in connection with effecting
Buy-Outs ("Net Buy-Out Fees") shall be allocated as follows:
(A) Fees earned prior to December 31, 1983 (plus the
Xxxxx X. Xxxxx transaction) The Xxxx X. Xxxxxx XX Revocable
Trust - 30%; Xxxxx X. Xxxxxxxxx - 20%; and Leucadia, Inc.
- 50%.
(B) Fees earned in calendar 1984 - The Xxxx X. Xxxxxx XX
Revocable Trust - 39%; Xxxxx X. Xxxxxxxxx - 26%; and Leucadia,
Inc. - 35%.
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(C) Fees earned in calendar 1985 - The Xxxx X. Xxxxxx XX
Revocable Trust - 35%; Xxxxx X. Xxxxxxxxx - 35%; and Leucadia,
Inc. - 30%.
(D) Fees earned in calendar 1986 - The Xxxx X. Xxxxxx XX
Revocable Trust - 37.5%; Xxxxx X. Xxxxxxxxx - 37.5%; and
Leucadia, Inc. - 25%.
(E) Fees earned in calendar 1987 and thereafter - The
Xxxx X. Xxxxxx XX Revocable Trust - 37.5%; Xxxxx X. Xxxxxxxxx
- 37.5%; and Leucadia, Inc. - 25%.
(ii) Fees received from other investment banking services
("Net Investment Banking Fees") shall be allocated in the same
manner as the Net Buy-Out Fees.
(iii) Fees received by the LLC for consulting, management or
financing services after Buy-Outs ("Net Consulting Fees") shall be
allocated as follows:
(A) Fees earned from companies involved in Buy-Outs
which closed prior to December 31, 1983 (plus the Xxxxx X.
Xxxxx transaction) - The Xxxx X. Xxxxxx XX
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Revocable Trust - 25%; Xxxxx X. Xxxxxxxxx - 25%; and
Leucadia, Inc. - 50%.
(B) Fees earned from companies involved in Buy-Outs
which closed in calendar 1984 (except Xxxxx X. Xxxxx) - The
Xxxx X. Xxxxxx XX Revocable Trust - 32-1/2%; Xxxxx X.
Xxxxxxxxx - 32-1/2%; and Leucadia, Inc. - 35%.
(C) Fees earned from companies involved in Buy-Outs
which closed in calendar 1985 The Xxxx X. Xxxxxx XX Revocable
Trust - 35%; Xxxxx X. Xxxxxxxxx - 35%; and Leucadia, Inc. -
30%.
(D) Fees earned from companies involved in Buy-Outs
which closed in calendar 1986 The Xxxx X. Xxxxxx XX Revocable
Trust - 37- 1/2%; Xxxxx X. Xxxxxxxxx - 37-1/2%; and
Leucadia, Inc. - 25%.
(E) Fees earned from companies involved in Buy-Outs
which closed in calendar 1987 and thereafter - The Xxxx X.
Xxxxxx XX Revocable Trust - 37-1/2%; Xxxxx X. Xxxxxxxxx -
37-1/2%; and Leucadia, Inc. - 25%.
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(iv) Any directors fees earned from Clients shall belong to
the individual directors and shall not be LLC property.
(b) Any distributions pursuant to Section 5.1 shall be made in cash,
unless a Managing Director, with the written consent of at least three members
of the Committee, shall determine to make all or any portion of such
determinations in kind.
Section 5.2. Allocation of Net Profit and Net Loss
For federal, state and local income tax purposes, the LLC's income,
gains, deductions and losses shall be allocated among the Members as follows:
(a) For each fiscal year of the LLC, the income and gains of the LLC
(other than Client reimbursement) shall be allocated among the parties in the
same ratio as cash was distributed or would be distributable pursuant to Section
5.1(a) for the fiscal year.
(b) For each fiscal year of the LLC, the deductions and losses
(other than the expenses reimbursed by Clients) of the LLC shall be allocated as
follows:
(i) first, to Leucadia, Inc. an amount of deductions and
losses equal to, in respect of the LLC's initial fiscal year, the
sum of Leucadia, Inc.'s Initial Capital Contribution and Additional
27
Capital Contributions pursuant to subsection (a) of Section 3.3
hereof to the LLC for such fiscal year and, in respect of each
fiscal year of the LLC thereafter, the amount of Leucadia, Inc.'s
Additional Capital Contributions pursuant to subsection (a) of
Section 3.3 hereof to the LLC for such fiscal year; and
(ii) then, to the Members to the extent of income and gains of
the LLC for such fiscal year, in the same manner as income and gains
are allocated for such fiscal year.
Section 5.3. Client Opportunities
To the extent that the LLC, in arranging Buy-Outs, becomes aware of
opportunities to invest in Clients in connection with Buy-Outs, the LLC shall
make available such opportunities to the Members in the percentages set forth in
Section 5.01(a)(i). If any Member chooses not to so invest after being given 10
days to decide, the LLC shall make the opportunity available to the Members who
choose to invest in the Client, each such opportunity to be made available to
the Members pro rata in accordance with the percentages set forth in Section
5.1(a)(i). It is contemplated that the LLC, in each case subject to the written
approval of each of the Members, shall make a portion of the opportunities of
28
which it becomes aware available to persons other than Members, and that the
opportunities made available to the Members in accordance with the two preceding
sentences of this paragraph shall be net of the opportunities accepted by such
other persons.
It is acknowledged and agreed that Jordan/Zalaznick Advisers,
Inc./JZ Equity Partners PLC constituted the "Vehicle" referred to in the Second
Restatement of the Articles and Agreement of General Partnership of the
Partnership in which the opportunity was made available to the Members in the
following percentages: The Xxxx X. Xxxxxx XX Revocable Trust - 45; Xxxxx X.
Xxxxxxxxx - 45%; and Leucadia, Inc. - 10%.
Leucadia, Inc. shall be given the opportunity to name a director of
each Client to the extent that such naming is within the control of the Members
or the Managing Directors. The Committee shall meet at least once every twelve
months to review the activities of the Managing Director.
Sections 5.4. Dissolution and Liquidation
(a) The LLC shall be dissolved on the earliest to occur of the
following:
(i) the sale, transfer or other disposition
of all or substantially all of the assets held by the LLC;
29
(ii) the removal, resignation, Bankruptcy, expulsion, Termination,
death or Permanent Disability of both of the Managing Directors, unless the
Members unanimously elect to continue the business of the LLC, as provided for
in Section 4.4(b) hereof;
(iii) Upon the consent in writing of at least three members of the
Committee;
(iv) Upon the unanimous written consent of all the Members;
(v) Upon the entry of a decree of judicial dissolution under Section
702 of the NYLLC Law;
(vi) The Bankruptcy, dissolution, expulsion liquidation,
Termination, death or Permanent Disability of a Member (other than that of both
of the Managing Directors), unless, within 60 days after such event, the
Members unanimously elect to continue the business of the LLC as provided for in
Section 4.5 hereof;
(vii) On the last day of a calendar quarter upon at least 30 days'
prior written notice to that effect given by The Xxxx X. Xxxxxx XX Revocable
Trust or Xxxxx Xxxxxxxxx, as a Managing Director, which notice may only be given
if such Managing Director has raised a "Fund." For this purpose, a "Fund" shall
be an arrangement or arrangements pursuant to which such Managing Director or
his
30
Affiliate shall have the right to direct the investment of at least $100 million
of capital;
(viii) On the last day of any calendar year upon at least 90 days
prior written notice to that effect is given by any Member; or
(ix) December 31, 1999.
(b) Upon dissolution of the LLC for any reason,
the LLC shall continue in existence for the purpose of winding up its affairs,
and the property and business of the LLC shall be liquidated (except as
otherwise provided in subsection (d) of this Section 5.4) by a Managing
Director, or in the event of the unavailability of either of the Managing
Directors, by such Member or other person (the "Liquidating Agent") as shall be
designated by Leucadia, Inc.
(c) As soon as practicable after the effective date of dissolution
of the LLC, the LLC's assets shall be distributed in the following manner and
order of priority:
(i) claims of all creditors of the LLP who
are not Members shall be paid and discharged;
(ii) claims of all creditors of the LLC who
are Members shall be paid and discharged;
(iii) the remaining assets shall be distributed to the
Members in accordance with Section 5.1(a)(i).
31
(d) Whether any assets of the LLC shall be liquidated through sale
or shall be distributed in kind, shall be a matter for the discretion of the
Managing Director (or the Liquidating Agent) acting with the written consent of
three members of the Committee; provided, however, that if distribution is made
in kind, in whole or in part, to the extent practicable, the amount of
particular securities held by the LLC shall be distributed pro rata in
accordance with the applicable priorities set forth in subsections (c)(ii) and
(iii) of this Section 5.4. Upon dissolution of the LLC the name "The Jordan
Company LLC" shall belong to The Xxxx X. Xxxxxx XX Revocable Trust; provided,
however, that in the event of the death or Permanent Disability of Xxxx X.
Xxxxxx XX, such name shall belong to Xxxxx X. Xxxxxxxxx (if he shall be alive).
(e) Each of the Members shall be furnished with a statement prepared
by the LLC's accountants which shall set forth the assets and liabilities of the
LLC as at the date of complete liquidation. Upon compliance by a Managing
Director with the foregoing distribution plan, the Members shall cease to be
such, and a Managing Director shall execute, acknowledge and cause to be filed
articles of dissolution of the LLC; however, a Managing Director shall retain
full authority to direct the disbursement and/or the
32
distribution of the funds, if any, held pursuant to the provisions of this
Agreement (including subsection (a) of Section 5.5), which funds shall be
distributed in accordance with the priorities set forth in subsection (c) of
this Section 5.4.
(f) No Member shall be personally liable to any other Member for the
return of his or its Capital Contributions or any portion thereof; any such
return shall be made solely from LLC assets in accordance with the priorities
established by this Agreement.
Section 5.5. Amounts Reserved
(a) If there is any pending transaction or claim by or against the
LLC as to which the interest or obligation of the LLC therein cannot, in the
judgment of a Managing Director (or the Liquidating Agent), be then ascertained,
then, notwithstanding any other provision of this Agreement to the contrary, (i)
if such transaction or claim shall constitute an asset or potential asset of the
LLC, the value or potential value thereof as specified by a Managing Director
with the written consent of three members of the Committee, shall be added to
the valuation of the assets of the LLC for purposes of computing the
distributions to be made pursuant to Section 5.1 and/or Section 5.4 hereof, or
(ii) if such transaction or claim shall constitute a
33
liability or potential liability of the LLC, then an amount specified by a
Managing Director acting with the written consent of three members of the
Committee as a reserve for any loss or probable loss therefrom shall be deducted
from the valuation of assets of the LLC for purposes of computing the
distributions to be made pursuant to Section 5.1 and/or Section 5.4 hereof,
whether or not such reserve is required to be established therefor for financial
accounting purposes.
(b) Upon determination by a Managing Director (or the Liquidating
Agent) with the written consent of three members of the Committee that
circumstances no longer require the retention of any sum or assets as provided
in this Section 5.5, a Managing Director (or the Liquidating Agent) shall, at
the earliest practical time pay such sum or deliver such assets, without
interest, in accordance with applicable priorities set forth in this Agreement.
Section 5.6. Special Arrangements
(a) If the Xxxx X. Xxxxxx XX Revocable Trust or Xxxxx X. Xxxxxxxxx,
as a Managing Director or any of their respective Affiliates raises a "Fund,"
then Leucadia, Inc. shall have a 10% interest in all profit participations
received by such Managing Director or his Affiliates from such Fund and a 10%
interest in all Net Consulting Fees and
34
Net Investment Banking Fees (collectively, "Net Fees") received by such Managing
Director or his Affiliates from transactions and/or investee companies of the
Fund, but Leucadia, Inc. shall have no interest in any Management Fees received
by such Managing Director or his Affiliates from such Fund or in any profit
participations, Net Fees or Management Fees received by such Managing Director
or his Affiliates from or in respect of any other fund raised by the Managing
Director or his Affiliates. For example, if such Managing Director or his
Affiliates receives from such Fund a $500,000 asset management fee, $500,000 in
Net Fees and $2,000,000 in profit participation, Leucadia, Inc. shall be
entitled to no part of the asset management fee, $50,000 of the Net Fees
($500,000 x 10% = $50,000) and $200,000 of the profit participation ($2,000,000
x 10% = $200,000) received by the Managing Director or his Affiliates from or in
respect of the Fund. Payments in respect of Leucadia, Inc.'s interest in such
sums shall be made promptly upon receipt thereof by the Managing Director or his
Affiliates from or in respect of the Fund.
(b) If the LLC is dissolved pursuant to Section 5.04(a) because of
any of the events enumerated therein, then,
35
(i) in addition to all other sums to which Leucadia, Inc.
shall be entitled under this Agreement, Leucadia, Inc. shall be
entitled to receive its pro rata interest in all Net Buyout Fees and
Net Investment Banking Fees received from Clients pursuant to
definitive agreements entered into prior to the dissolution of the
LLC; and
(ii) for so long as either or both of The Xxxx X. Xxxxxx XX
Revocable Trust and Xxxxx X. Xxxxxxxxx or any Affiliate receive Net
Consulting Fees from Clients (including Clients of the affiliated
entities referred to in subparagraph (d) below) existing at the time
of dissolution of the LLC, Leucadia, Inc. shall be entitled to
promptly receive from The Xxxx X. Xxxxxx XX Revocable Trust and
Xxxxx X. Xxxxxxxxx a percentage of Net Consulting Fees received from
Clients. The percentages to be received by Leucadia, Inc. are as
follows:
(A) Fees earned from companies involved in Buy-Outs
which closed prior to December 3, 1983 (plus the Xxxxx X.
Xxxxx transaction) - 50% (See Exhibit I, Schedule A);
36
(B) Fees earned from companies involved in Buy-Outs
which closed in calendar year 1984 (except Xxxxx X. Xxxxx) -
35% (See Exhibit I, Schedule B);
(C) Fees earned from companies involved in Buy-Outs
which closed in calendar year 1985 - 30% (See Exhibit I -
Schedule C);
(D) Fees earned from companies involved in Buy-Outs
which closed in calendar year 1986 and all years thereafter -
25% (See Exhibit I, Schedule D).
The foregoing percentages shall only be payable with respect
to that portion of Net Consulting Fees received from each
Client that exceeds $50,000 in any calendar year. A Managing
Director shall cause Exhibit I, Schedule D to be updated
annually as of December 31 of each year and each such updated
Exhibit I shall be incorporated automatically as an exhibit to
this Agreement.
Notwithstanding anything to the contrary contained
herein, with respect to Net Consulting Fees paid by JII, Leucadia, Inc.
shall be entitled to receive (x)
37
16.975% of the first $1 million of Net Consulting Fees paid in any
calendar year, and (y) for so long as Leucadia remains a shareholder of
JII, 10% of all Net Consulting Fees paid in excess of $1 million in any
calendar year. The foregoing fees shall not be reduced by the $50,000
amount referenced above.
With respect to Jordan/Zalaznick Advisors, Inc. ("JZAI"), no
provision of this Agreement shall affect Leucadia, Inc.'s right to receive
10% of the net income of JZAI for so long as JZAI remains in existence.
The foregoing payments shall not be reduced by the $50,000 amount
referenced.
(c) It is expressly agreed by the Members that all consulting fees
paid to the LLC by the companies listed on Exhibit I, Schedule E, shall be the
exclusive property of The Xxxx X. Xxxxxx XX Revocable Trust and Xxxxx X.
Xxxxxxxxx.
(d) It is expressly acknowledged that all companies listed on
Exhibit I, Schedules A,B,C & D are Clients of either the LLC, JZCC or TJC
Management Corp. ("TJM"). For purposes of this Agreement, JZCC and TJM shall
each be deemed an Affiliated Entity. In the event that the LLC is dissolved
pursuant to Section 5(a) hereof, all of The Xxxx X. Xxxxxx XX Revocable Trust's
and Xxxxx X. Xxxxxxxxx'x
38
obligations to make payments to Leucadia, Inc. pursuant to Section 5.06(b)
hereof may be satisfied by any Affiliated Entity.
ARTICLE VI
LLC COSTS AND EXPENSES
Section 6.1. Compensation to Managing Directors
(a) The LLC shall pay, as a fee (the "Management
Fee") for the services set forth in Section 2.1(a)(iii), the excess of the
Additional Capital Contributions made by Leucadia, Inc. over the expenses of the
LLC (to the extent not reimbursed by Clients) to Xxxx X. Xxxxxx XX and Xxxxx X.
Xxxxxxxxx in such proportions as they may agree but not in excess of $625,000
per calendar quarter of 1990, $687,500 per calendar quarter of 1991 and $750,000
per calendar quarter of 1992 and thereafter. The Management Fee will be treated
by the LLC as a deduction. Any Managing Director is authorized to make the
payments set forth in this paragraph.
The Managing Directors shall not receive any other compensation or
fee for services hereunder, except as provided for in this Agreement.
(b) In 1991, the LLC acquired a controlling interest in Xxxxxx May
Candy Company, a Chicago based candy manufacturer. The LLC will open a Chicago
office to allow the Xxxx X. Xxxxxx XX Revocable Trust, as a Managing
39
Director, to monitor the LLC's investment in Xxxxxx May Candy Company as well as
to more closely monitor its continuing investment in Jordan Industries, Inc.,
which is headquartered in Deerfield, Illinois, a Chicago suburb. In order to
manage the LLC's increasing Chicago area business investments better, in 1991
Xx. Xxxxxx relocated his permanent residence from New York to Illinois. The
LLC's continued New York business interests, however, requires Xx. Xxxxxx
periodically to return to New York. In recognition of the additional expenses
incurred by Xx. Xxxxxx on behalf of the LLC in maintaining a New York place of
abode for this purpose, and in order to facilitate Xx. Xxxxxx'x New York
business trips, as compensation for the expenses Xx. Xxxxxx incurs in continuing
to maintain a New York place of abode for LLC business purposes, it is hereby
agreed that for purposes of Section 6.1(a) hereof, Messrs. Jordan and Zalaznick
agree that the LLC shall pay to Xx. Xxxxxx the first $250,000 of the Management
Fee per calendar year commencing in calendar 1992, with the balance of the
Management Fee to be allocated as agreed upon by Messrs. Jordan and Zalaznick
pursuant to Section 6.1(a). The allocation of $250,000 of the Management Fee
pursuant to this subsection 6.1(b) will be reviewed annually.
40
Section 6.2. Organizational Expenses
The LLC shall pay all expenses, including any legal and accounting
fees and disbursements, incurred in connection with the organization of the LLC.
Section 6.3. Operating Expenses
(a) A Managing Director may, in his sole discretion, as needed for
the proper conduct of the LLC business, incur telephone, telegraph, secretarial,
bookkeeping, publication, consulting, accounting and legal expenses, and such
other ordinary operating costs and expenses.
(b) Messrs. Jordan and Zalaznick shall be reimbursed for their
reasonable out-of-pocket expenses incurred by them in discharging their
functions and responsibilities hereunder.
(c) The expenses of the LLC, including the management fee, shall be
paid from the Additional Capital Contributions, to the extent thereof.
ARTICLE VII
REPORT TO MEMBERS
Section 7.1. Books of Account
Appropriate books of account shall be kept at the principal place of
business of the LLC, and each Member and its representatives shall have access
to all books, records
41
and accounts and the right to make copies thereof during regular business hours.
Section 7.2. Audit and Reports
(a) If requested by at least two members of the Committee, the books
and records of the LLC shall be audited as of the end of each fiscal year of the
LLC by a firm of independent accountants selected by three members of the
Committee. Within 90 days after the end of each fiscal year, the LLC shall
furnish to each Director a report setting forth as at the end of such fiscal
year:
(i) a balance sheet and income statement (for each such
fiscal year) of the LLC reported on by such accounting firm, if
applicable;
(ii) such Member's Capital Account;
(iii) the amount of such Member's share in the
LLC's taxable income or loss for such year, in sufficient detail to
enable him or it to prepare his or its applicable federal, state and
other tax returns; and
(iv) any other additional information which a
Managing Director shall deem necessary or appropriate.
(b) A Managing Director shall prepare or cause to
be prepared all applicable federal, state and local tax
42
returns ("Returns") for each year for which such Returns are required to be
filed. With the approval of at least three members of the Committee, a Managing
Director shall also determine whether to make any applicable election, claim any
available credit or adopt any other method or procedure relating to the
preparation of the Returns, and shall have the power to take any and all action
necessary or appropriate under applicable or relevant laws or regulations
thereunder. All tax elections and determinations so made by the Managing
Director shall be final and binding upon all Members and their respective
successors, assigns, heirs and Legal Representatives.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
successors, assigns, heirs and Legal Representatives of the respective Members.
Section 8.2. Notices
All notices hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered or
certified mail, postage prepaid, return receipt requested, to the LLC, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to Leucadia at 315
00
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address of the LLC as
to which the Members shall have been given notice, and to the Members, at the
respective addresses last made known to the LLC. A Member may designate a new
address by notice to that effect given to the LLC.
Section 8.3. Counterparts
This Agreement may be executed in any number of counterparts, each
of which shall be an original instrument and all of which, when taken together,
shall constitute one and the same Agreement.
Section 8.4. Completeness; Amendment
This Agreement sets forth the entire understanding of the parties
hereto, and no provision hereof may be amended, waived or modified at any time
except with the written consent of all Members.
Section 8.5. Power of Attorney
Each of the Members hereby irrevocably constitutes and appoints each
of the Managing Directors his or its true and lawful representative and attorney
in fact, in his or its name, place and stead, to make, execute, acknowledge and
file with the appropriate authority:
(i) any certificate and other instruments
which may be required to be filed by the LLC under
44
the laws of any jurisdiction or which such
Managing Director shall deem advisable, in his
sole discretion, to file; and
(ii) any certificate or other instruments which may be
required to effectuate the dissolution and termination of the LLC as
provided for hereunder; it being expressly understood and intended
by each of the Members that such power of attorney shall be
irrevocable and shall survive any assignment or attempted assignment
of the whole or any part of the interest in the LLC of a Member and,
in the event of a permitted assignment hereunder, shall be binding
upon the assignee thereof.
Section 8.6. Section Headings
The section headings contained in this Agreement are for convenience
of reference only and shall not limit or define the text hereof.
Section 8.7. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of New York.
45
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
THE XXXX X. XXXXXX XX REVOCABLE TRUST
By: /s/ Xxxx X. Xxxxxx XX
------------------------------------------
Xxxx X. Xxxxxx XX, Trustee
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
XXXXX X. XXXXXXXXX
LEUCADIA, INC.
By: /s/ Xxxxxx X. Orlando
------------------------------------------
Xxxxxx X. Orlando,
Vice President
46
EXHIBIT I
Acquisition Date
----------------
Schedule A
----------
Cape Craftsmen, Inc. 11/23/83
Xxxxx X. Xxxxx Co., Inc. 01/31/84
Schedule B
----------
Xxxxx Plumbing Systems, Inc. 07/12/84
Schedule C
----------
Coronet Manufacturing Company, Inc. 04/02/85
Schedule D
----------
Eastern Home Products, Inc. 08/07/86
Allied International Holdings, Inc. 11/26/86
Gator Industries, Inc. 12/29/86
Xxxxxxxxxx Industries, Inc. 04/07/88
Rally Manufacturing, Inc. 04/18/88
Rockwood Industries Inc. 06/23/88
Sea Gull Lighting, Inc. 11/18/88
Polaris Pool Systems, Inc. 03/08/89
American Safety Razor, Inc. 04/14/89
Custom Chrome, Inc. 08/25/89
Newpac Industries Inc. 03/23/90
Schedule E
----------
House of Xxxxxx, Inc.
Xxxxxx Xxxxxxxxx, Inc.
Xxxxxx Togs, Inc.
47
