AMENDED AND RESTATED
SUBSCRIPTION AGREEMENT
This Amended and Restated Subscription Agreement (the
"Agreement") is made this 23rd day of May, 2000 by and between Xxxxxxx
Management Company, L.L.C. (the "Company") and Xxxxx X. Xxxxxxxx ("Xxxxxxxx").
RECITALS
WHEREAS, the Company and Xxxxxxxx (collectively, the "Parties" or individually a
"Party") entered into a subscription agreement dated as of September 3, 1997
(the "Original Agreement");
WHEREAS, the Parties desire to effect certain amendments to the Original
Agreement; and
WHEREAS, the Parties desire to set forth their entire agreement in one document,
upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, agree as
follows:
I. INCORPORATION OF RECITALS
A. The above recitals are hereby incorporated as an integral part
of this Agreement and not as mere introductory material.
II. SUBSCRIPTION FOR MEMBERSHIP INTEREST
X. Xxxxxxxx hereby subscribes for a membership interest
("Interest") in the Company representing 12% of the total of
all Interests in the Company.
B. This subscription is based on the terms and conditions
described in this Agreement and in the Company's Second
Revised Amended and Restated Operating Agreement dated as of
April 12, 2000 (the "Operating Agreement").
III. CONSIDERATION
A. As consideration for his Interest, Xxxxxxxx has provided,
among other things, substantial services in the (i)
development of the Company and (ii) creation and marketing of
the Xxxxxx Raw Materials Fund, L.P. and the Xxxxxx
International Raw Materials Fund, L.P (collectively, the
"Funds").
B. As additional consideration for his Interest, Xxxxxxxx agrees
to serve as a Managing Member of the Company for as long as he
is a Member of the Company.
X. Xxxxxxxx acknowledges and agrees that the Company has entered
into this Agreement based on Xxxxxxxx'x above-described
consideration. Xxxxxxxx'x Interest shall constitute security
for the continuing obligations of Xxxxxxxx to the Company as
provided in this Agreement.
IV. EMPLOYMENT
A. Neither this Agreement, nor Xxxxxxxx'x status as a Managing
Member, shall prohibit or restrict the Company for employing
Xxxxxxxx in any additional capacity. In such event, the
Company and Xxxxxxxx may (but shall be under no obligation to)
enter into an employment agreement setting forth the terms and
conditions of such employment.
V. TRADE SECRETS; CONFIDENTIAL INFORMATION; NON-COMPETITION
A. For the purposes of this Agreement, the term "Confidential
Information" means any information, in any form or format,
relating to the business of the Company and/or the Funds which
is not generally available to the public, which is valuable to
the business of the Company and/or the Funds, and which
Xxxxxxxx learns, obtains or develops during his tenure of
Managing Member of the Company, including but not limited to
(i) the names and addresses of the Company's and/or the Funds'
customers/investors, (ii) information concerning such
customers/investors contained in customer files and customer
statements, including customers' financial affairs and
activities, investment positions and investment strategies,
and (iii) information regarding the trading strategy of the
Funds, including information concerning the composition of the
Xxxxxx International Commodity Index. All such Confidential
Information shall be deemed to be Trade Secrets (as defined in
the Illinois Trade Secrets Act, Chapter 765 ILCS 1065/1 et.
seq.) to the fullest extent permitted under law.
B. During his term as a Managing Member of the Company, Xxxxxxxx
has had access to Confidential Information and Trade Secrets
relating to the operation and policies of the Company
(collectively, "Company Information"). Xxxxxxxx acknowledges
that the Company has, through expenditure of considerable
time, effort and expense, developed such Company Information.
X. Xxxxxxxx agrees that the Company Information is owned by the
Company, shall remain the property of the Company, and all
originals and copies thereof shall be delivered to the Company
immediately if Xxxxxxxx ceases to be a Member of the Company.
D. Except at the direction of the Company, Xxxxxxxx shall not,
either directly or indirectly, at any time while a Member of
the Company, and until three (3) years after THE EARLIER OF
the date on which the Company Information
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becomes generally known to other persons who can obtain
economic value from its disclosure or use, OR the date on
which Xxxxxxxx ceases to be a Member -- of the Company,
either: (i) disclose or use any Company Information anywhere
in the State of Illinois or in any State in which the Company
maintains an office; or (ii) disclose any Company Information
to any person or entity that competes or is about to compete,
directly or indirectly, with the Company in the State of
Illinois or in any State in which the Company maintains an
office.
X. Xxxxxxxx agrees that for a period of three (3) years after the
date he ceases to be a Member of the Company he shall not
directly or indirectly on his own account, or as an employee,
consultant, partner, joint venturer, owner, officer, director,
or stockholder of any other person, firm, partnership,
corporation, or other entity or in any other capacity,
directly or indirectly, or assist any other person or entity
to compete, directly or indirectly, with the Company in the
State of Illinois or in any State in which the Company
maintains an office.
VI. ACCEPTANCE OF OPERATING AGREEMENT
Xxxxxxxx agrees that upon acceptance of this Agreement and the
entry of Xxxxxxxx'x name in the records of the Company as a Member (as that term
is defined the Operating Agreement), Xxxxxxxx shall become a Member of the
Company, and hereby agrees to each and every term and provision in and of the
Operating Agreement as if his signature were subscribed thereto.
VII. GRANT OF POWER OF ATTORNEY
Xxxxxxxx does hereby irrevocably constitute and appoint the
Company, through any one of the Managing Members thereof, with full power of
substitution, as his true and lawful representative and attorney-in-fact with
respect to the Company, granting unto such attorney-in-fact full power and
authority on behalf and in the name, place and stead of Xxxxxxxx to make,
execute, acknowledge, deliver, swear to, file and record in all necessary or
appropriate places any documents, certificates or instruments which may be
considered necessary or desirable by the Company to carry out fully its duties.
The foregoing special power of attorney coupled with an interest is irrevocable,
and shall survive the dissolution, death, incompetence or incapacity of
Xxxxxxxx. The Company may exercise such power of attorney, as attorney-in-fact,
by listing all of the Members executing any agreements, certificates,
instruments or documents with the single signature of such attorney-in-fact for
all of them.
VIII. WAIVER & MODIFICATION
No waiver alteration, or modification of any of the provisions
of this Agreement shall be valid unless in writing and signed by the Parties
hereto. Either of Xxxxxxx X. Xxxxxxxx or Xxxxx Xxxxxxx, as Managing Members of
the Company, are designated to act on behalf of Company. If Xx. Xxxxxxxx and Xx.
Xxxxxxx cease to be
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a Managing Member of the Company, one of the then Managing Members shall be
designated by the Company's Members to act on behalf of the Company.
IX. NOTICES
All notices, requests, demands and other communications shall
be in writing and be deemed given when delivered personally (or when personal
delivery thereof is refused) or three (3) days after deposited in the United
States mail, registered or certified, return receipt requested, to the other
Party hereto at the address of such Party set forth below or at such other
address as either Party may give in writing to the other Party.
If to the Company: If to Xxxxxxxx:
Xx. Xxxxxxx X. Xxxxxxxx
Xxxxxxx Management Company, L.L.C. Xx. Xxxxx X. Xxxxxxxx
0000 Xxxx Xxxx, Xxxxx 000 000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Wildman, Harrold, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
X. BINDING NATURE/ASSIGNMENT
A. This Agreement shall inure to the benefit of and shall be
binding upon the executors, administrators, successors and
assigns of the Parties.
B. This Agreement is not transferable or assignable by Xxxxxxxx
except with the prior written consent of the Company. Any
transfer or assignment in violation of this provision shall be
null and void.
XI. GOVERNING LAW AND ARBITRATION
A. This Agreement and the rights and obligations of the Parties
hereunder shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to the
laws regarding conflict of laws.
B. In the event of any dispute between the Parties arising out of
this Agreement, both Parties agree to submit such dispute to
the arbitration facilities of the National Futures Association
for resolution, the results of which shall be final, binding
and conclusive on the parties.
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XII. MISCELLANEOUS
A. Titles or headings in this Agreement are for convenience only
and shall have no substantive effect.
B. The waiver by a party of a breach or violation of any
provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same
or any other provision hereof. Delay in the enforcement of or
the insistence on the performance of any right which arises
upon the breach or violation of this Agreement shall not
operate as a waiver of such or any subsequent breach or
violation.
C. In the event any provision of this Agreement is held to be
invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall, in no event, affect, prejudice or
disturb the validity of the remainder of this Agreement, which
shall remain in full force and effect, enforceable in
accordance with its terms.
D. This Agreement may be executed through the use of separate
signature pages or in any number of counterparts, and each of
such counterparts shall, for all purposes, constitute one
agreement binding on the Parties, not withstanding that all
Parties and not signatories to the same counterpart.
E. Whenever the context of this Agreement requires, the gender of
all terms herein shall include the masculine, feminine and
neuter, and the reference to the singular of a term shall also
include the plural thereof.
IN WITNESS HEREOF, the parties have set their hands to this Agreement
as of the date first above written.
XXXXXXX MANAGEMENT COMPANY, L.L.C. XXXXX X. XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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One if its Managing Members
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