THE JORDAN COMPANY
FOURTH RESTATEMENT,
dated as of December 31, 1996, of the
ARTICLES AND AGREEMENT OF GENERAL PARTNERSHIP
Effective as of February 1, 1982
The undersigned, consisting of THE XXXX X. XXXXXX XX
REVOCABLE TRUST, XXXXX X. XXXXXXXXX and LEUCADIA, INC., a New York
corporation (hereinafter referred to collectively as the "Partners"
and individually as a "Partner"), hereby restate in their entirety the
terms of a general partnership (hereinafter called the "Partnership")
formed by Xxxx X. Xxxxxx XX, Xxxxx X. Xxxxxxxxx and Leucadia, Inc. as
of February 1, 1982 (as heretofore restated). The Partnership shall
be governed by, and operated pursuant to, the terms and provisions
hereinafter set forth.
ARTICLE I
ORGANIZATION
------------
Section 1.1. Formation and Name of Partnership
-----------------------------------------------
The parties do hereby form a partnership pursuant to the
provisions of the Partnership Law of the State of New York to engage,
for the period and upon the terms and conditions hereinafter set
forth, in the business of 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 Partnership business
shall be conducted under the name The Jordan Company.
Section 1.2. Purposes and Powers
---------------------------------
The purposes for which the Partnership 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 Partnership 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 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 Partnership hereunder) any of its assets, properties
or funds, either with or without security;
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(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 non-professional, 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 Partnership and to execute all documents and to make all
representations and waivers in connection therewith.
In furtherance of the aforesaid purposes, the Partnership
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 Partnership shall be
at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
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such place as may be designated by a Managing Partner (hereinafter
defined).
Section 1.4. Term
------------------
The Partnership shall commence as of the date hereof 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 is controlled by or is under
common control with another person, partnership, corporation or other
entity.
"Bankruptcy" with respect to any Partner shall mean an
adjudication that the Partner is bankrupt or insolvent, the admission
by the Partner of inability to pay debts as they mature, the making by
the Partner of an assignment for the benefit of creditors, the filing
by the Partner of a petition in bankruptcy or a petition for relief
under any section of the United States Federal Bankruptcy Act or any
other applicable
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state insolvency statute or an answer admitting or failing to deny the
allegations of such petition, the filing against the Partner 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
Partner'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
Partner'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.
"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 Partner so long as
there are two Managing Partners (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
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shall only be one Managing Partner, 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 Partner.
"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.
"Liquidating Agent" shall have the meaning set forth in
subsection (b) of Section 5.4 hereof.
"Managing Partner" 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 Partner.
Where action is required to be take under this Agreement by a Managing
Partner, the Managing Partners shall mutually agree on which Managing
Partner shall so act. If the Managing Partners are unable to so
agree, the Managing Partner 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
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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 Disability of Xxxx X. Xxxxxx XX, unless
in the case of (ii) and (iii) the Partners, 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 Partnership for financial, accounting
and tax purposes shall end upon each December 31.
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ARTICLE II
MANAGEMENT OF BUSINESS
----------------------
Section 2.1. Services of Messrs. Jordan and Zalaznick
----------------------------------------
Throughout the term of the Partnership:
(a) Leucadia, Inc. shall include Messrs. Jordan and
Zalaznick and the Partnership'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 Partnership shall reimburse
Leucadia, Inc. for the incremental costs thereof;
(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 Partners
shall unanimously approve) to fulfill the obligations set forth in
Section 2.1(a)(ii) 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 Partnership, not be obligated to
devote full time to the conduct of the Partnership's affairs but shall
devote so much of his business time as shall be necessary for the
proper conduct of the Partnership's affairs, to implement the purposes
set forth in Section 1.2 hereof and to
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perform services for The Jordan/Zalaznick Capital Company ("JZCC"),
Mezzanine Capital & Income Trust 2001 PLC, Jordan/Zalaznick Advisors,
Inc., Jordan Industries, Inc. ("JII"), Mountbatten Management
Corporation 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.
Section 2.2. Managing Partners
-------------------------------
Third parties dealing with the Partnership may rely
conclusively upon the power and authority of a Managing Partner as
herein set forth.
A Managing Partner shall have the right to manage the
Partnership's business including the right to (i) sign, endorse,
negotiate, and transfer any check, draft or other instrument of
Partnership; and (ii) take all other action on behalf of the
Partnership authorized by this Agreement to be taken by a Managing
Partner. A Managing Partner shall have the right to select an
individual to be retained by the Partnership 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 Partner 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
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Partnership assets; (ii) to borrow on behalf of the Partnership; (iii)
to take any action in contravention of this Agreement; (iv) to taken
any action which would make it impossible to carry on the
Partnership's business; (v) to sell or exchange all or substantially
all of the Partnership's assets; (vi) to admit any additional
Partners; (vii) to amend this Agreement or to change or reorganize the
Partnership into any other legal form; or (viii) modify the terms
under which Messrs. Jordan and Zalaznick are retained by the
Partnership.
Section 2.3. Delegation of Authority
-------------------------------------
Each of the Managing Partners is delegated the authority to
cause or permit the Partnership 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 Partnership, with the
prior written consent of at least three members of the Committee;
provided the Partnership shall not without the unanimous prior written
consent of the Partners engage in any business activity other than as
set forth in Section 1.2.
Section 2.4. Permitted Transactions
------------------------------------
(a) Each of the Partners consents that any Partner and any
Affiliate of any Partner 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,
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independently or with others, including, without limitation, any
aspect of the securities or financing business; and neither the
Partnership nor any Partner 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, 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 Partnership,
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 Partner or an Affiliate of a Partner, or that any
Partner, Affiliate of a Partner or member of any individual Partner'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
Partnership to render or perform a service, or from or through whom
the Partnership may make any sale or purchase, shall not prohibit the
Partnership 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 Partnership, and neither the Partnership
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nor any other Partner shall have any rights in or to any income or
profit derived from such transaction by such Partner, person, firm or
corporation.
(c) The Partnership is specifically authorized to utilize
any Affiliate of a Partner, or any of the legal counsel, accountants
and/or other experts or advisers heretofore or hereafter utilized by a
Partner or any of his or its Affiliates, to provide services to the
Partnership. Each Managing Partner is specifically authorized to
cause the Partnership to pay any such Affiliate, legal counsel,
accountant and/or other expert or adviser a fee for any such services
to the Partnership, provided that the Managing Partner, in good faith,
determines that such fee is comparable to that which would be charged
to customers not affiliated with a Partner for similar services.
(d) The retention by the Partnership of the services of any
Affiliates of a Partner shall not constitute any such affiliate a co-
partner or joint venturer with the Partnership, and the relationship
of the Partnership to each such Affiliate shall at all times remain
that of principal and independent contractor, respectively.
Section 2.5. Loans
-------------------
Any Partner may, but shall not be required to, make loans to
the Partnership and in respect of such loans shall, to the extent
permitted by applicable law, be treated as a creditor
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of the Partnership. Such loans and interest thereon (at terms agreed
upon by the lending Partner and at least three members of the
Committee) shall constitute obligations of the Partnership. Any such
loans shall not increase such Partner's capital contribution or
entitle him or it to any increase in his or its share of the profits
of the Partnership nor subject him or it to any greater allocated
portion of losses which he or it may sustain as provided herein.
Section 2.6. Exculpation
-------------------------
None of the Partners (including a Managing Partner) shall be
liable, in damages or otherwise, to the Partnership or to any of the
Partners, 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
Partnership, except for the results of his or its own gross
negligence, willful misconduct or bad faith. The Partnership shall
indemnify, defend and hold harmless each Partner (including a Managing
Partner) 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 out
of any claim or liability of any nature whatsoever in respect of the
assets or business of the Partnership, except where attributable to
the gross negligence, willful misconduct or bad faith of the Partner
13
(including a Managing Partner) and except to the extent
indemnification is provided or is available from Clients. The
Partners (including a Managing Partner) shall be entitled to rely on
the advice of counsel, public accountants or other experts, and any
act or omission of any Partner (including a Managing Partner) in
reliance in good faith on such advice shall in no event subject such
Partner to liability to any other Partner or the Partnership.
Section 2.7. Partnership Liabilities in Excess
-----------------------------------------------
of Partnership Assets
---------------------
Any liabilities or obligations of the Partnership shall
first be paid or satisfied from the assets of the Partnership. In the
event and to the extent that the Partnership shall incur or suffer
liabilities or obligations in excess of the assets of the Partnership,
the Partners shall pay or repay to the Partnership amounts necessary
to discharge or pay such liabilities or obligations in proportion to
their respective percentages applicable at the time of incurrence or
sufferance set forth in Section 5.1(a)(i); and provided further that,
to the extent that any Partner repays or pays a greater amount than is
provided for above in this Section 2.7, such Partner shall have a
right of contribution from each other Partner to the extent that such
other Partner has repaid or paid to the Partnership a lesser amount
than as provided for above in this Section 2.7.
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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 Partnership. Separate
Capital Accounts shall be maintained for each Partner for the
Partner's respective capital contributions to the Partnership. Each
Capital Account for a Partner 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 Partner and (b) the Partner's share of income and gains
allocated to such Capital Account and (iii) decreased by (a) any
distributions made to the Partner with respect to such Capital Account
and (b) the Partner'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
Partner 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.
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Section 3.3. Additional Capital Contributions
----------------------------------------------
During the time of the Partnership, Leucadia, Inc. shall
make additional cash contributions to the Partnership 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, April 1, 1992, July 1,
1992 and October 1, 1992 - $750,000 and each such quarterly period
thereafter.
Section 3.4. No Interest on or Withdrawal of Capital
-----------------------------------------------------
Contributions
-------------
No interest shall be paid to any Partner on his or its
Capital Contributions to the Partnership. No Partner shall be
entitled to withdraw any of his or its Capital contributions to the
Partnership, nor shall any Partner have any right to receive any funds
or property of the Partnership, except as provided in this Agreement.
ARTICLE IV
ADMISSION AND WITHDRAWAL OF PARTNERS
------------------------------------
Section 4.1. Withdrawal by Partner
-----------------------------------
Without the written consent of at least three members of the
Committee, no Partner shall withdraw from the Partnership prior to its
dissolution pursuant to subsection (a) of Section 5.4 hereof.
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Section 4.2. Admission of Additional Partners
----------------------------------------------
Except as provided in Section 4.3 hereof or as otherwise
agreed to in writing by all Partners, no additional Partner shall be
admitted to the Partnership.
Section 4.3. Sale of Partnership Interest; Substituted
-------------------------------------------------------
Partner
-------
Without the written consent of all members of the Committee,
no Partner may sell, assign, transfer, pledge, hypothecate or encumber
all or any part of his interest (including a beneficial interest in
the right to receive distributions and allocations of profit and loss)
in the Partnership.
Section 4.4. Resignation, Removal, Termination,
------------------------------------------------
Bankruptcy, Death or Permanent Disability
-----------------------------------------
of a Managing Partner
---------------------
(a) A Managing Partner shall be removed as Managing Partner
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 Partners,
if at such time there is more than one Managing Partner, or, if there
is only one Managing Partner at such time, in the event of such sole
Managing Partner's resignation, removal, Bankruptcy, Termination,
death or Permanent Disability, the Partnership shall dissolve;
provided, however, that the Partners acting unanimously may appoint a
successor Managing Partner(s) within 60 days of the resignation,
removal,
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Bankruptcy, Termination, death or Permanent Disability of the Managing
Partner(s) to continue the business of the Partnership. For purposes
of the appointment of a successor Managing Partner, a Managing Partner
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 Partners.
(c) Notwithstanding anything to the contrary contained
herein, a Managing Partner who has resigned or been removed shall have
the right to retain his interest in the Partnership, and the Legal
Representative of such a Managing Partner shall succeed to the rights
of the Managing Partner to receive allocations and distributions
hereunder. In the event that the Partners elect to continue the
business of the Partnership in accordance with subsection (b) above
following the Termination, death or Permanent Disability of the
Managing Partner, the right of the Managing Partner (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.
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Section 4.5. Bankruptcy, Dissolution, Liquidation,
---------------------------------------------------
Termination, Death or Permanent Disability
------------------------------------------
of a Partner
------------
(a) In the event of the Bankruptcy, dissolution,
liquidation, Termination, death or Permanent Disability of a Partner
(other than an event dealt with under Section 4.4 hereof) (the
"Withdrawing Partner"), the Partnership shall dissolve; provided,
however, that the remaining Partners acting unanimously shall have the
right, but not the obligation, to continue the business of the
Partnership by notifying a Managing Partner within 60 days after the
Bankruptcy, dissolution, liquidation, Termination, death or Permanent
Disability of the Withdrawing Partner. In the event that the Partners
so elect to continue the business of the Partnership, the Legal
Representative of the Withdrawing Partner shall succeed to the rights
of such Withdrawing Partner hereunder.
(b) In the event that the Partners elect to continue the
business of the Partnership in accordance with subsection (a) above
following the Termination, death or Permanent Disability of a Partner
other than the Managing Partner, the right of the Withdrawing Partner
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
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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.
ARTICLE V
DISTRIBUTIONS AND EXPENSES;
ALLOCATION OF PROFIT AND LOSS; OPPORTUNITIES;
DISSOLUTION AND LIQUIDATION; RESERVES
---------------------------------------------
Section 5.1. Distributions
---------------------------
(a) A Managing Partner, upon the written consent of at
least three members of the Committee, may cause the Partnership to
make distributions to the Partners. The amount of distributions to
which each Partner shall be entitled shall be calculated by the
Managing Partner based on fees received to date. Specifically, the
Managing Partner shall allocate fees to the Partners as follows:
(i) Fees received by the Partnership 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%.
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(B) Fees earned in calendar 1984 - The Xxxx X.
Xxxxxx XX Revocable Trust - 39%; Xxxxx X. Xxxxxxxxx -
26%; and Leucadia, Inc. - 35%.
(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 Partnership 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
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X. Xxxxxx XX 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%.
(iv) Any directors fees earned from Clients shall
belong to the individual directors and shall not be
Partnership property.
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(b) Any distributions pursuant to Section 5.1 shall be made
in cash, unless a Managing Partner, 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
Partnership's income, gains, deductions and losses shall be allocated
among the Partners as follows:
(a) For each fiscal year of the Partnership, the income and
gains of the Partnership (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 Partnership, the deductions
and losses (other than the expenses reimbursed by Clients) of the
Partnership shall be allocated as follows:
(i) first, to Leucadia, Inc. an amount of deductions
and losses equal to, in respect of the Partnership's initial
fiscal year, the sum of Leucadia, Inc.'s Initial Capital
Contribution and Additional Capital Contributions pursuant
to subsection (a) of Section 3.3 hereof to the Partnership
for such fiscal year and, in respect of each fiscal year of
the Partnership thereafter, the amount of Leucadia, Inc.'s
23
Additional Capital Contributions pursuant to subsection (a)
of Section 3.3 hereof to the Partnership for such fiscal
year;
(ii) then, to the Partners to the extent of income and
gains of the Partnership for such fiscal year, in the same
manner as income and gains are allocated for such fiscal
year; and
(iii) then, to the Partners (including Leucadia, Inc.)
in the ratio of any other Additional Capital Contributions
pursuant to Section 2.7 hereof by Partners to the
Partnership for such fiscal year of the Partnership.
Section 5.3. Client Opportunities
----------------------------------
To the extent that the Partnership, in arranging Buy-Outs,
becomes aware of opportunities to invest in Clients in connection with
Buy-Outs, the Partnership shall make available such opportunities to
the Partners i the percentages set forth in Section 5.01(a)(i). If
any Partner chooses not to so invest after being given 10 days to
decide, the Partnership shall make the opportunity available to the
Partners who choose to invest in the Client, each such opportunity to
be made available to the Partners pro rata in accordance with the
percentages set forth in Section 5.1(a)(i). It is contemplated that
the Partnership, in each case subject to the written approval of each
of the
24
Partners, shall make a portion of the opportunities of which it
becomes aware available to persons other than Partners, and that the
opportunities made available to the Partners 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 Advisors
Inc./Mezzanine Capital & Income Trust 2001 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 Partners 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 Partners or the Managing Partners. The Committee shall
meet at least once every three months to review the activities of the
Managing Partner.
Sections 5.4. Dissolution and Liquidation
------------------------------------------
(a) The Partnership 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 Partnership;
25
(ii) the removal, resignation, Bankruptcy, Termination,
death or Permanent Disability of both of the Managing
Partners, unless the Partners unanimously elect to continue
the business of the Partnership, as provided for in
Section 4.4(b) hereof;
(iii) Upon the consent in writing of at least three
members of the Committee;
(iv) The Bankruptcy, dissolution, liquidation,
Termination, death or Permanent Disability of a Partner
(other than that of both of the Managing Partners), unless
the Partners unanimously elect to continue the business of
the Partnership as provided for in Section 4.5 hereof;
(v) 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 Partner, which notice may only be given if such
Managing Partner has raised a "Fund." For this purpose, a
"Fund" shall be an arrangement or arrangements pursuant to
which such Managing Partner or his Affiliate shall have the
right to direct the investment of at least $100 million of
capital;
26
(vi) On the last day of any calendar year upon at least
90 days prior written notice to that effect is given by any
Partner; or
(vii) December 31, 1999.
(b) Upon dissolution of the Partnership for any reason, the
Partnership shall continue in existence for the purpose of winding up
its affairs, and the property and business of the Partnership shall be
liquidated (except as otherwise provided in subsection (d) of this
Section 5.4) by a Managing Partner, or in the event of the
unavailability of either of the Managing Partners, by such Partner 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 Partnership, the Partnership's assets shall be
distributed in the following manner and order of priority:
(i) claims of all creditors of the Partnership who are
not Partners shall be paid and discharged;
(ii) claims of all creditors of the Partnership who are
Partners shall be paid and discharged;
(iii) the remaining assets shall be distributed to the
Partners in accordance with Section 5.1(a)(i).
(d) Whether any assets of the Partnership shall be
liquidated through sale or shall be distributed in kind, shall be a
matter for the discretion of the Managing Partner (or the
27
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, amount of
particular securities held by the Partnership 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 Partnership the name "Jordan Company" 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 Partners shall be furnished with a
statement prepared by the Partnership's accountants which shall set
forth the assets and liabilities of the Partnership as at the date of
complete liquidation. Upon compliance by a Managing Partner with the
foregoing distribution plan, the Partners shall cease to be such, and
a Managing Partner shall execute, acknowledge and cause to be filed a
certificate of cancellation of the Partnership; however, a Managing
Partner shall retain full authority to direct the disbursement and/or
the 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.
28
(f) No Partner shall be personally liable to any other
Partner for the return of his or its Capital Contributions or any
portion thereof; any such return shall be made solely from Partnership
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 Partnership as to which the interest or obligation of the
Partnership therein cannot, in the judgment of a Managing Partner (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 Partnership, the value or potential value thereof as specified by
a Managing Partner with the written consent of three members of the
Committee, shall be added to the valuation of the assets of the
Partnership 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 liability or potential
liability of the Partnership, then an amount specified by a Managing
Partner 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 Partnership for
purposes of computing the distributions to be
29
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 Partner (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 Partner (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 Partner 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 Partner or his
Affiliates from such Fund and a 10% interest in all Net Consulting
Fees and Net Investment Banking Fees (collectively, "Net Fees")
received by such Managing Partner 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 Partner
or his Affiliates from such Fund or in any profit participations, Net
Fees or Management Fees received by such Managing Partner or his
Affiliates from or
30
in respect of any other fund raised by the Managing Partner or his
Affiliates. For example, if such Managing Partner 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
Partner 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 Partner or his
Affiliates from or in respect of the Fund.
(b) If the Partnership is dissolved pursuant to Section
5.04(a) because of any of the events enumerated therein, then,
(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 partnership
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 Partnership;
and
(ii) for so long as either or both of The Xxxx X.
Xxxxxx XX Revocable Trust and Xxxxx X. Xxxxxxxxx or any
31
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 Partnership, 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);
(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).
32
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 Partner 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) 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.
33
(c) It is expressly agreed by the Partners that all
consulting fees paid to the Partnership 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
Partnership, 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 Partnership is dissolved pursuant to
Section 5(a) hereof, all of The Xxxx X. Xxxxxx XX Revocable Trust's
and Xxxxx X. Xxxxxxxxx'x obligations to make payments to Leucadia,
Inc. pursuant to Section 5.06(b) hereof may be satisfied by any
Affiliated Entity.
ARTICLE VI
PARTNERSHIP COSTS AND EXPENSES
------------------------------
Section 6.1. Compensation to Managing Partners
-----------------------------------------------
(a) The Partnership 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 Partnership (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
34
1992 and thereafter. The Management Fee will be treated by the
Partnership as a deduction. Any Managing Partner is authorized to
make the payments set forth in this paragraph.
The Managing Partners shall not receive any other
compensation or fee for services hereunder, except as provided for in
this Agreement.
(b) In 1991, the Partnership acquired a controlling
interest in Xxxxxx May Candy Company, a Chicago based candy
manufacturer. The Partnership will open a Chicago office to allow the
Xxxx X. Xxxxxx XX Revocable Trust, as a Managing Partner, to monitor
the Partnership'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 Partnership's increasing Chicago area business
investments better, in 1991 Xx. Xxxxxx relocated his permanent
residence from New York to Illinois. The Partnership'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 Partnership 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 Partnership business
35
purposes, it is hereby agreed that for purposes of Section 6.1(a)
hereof, Messrs. Jordan and Zalaznick agree that the Partnership 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.
Section 6.2. Organizational Expenses
-------------------------------------
The Partnership shall pay all expenses, including any legal
and accounting fees and disbursements, incurred in connection with the
organization of the Partnership.
Section 6.3. Operating Expenses
--------------------------------
(a) A Managing Partner may, in his sole discretion, as
needed for the proper conduct of the Partnership 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 Partnership, including the
management fee, shall be paid from the Additional Capital
Contributions, to the extent thereof.
36
ARTICLE VII
REPORT TO PARTNERS
------------------
Section 7.1. Books of Account
------------------------------
Appropriate books of account shall be kept at the principal
place of business of the Partnership, and each Partner and its
representatives shall have access to all books, records 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 Partnership shall be audited as of the
end of each fiscal year of the Partnership by a firm of independent
accountants selected by three members of the Committee. Within 90
days after the end of each fiscal year, the Partnership shall furnish
to each Partner 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 Partnership reported on by such
accounting firm, if applicable;
(ii) such Partner's Capital Account;
(iii) the amount of such Partner's share in the
Partnership's taxable income or loss for such year, in
sufficient detail to enable him or it to prepare his or
37
its applicable federal, state and other tax returns; and
(iv) any other additional information which a Managing
Partner shall deem necessary or appropriate.
(b) A Managing Partner shall prepare or cause to be
prepared all applicable federal, state and local tax 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 Partner 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 Partner shall be
final and binding upon all Partners 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 Partners.
38
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 Partnership, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and to Leucadia at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address of the Partnership as to which the
Partners shall have been given notice, and to the Partners, at the
respective addresses last made known to the Partnership. A Partner
may designate a new address by notice to that effect given to the
Partnership.
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 Partners.
Section 8.5. Power of Attorney
-------------------------------
Each of the Partners hereby irrevocably constitutes and
appoints each of the Managing Partners his or its true and lawful
representative and attorney in fact, in his or its name, place
39
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 Partnership under the laws of
any jurisdiction or which such Managing Partner 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 Partnership as provided for hereunder; it being
expressly understood and intended by each of the Partners
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 Partnership of a Partner
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.
40
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. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx,
President
