LAB INVESTING CO. L.L.C.
AMENDED AND RESTATED OPERATING AGREEMENT
Amended and Restated Operating Agreement of LaB Investing Co. L.L.C., made
as of August __, 1999, by XxXxxxxxx & Co Inc., a Delaware corporation located at
Xxx Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "MEMBER"), and LaB Investing
Co. L.L.C., a New York limited liability company with an address at Xxx Xxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "COMPANY").
W I T N E S S E T H
WHEREAS, the Company has conducted business pursuant to an Operating
Agreement, dated as of January 1, 1995, which was amended as of January 1, 1996,
July 1, 1996, January 1, 1997, July 1, 1997 and August 1, 1997, amended and
restated as of January 1, 1998 and further amended as of January 1, 1999 (the
Operating Agreement, as thus amended, is referred to herein as the "AGREEMENT");
WHEREAS, the Member, the Company and the former members of the Company
entered into an Exchange Agreement, dated as of June 17, 1999 (the "EXCHANGE
AGREEMENT"), whereby each of the former members agreed to exchange his entire
membership interest in the Company for cash and/or securities of the Member;
WHEREAS, the Member, as a result of the completion of the transactions
contemplated by the Exchange Agreement, has become the sole member of the
Company; and
WHEREAS, the Member now wishes to further amend and restate the Agreement
in order to reflect the foregoing and to reflect its agreement regarding certain
other matters pertaining to the operation of the Company;
NOW, THEREFORE, the Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE I
NAME; OFFICE; PURPOSE; TERM
SECTION 1.1. NAME. The Company shall do business under the name "LaB
Investing Co. L.L.C." The Managing Committee (as defined below) may change the
name of the Company at any time or adopt such trade or fictitious names as it
may determine in its sole discretion. If the Company does business under a name
other than LaB Investing Co. L.L.C., then the Company shall file an assumed-name
certificate as required by Section 130 of the New York General Business Law.
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SECTION 1.2. OFFICE. The Company's principal office shall be located
at Xxx Xxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place or places
as the Managing Committee shall designate from time to time.
SECTION 1.3. PURPOSE. The Company is organized for the following
purposes:
(1) to hold a general partnership interest in XxXxxxxxx & Co., a
New York limited partnership (the "FIRM"), or any successor partnership, or
shares of capital stock of any successor corporation, and to exercise all
rights, powers and privileges with respect thereto, including, without
limitation, acting as the General Partner of the Firm;
(2) to engage in such other activities and to have such other
objects and purposes, consistent with the Constitution, Rules and Regulations of
the New York Stock Exchange, Inc. (the "EXCHANGE"), as the Managing Committee
may from time to time determine; and
(3) to carry on any business designated by the Managing Committee
which may lawfully be carried on by an affiliate of a member firm of the
Exchange in accordance with the Rules of the Exchange.
SECTION 1.4. TERM. The term of the Company shall continue through the
earlier of the termination or dissolution of the Firm in accordance with the
provisions of the Firm Agreement (as hereinafter defined) or the termination or
dissolution of the Company pursuant to the laws of the State of New York, unless
its existence is sooner terminated pursuant to Article VII of this Agreement.
ARTICLE II
MEMBER; CAPITAL
SECTION 1.5. MEMBER. The name, present mailing address and taxpayer
identification number of the Member are as follows:
Name Address Taxpayer Identification Number
---- ------- ------------------------------
XxXxxxxxx & Co Inc. Xxx Xxxxxxxx Xxxxx 00-0000000
Xxx Xxxx, XX 00000
SECTION 1.6. CAPITAL. As of the date hereof, the Member shall be
credited with a capital contribution to the Company in the amount of
$____________.
SECTION 1.7. CAPITAL CONTRIBUTION DEFINED. For purposes of this
Agreement, the term "CAPITAL CONTRIBUTION" shall mean any contribution of cash
or securities to the Company.
SECTION 1.8. ADDITIONAL CAPITAL CONTRIBUTIONS. With the prior consent
of the Managing Committee, the Member may make additional Capital Contributions.
If the Managing Committee, at any time or from time to time, determines, in its
sole discretion, that the Company
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requires an additional Capital Contribution to enable the Company or the Firm to
conduct its business operations, then the Member shall make such additional
Capital Contribution at such time or times as shall be specified by the Managing
Committee.
SECTION 1.9. NO INTEREST ON CAPITAL CONTRIBUTIONS. The Member shall
not be paid interest on its Capital Contribution.
SECTION 1.10. RETURN OF CAPITAL CONTRIBUTIONS. Except as otherwise
provided in this Agreement, the Member shall not have the right to receive any
return of its Capital Contribution.
SECTION 1.11. LOANS. The Member may make or cause a loan to be made to
the Company at such times, in such amounts and on such terms and conditions as
shall be approved by the Managing Committee.
ARTICLE III
PROFIT, LOSS AND DISTRIBUTION
SECTION 1.12. PROFIT AND LOSS. Net profit or net loss of the Company
shall be determined for each taxable year of the Company or for any shorter
period as the Managing Committee may determine from time to time, and shall be
equal to the Company's taxable income or loss for such year or period, as
determined pursuant to applicable tax laws, but as adjusted to (i) include
income exempt from income tax (and not otherwise taken into account in computing
net profit and net loss), (ii) include Company expenditures which are not
deductible under applicable tax laws and not properly chargeable to capital
accounts (and not otherwise taken into account in computing net profit or net
loss), (iii) take into account any adjustments to depreciation for such taxable
year or shorter period and any variation between the adjusted tax basis and the
book value of any property contributed by the Member to the Company in
accordance with the principles of applicable tax laws, and (iv) not include any
items which are specially allocated to the Member pursuant to applicable tax
laws.
SECTION 1.13. ALLOCATION AND DISTRIBUTION. 100% of the net profit and
net loss of the Company for each fiscal year of the Company or portion thereof
shall be allocated and distributed to the Member at such times and in such
amounts as shall be determined by the Managing Committee.
ARTICLE IV
MANAGEMENT
SECTION 1.14. MANAGEMENT. The management of the Company shall be
vested in a Managing Committee (the "MANAGING COMMITTEE") which shall be
responsible for the determination of all questions of business, policy and
operation of the Company. The duties of the Managing Committee shall include,
but not be limited to, the management of the Firm on behalf of the Company, as
provided in Article VI of the Amended and Restated Articles of Partnership of
the Firm, dated as of the date hereof, and as subsequently amended (the "FIRM
AGREEMENT"), and the
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designation of two or more persons who are members or allied members of the
Exchange, and who are otherwise acceptable to the Exchange, to act on behalf of
the Firm in connection with the Firm's day-to-day dealings with the Exchange.
Without limiting the foregoing, the Managing Committee shall have full power and
authority on behalf of the Member, at any time and from time to time, in
accordance with the rules of any national securities exchange, to determine in
good faith the value of Company and Firm assets in those cases where such assets
do not have readily ascertainable market values, and to review and determine
salaries of employees of the Company and the Firm. Decisions of the Managing
Committee shall be presumed to be within its scope of authority and shall be
binding upon the Company and the Member. The Managing Committee shall be
composed of Xxxxxx X.X. XxXxxxxxx, XX, Xxxxxx X. Xxxxxxx, Xx. and Xxxxx X.
Xxxxxxxxx. The Member may remove one or more members of the Managing Committee
at such time or times as it shall determine in its sole discretion or increase
the membership thereof by designating one or more additional persons for
membership on the Managing Committee for such terms as it may specify. Whenever,
by the terms of this Agreement, any matter is subject to action or determination
by the Managing Committee, such action or determination shall by approved or
made by a majority of the persons constituting the Managing Committee.
SECTION 1.15. LIABILITY AND INDEMNIFICATION.
(1) Except as otherwise provided by law, no member of the
Managing Committee shall be liable, responsible or accountable in any way for
damages or otherwise to the Company or to the Member for any act or failure to
act pursuant to this Agreement unless there is a judicial determination that (i)
such person acted in bad faith, (ii) the conduct of such person constituted
intentional misconduct or a knowing violation of law, (iii) such person gained a
financial benefit to which he or she was not legally entitled or (iv) such
person failed to perform his or her duties, specifically with respect to
distributions under Section 508(a) of the New York Limited Liability Company
Law, in good faith and with that degree of care that an ordinarily prudent
person in a like position would use under similar circumstances.
(2) The Company shall indemnify, defend and hold harmless each
member of the Managing Committee (severally, an "INDEMNITEE" and collectively,
the "INDEMNITEES"), from and against any claims, losses, liabilities, damages,
fines, penalties, costs and expenses (including, without limitation, reasonable
fees and disbursements of counsel and other professionals) arising out of or in
connection with any act or failure to act by an Indemnitee pursuant to this
Agreement, or the business and affairs of the Company, to the fullest extent
permitted by law; provided, however, that an Indemnitee shall not be entitled to
indemnification hereunder if there is a judicial determination that (i) such
Indemnitee's actions or omissions to act were made in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or (ii) such Indemnitee personally gained a financial
benefit to which the Indemnitee was not legally entitled.
SECTION 1.16. ACTIONS OF MEMBER REQUIRING MANAGING COMMITTEE CONSENT.
The Member shall not, without the prior written consent of the Managing
Committee, (i) assign, transfer or pledge any of the claims of, or debts due to,
the Company or the Firm, except upon payment in full; (ii) make, execute or
deliver any assignment for the benefit of creditors or any bond, confession of
judgment, or indemnity bond (except pursuant to Section 8.04) (iii) make,
execute or deliver in the name of the Company or the Firm any chattel mortgage,
security agreement or
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financing statement; (iv) become a surety, guarantor or accommodation party to
any obligations in the name or in the credit of the Company or the Firm; (v)
lend any money of the Company or the Firm or extend any credit of the Company or
the Firm except in the regular course of business; and (vi) without being
limited by the foregoing, do any act or enter into transactions on behalf of the
Company or the Firm except in the regular course of business and consistent with
the terms of this Agreement.
ARTICLE V
TRANSFERS OF INTEREST; WITHDRAWAL OF MEMBER
SECTION 1.17. TRANSFER OF INTEREST. The Member may not Transfer in
whole or in part its interest in the Company without the prior written consent
of the Managing Committee. For purposes of this Agreement, the term "TRANSFER"
means, - when used as a noun - any sale, hypothecation, pledge, assignment,
gift, bequest, attachment, or other transfer, including transfers by operation
of law, and - when used as a verb - means to sell, hypothecate, pledge, assign,
give, bequeath, or otherwise transfer.
SECTION 1.18. WITHDRAWAL OF MEMBER. The Member may not withdraw any
portion of its interest in the Company without the prior written consent of the
Managing Committee.
ARTICLE VI
ADMISSION OF ADDITIONAL MEMBERS
SECTION 1.19. ADMISSION OF NEW MEMBERS. New members may be admitted to
the Company upon such terms and conditions as the Managing Committee shall
determine. The admission of a new member or members shall not dissolve the
Company, and the Company shall be the same firm for all purposes.
ARTICLE VII
DISSOLUTION
SECTION 1.20. EVENT OF DISSOLUTION OF THE COMPANY. The Company shall
be dissolved upon the happening of the earlier of the following events:
(1) when the period fixed for its duration in Section 1.04 has
expired; or
(2) upon the determination of the Managing Committee, in its sole
discretion, to dissolve the Company, by giving written notice to the Member
specifying the date upon which the Company shall dissolve.
SECTION 1.21. BANKRUPTCY. Any bankruptcy of the Member shall not
dissolve the Company.
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SECTION 1.22. EVENT OF DISSOLUTION OF THE FIRM. Notwithstanding
anything to the contrary contained herein, in the event of the dissolution of
the Firm upon the expiration of the term of the Firm Agreement, or any extension
or renewal thereof, the Member agrees that any withdrawal of capital upon any
such dissolution which would cause the Firm's "aggregate indebtedness" to exceed
the percentages specified in Rules 326(a) and 326(b) of the Rules of the Board
of Directors of the Exchange during the six months immediately preceding the
date of the dissolution, may be postponed for a period of up to (6) six months
of the stated date of dissolution, as the Managing Committee may deem necessary
to ensure compliance with said rules, and any such capital so retained by the
Firm after the date of dissolution shall continue to be subject to all debts and
obligations of the Firm.
ARTICLE VIII
MISCELLANEOUS
SECTION 1.23. Conformity OF COMPANY AGREEMENT TO EXCHANGE
REQUIREMENTS. This Agreement and all matters and things to be done and performed
in connection with the Company business shall be subject to the Constitution,
Rules, Regulations and requirements, so far as applicable thereto, of the
Exchange and shall be conducted strictly in compliance therewith. If any of the
terms, covenants and conditions of this Agreement shall be in conflict with any
provision of the Constitution, Rules, Regulations or requirements of the
Exchange, the same shall be deemed modified so as to conform therewith.
SECTION 1.24. NO ASSIGNMENT. The Member may not assign or encumber its
interest in the Company without the prior written consent of the Exchange and of
the Managing Committee.
SECTION 1.25. ARBITRATION. In the event that any dispute or
controversy arises under or in connection with this Agreement, such dispute or
controversy, except as otherwise expressly provided herein, shall be submitted
for binding arbitration to the Exchange in accordance with the Rules and
procedures of the Exchange then obtaining.
SECTION 1.26. PROVISIONS FOR ADMINISTRATIVE CONVENIENCE. The members
of the Managing Committee shall have full power and authority on behalf of the
Member, at any time and from time to time, in accordance with the rules of any
national securities exchange (a) to designate one or more persons (i) to assign
securities registered in the name of the Company, (ii) to execute powers of
substitution, (iii) to guarantee the signatures of others to assignments of
securities, and (iv) to make any certification or guarantee of any signature on
documents submitted in support of the transfer of any securities, all with the
same effect as if the name of the Company had been signed under like
circumstances by the Managing Committee, (b) to adopt and authorize the use of a
mechanically reproduced facsimile signature of the Company in connection with
(i) the assignment of securities registered in the name of the Company, and (ii)
the execution of powers of substitution, (c) to designate one or more of the
employees of the Member or the Firm to sign written contracts covering "seller
option", "when issued" and "when distributed" transactions in the name of the
Company with the same effect as if the name of the Company had been signed under
like circumstances by the Managing Committee, and (d) to execute and file with
any national securities exchange, in the name and on behalf of the Company, and
the Member, any and all such powers of
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attorney, agreements and other instruments (including agreements of
indemnification) as may by such exchange be required to evidence or support
action under subsection (a), (b) or (c) of this Section 8.04.
SECTION 1.27. PUBLIC FILINGS. The Member hereby irrevocably
constitutes and appoints Xxxxxx X.X. XxXxxxxxx, XX and Xxxxx X. Xxxxxxxxx, each
acting singly, as its true and lawful representatives and attorneys-in-fact, in
its name, place and stead to execute and deliver such instruments, documents,
certificates or other writings, which may from time to time be necessary under
the laws of the United States of America, the State of New York or any other
jurisdiction or under the rules of any political subdivision or agency thereof,
to effectuate, implement and continue the valid and subsisting existence of the
Company with the same force and effect as if such instrument, document,
certificate or other written instrument had been personally executed by such
party. Such representatives and attorneys-in-fact shall not, however, have any
right, power or authority themselves to amend or modify this Agreement when
acting in such capacity. This power of attorney is coupled with an interest and
shall continue in full force and effect notwithstanding the subsequent
bankruptcy of the Member.
SECTION 1.28. NOTICES. All notices permitted or required hereunder
shall be in writing and shall be deemed duly given if (a) delivered personally
to the person for whom intended or (b) mailed to the person for whom intended,
by registered or certified mail, return receipt requested, addressed to the
Member's address set forth in this Agreement. Such notice shall be deemed to
have been given when so delivered personally or upon mailing. Notice given to
any two members of the Managing Committee shall constitute notice to the
Company.
SECTION 1.29. GENERAL PROVISIONS. This Agreement (a) reflects the
entire agreement among the parties, (b) from and after the effective date
hereof, supersedes all prior partnership or limited liability company operating
agreements among the parties hereto, (c) shall be construed in accordance with
the internal law, not the law of conflicts, of the State of New York, and (d)
shall be binding upon and inure to the benefit of the parties hereto, their
respective legal representatives, heirs, executors and administrators and any
continuing or successor partnership, corporation, limited liability company or
other entity succeeding to substantially all the business of the Company.
SECTION 1.30. ARTICLE AND SECTION TITLES. The headings used herein are
for convenience only and shall not be resorted to for interpretation of this
Agreement.
SECTION 1.31. SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable, and if, for any reason, any provision
or provisions herein are determined to be invalid and contrary to any existing
or future law, such invalidity shall not impair the operation of or affect those
portions of this Agreement which are valid.
SECTION 1.32. EFFECTIVE DATE. This Agreement shall be and becomes
effective as of the date first above written, subject to approval by the
Exchange.
SECTION 1.33. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, all of which taken together shall constitute but one and the
same agreement.
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IN WITNESS WHEREOF, the Member and the Company have executed this Agreement
as of the date set forth hereinabove.
XxXXXXXXX & CO INC.
By:
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Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Chairman and Chief Executive Officer
LaB INVESTING CO. L.L.C.
By:
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Name: Xxxxxx X.X. XxXxxxxxx, XX
Title: Managing Committee member
By:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Committee member
By:
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Committee member
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