RESTATED AGREEMENT OF LIMITED PARTNERSHIP, made as of
September 1, 1983 by and among XXXX X. XXXXXXXXXXX, XXXXX X.
XXXXXXXXXXX, XXXXX XXXXX PIER, XXXXX X. XXXXXXXXXXX, XXXXXX
XXXXXXX, XXXX X. XXXXXX, XXXXX X. XXXXX, XXXXXX X. XXXXX,
XXXXX X. XXXXXX, and XXXXXX X. XXXX, being all of the parties to
the Restated Agreement of Limited Partnership of Glickenhaus &
Co. made as of February 1, 1981, as amended (the "Limited
Partnership Agreement").
PREAMBLE
The Limited Partnership Agreement is hereby further amended
effective September 1, 1983 and the entire agreement as thus amended is set
forth below and substituted for all of the provisions of the existing agreement.
ARTICLE I. Formation and Purposes
The parties have heretofore formed and shall hereafter
continue a limited partnership (hereinafter referred to as the "Partnership")
pursuant to Article 8 of the New York Partnership Law. The Partnership shall
engage in business under the firm name of GLICKENHAUS & CO. The business of the
Partnership shall be the following:
(1) as dealers, to buy, hold and sell securities
of all types;
474147.1
(2) as brokers, to buy, hold and sell securities
of all types;
(3) to buy, hold and sell securities of all
types for investment;
(4) all and any business activities related to
the foregoing.
ARTICLE II. General Partners and Limited Partners
XXXX X. XXXXXXXXXXX, XXXXXX XXXXXXX, XXXX X. XXXXXX,
XXXXX X. XXXXX, XXXXXX X. XXXXX, XXXXX X. XXXXXX, and XXXXXX X.
XXXX shall be the general partners. XXXXX X. XXXXXXXXXXX, XXXXX
XXXXX PIER and XXXXX X. XXXXXXXXXXX shall be limited partners.
ARTICLE III. Term
(A) The Partnership term shall end on December 31, 1990,
unless sooner ended as provided in paragraph (B) below.
(B) Except as otherwise provided in paragraph (C) below, the
Partnership term shall end upon the occurrence of any one of the following:
(1) the death of any general partner;
(2) the entry by a court of competent
jurisdiction of a decree adjudicating any general partner to
be incompetent, or the appointment of a committee of his
person or property;
-2-
474147.1
(3) the incapacitation of any general partner to
an extent rendering him unable to perform the obligations of
management undertaken by him in this Agreement;
(4) the making by any general partner of an
assignment for the benefit of creditors or the filing by him of a
petition in bankruptcy or a petition for relief under any section of
the Bankruptcy Act or any other bankruptcy or insolvency statute, or an
adjudication by a court of competent jurisdiction that he is bankrupt
or insolvent;
(5) the withdrawal of any general partner from
the Partnership; or
(6) a change in the ownership of the
participating interest of any general partner.
(C) Despite the occurrence of one or more of the events set
forth in paragraph (B) with respect to one or more (but fewer than all) of the
general partners, the Partnership term shall not end and the Partnership shall
not be dissolved if (1) the remaining general partners include either XXXX X.
XXXXXXXXXXX or XXXXXX XXXXXXX, and (2) such of these two as remain general
partners shall agree to continue the Partnership (or, in the event of a single
remaining general partner, he shall so decide). If the remaining general
partner(s) so decide, then the Partnership shall continue but the interest of
each general partner with respect to whom one of the events in paragraph (B) has
occurred shall terminate as of the date of that event and his capital interest
as of that date, together with his share of net
-3-
474147.1
profits and other compensation as of that date and not previously paid, shall be
paid promptly to him or his representatives (subject, in the case of XXXX X.
XXXXXXXXXXX, to the provisions for delayed payment in subparagraph V(B)(3)).
ARTICLE IV. Management
(A) The general partners shall carry on, manage, and have full
control of the Partnership business, and shall use their best efforts to further
the interest of the Partnership. No limited partner shall take any part
whatsoever in the management or control of the Partnership business.
(B) XXXX X. XXXXXXXXXXX shall be reimbursed in an amount not
to exceed per year for expenses incurred by him on behalf of the Partnership
during each year. Such reimbursement shall be made currently in equal monthly
installments.
(C) (1) XXXXX X. XXXXX contributes the use of his membership
in the New York Stock Exchange (the "Exchange") to the Partnership and agrees
that, insofar as may be necessary for the protection of creditors of the
Partnership, subject to the Constitution and Rules of the Exchange, the proceeds
of the transfer of his membership shall be an asset of the Partnership.
(2) Upon the death of XXXXX X. XXXXX and provided
that at that time he is a member of the Exchange and is the sole general partner
of the Partnership who is such a member, the remaining partners may either (a)
continue the Partnership without dissolution under the terms of paragraph
III(C), or
-4-
474147.1
(b) form a new firm to continue the business of the present Partnership, and, in
either such event, XXXXX X. XXXXX hereby agrees that the continuing Partnership
or the new firm formed as aforesaid (as the case may be), if permitted by the
Exchange to have the status of a member firm, shall be entitled to have the use
of his membership on such Exchange from the date of his death until the
termination of such status by such continuing Partnership or new firm or until a
member of the Exchange is admitted to such Partnership or new firm as a general
partner, and that, insofar as may be necessary for the protection of creditors
of the Partnership or new firm, and subject to the Constitution and Rules of the
Exchange, the proceeds of the transfer of his membership shall be an asset of
the Partnership or new firm during such period, and any claims of his Estate
thereto shall be fully and completely subordinated in right of payment to the
claims of any and all creditors of such Partnership or of both the Partnership
and the new firm.
(3) Subject to subparagraph (C)(2) above,
XXXXX X. XXXXX (or his legal representative) shall have the right, upon either
(a) the termination of the Partnership or (b) the occurrence with respect to him
of one of the terminating events in paragraph III(B) (even if the Partnership is
then continued pursuant to paragraph III(C)), to elect, by giving written notice
thereof to the Partnership, to retain his membership in the Exchange upon
payment to the Partnership of the amount necessary to purchase another
membership, together with
-5-
474147.1
such transfer and other fees as may be required by the Exchange to be paid in
connection with the purchase of a membership. This right of election shall
continue during a period of thirty (30) days after termination of the
Partnership or occurrence of the terminating event (as the case may be), except
that in the event of the death or incompetency of XXXXX X. XXXXX, his right of
election shall be deemed to expire ten (10) days after the appointment of his
legal representative or committee. Upon the Partnership receiving notice in
writing within the above-mentioned period that XXXXX X. XXXXX (or his legal
representative or committee) elects not to retain said membership, or upon the
expiration of said period without any such notice of election having been given
to the Partnership, then, at the option of the Partnership, XXXXX X. XXXXX (or
his legal representative or committee) shall, forthwith, either
(i) sell his membership and pay the proceeds over
to the Partnership; or
(ii) transfer his membership for a nominal
consideration to a person designated by the Partnership
and satisfactory to the Board of Governors of the
Exchange.
All monies received by the Partnership by virtue of the exercise of either of
the options provided for in clause (i) or (ii) above shall be distributed to the
partners of the Partnership in proportions equal to their respective interests
in the profits and losses of the Partnership.
-6-
474147.1
ARTICLE V. Capital Interests
(A) As of August 31, 1983, the partners have
contributed to the capital of the Partnership, in cash or property, the sums
indicated on Schedule A attached hereto. The term "capital interest" means the
original capital contribution of a partner, less any charges against and any
withdrawals of, plus any credits toward and any additions to, such original
capital contribution.
(B) (1) All securities, cash and other property of any kind or
nature and all interests therein which may from time to time be held by the
Partnership for each general partner respectively, or on his behalf, including
all securities, cash or other property segregated or in a safekeeping account,
shall forthwith upon the receipt thereof by the Partnership become and be
Partnership property and shall be treated for all purposes as capital
contributed by each such general partner; provided, however, that solely for the
purpose of determining the rights of the general partners among themselves, all
profits, losses, income and charges in connection with such securities, cash,
property and interests therein shall be credited or charged to each general
partner's respective individual account and shall not be treated as Partnership
income or expense, and, upon the termination of the Partnership, each such
general partner shall be considered as having a claim against the Partnership
with respect to such securities, cash, property and interests therein, which
claim shall be subordinate in right of payment and subject
-7-
474147.1
to the prior payment or provision for payment in full of claims of all present
and future creditors of the Partnership and any successor partnership in which
he may be a general partner, arising out of any matters occurring before the
termination of the Partnership or such successor partnership.
(2) So long as the Partnership is continued,
pursuant to paragraph III(C) or otherwise, and XXXX X. XXXXXXXXXXX remains a
partner thereof, the interest of XXXXX X. XXXXXXXXXXX shall not be terminated by
her death or any other cause and she shall not withdraw therefrom and she
covenants and agrees for herself and her representatives that the capital
contributed by her to the Partnership shall be retained in the Partnership.
(3) In the event that XXXX X. XXXXXXXXXXX ceases
to be a partner (whether by reason of death, withdrawal or otherwise) and the
Partnership is continued by the remaining general partners under paragraph
III(C), then the interest of both XXXX X. XXXXXXXXXXX and XXXXX X. XXXXXXXXXXX
shall terminate on the date that he ceases to be a partner, but each of them
covenants and agrees for himself (or herself) and his (or her) representatives
that one-half of the capital contributed by him (or her) to the Partnership may
be retained by the Partnership and remain at risk for no longer than nine (9)
months after XXXX X. XXXXXXXXXXX shall cease to be a partner and the remainder
of his (or her) capital may be retained and at risk for no longer than two (2)
years after he shall cease to be a partner. Each of
-8-
474147.1
them shall continue to receive the share of net profits specified in paragraph
VII(C) for so long as his (or her) full capital is retained and shall continue
to receive a lesser share of net profits (reduced by the same proportion as his
(or her) capital remaining in the Partnership has been reduced) for so long as
any of his (or her) capital is retained.
(4) Except as otherwise provided in subparagraphs
(B)(2) and (B)(3) above and in paragraph IV(C), if any general partner for whom
property is held by the Partnership under subparagraph (B)(1) above ceases to be
a partner (whether by reason of death, withdrawal or otherwise) and the
Partnership is continued by the remaining or surviving partners, with or without
other partners, or a successor firm is formed by the remaining or surviving
partners with or without other partners, then such continuing Partnership or
successor firm shall, subject only to the requirements of the Exchange and the
provisions of Article X of this Agreement, have no right to retain or hold such
property but shall promptly pay out the same to such general partner or his
personal representative.
ARTICLE VI. Provision Against Admission and Transfer
No person other than the parties hereto may be admitted
into the Partnership, no person may be substituted as a partner in place of any
one of the parties hereto, and no partner may sell, assign, transfer, mortgage,
pledge or otherwise encumber or dispose of his interest in the Partnership or
any part thereof.
-9-
474147.1
ARTICLE VII. Salaries and Division of Profit
(A) The following amounts shall be paid as salary, and
shall be payable whether or not the Partnership has net profits:
(1) XXXX X. XXXXXXXXXXX
(2) XXXXXX XXXXXXX --
(3) XXXX X. XXXXXX --
(4) XXXXXX X. XXXXX --
(5) XXXXX X. XXXXXX --
(6) XXXXXX X. XXXX --
(B) XXXXX X. XXXXX shall be entitled to receive annually,
whether or not the Partnership has net profits, the greater of (i) or (ii) an
amount equal of the net profits of the Special Arbitrage Account (the
"Account"). Net profits of the Account shall be all gains, profits, dividends
and interest earned in the Account less all expenses for running the Account.
Such expenses shall include, but not be limited to, items such as brokerage,
clearance and settlement charges, interest on debit balances and an allocation
of the overhead expenses of the Partnership appropriate attributable to the
operation of the Account, which allocation shall be determined by the
Partnership's accountant, such determination to be final and binding on the
parties hereto.
(C) The net profits of the Partnership for each year (after
the payments under paragraphs (A) and (B) above) shall be divided among the
partners as follows:
-10-
474147.1
(1) To the extent of the net profits available,
there first shall be allocated to each of the partners who has a capital
interest an amount equal to the sum of the products, for each month during the
year, of (a) the average of the prime interest rate of The Bank of New York on
the first and last business days of the month times (b) the amount of his or her
capital interest during such month.
(2) There shall then be allocated to each of the
partners a share of the remaining net profits as follows:
XXXX X. XXXXXXXXXXX
XXXXX X. XXXXXXXXXXX
XXXXX XXXXX PIER
XXXXX X. XXXXXXXXXXX
XXXXXX XXXXXXX
XXXX X. XXXXXX
XXXXX X. XXXXX
XXXXXX X. XXXXX
XXXXX X. XXXXXX
XXXXXX X. XXXX
Except as otherwise provided in subparagraph V(B)(3), no partner shall have any
interest in any remaining net profits which may accrue after he or she shall
cease to be a partner, and his or her share thereof shall be allocated among the
remaining partners in proportion to their shares in the remaining net profits of
the Partnership.
-11-
474147.1
Net profits of the Partnership for any year which are
allocated to a partner but not paid out to him or her during such year or within
one hundred twenty (120) days thereafter shall be added to such partner's
capital interest.
ARTICLE VIII. Losses
To the extent of their capital interests, net losses shall be
borne by the partners in the same proportions as remaining net profits are
divided as set forth in subparagraph VII(C)(2). No losses, nor any part of any
losses, shall be charged against or borne by any limited partner except to the
extent of his or her capital interest. Net losses in excess of the aggregate
capital interests shall be borne by the general partners in proportion to their
respective shares in net profits as set forth in subparagraph VII(C)(2). (For
example, if all seven of the present general partners are general partners at
the time of the loss, then XXXX X. XXXXXX'x share of such net losses in excess
of aggregate capital interests shall be a fraction the numerator of which is and
the denominator of which is
.)
In the event that the Partnership shall make any charitable
contribution, no part thereof shall be charged to any limited partner unless he
or she shall consent thereto in writing. The entire amount of such contribution
shall be charged to the general partners and any consenting limited partners in
the same ratio as their respective capital interests (as defined
-12-
474147.1
in Article V) at the beginning of the year in which such contribution is made
shall bear to each other. If such contribution is made in the form of securities
or other property which shall have appreciated or depreciated in value, the
limited partners shall be credited or charged with their proportionate shares of
such appreciation or depreciation, notwithstanding the fact that the
non-consenting limited partners are not to be charged with the contribution
itself and notwithstanding the fact that the general partners and consenting
limited partners are to be charged according to the value of the property at the
time of the contribution.
ARTICLE IX. Withdrawals
Subject to the provisions of subparagraphs V(B)(2) and
V(B)(3), any partner may withdraw from the Partnership at any time by giving
written notice of his or her election to do so. Six (6) months after the giving
of such notice (or at such earlier time as the Exchange shall approve), the
Partnership shall pay to such withdrawing partner his or her capital interest as
of the date of such notice, together with the net profits and other compensation
allocable to him or her as of such date and not previously paid.
ARTICLE X. Liquidation
At the end of the Partnership term, the completion of
any incomplete transactions and the taking of such action as
-13-
474147.1
shall be necessary for the winding up of the Partnership business and the
payment to each partner of his capital interest (together with the net profits
allocable to him and not previously paid) shall be conducted by the general
partners, or, if the Partnership shall be ended by reason of the occurrence of
any of the events listed in paragraph III(B), it shall be conducted as follows:
(1) If the event shall have occurred with respect
to any partner other than XXXX X. XXXXXXXXXXX, it shall be
conducted by XXXX X. XXXXXXXXXXX.
(2) If the event shall have occurred with respect to
XXXX X. XXXXXXXXXXX, it shall be conducted by a liquidator or
liquidators (if possible, a partner or partners) selected by a majority
in number of all the then partners (or in the event of death or
incompetency of any such partner, the personal representative or
committee of such partner).
ARTICLE XI. New Firm to Continue Business of
the Partnership
(A) If the Partnership shall be ended by reason of the
occurrence of any of the events listed in paragraph III(B) with respect to
XXXXXX XXXXXXX, the remaining partners not having elected to continue the
Partnership pursuant to paragraph III(C), then XXXX X. XXXXXXXXXXX, together
with such other parties as are then partners who may choose to join with him,
may form a new firm (hereinafter called the "new firm") to continue the business
-14-
474147.1
of the Partnership, and the new firm shall be entitled to the
benefit and use of the Partnership name and goodwill.
(B) Notwithstanding any contrary provision in this Agreement,
in the event of the termination of the Partnership on the expiration of the term
of this Agreement, or any extension or renewal thereof, each partner agrees that
withdrawals of capital on any such termination which would cause the
Partnership's aggregate indebtedness, as determined in accordance with Rule 325
of the Exchange, to exceed the percentages specified in Rules 326(a) and 326(b)
of such Rules during the six (6) months immediately preceding the date of
termination, may be postponed for a period of up to six (6) months from the
stated date of termination, as the general partners may deem necessary to insure
compliance with such Rules; and any such capital so retained by the Partnership
after the date of termination shall continue to be subject to all debts and
obligations of the Partnership.
______________________
XXXX X. XXXXXXXXXXX
______________________
XXXXX X. XXXXXXXXXXX
______________________
XXXXX XXXXX PIER
______________________
XXXXX X. XXXXXXXXXXX
______________________
XXXXXX XXXXXXX
-15-
474147.1
_______________________
XXXX X. XXXXXX
_______________________
XXXXX X. XXXXX
_______________________
XXXXXX X. XXXXX
_______________________
XXXXX X. XXXXXX
_______________________
XXXXXX X. XXXX
-16-
474147.1
