AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ESSEX HOLDINGS, LLC
Exhibit
10.7
AMENDED
AND RESTATED
OF
ESSEX
HOLDINGS, LLC
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”),
dated
as of October 31, 2008, between ▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”),
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”),
▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ (“▇’▇▇▇▇▇▇”),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”),
and
Hyde Park Acquisition Corp., a Delaware corporation (“HPAC”).
WHEREAS,
Kirtland Capital Partners III L.P., an Ohio limited partnership, Kirtland
Capital Company III LLC, a Turks and Caicos Island limited liability company,
and ▇▇▇▇▇ entered into a Limited Liability Company Agreement, dated as of May
23, 2000 (the “Original
Agreement’),
with
respect to the Company;
WHEREAS,
such Limited Liability Company Agreement was amended as of May __, 2001 to
provide for the addition of Kroll and ▇’▇▇▇▇▇▇ as members of the Company, and
▇▇▇▇▇ was subsequently admitted as a member of the Company (Kroll, ▇’▇▇▇▇▇▇ and
▇▇▇▇▇, along with the initial members of the Company, are referred to as the
“Original
Members”);
WHEREAS,
the Original Members entered into that certain Purchase Agreement, dated as
of
March 6, 2008, (the “Purchase
Agreement”)
among
the Company, Essex Crane Rental Corp. and HPAC, pursuant to which HPAC acquired
the majority of the interests in the Company;
WHEREAS,
in connection with the Purchase Agreement, the parties hereto agreed that Schad,
Kroll, ▇’▇▇▇▇▇▇ and ▇▇▇▇▇ would retain certain interests in the Company, subject
to the terms of this Agreement;
WHEREAS,
the parties hereto have determined to amend and restate the Original Agreement,
which shall be superseded and replaced in all respects; and
WHEREAS,
the Company will elect to be treated as a corporation for tax purposes upon
consummation of the transactions contemplated by the Purchase
Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and subject to the terms and conditions set
forth
herein, the parties hereby agree as follows:
ARTICLE
ONE
Definitions
The
defined terms used in this Agreement shall, unless the context otherwise
requires, have the meanings specified in this Article
One.
“Act”
shall
mean the Delaware Limited Liability Company Act, 6 Del. L. § 18-101, et seq., as
it may be amended from time to time, and any successor to the Act.
“Business
Day”
shall
mean any day except Saturday, Sunday and any day which shall be a federal legal
holiday in the United States or a day on which banking institutions in the
State
of New York are authorized or required by law or other government action to
close.
“Class
A Unitholder”
shall
mean any holder of Class A Units.
“Class
B Unitholder”
shall
mean any holder of Class B Units.
“Certificate
of Formation”
shall
mean the Company’s Certificate of Formation as filed with the Secretary of State
on May 4, 2000, as the same may be amended, supplemented or restated from time
to time.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of any succeeding law).
“Company”
shall
mean Essex Holdings, LLC, a Delaware limited liability company.
“Distributive
Rights”
shall
mean a Unitholder’s right to receive distributions under this
Agreement.
“HPAC
Common Stock”
shall
mean shares of common stock, par value $0.0001 per share, of HPAC.
“Managing
Unitholder”
shall
mean HPAC, or its successor or assign.
“Person”
shall
mean any individual, partnership, corporation, limited liability company,
unincorporated organization or association, trust or other entity.
“Secretary
of State”
shall
mean the Delaware Secretary of State.
“Transfer”
shall
mean any sale, transfer, gift, assignment, pledge or grant of a security
interest, by operation of law or otherwise, in or of a Unit or other interest
in
the Company or of rights under this Agreement, excluding, however, any grant
of
such a security interest in favor of the Company.
2
“Unit”
means an
interest of a Unitholder in the equity of the Company, representing a fractional
part of the equity interests of all Unitholders and shall include Class A Units
and Class B Units; provided, that any class or group of Units issued shall
have
the relative rights, powers, and duties set forth in this
Agreement.
“Unitholder”
means
any owner of one or more Units as reflected on the Company’s books and records,
and any person admitted to the Company as a Substituted Unitholder, but only
for
so long as such person is shown on the Company’s books and records as the owner
of one or more Units.
ARTICLE
TWO
Organization
2.1 Formation;
Continuation.
The
Company was formed as a limited liability company pursuant to the provisions
of
the Act upon the execution and filing of the Certificate of Formation with
the
Secretary of State on May 4, 2000. The Unitholders do hereby continue the
Company as a limited liability company pursuant to the provisions of the Act
and
this Agreement. Notwithstanding anything to the contrary contained herein,
neither the acquisition of interests in the Company referred to in the preamble
to this Agreement nor the amendment and restatement contained herein is intended
to be, or shall be, a termination (other than solely for income tax purposes)
of
the limited liability company created by and pursuant to the terms and
provisions of the Original Agreement, as amended (as now being continued
pursuant to the terms and provisions of this Agreement), it being the intent
of
the Unitholders to continue the Company’s existence without
termination.
2.2 Name.
The
name of the Company is “Essex Holdings, LLC.”
2.3 Purposes.
The
purposes for which the Company is formed are as follows: to engage in any lawful
act or activity for which limited liability companies may be organized under
the
laws of the State of Delaware and to do all things necessary or useful in
connection with the foregoing.
2.4 Offices. The
Company’s principal place of business and mailing address shall be c/o Hyde Park
Acquisition Corp., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as the Managing Unitholder
may
from time to time designate. The office in Delaware shall be located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other location as the Managing
Unitholder may from time to time designate.
2.5 Duration.
The
term of the Company commenced on the date that the Certificate of Formation
was
filed with the Secretary of State and shall continue in full force and effect
until terminated in accordance with the provisions of this Agreement.
2.6 Unitholders
and Units.
The
Company is authorized to issue two classes of Units to be designated
respectively as “Class
A Units”
and
“Class
B Units.”
The
total number Class A Units that the Company is authorized to issue is 632,911.
The total number of Class B Units that the Company shall have authority to
issue
is 150,000,000. The Unitholders shall own the number and class of Units in
the
Company as set forth on Schedule
I
hereto.
The Managing Unitholder may issue additional Units, or create and issue new
classes of Units, at such times and on such terms as the Managing Unitholder
shall determine. Unless named in this Agreement, or unless admitted to the
Company as a substituted or new Unitholder as provided herein, no Person shall
be considered a Unitholder or a member, and the Company need deal only with
the
Unitholders so named and so admitted. The Company shall not be required to
deal
with any other Person by reason of an assignment by a Unitholder or by reason
of
the dissolution, death or bankruptcy of a Unitholder, except as otherwise
provided in this Agreement.
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2.7
Capital.
No
Unitholder shall be required to make any contribution of capital to the Company
and, except as set forth below, no Unitholder shall be entitled to withdraw
any
part of his or its capital from the Company. No Unitholder shall be entitled
to
demand or receive any property from the Company other than cash except as
expressly provided herein. No Unitholder shall be paid interest on any capital
contributed to the Company. The Managing Unitholder shall have the right to
contribute and withdraw capital from the Company in such amounts and at such
times as the Managing Unitholder shall determine.
2.8
Management;
Voting.
The
overall business, operations and affairs of the Company shall be managed by
the
Managing Unitholder, and the conduct of the Company’s day to day business shall
be controlled and conducted solely and exclusively by the Managing Unitholder.
In addition to and not in limitation of any rights and powers conferred by
law
or other provisions of this Agreement, the Managing Unitholder shall have and
may exercise on behalf of the Company all powers and rights necessary, proper,
convenient or advisable to effectuate and carry out the purposes, business
and
objectives of the Company. No other Unitholder shall have any voting, consent
or
approval rights of any nature whatsoever, whether as a class or otherwise,
or
the right to participate in the management or conduct of the Company. No other
Unitholder shall transact business for the Company, nor shall any other
Unitholder have power to sign, act for or bind the Company, all of such powers
being vested solely and exclusively in the Managing Unitholder.
ARTICLE
THREE
Unitholders
Not Liable for Company Losses; Indemnification
3.1
No
Personal Liability.
The
Unitholders shall have no personal liability for the losses, debts, claims,
expenses or encumbrances of or against the Company or its property.
3.2
Right
to Indemnification.
Each
Person (an “Indemnified
Person”)
who was
or is made a party or is threatened to be made a party to or is involved in
any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (a “Proceeding”),
or any
appeal in such a Proceeding, by reason of the fact that he or it was or is
a
manager or Unitholder of the Company, shall be indemnified by the Company
against judgments and penalties (including excise and similar taxes and punitive
damages), fines, settlements and reasonable costs and expenses (including,
without limitation, attorneys’ fees) actually incurred by such Indemnified
Person in connection with such Proceeding unless a judgment or other final
adjudication adverse to such Indemnified Person establishes that his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated or that he personally
gained in fact a profit or other advantage to which he was not legally
entitled.
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3.3 Success
on Merits.
To the
extent that a Person has been successful, on the merits or otherwise, in the
defense of any Proceeding referred to in Sections
3.2
or in
defense of any claim, issue or matter therein, such Person shall be indemnified
against expenses (including attorneys’ fees and disbursements) actually and
reasonably incurred by such Person in connection therewith.
3.4 Survival.
Indemnification under this Article shall continue as to a Person who has ceased
to serve in the capacity which initially entitled such Person to indemnity
hereunder. The rights granted pursuant to this Article shall be deemed contract
rights, and no amendment, modification or repeal of this Article shall have
the
effect of limiting or denying any such rights with respect to actions taken
or
Proceedings arising prior to any such amendment, modification or
repeal.
3.5 Advance
Payment.
The
right to indemnification conferred by this Article shall include the right
to be
paid or reimbursed by the Company for the reasonable expenses incurred in
advance of the final disposition of the Proceeding and without any determination
as to the Person’s ultimate entitlement to indemnification; provided,
however,
that
the payment of such expenses incurred in advance of the final disposition of
a
Proceeding shall be made only upon delivery to the Company of a written
affirmation by such Person of his good faith belief that he has met the standard
of conduct necessary for indemnification under this Article and a written
undertaking, by or on behalf of such Person, to repay all amounts so advanced
if
it shall ultimately be determined that such Person is not entitled to be
indemnified under this Article or otherwise.
3.6
Savings
Clause.
If this
Article or any portion thereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify and
hold harmless each Indemnified Person as to costs, charges and expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
with respect to any Proceeding to the full extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE
FOUR
Distributions
4.1
Distributions
Generally.
The
timing and amount of any distributions of funds of the Company shall be
determined by the Managing Unitholder. The Managing Unitholder may authorize
distributions to one or more classes of Unitholders without providing for
distributions to all or any other class of Unitholders. For the avoidance of
doubt, Class A Unitholders shall only be entitled to distributions from the
Company with respect to their Class A Units as provided in Section
4.2.
5
4.2
Class
A Distributions.
In the
event that HPAC sets a record date for the payment of a cash dividend to holders
of HPAC Common Stock, concurrent with the payment of such dividend by HPAC,
each
holder of Class A Units as of such record date shall be entitled to receive
a
cash distribution from the Company with respect to each Class A Unit held as
of
such record date equal to the amount of the dividend payable in respect of
the
number of shares of HPAC Common Stock into which such Class A Unit is
exchangeable as of such record date pursuant to Article Six hereof. Any such
distribution shall be made by the Company on the date of payment of the
applicable dividend by HPAC.
ARTICLE
FIVE
Transfers
of Units
5.1
Transfers
of Units.
No
Class A Unitholder shall have the right to Transfer all or any portion of his
or
its Units, except with the consent of the Managing Unitholder or as otherwise
permissible under this Agreement; provided,
however,
that
during the lifetime of a Class A Unitholder who is a natural person such
Unitholder’s Distributive Rights may be transferred to one or more members of
such Unitholder’s Immediate Family (or to one or more trusts established solely
for the benefit of such Unitholder and/or one or more members of such
Unitholder’s Immediate Family or to one or more partnerships or limited
liability companies in which the only partners or members, as the case may
be,
are such Unitholder and/or members of such Unitholder’s Immediate Family), and
upon the death of a Unitholder or any such transferee who is a natural person,
such Distributive Rights may be transferred to his estate or beneficiaries,
but
such transferee(s) shall acquire no other rights hereunder unless admitted
as
Unitholders in accordance with the provisions of Section
5.2.
A Class
B Unitholder shall have the right to freely Transfer all or any portion of
its
Units.
5.2
Substitute
Unitholders.
Notwithstanding anything to the contrary contained in this Agreement, an
assignee of a Unit shall have the right to become a substituted Unitholder
(a
“Substituted
Unitholder”)
in the
Company only if (1) the consent of the Managing Unitholder has been obtained
(which consent may be granted or withheld in the sole and absolute discretion
of
the Managing Unitholder, except that such consent shall be granted in the case
of a transfer permitted by the proviso in Section 5.1 hereof), (2) the assignor
so provides in an instrument of assignment, (3) the assignee agrees in writing
to be bound by the terms of this Agreement, and (4) the assignee pays the
reasonable costs incurred by the Company in preparing and recording any
necessary amendments to this Agreement and the Certificate of Formation, unless
waived by the Managing Unitholder. The foregoing requirements shall be deemed
satisfied with respect to Transfers of Class A Units to HPAC pursuant to
Section
6.1
hereof,
and HPAC shall be admitted to the Company as a Substituted Unitholder.
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ARTICLE
SIX
Exchange
Right
6.1 Exchange
Right.
Each
Class A Unitholder shall have the right, at any time and from time to time
and
without the need for consent from the Managing Unitholder (except as required
in
the proviso in this Section
6.1),
to
exchange any or all of his or its Units into shares of HPAC Common Stock;
provided,
however,
a Class
A Unitholder shall not be permitted to effectuate an exchange pursuant to this
Section
6.1
with
respect to a number of Class A Units representing less than 25% of the total
Class A Units held by such Class A Unitholder as of the date of this Agreement
unless such Class A Unitholder has first obtained the consent of the Managing
Unitholder. A Class A Unitholder shall exercise its right under this
Section
6.1
by
delivering to the Company a notice in the form attached hereto as Annex A (a
“Notice
of Exchange”)
specifying therein the number of Units to be exchanged and the date on which
such exchange is to be effected (an “Exchange
Date”),
which
Exchange Date shall not be earlier than the date which is five (5) Business
Days
after the date of such Notice of Exchange. An exchange of Class A Units for
HPAC
Common Stock hereunder shall constitute a Transfer of Class A Units to HPAC
by
the applicable Class A Unitholder. The Company shall maintain records showing
the number of Units exchanged and the date of such exchanges, which Company
records, absent error, shall be controlling and determinative.
6.2 Calculation
of Exchange.
Each
Class A Unit shall be exchangeable for one share of HPAC Common Stock (such
exchange ratio, the “Exchange
Ratio”
and
the
shares deliverable upon an exchange of Class A Units, the “Exchange
Shares”),
as
adjusted pursuant Section
6.6
hereof.
6.3 Certificates. Subject
to the terms of that certain Escrow Agreement, dated as of even date herewith,
among the Purchaser, the Original Members and Key Bank, N.A., on or as soon
as
reasonably practicable after an Exchange Date, HPAC will cause its transfer
agent to deliver to the applicable Class A Unitholder a certificate or
certificates representing the Exchange Shares deliverable on such Exchange
Date.
Each such certificate shall bear the following restrictive legend:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF APPLICABLE
STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM.
7
6.4 Reservation
of Shares.
HPAC
covenants that it will at all times reserve and keep available out of its
authorized and unissued shares of HPAC Common Stock solely for the purpose
of
issuance upon exchange of the Units, each as herein provided, free from
preemptive rights or any other actual contingent purchase rights of persons
other than the Class A Unitholders, not less than such number of shares of
HPAC
Common Stock as shall be issuable (taking into account the adjustments and
restrictions of Section
6.6)
upon
the exchange of the aggregate number of Class A Units. HPAC covenants that
all
shares of HPAC Common Stock that shall be so issuable shall, upon issue, be
duly
and validly authorized, issued and fully paid, nonassessable.
6.5 Fractional
Shares. HPAC
shall not issue stock certificates representing fractions of shares of HPAC
Common Stock deliverable on an Exchange Date, but instead shall round up the
number of Exchange Shares issuable on an Exchange Date to the next whole share
of HPAC Common Stock.
6.6 Adjustments.
6.6.1 If
outstanding shares of the HPAC Common Stock shall be subdivided into a greater
number of shares, or a dividend in shares of HPAC Common Stock or other
securities of HPAC convertible into or exchangeable for HPAC Common Stock (in
which latter event the number of shares of HPAC Common Stock issuable upon
the
conversion or exchange of such securities shall be deemed to have been
distributed) shall be paid to holders of HPAC Common Stock, or if outstanding
shares of HPAC Common Stock shall be combined into a smaller number of shares,
in each case, the Exchange Ratio in effect immediately prior to such subdivision
or combination or at the record date of such dividend, as applicable, shall,
simultaneously with the effectiveness of such subdivision or combination or
immediately after such record date, as applicable, be appropriately adjusted.
6.6.2 In
the
event of any capital reorganization, any reclassification of HPAC Common Stock
(other than a change in par value), or the consolidation or merger of HPAC
with
or into another Person (collectively referred to hereinafter as “Reorganizations”),
upon
a subsequent exchange of a Unitholder’s Class A Units, the Class A Unitholder
shall be entitled to receive, and provision shall be made therefor in any
agreement relating to a Reorganization, the kind and number of shares of HPAC
Common Stock or other securities or property (including cash) of HPAC, or other
corporation resulting from such consolidation or surviving such merger, which
would have been due in connection with such Reorganization to a holder of the
number of shares of HPAC Common Stock for which such Class A Units could have
been exchanged as of the date of any such Reorganization; and in any such case
appropriate adjustment shall be made in the application of the provisions herein
set forth with respect to the rights and interests thereafter of the Class
A
Unitholders, to the end that the provisions set forth herein (including the
specified adjustments to the Exchange Ratio) shall thereafter be applicable,
as
nearly as reasonably may be, in relation to any shares, other securities or
property thereafter receivable upon exchange of the Class A Units. The
provisions of this Section
6.6.2
shall
similarly apply to successive Reorganizations.
8
6.6.3 In
each
case of an adjustment or readjustment of the Exchange Ratio or the number or
kind of securities deliverable upon exchange of the Class A Units, HPAC, at
its
expense, shall cause its Chief Financial Officer to compute such adjustment
or
readjustment in accordance with this Article Six and prepare a certificate
showing such adjustment or readjustment, and shall mail such certificate, by
first-class mail, postage prepaid, to each Class A Unitholder at their address
as shown on the Company’s books and records. The certificate shall set forth
such adjustment or readjustment, showing in detail the facts upon which such
adjustment or readjustment is based, and such certificate shall, absent error,
be controlling and determinative.
6.7 Mandatory
Exchange.
The
Managing Unitholder shall have the right, exercisable by written notice to
the
Class A Unitholders to such effect, to cause the mandatory exchange of all
outstanding Class A Units for the number of shares of HPAC Common Stock
determined in accordance with Section
6.2
hereof:
(a)
upon
or in connection with the Transfer by HPAC of a majority of its Units to one
or
more third parties which are not related to or affiliated with HPAC, on an
arms’-length basis, in one transaction or a series of related
transactions;
(b)
upon
or in connection with a dissolution and liquidation of the Company;
or
(c)
at
any time after December 31, 2010.
ARTICLE
SEVEN
Dissolution,
Liquidation and Termination
7.1
Dissolution.
7.1.1
The
Company shall dissolve upon, but not before, the first to occur of the
following:
(a)
A
unanimous vote of the Unitholders in favor of dissolution;
(b)
The
disposition of substantially all of the assets of the Company;
(c)
The
dissolution, bankruptcy, death, resignation, expulsion or incompetency of any
Unitholder unless within 180 days after such event the remaining Unitholders
elect to continue the business of the Company, or if only one Unitholder
remains, such Unitholder elects to continue the business of the Company;
provided,
however,
that,
in the event of a Unitholder’s death, such additional Unitholders shall not
dilute, reduce or otherwise affect the distribution rights attributable to
the
Units of a deceased Unitholder; and
(d)
Any
other event which, under the Act, would cause the dissolution of a limited
liability company unless within 180 days after such event the remaining
Unitholders elect to continue the business of the Company, or if only one
Unitholder remains, such Unitholder elects to continue the business of the
Company and admits additional Unitholders in order to do so.
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7.1.2
Upon dissolution of the Company, the Company shall immediately commence to
wind
up its affairs and the Managing Unitholder shall proceed with reasonable
promptness to liquidate the business of the Company.
7.1.3
During the period of the winding up of the affairs of the Company, the rights
and obligations of the Unitholders shall continue.
7.2
Liquidation.
The
Company shall terminate after its affairs have been wound up and its assets
fully distributed in liquidation as follows:
(a)
first, to the payment of the debts and liabilities of the Company and the
expenses of liquidation;
(b)
next,
to the setting up of any reserves which the Managing Unitholder may deem
reasonably necessary for any contingent or unforeseen liabilities or obligations
of the Company, provided that any reserves not necessary to satisfy such
liabilities or obligations are distributed as soon as practicable;
(c)
next,
to the Unitholders, to the extent such Persons have made loans to the Company,
an amount equal to any unpaid accrued interest on, and then the principal
balance of, such loans; and
(d)
thereafter, to the Class B Unitholder.
7.3
Cancellation
of Certificate of the Company.
Upon
the completion of the liquidation of Company’s property, the Managing Unitholder
shall cause the cancellation of the Certificate of Formation.
ARTICLE
EIGHT
Company
Property
8.1 Company
Property.
The
Company’s property shall consist of all Company assets and all Company funds.
Title to the property and assets of the Company may be taken and held only
in
the name of the Company or in such other name or names as shall be determined
by
the Managing Unitholder. All property now or hereafter owned by the Company
shall be deemed owned by the Company as an entity and no Unitholder,
individually, shall have any ownership of such property. Title to the assets
and
properties, real and personal, now or hereafter owned by or leased to the
Company, shall be held in the name of the Company or in such other name or
names
as the Managing Unitholder shall determine; provided,
however,
that if
title is held other than in the name of the Company, the Person or Persons
who
hold title shall certify by instrument duly executed and acknowledged, in form
for recording or filing, that title is held as nominee and/or trustee for the
benefit of the Company pursuant to the terms of this Agreement and an executed
copy of such instrument shall be delivered to the Managing Unitholder.
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8.2
Prohibition
Against Partition.
Each
Unitholder hereby permanently waives and relinquishes any and all rights it
may
have to cause all or any part of the property of the Company to be partitioned,
it being the intention of the Unitholders to prohibit any Unitholder from
bringing a suit for partition against the other Unitholder, or any one of them.
ARTICLE
NINE
Records
and Accounting; Fiscal Affairs
9.1
Fiscal
Year.
The
fiscal year of the Company shall end December 31.
9.2 Tax
Elections.
The
Managing Unitholder shall have the authority to make any elections for Federal
income tax purposes to the extent permitted by applicable law and
regulations.
ARTICLE
TEN
Miscellaneous
10.1
Notice.
All
notices, requests, demands and other communications hereunder shall be made
in
writing and shall be deemed to have been given if delivered by hand or by
facsimile with a confirmation copy mailed first class registered mail, return
receipt requested, postage and registry fees prepaid, to the Unitholders at
the
addresses set forth on Schedule
I
attached
hereto. Any address may be changed by notice given to the Unitholders, as
aforesaid, by the party whose address for notice is to be changed.
10.2
Separability.
The
invalidity or unenforceability of any provision in this Agreement shall not
affect the other provisions hereof and this Agreement shall be construed in
all
respects as if such invalid or unenforceable provision were
omitted.
10.3
Interpretation.
This
Agreement shall be interpreted and construed in accordance with the laws of
the
State of Delaware. All pronouns and any variations thereof shall be deemed
to
refer to the masculine, feminine, neuter, singular, or plural as the identity
of
the Person or Persons referred to may require. The captions of sections of
this
Agreement have been inserted as a matter of convenience only and shall not
control or affect the meaning or construction of any of the terms or provisions
hereof.
10.4
Entire
Agreement.
The
parties hereto agree that all understandings and agreements heretofore made
between them (including, without limitation, the Original Agreement, as amended)
are merged in this Agreement, which fully and completely expresses their
agreement with respect to the subject matter hereof. There are no promises,
agreements, conditions, understandings, warranties, or representations, oral
or
written, express or implied, among the parties hereto, other than as set forth
in this Agreement or in any related agreements executed simultaneously herewith.
All prior agreements among the parties (including, without limitation, the
Original Agreement, as amended) are superseded by this Agreement which
integrates all promises, agreements, conditions, and understandings among the
parties with respect to the Company and its property.
11
10.5
Termination,
Revocation, Waiver, Modification or Amendment.
This
Agreement, and any provisions hereunder, may be terminated, revoked, waived,
modified or amended at any time, and from time to time, at the discretion of
the
Managing Unitholder, provided, that no termination, revocation, waiver,
modification or amendment of Section
4.2,
Article
Six, or this Section
10.5
of this
Agreement shall be binding unless consented to in writing and executed by the
Managing Unitholders and the Unitholders holding at least a majority of the
Class A Units, and provided, further, that no termination, revocation, waiver,
modification or amendment of Article 3 of this Agreement shall be binding unless
consented to in writing and executed by all of the Unitholders.
10.6
Binding
Effect.
This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors, permitted assigns, heirs, executors,
administrators and legal representatives.
10.7
Further
Assurances.
Each of
the parties hereto agrees to execute, acknowledge, deliver, file, record and
publish such further certificates, instruments, agreements and other documents,
and to take all such further action as may be required by law or deemed by
the
Unitholders to be necessary or useful in furtherance of the Company’s purposes
and the objectives and intentions underlying this Agreement and not inconsistent
with the terms hereof.
10.8
No
Reliance by Third Parties.
The
provisions of this Agreement are not for the benefit of any creditor or other
Person other than a Unitholder, and no creditor or other Person shall obtain
any
rights under this Agreement or by reason of this Agreement, or shall be able
to
make any claim in respect of any debts, liabilities or obligations against
the
Company or any Unitholder.
12
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective
as of
the date first above written.
UNITHOLDERS:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
/s/
▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇
|
|
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
▇▇▇▇
PARK ACQUISITION CORP.
|
|
|
By:
/s/
▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Title:
Chief Executive Officer
|
[Signature
Page to Amended and Restated LLC Agreement]
ANNEX
A
NOTICE
OF EXCHANGE
The
undersigned hereby elects to exchange Class A Units of Essex Holdings, LLC
into
shares of common stock, par value $0.0001 (the “Common
Stock”),
of
Hyde Park Acquisition Corp., a Delaware corporation (“HPAC”), as set forth
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions reasonably
requested by HPAC in accordance therewith. No fee will be charged to the holder
for any exchange, except for such transfer taxes, if any.
|
Exchange
Terms:
|
|
|
Date
to Effect Exchange:
|
|
|
Number
of Units to be Exchanged:
|
|
|
Number
of shares of Common Stock to be issued:
|
|
|
Signature:
|
|
|
Name:
|
|
|
Address:
|
-
SCHEDULE
I
OWNERSHIP
INTERESTS IN THE COMPANY
|
UNITHOLDER
|
NUMBER OF
CLASS A UNITS
|
NUMBER OF
CLASS B UNITS
|
|||||
|
1. ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
493,670
|
0
|
|||||
|
2. ▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
75,950
|
0
|
|||||
|
3. ▇▇▇▇▇▇▇
▇’▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
25,317
|
0
|
|||||
|
4. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
37,974
|
0
|
|||||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
|
0
|
150,000,000
|
|||||
|
TOTAL:
|
632,911
|
150,000,000
|
|||||