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EXHIBIT 6
RESTATEMENT OF
AGREEMENT ESTABLISHING
HCI PARTNERSHIP
THIS RESTATEMENT OF AGREEMENT OF PARTNERSHIP made and entered into
as of the 1st day of April, 1991, by and among each of the separate parties
subscribing hereto (which parties are sometimes hereinafter collectively
referred to as "Partners" or individually referred to as a "Partner").
R E C I T A L S:
WHEREAS, an Agreement of Partnership (the "Original Agreement of
Partnership") was previously made and entered into by certain of the Partners
forming HCI Partnership (the "Partnership");
WHEREAS, certain Partners were subsequently admitted to the
Partnership;
WHEREAS, certain additional Partners now desire to be admitted to the
Partnership;
WHEREAS, the Partners desire to restate the Original Agreement of
Partnership in its entirety;
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WHEREAS, the Partners have contributed or will contribute to the
Partnership Class B Common Stock (the "Stock") of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Industries,
Inc., a Delaware corporation ("HCI");
WHEREAS, certain Partners initially formed the Partnership because
they determined that it was in their mutual best interests to consolidate the
decision-making with respect to the Stock:
WHEREAS, the Partners have determined that it is in their mutual best
interests to continue the Partnership to maintain control of the transfer of
the Stock for the benefit of the Partners;
WHEREAS, the Partners desire to continue the Partnership in the form
of a general partnership pursuant to the Uniform Partnership Act of the State
of Illinois for the purposes set forth above and to conduct business as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Partners agree as follows:
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A G R E E M E N T:
1. Definitions.
1.1 Adjusted Capital Account Deficit. "Adjusted Capital Account
Deficit" means, with respect to any Partner, the deficit balance, if any,
in such Partner's Capital Account as of the end of the relevant fiscal year,
after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts which
such Partner is obligated to restore pursuant to any provision
of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences of Sections 1.704-
1(b)(4)(iv)(f) and 1.704-1T(b)(4)(iv)(h)(5) of the
Regulations; and
(b) Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of
the Regulations and shall be interpreted consistently therewith.
1.2 Agreement. "Agreement" means this Restatement of Agreement
Establishing HCI Partnership as amended from time to time.
1.3 Applicable Federal Rate. "Applicable Federal Rate" means
the appropriate rate of interest for similar obligations, then in
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effect, as announced by the United States Department of the
Treasury pursuant to Section 1274(d) of the Code.
1.4 Capital Account. "Capital Account" means, with respect
to any Partner, the Capital Account maintained for such Partner in
accordance with the following provisions:
(a) To each Partner's Capital Account there shall be
credited the amount of cash and the Gross Asset Value of any
property contributed by such Partner, such Partner's
distributive share of Profits and any items in the nature of
income or gain which are specially allocated to such Partner
pursuant to Section 6.2 hereof, and the amount of any
Partnership liabilities assumed by such Partner or which are
secured by any property distributed to such Partner.
(b) To each Partner's Capital Account there shall be
debited the amount of cash and the Gross Asset Value of any
property distributed to such Partner pursuant to any provision
of this Agreement, such Partner's distributive share of Losses
and any items in the nature of expenses or losses which are
specially allocated to such Partner pursuant to Section 6.2
hereof, and the amount of any liabilities of such Partner
assumed by the Partnership or which are secured by any property
contributed by such Partner to the Partnership.
(c) In the event all or a portion of an interest in the
Partnership is transferred in accordance with the terms of
this Agreement, the transferee shall succeed to the Capital
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Account of the transferor to the extent it relates to the transferred
interest.
(d) In determining the amount of any liability for purposes
of Section 1.4(a) and 1.4(b) hereof, there shall be taken into account
Section 752(c) of the Code and any other applicable provisions of the Code
and Regulations.
The foregoing provisions and the other provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply with Section
1.704-1(b) of the Regulations, and shall be interpreted and applied in a
manner consistent with such Regulations, it being the intention of the
Partners to maintain the Partners' Capital Accounts in accordance therewith.
1.5 Class A Partners. "Class A Partners" means those parties
listed as Class A Partners on Exhibit A attached hereto and hereby
incorporated by this reference, as said exhibit may be revised from time to
time by the Managing Partners.
1.6 Class B Partners. "Class B Partners" means those parties
listed as Class B Partners on Exhibit A attached hereto, as said exhibit may
be revised from time to time by the Managing Partners.
1.7 Code. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
1.8 First Option. "First Option" means the rights and obligations
contemplated in Section 9.5 hereof.
1.9 Gross Asset Value. "Gross Asset Value" means, with respect to
any asset, the asset's adjusted basis for federal income tax purposes, except
as follows:
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(a) The initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of
such asset, as determined by the contributing Partner and the
Partnership;
(b) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as
determined by the Managing Partners, as of the following times: (1)
the acquisition of an additional interest in the Partnership by any
new or existing partner in exchange for more than a de minimis capital
contribution; (2) the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership property as consideration
for an interest in the Partnership if the Managing Partners reasonably
determine that such adjustment is necessary or appropriate to reflect
the relative economic interests of the Partners in the Partnership;
and (3) the liquidation of the Partnership within the meaning of
Section 1.704-1(b)(2)(ii)(g) of the Regulations;
(c) The Gross Asset Value of any Partnership asset distributed
to any Partner shall be the gross fair market value of such asset on
the date of distribution; and
(d) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to either Section 734(b) or Section
743(b) of the Code, but only to the extent that such adjustments are
taken into account in determining
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Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations; provided, however, that Gross Asset Values shall not be
adjusted pursuant to this Section l.9(d) to the extent the Managing
Partners determine that an adjustment pursuant to Section l.9(b) above
is necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this Section
l.9(d).
1.10 Net Cash Flow. "Net Cash Flow" for any fiscal year
means the excess, if any, of:
(a) The sum of (i) all cash receipts from all sources for such
period but excluding Sale Proceeds as defined herein, and (ii)
all cash reserves at the beginning of such period; over
(b) The sum of (i) all cash expenses paid during such
period, (ii) the amount of all payments of principal on account of
any indebtedness of the Partnership or amounts due (including
interest) on such indebtedness during such period (including repayment
of advances made by the Partners pursuant to Section 7.8 hereof),
(iii) cash payments made for acquisitions and other capitalized
expenditures during such period, and (iv) such cash reserves as of the
last day of such period as the Managing Partners in their sole
discretion deem necessary to provide for the continuing conduct of the
business of the Partnership and reasonable reserves for maturing
obligations.
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1.11 Offer Price. "Offer Price" means the aggregate cash price
in a Written Offer to purchase the interest (or any part thereof) in
the Partnership of any Transferor Partner, without regard to any
stated interest and discounted by the amount of (a) the total unstated
interest, if any, calculated in the manner provided in Section 483(b)
of the Code without regard to Section 483(d) of the Code or (b) the
imputed interest calculated in the manner provided in Section 1274 or
Section 1274A of the Code, as the case may be.
1.12 Partnership Percentages. "Partnership Percentages"
means each Partner's proportionate ownership interest in the Partnership, as
reflected on Exhibit A attached hereto and as such interest may be adjusted
from time to time by the admission or withdrawal of a Partner, upon the
acquisition of an additional interest by a Partner or a distribution to a
Partner, or otherwise.
1.13 Partnership Value. "Partnership Value" means an amount
equal to eighty percent (80%) of the fair market value of the Stock owned by
the Partnership, plus any cash on hand and the fair market value of any other
assets of the Partnership, less the liabilities of the Partnership, all as
determined by the Managing Partners, calculated as of the date notice of intent
to Transfer is given under Section 9.4 hereof.
1.14 Permitted Transferee. "Permitted Transferee" has the same
meaning as that term has in Section E of Article Four of the HCI Certificate
of Incorporation, as amended from time to time.
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1.15 Profits and Losses. "Profits" and "Losses" means, for
each fiscal year or other period, an amount equal to the Partnership's
taxable income or loss for such year or period, determined in
accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss, or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included
in taxable income or loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits
or Losses pursuant to this Section 1.15 shall be added to such taxable
income or loss;
(b) Any expenditures of the Partnership described in Section
705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B)
expenditures pursuant to Section 1.704-1(b)(2)(iv)(1) of the
Regulations, and not otherwise taken into account in computing Profits
or Losses pursuant to this Section 1.15 shall be subtracted from such
taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to Section 1.9(b) or Section 1.9(d) hereof,
the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing
Profits and Losses;
(d) Gain or loss resulting from any disposition of property
with respect to which gain or loss is recognized for
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federal income tax purposes shall be computed by reference to the
Gross Asset Value of the property disposed of, notwithstandinq that
the adjusted tax basis of such property differs from its Gross Asset
Value; and
(e) If the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of any
period, in lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing taxable income or
loss, there shall be taken into account depreciation, amortization or
other cost recovery which bears the same ratio to such beginning Gross
Asset Value as the federal income tax depreciation, amortization or
cost recovery for such period bears to the beginning adjusted tax
basis.
1.16 Regulations. "Regulations" means the regulations issued by the
United States Department of Treasury with respect to the Code, as amended from
time to time.
1.17 Sale Proceeds. "Sale Proceeds" means the net proceeds received
by the Partnership on account of any sale of all or any portion of the
Partnership's property, including deferred proceeds and the interest thereon,
to the extent not applied or to be applied to the reduction of Partnership
indebtedness (including advances made by the Partners pursuant to Section 7.8
hereof) or to be retained by the Partnership in the sole discretion of the
Managing Partners, or for any other purpose permitted under this Agreement.
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1.18 Second Option. "Second Option" means the rights and obligations
contemplated in Section 9.6 hereof.
1.19 Transfer. "Transfer" means any conveyance of an interest in the
Partnership, including but not limited to sale, assignment, gift, bequest,
appointment, pledge, hypothecation or grant of a security interest, or a
withdrawal of a Partner from the Partnership.
1.20 Transferor Partner. "Transferor Partner" means any Partner who
gives notice of intent to Transfer pursuant to Section 9.4 hereof.
1.21 Transfer Price. "Transferor Price" means an amount equal to the
Partnership Value multiplied by the Transferor Partner's Partnership
Percentage, calculated as of the date of notice of intent to Transfer is given
under Section 9.4 hereof.
1.22 Written Offer. "Written Offer" means a bona fide written offer,
made by a Permitted Transferee, to purchase all or a portion of a Transferor
Partner's interest in the Partnership, setting forth all material terms and
conditions of such offer.
2. Formation, Name and Office.
2.1 Formation and Name. The Partners hereby form a general
partnership pursuant to the Uniform Partnership Act of the State of Illinois.
The name of the partnership is "HCI Partnership" or such other name as the
Managing Partners may, from time to time, designate. Concurrently with the
execution of this Agreement, the Partners shall execute such fictitious name
certificate or other
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similar certificate and immediately thereafter cause same to be filed
or recorded in the appropriate office of ▇▇▇▇ County, Illinois and
published, all as required by law.
2.2 Place of Business. The principal place of business of the
Partnership shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or
such other place or places, in the State of Illinois, as the Managing Partners
may hereafter determine.
3. Purpose and Property.
3.1 Purpose. The purpose of the Partnership shall be the business of
making, protecting, enhancing and otherwise dealing with investments of all
types, such investments to include, but not be limited to, the buying and
selling of securities of all types (including, but not limited to, common and
preferred stock, put and call options, convertible bonds, bonds and debentures);
provided, however, that nothing herein contained shall allow the Partnership to
make any investments, or do any other things, which shall not be permitted by
the Uniform Partnership Act of the State of Illinois.
3.2 Stock. Title to any Stock contributed to or acquired by the
Partnership shall be held in the name of the Partnership, and each certificate
representing shares of such Stock will carry the following legend:
"The stock represented by this certificate is subject to the
provisions of the Restatement of Agreement Establishing HCI
Partnership dated as of April 1, 1991 among the partners of the
partnership, a copy of which agreement may be inspected
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at the principal office of the partnership. Such agreement
restricts the transfer, including hypothecation, of this stock. The
provisions of such agreement are incorporated by this reference in
this Certificate. The stock represented by this certificate may only
be transferred by agreement of a majority of the managing partners of
the partnership."
4. Term.
The Partnership shall continue until the first to occur of:
(a) December 31, 2025;
(b) The agreement of all of the Partners; or
(c) Dissolution by operation of law;
provided, however, that in any such event, the then remaining Partners may,
within sixty (60) days of the date such event occurs, unanimously vote to
continue the Partnership business, in which case the Partnership shall continue
thereafter as agreed to by the Partners.
5. Partnership Capital - Initial Capital Accounts.
5.1 Contribution of the Partners. Each of the Partners (or such
Partner's predecessor in interest) shall contribute to the capital of the
Partnership the respective number of shares of Stock set forth opposite such
Partner's name in Exhibit A attached hereto. The Partners, in exchange for
their contributions to the capital of the Partnership, shall receive an
interest in the Partnership equal to the Partnership Percentage set forth
opposite
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their names in Exhibit A. Anything in this Agreement to the contrary
notwithstanding, no person shall be deemed to be a partner of the Partnership
unless and until such person shall have made such capital contribution.
5.2 Additional Capital Contributions of the Partners. Throughout the
term of this Agreement, the Partners shall collectively contribute, in cash,
to the capital of the Partnership, in accordance with their respective
Partnership Percentages, any additional funds required to meet Partnership
cash requirements as determined by the Managing Partners.
5.3 Additional Funds. With the consent of the Managing Partners, a
Partner may advance to the Partnership pursuant to Section 7.8 hereof,
any additional funds required to meet Partnership cash requirements.
5.4 Interest. No interest shall be paid or accrued on the Capital
Account of any Partner.
5.5 Withdrawal of Capital Contributions. No Partner may withdraw any
capital from the Partnership except as expressly provided herein.
6. Allocation of Profits and Losses, and Distribution of Net Cash Flow and Sale
Proceeds.
6.1 Allocation of Profits and Losses. After giving effect to the
allocations set forth in Section 6.2 and Section 6.3 hereof, Profits and
Losses for any fiscal year of the Partnership shall be
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allocated among the Partners in proportion to their respective Partnership
Percentages.
6.2 Special Allocations.
(a) In the event any Partner unexpectedly receives any
adjustments, allocations, or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-
1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership income and
gain shall be specially allocated to each such Partner in an amount
and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Partner as
quickly as possible, provided that an allocation pursuant to
this Section 6.2(a) shall be made only if and to the extent that such
Partner would have an Adjusted Capital Account Deficit after all
other allocations provided for in this Section 6 have been
tentatively made as if this Section 6.2(a) were not in the Agreement.
(b) In the event any Partner has a deficit Capital Account at the
end of any Partnership fiscal year which is in excess of the sum of
(i) the amount such Partner is obligated to restore pursuant to any
provision of this Agreement and (ii) the amount such Partner is deemed
to be obligated to restore pursuant to the penultimate sentences of
Sections 1.704-1T(b)(4)(iv)(f) and 1.704-1T(b)(4)(iv)(h)(5) of the
Regulations, each such Partner shall be specially allocated items of
Partnership income and gain in the amount of such
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excess as quickly as possible, provided that an allocation pursuant to
this Section 6.2(b) shall be made only if and to the extent that such
Partner would have a deficit Capital Account in excess of such sum
after all other allocations provided for in this Section 6 have been
made as if Section 6.2(a) hereof and this Section 6.2 (b) were not in
the Agreement.
(c) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Section 734(b) or Section 743(b) of the
Code is required, pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations, to be taken into account in determining Capital Accounts,
the amount of such adjustment to the Capital Accounts shall be treated
as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) and such gain
or loss shall be specially allocated to the Partners in a manner
consistent with the manner in which the Capital Accounts are required
to be adjusted pursuant to such Section of the Regulations.
6.3 Tax Allocations: Code Section 704(c). In accordance with
Section 704(c) of the Code and the Regulations thereunder, income, gain, loss
and deduction with respect to any property contributed to the capital of the
Partnership shall, solely for tax purposes, be allocated among the Partners
so as to take account of any variation between the adjusted basis of such
property to the
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Partnership for federal income tax purposes and its initial Gross Asset Value.
In the event the Gross Asset Value of any Partnership asset is
adjusted, subsequent allocations of income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value
in the same manner as under Section 704(c) of the Code and the Regulations
thereunder.
Any elections or other decisions relating to such allocations shall
be made by the Managing Partners in any manner that reasonably reflects the
purpose and intention of this Agreement. Allocations pursuant to this Section
6.3 are solely for purposes of federal, state and local taxes and shall not
affect, or in any way be taken into account in computing, any Partner's
Capital Account or share of distributions pursuant to any provision of this
Agreement.
6.4 Intervals of Determination of Profits and Losses. For
purposes of determining the Profits, Losses, or any other items allocable to
any period, Profits, Losses, and any such other items shall be determined on
a monthly basis or any other basis, as determined by the Managing Partners
using any permissible method under Section 706 of the Code and the
Regulations thereunder.
6.5 Distribution of Net Cash Flow. The Net Cash Flow of the
Partnership shall be distributed to the Partners, from time to time as
determined by the Managing Partners in their sole discretion, in
proportion to the Partners' respective Partnership Percentages.
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6.6 Distribution of Sale Proceeds. Sale Proceeds shall be distributed
among the Partners as soon as is practicable in proportion to the Partners'
respective Partnership Percentages.
7. Management.
7.1 General Management. Except as otherwise specifically provided
herein, decisions concerning the management and control of the business
affairs of the Partnership and the investment of the property of the
Partnership shall be made by the majority decision of the Managing Partners
(hereinafter described). The Managing Partners shall each be entitled to one
vote on any issue requiring their decision. The Partnership shall reimburse
any Managing Partner for all direct and reasonable out-of-pocket expenses
incurred on behalf of the Partnership. Except for acts of willful misconduct
or gross negligence, the Partnership shall reimburse, indemnify and hold
harmless any Managing Partner for and from any expense or liability incurred
by him for and on behalf of the Partnership or its property while acting in
good faith.
The Managing Partners shall at all times be five in number and shall
initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (sometimes hereinafter each individually referred
to as a "Managing Partner"). Any vacancy among the Managing Partners, by
disability, death, withdrawal or resignation, shall be filled by a Partner, as
set forth herein. In the event of a vacancy by the disability, death,
withdrawal or resignation of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or any successor thereto, the following, one at a time and in
the order named, shall be successor Managing Partner: (a) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇; (c) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and (d) a Class A Partner designated
by the majority decision of all of the Class A Partners. In the event of a
vacancy by the disability, death, withdrawal or resignation of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or any successor thereto, the following, one at a
time, and in the order named, shall be successor Managing Partner: (a) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; and (b) a Class B Partner designated by the majority decision of all
of the Class B Partners.
7.2 Powers of the Managing Partners. Subject to such limitations as
may be imposed pursuant to the terms of this Agreement or by operation of law,
the Managing Partners are hereby authorized and empowered to carry out and
implement any and all of the purposes of the Partnership. In that connection,
the powers of the Managing Partners shall include, but not be limited to, the
following:
(a) To employ, on behalf of the Partnership, such persons,
firms or corporations as they, in their sole judgment, shall deem
advisable for the operation and management of the business of the
Partnership, including such brokers, investment advisors, accountants
and attorneys, on such terms and for such compensation as they, in
their sole judgment, shall determine. The fact that a Partner or a
member of his family (or the trustee or a beneficiary of a trust which
is a Partner) is directly or indirectly interested
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in or connected with any person, firm or corporation
employed by the Partnership to render or perform a service
or from which or whom the Partnership may buy merchandise or
other property shall not preclude the Partnership from
employing such person, firm or corporation or from otherwise
dealing with him or it, and neither the Partnership nor the
Partners thereof shall have any rights in or to any income
or profits derived therefrom;
(b) To authorize or approve all actions with respect to
distributions by the Partnership, dispositions of the assets of the
Partnership, borrowing of funds, contracts, guarantees, notes, and
other instruments on behalf of the Partnership; provided, however,
that the Managing Partners may not enter into an agreement involving a
sale or exchange of more than 50 percent of the Partnership's property
(other than financing arrangements requiring that Partnership property
be pledged or otherwise used as security) without first obtaining the
written consent of Partners owning at least 51 percent of the
Partnership Percentages;
(c) To acquire and convey corporate stock and partnership
interests, including, but not limited to, partnership interests
pursuant to Section 9 hereof;
(d) To open, maintain, and close bank accounts and to draw
checks and other orders for the payment of money as provided in
Section 8.3 hereof; and
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(e) To take such other actions and to incur such expenses on
behalf of the Partnership as may be necessary or advisable in
connection with the conduct of the affairs of the Partnership.
7.3 Duties of Managinq Partners. The Managing Partners shall manage,
or cause to be managed, the affairs of the Partnership in a prudent and
businesslike manner and shall devote such part of their time to the
Partnership affairs as is reasonably necessary for the conduct of such
affairs; provided, however, that it is expressly understood and agreed that
neither any Managing Partner nor any other Partner shall be required to devote
his entire time or attention to the business of the Partnership, and no
Partner shall be restricted in any manner from participating in other
businesses or activities. Without limiting the generality of the foregoing,
the Managing Partners' duties shall include the following:
(a) To render periodic progress reports to the Partners with
respect to the operations of the Partnership;
(b) To furnish financial statements on an annual basis, which,
upon the request of any Partner, shall be prepared by a recognized
firm of independent public accountants;
(c) To deposit all funds of the Partnership in one or more
separate bank accounts with such banks or trust companies as provided
in Section 8.3 hereof;
(d) To maintain complete and accurate records as provided in
Section 8.1 hereof;
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(e) To prepare and distribute to all Partners all reasonable
tax reporting information as provided in Section 8.2 hereof; and
(f) To cause to be filed such certificates and to do such
other acts as may be required by law to qualify and maintain the
Partnership as a partnership.
7.4 Reliance on Act of Managing Partners. Third parties dealing with
the Partnership shall be entitled to rely conclusively upon the power and
authority of the Managing Partners. Any business entity called upon to transfer
any property to or from the name or account of the Partnership shall be
entitled to rely on instructions or assignments signed or purporting to be
signed by the Managing Partners, without inquiry as to the authority of the
person signing or purporting to sign such instructions or assignments and
without inquiry as to the validity of any transfer to or from the name of the
Partnership.
7.5 Outside Activities. It is expressly agreed that the Partners, or
any of them, may engage in other business ventures of every nature and
description, independently or with others, whether or not it is in competition
with the Partnership, and neither the Partnership nor the Partners thereof
shall have any rights in and to any independent venture or activity or the
income or profits derived therefrom.
7.6 Actions Requiring Concurrence of the Partners. Notwithstanding
anything in this Agreement to the contrary, no Partner or
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Managing Partner, without the prior written consent of all of the other
Partners, shall have the authority to: (a) Expend or use Partnership funds or
Partnership property except upon the account and for the benefit of the
Partnership; (b) Confess a judgment against the Partnership; (c) Possess
Partnership property, or assign rights in specific Partnership property for
other than a Partnership purpose; or (d) Transfer Stock held by the Partnership
to any person other than a Permitted Transferee of the Partnership, or acquire
Stock from a person as to which the Partnership is not a Permitted Transferee,
and any such attempted transfer or acquisition contrary to this clause (d)
shall be null and void.
7.7 Compensation of the Partners. Notwithstanding anything herein
contained, the Partnership shall have authority to pay to any Partner a
reasonable annual salary for his or its services to the Partnership. It is
understood that the salary paid to any Partner under the provisions of this
Section 7.7 shall be considered as an operating expense of the Partnership and
shall be deducted as an expense item in determining Profits or Losses of the
Partnership.
7.8 Advances. With the consent of the Managing Partners, the Partners
may loan or advance funds to the Partnership. Such loans or advances shall bear
interest at the prime rate of interest
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charged, from time to time, by The First National Bank of Chicago and
shall be payable out of the first available funds of the Partnership prior to
any distributions to the Partners.
8. Accounting, Tax Provisions and Banking.
8.1 Books and Records. The Partnership shall maintain, or cause to be
maintained, full and accurate books and records in accordance with generally
accepted accounting principles. The Partnership shall maintain its books and
records and file its tax returns utilizing a calendar year. The Partnership's
books and records shall be kept at the principal office of the Partnership and
each Partner shall, at reasonable times, have free access thereto. The Managing
Partners shall determine the methods of accounting to be employed for purposes
of the Partnership's books of account and federal income tax reporting
purposes.
8.2 Tax Returns. The Partnership shall prepare, or cause to be
prepared, all required returns of income. All decisions and elections as are
necessary or available with respect to the preparation of such returns shall be
made by the Managing Partners. As soon as is reasonably practical after the
close of each fiscal year, the Partnership shall furnish each Partner with a
statement (which may be in the form of a duplicate Schedule K-1 of the Form
1065 required to be filed by the Partnership with the Internal Revenue Service,
or such other comparable form at any time hereafter required to be so filed)
showing the contributions, withdrawals, income, gains, deductions, losses and
credits charged or
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25
credited to such Partner and so allocated to him for such fiscal year.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is hereby appointed the tax matters partner pursuant
to Sections 6221-6231 of the Code. In the event that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is
unable or unwilling to so serve, the Managing Partners shall designate a new
tax matters partner for the Partnership.
8.3 Banking. All funds of the Partnership shall be deposited in the
Partnership's name in accounts at such bank or banks as shall be determined by
the Managing Partners who shall have the right to designate their agents to
execute checks for withdrawals and make, deliver, accept and endorse commercial
paper in connection with the Partnership business.
9. Transfer of Partnership Interests and Limitations Thereon.
9.1 Exclusive Procedure. Except as otherwise provided herein, each
Partner agrees that he will not Transfer all or any part of his interest in the
Partnership other than in strict compliance with this Agreement. In no event
shall a Partner Transfer his interest in the Partnership to a transferee who
is not a Permitted Transferee of such Partner. This Agreement states the
exclusive procedure for Transfer of an interest in the Partnership. Any
attempted Transfer of an interest in the Partnership other than in strict
compliance with this Agreement shall be null and void.
9.2 Permitted Transfer. Subject to the First Option and the Second
Option, any Partner transferring an interest in the
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Partnership to a Permitted Transferee of such Partner shall give
written notice of any such Transfer to the Managing Partners, who shall
thereupon revise the Partnership Percentages to reflect the Transfer. With the
consent of the Managing Partners, the transferee (if he is not already a
Partner) may be admitted as an additional Partner in the Partnership.
9.3 Transfer of Title. All Transfers of an interest in the Partnership
to any Partner pursuant to the First Option, and to the Partnership pursuant
to the Second Option, shall be transferred and delivered to such Partners or
the Partnership, as the case may be, free and clear of all liens, claims and
encumbrances of every kind and description.
9.4 Notice of Intent to Transfer. Any Transferor Partner who desires to
Transfer all or any portion of his interest in the Partnership shall give
notice of his intent to Transfer, in writing, to the Managing Partners. In the
event that the Transferor Partner has received a Written Offer for the purchase
of his interest in the Partnership, said notice shall include a copy of such
Written Offer and shall set forth the Offer Price. The Managing Partners shall
promptly notify the other Partners of the Transferor Partner's intent to
Transfer, which notice shall include a copy of any Written Offer.
9.5 First Option. The Partners, other than the Transferor Partner,
shall have an option (but not the obligation) to purchase all or any portion of
the interest in the Partnership proposed to be sold by the Transferor Partner
at the Offer Price or, if the
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Transferor Partner did not submit a Written Offer, at the Transfer Price and,
in either case, in accordance with the provisions of this Section 9. This
option shall first be available to Partners of the same class as, and who are
Permitted Transferees of, the Transferor Partner (the "Same Class Partners").
The Same Class Partners may exercise the option by giving notice to the
Managing Partners of their intention to do so within sixty (60) days of the
date of the Transferor Partner's notice. The Same Class Partners may purchase
the offered interest in proportion to their relative Partnership Percentages of
the same class or as they may otherwise agree. If and to the extent that the
Same Class Partners fail to elect to purchase all of the offered interest, the
Managing Partners shall give prompt notice thereof to the Partners of the other
class who are Permitted Transferees of the Transferor Partner (the "Other Class
Partners"). The Other Class Partners shall have the option to purchase all or
part of any remaining interest proposed to be sold. The Other Class Partners
may exercise their option by giving notice to the Managing Partners of their
intention to do so within sixty (60) days after the expiration of the Same
Class Partners' sixty (60) day option period. The Other Class Partners may
purchase the offered interest in proportion to their relative Partnership
Percentages of the same class or as they may otherwise agree. The interest in
the Partnership so purchased will be added to the interest in the Partnership
of the Partners who have purchased said interest, as an interest of the same
class as that held by each respective purchasing Partner, and their
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Partnership Percentages and Capital Accounts shall be adjusted accordingly by
the Managing Partners.
9.6 Second Option. The Partnership shall have an additional sixty (60)
days after the expiration of the two option periods set forth in Section 9.5 to
elect to purchase all or part of the interest in the Partnership of the
Transferor Partner not purchased pursuant to the First Option, at the Offer
Price or, if there is no Written Offer, at the Transfer Price. The interest in
the Partnership so purchased from a Transferor Partner, including the related
Partnership Percentage and Capital Account, shall be allocated among all of the
then remaining Partners, who shall succeed to such interest as an interest of
the same class held by such remaining Partners.
In the event a Transferor Partner has given notice of his intention to
sell his entire interest in the Partnership without a Written Offer, it being
the Transferor Partner's intention to withdraw from the Partnership, the
exercise of the Second Option shall be mandatory with respect to any portion of
the Transferor Partner's interest in the Partnership not purchased pursuant to
the First Option, and the Partnership shall exercise its Second Option with
respect to any portion of the Transferor Partner's interest in the Partnership
not purchased pursuant to the First Option.
9.7 Exercise of Entire Option. In the event that the Transferor Partner
has given notice of a Written Offer, then, if the option to purchase all of the
subject interest is not exercised pursuant to the First Option and the Second
Option, the Transferor
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Partner shall no longer be under an obligation to sell such interest pursuant
to the First Option and the Second Option and, during the ninety (90) day
period following the termination of the Second Option, the Transferor Partner
may sell the offered interest to the Permitted Transferee making the Written
Offer at the Offer Price or on other terms no more favorable than the terms
contained in the Written Offer. No Transfer may be consummated after such
ninety (90) day period or on terms more favorable than those set forth in the
Written Offer without first again complying with this Section 9. Any Permitted
Transferee who acquires an interest in the Partnership pursuant to this
Section 9 shall become a party hereto and be subject to the terms of this
Agreement.
9.8 Terms of Purchase. Any interest in the Partnership to be sold
pursuant to the First Option or the Second Option shall be purchased at the
price provided in Section 9.5 or Section 9.6 hereof, as the case may be.
Subject to Section 9.12 hereof, the closing of the purchase and sale shall take
place at the Partnership's office within thirty (30) days following the
expiration of the applicable option periods. Notwithstanding any provision to
the contrary contained in a Written Offer and subject to the provisions of
Section 9.9 hereof, payment for the interest in the Partnership purchased
pursuant to the First Option or the Second Option shall be made in ten (10)
equal installments of principal. The first installment shall be made
contemporaneously with the Transfer and each succeeding payment shall be made
on the annual anniversary date thereof. The Partnership or any Partner
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purchasing an interest of the Transferor Partner may, however, prepay all or
part of the purchase price at the time of the Transfer or at any time
thereafter without premium or penalty. Each deferred payment shall bear
interest at the lesser of eight percent (8%) per annum or the prime or base
rate of interest charged by The First National Bank of Chicago. Said rate of
interest shall be determined at the time of Transfer and shall be adjusted on
each annual anniversary date thereof. In no event, however, shall the rate of
interest be less than the Applicable Federal Rate determined at the time of the
Transfer.
9.9 Maximum Obligation of the Partnership. If the Partnership purchases
the interest of one or more Transferor Partners pursuant to the Second Option,
the Partnership shall not be obligated to pay, in the aggregate in any calendar
year, pursuant to Section 9.8 hereof an aggregate amount exceeding the greater
of (a) the annual dividends received by the Partnership with respect to the
Stock or (b) two percent (2%) of the Partnership Value (the "Redemption Cap").
If, as a result of the application of the Redemption Cap, amounts otherwise due
are not paid to a Transferor Partner, such unpaid amounts shall be due and
payable in the following year; provided, however, that the Redemption Cap as
determined in the following year shall continue to limit the aggregate
obligation of the Partnership during such year so that any unpaid amounts
continue to be deferred until such time as the total payments to Transferor
Partners during a year are
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31
within the Redemption Cap determined for such year. In the event that there are
two (2) or more Transferor Partners at any one time and the payments due from
the Partnership to the Transferor Partners exceed the Redemption Cap, then
payments to such Transferor Partners shall be reduced proportionately, from
time to time and at any time, based on the outstanding principal owed to each
Transferor Partner.
9.10 Admission of Partners. Except as otherwise provided in
Section 9.2, no additional Partners shall be admitted to the Partnership
without first obtaining the written consent of all Partners. Notwithstanding
the foregoing, no additional Partner shall be admitted to the Partnership
unless at the time that the proposed additional Partner is to be admitted to
the Partnership (a) the Partnership is a Permitted Transferee of such proposed
additional Partner and (b) the addition to the Partnership of such proposed
additional Partner would not cause the Partnership to cease being a Permitted
Transferee of any or all of the then Partners of the Partnership. Upon the
admission of an additional Partner, all references in this Agreement to the
Partners shall be deemed to include the new Partner. The Partners shall
determine what rights and voice an additional Partner shall have in the
management and conduct of the Partnership.
9.11 Distribution of a Partner's Interest. The termination of any trust
which is a Partner shall not terminate the Partnership. Upon the allocation or
distribution of all or any portion of the
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Partnership interest of a trust which is a Partner pursuant to the
exercise of any power of appointment, or otherwise, to a beneficiary of such
trust or to another person or persons or to another trust or trusts, whether or
not such distribution shall terminate such distributing trust, each such
distributee, notwithstanding the provisions hereof, shall become a Partner
hereunder to the extent of the proportionate share of the Partnership interest
distributed to him, subject to all the terms and conditions of this Agreement,
provided however, that such distributee must, in all events, be a Permitted
Transferee. If any such intended distributee is not a Permitted Transferee, the
trustee (or any other Partner) shall give notice thereof to the Managing
Partners, whereupon the Partners and the Partnership shall have the rights set
forth in Sections 9.5 and 9.6 hereof to purchase the interest in the
Partnership owned by the trust.
9.12 Transfer Date Restrictions. Notwithstanding anything in this
Article 9 to the contrary, no Transfer, acquisition or redemption of an
interest in the Partnership shall be made and no adjustment to the Partners'
interests in the Partnership shall be effective, and no transferee of an
interest in the Partnership shall be admitted as a Partner, during any period
between the record date and payment date of a dividend declared to be paid with
respect to shares of the Stock. Any such purported Transfer, acquisition or
redemption shall be effective and reflected in the books of the Partnership on
and as of the first day following the dividend payment date.
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33
10. Withdrawal, Death or Bankruptcy of a Partner.
10.1 Withdrawal. Any Partner, including a trust which is a Partner
hereunder, shall have the right to withdraw from the Partnership at any time
upon giving notice thereof in writing to the Managing Partners pursuant to
Section 9.4 hereof, and the provisions of Section 9 hereof shall be applicable.
In the event of such withdrawal, the Partnership shall not be wound up or
liquidated and the withdrawing Partner shall not have the right to compel
liquidation of the Partnership. The payments to the withdrawing Partner
pursuant to Section 9 hereof shall be in lieu of any amount payable pursuant to
Section 42 of the Uniform Partnership Act including any interest or profits
payable pursuant to that section.
10.2 Death of a Partner. Upon the death of a Partner during the term of
the Partnership, the Partnership business shall not be wound up or terminated,
but shall be continued by the remaining Partners. The executor or administrator
(the "Personal Representative") of the estate of the deceased Partner,
notwithstanding Section 9 hereof, shall immediately succeed to the interest of
the deceased Partner in the Partnership, and such Personal Representative shall
have the same rights and obligations in the Partnership as the deceased Partner
would have had had he survived (such rights and obligations shall include, but
shall not be limited to, rights to participate in the conduct of Partnership
business and to share in the profits and losses of the Partnership) except
that, if the deceased Partner was a Managing Partner, the
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34
Personal Representative shall not have the right to become a Managing
Partner. The Personal Representative shall, if at all possible, transfer its
interest to a Permitted Transferee and, to the extent that transfer to a
Permitted Transferee is not possible, shall, promptly upon discovery thereof,
give notice to the Partnership pursuant to Section 9.4 hereof of its intention
to withdraw from the Partnership. The Personal Representative shall not have
the right to compel liquidation of the Partnership. The rights of the Personal
Representative set forth in this Section 10.2 and the payments, if any, to a
Personal Representative that withdraws from the Partnership are in lieu of any
amount payable pursuant to Section 42 of the Uniform Partnership Act including
any interest or profits payable pursuant thereto.
10.3 Bankruptcy, etc. In the event the interest of a Partner in the
Partnership shall be attached or taken in execution, or in the event a Partner
shall be adjudicated a bankrupt or make an assignment for the benefit of
creditors, or in the event its interest is made subject to a charging order,
the Partnership shall not be wound up or terminated and the Partnership's
business shall be continued, except that upon notice thereof to that Partner,
the other Partners and the Partnership shall have the rights set forth in
Sections 9.5 and 9.6 hereof to purchase the interest in the Partnership of such
Partner.
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11. Dissolution and Liquidation.
The dissolution of the Partnership shall occur as provided in Section 4
hereof; provided, however, if an event specified in Section 4 hereof occurs,
the Partners may, within sixty (60) days of the date such event occurs,
unanimously vote to continue the Partnership business, in which case the
Partnership shall continue thereafter as agreed to by the Partners. Unless
otherwise provided herein or otherwise agreed by all of the Partners, upon
dissolution of the Partnership, the Partnership shall be terminated and the
remaining Managing Partners shall become the liquidating trustees. The
liquidating trustees shall take full account of the Partnership's assets and
liabilities and the receivables of the Partnership shall be collected and its
assets liquidated as promptly as is consistent with obtaining the fair market
value therefor. If the liquidating trustees reasonably determine that it would
be in the best interests of the Partners to do so, all or any portion of the
assets of the Partnership shall be distributed in kind. The proceeds from the
liquidation of the assets of the Partnership and collection of the
Partnership's receivables, together with the property distributed in kind, to
the extent sufficient therefor, shall be applied and distributed in the
following order of priority:
(a) To the payment and discharge of all of the Partnership's
debts and liabilities, except (i) the claims of secured creditors whose
obligations will be assumed or otherwise transferred on the liquidation
of Partnership assets
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36
and (ii) the payment of all debts and liabilities of the
Partnership due to the Partners;
(b) To the payment of all debts and liabilities of the
Partnership due to Partners;
(c) To the establishment of reserves which the liquidating
trustees reasonably determine to be necessary; and
(d) The balance, if any, to the Partners in accordance with
the positive balances in their Capital Accounts after givinq effect
to all contributions, distributions and allocations for all
periods.
12. Trust Partners.
12.1 Trustee Liability. When this Agreement is executed by the trustee
of any trust, such execution is, and shall be, by the trustee, not individually
but solely as trustee in the exercise and under the power of authority
conferred upon and vested in such trustee. It is expressly understood and
agreed that nothing herein contained shall be construed as creating any
liability on any such trustee personally to pay any amounts required to be paid
hereunder, or to perform any covenant, either express or implied, contained
herein, all such liability, if any, being expressly waived by the parties
hereto by their execution hereof. Any liability of any Partner which is a trust
to the Partnership or to any third person shall be only that of such trust to
the full extent of its trust estate and shall not be a personal liability of
any trustee, grantor or beneficiary thereof.
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12.2 Status of Successor Trustees as Partner. Any successor trustee or
trustees of any trust as a Partner herein shall be entitled to exercise the
same rights and privileges and be subject to the same duties and obligations as
his predecessor trustee. As used in this Agreement, the term "trustee" shall
include any or all such successor trustees.
13. Notices.
All notices, demands and communications required to be given under the
terms of this Agreement shall be in writing and shall be served by personal
service or by mailing a copy thereof by certified or registered mail, postage
prepaid, with return receipt requested to the address of the Partner to whom
the notice, demand or communication is directed as set forth on the books and
records of the Partnership. In case of service by mail, it shall be deemed
complete on the day of actual delivery, or if delivery is refused on the date
of such refusal, as shown by the return receipt. The addresses to which
notices, demands and other communications to a Partner shall be delivered or
sent may be changed from time to time by notice served as hereinabove provided
by the Partner upon the other Partners. Any payment required or permitted to be
made to any Partner under any provision of this Agreement shall be deemed to
have been made if delivered or mailed in the manner hereinabove provided to the
address to which notices, demands and other communications to such Partners are
to be delivered pursuant to the foregoing.
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14. Miscellaneous Provisions.
14.1 Amendments. Any and all agreements hereafter made by the Partners
to amend, extend, revise, change or discharge this Agreement, in whole or in
part and on one or more occasions, shall not be invalid or unenforceable
because of the lack of legal consideration so long as the same shall be in
writing and signed by Partners owning 51 percent or more of the Partnership
Percentages, and shall be binding on all Partners, except that without
unanimous written consent, no amendment to Partnership Percentages, Capital
Accounts, or distributions of Net Cash Flow or Sale Proceeds shall be
effective.
14.2 Further Assurances. The Partners shall execute and deliver such
further instruments and do such further acts and things as may be required by
law or may be appropriate in order to carry out the intent and purpose of this
Agreement.
14.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
14.4 Headings. Section headings are for convenience of reference only
and shall have no legal effect.
14.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall be deemed to be one Agreement.
14.6 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors, assigns, heirs and legal
representatives and any person who shall
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have acquired any of the interests or rights of any Partner in accordance with
this Agreement.
14.7 Severability. In the event any provision of this Agreement is held
to be invalid, the remainder of this Agreement shall nevertheless be deemed
to be valid and effective.
14.8 Nouns, Pronouns and Gender. As used herein, all pronouns shall
include the masculine, feminine, neuter, singular, and plural thereof whenever
the context and facts require such construction.
14.9 Waiver of Action for Partition. Each of the Partners irrevocably
waives any right that it may have to maintain any action for partition with
respect to any of the Partnership's property.
14.10 Entire Agreement. This Agreement constitutes the entire agreement
and understanding among the parties and may not be amended or modified except
as provided herein.
14.11 Intent to be Bound. Each of the parties subscribing hereto intend
to be fully bound by this Agreement whether or not all of the other persons
listed on the signature pages hereto execute this Agreement. All persons who
execute this Agreement, or any counterpart hereof, shall become Partners and
shall be bound hereby. If any person listed on the signature pages hereto fails
to sign this Agreement, the Partnership Percentages shall be recomputed by the
Managing Partners based on the number of shares of Stock and cash actually
contributed to the Partnership.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- ----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------- ----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AKG COLLATERAL TRUST
AKG FAMILY TRUST By: /s/ Si ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------
By: /s/ Si ▇▇▇▇▇▇▇ ▇▇▇▇ Si ▇▇▇▇▇▇▇ ▇▇▇▇, not
-------------------- individually but solely
Si ▇▇▇▇▇▇▇ ▇▇▇▇, not as Trustee
individually but
solely as Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ REVOCABLE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE
TRUST TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------ -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not
individually but individually but
solely as Trustee solely as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not
individually but
solely as Trustee
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ARB ASSOCIATES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not
individually but solely
as a General Partner
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE
TRUST, as a General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not
individually but
solely as Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: -----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, not
individually but
solely as Trustee
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EXHIBIT A
Number of Shares
of Partnership
Name of Partner Stock Contributed Percentage
-------------- ----------------- -----------
Class A Partners:
----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 200 0.0343%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,597 0.7888%
▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,596 0.7887%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,596 0.7887%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,597 0.7888%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 200 0.0343%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Irrevocable Trust
(u/a/d 9/15/90) 4,396 0.7544%
Class B Partners:
------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 200 0.0343%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 200 0.0343%
AKG Collateral Trust 105,547 18.1116%
AKG Family Trust 61,632 10.575%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Revocable Trust 35,338 6.0639%
ARB Associates 356,660 61.2020%
--------- ---------
582,759 100.0000%
========= =========