EXHIBIT 10.10
FIRST AMENDMENT TO PARTNERSHIP AGREEMENT
OF NEW DM MANAGEMENT ASSOCIATES I
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This Agreement is made as of the 1st day of December, 1995 between Robert
B. Stein, Jr., Gregory G. Landry and Mitchell J. Kupperman.
PREAMBLE
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New DM Management Associates I (the "Partnership") was formed as of
September 8, 1994 by the execution of a Partnership Agreement by Charles
Nirenberg and the parties hereto (the "Partnership Agreement").
Contemporaneously herewith, Charles Nirenberg is withdrawing from the
Partnership. This Agreement is an amendment to the Partnership Agreement which
sets forth certain amended terms that have been agreed upon in conjunction with
the withdrawal of Charles Nirenberg from the Partnership. Capitalized terms used
herein which are not defined herein shall have the meanings ascribed to them in
the Partnership Agreement.
WITNESSETH:
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NOW, THEREFORE, the parties hereto have agreed as follows:
1. Section 2.2 of the Partnership Agreement is hereby amended by deleting
the reference to Charles Nirenberg and substituting therefor a reference to
Gregory G. Landry.
2. Section 3.8 of the Partnership Agreement is hereby amended to remove
the reference therein to Charles Nirenberg and to provide that the Standard
Allocation shall be 33.33% to Robert B. Stein, Jr., 33.33% to Gregory G. Landry
and 33.33% to Mitchell J. Kupperman.
3. Exhibit A to the Partnership Agreement is hereby amended to remove the
reference therein to Charles Nirenberg and to provide that the Percentage
Interests of Robert B. Stein, Jr., Gregory G. Landry and Mitchell J. Kupperman
shall be 33.33% each.
4. Section 7.1(a) of the Partnership Agreement is hereby amended to
provide that Robert B. Stein, Jr. shall serve as Managing Partner, on the same
terms and with the same authority as was provided for Charles Nirenberg under
the Partnership Agreement.
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5. Section 7.1(b) of the Partnership Agreement is hereby deleted and the
following new Section 7.1(b) is inserted in its place:
(b) The Managing Partner shall take such action as he deems necessary to
provide for and supervise the operation of the Property and to manage the
Partnership for the purposes set forth in Section 2.1, including, but not
limited to, exercising on behalf of the Partnership, any and all authority
and rights granted to the Partnership, as general partner of DM Associates
Limited Partnership ("DM Associates"), a Connecticut limited partnership,
pursuant to the Agreement of Limited Partnership of DM Associates Limited
Partnership, except that the Managing Partner shall not, and shall not have
the authority to, vote or exercise consensual rights or direct the voting
or exercise of consensual rights of any DMCS Shares, as defined in the
Partnership Agreement of DM Associates (the "DMCS Shares"), that the
Partnership has the power and authority to vote pursuant to such
Partnership Agreement, as to any matter, unless such vote or exercise of
consensual rights by the Managing Partner is agreed to by Partners
representing more than 50% of the Partner Percentage Interests (and the
Managing Partner shall vote (or direct the voting of) such DMCS Shares, or
shall exercise consensual rights (or direct the exercise of consensual
rights) in connection with such DMCS Shares in such manner as Partners
representing more than 50% of the Partner Percentage Interests shall
direct). If the Managing Partner fails to vote (or direct the voting of) or
exercise consensual rights with respect to (or direct the exercise of
consensual rights with respect to) DMCS Shares that the Partnership has the
power and authority to vote, in such manner as Partners representing more
than 50% of the Partner Percentage Interests shall direct, then such DMCS
Shares may be voted by ballot, proxy, or consent executed by Partners
representing more than 50% of the Partner Percentage Interests.
Notwithstanding anything in this Section 7.1(b) to the contrary, any of the
DMCS Shares that the Partnership has the power and authority to vote
pursuant to the Partnership Agreement of DM Associates that are Pledged
Shares shall be voted in accordance with the Majority of Other Shares
Procedure. As used herein, "Pledged Shares" shall mean DMCS Shares that are
pledged by DM Associates to the Company as security for indebtedness of the
Partnership to the Company. The Managing Partner agrees to manage and
control the affairs of the Partnership to the best of his ability and to
conduct the operations contemplated by this Agreement in a careful and
prudent manner. The Managing Partner shall devote to the Partnership
business all such time
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and effort as shall be required to operate and manage the business of the
Partnership effectively and to carry out the purposes set forth in Section
2.1.
As used herein, the "Majority of Other Shares Procedure" shall be as
follows:
(i) At any meeting of the shareholders of the Company, the Partnership
shall cause one preliminary calculation (each, a "Preliminary Calculation")
to be made not less than 5 minutes after the commencement of voting upon
each election, proposal or other matter (each, a "Proposal") to be voted on
at such meeting by holders of shares of Class B Common Stock of the
Company, in order to determine the manner in which the shares of Class B
Common Stock of the Company voted at such meeting, including the DMCS
Shares owned by DM Associates, other than the Pledged Shares (the "Other
Class B Shares"), have been voted on each Proposal;
(ii) Upon completing the Preliminary Calculation and determining the
percentage of the Other Class B Shares that were voted for or against a
Proposal (and in an election, for or against the election of any person),
the Partnership shall vote the same percentage of the Pledged Shares for
and against the Proposal as the percentage of Other Class B Shares in the
Preliminary Calculation that were voted for and against the Proposal; for
such purpose, the percentage of the Other Class B Shares that were voted
for or against a Proposal shall be calculated based upon (a) the total
number of outstanding shares of Class B Common Stock on the record date of
the shareholders meeting, if Delaware law or the Company's Certificate of
Incorporation or Bylaws requires that the Proposal be approved by a
specified percentage of all of the outstanding shares of Class B Common
Stock or of the combined voting power of all outstanding shares of Class A
Common Stock and Class B Common Stock of the Company, or (b) the number of
Other Class B Shares that are present (in person or by proxy) and voting at
the meeting of the shareholders, if subclause (a) of this Section
7.1(b)(ii) is not applicable; and
(iii) With respect to any action proposed to be taken by the written
consent of the holders of (a) the Class B Common Stock of the Company, or
(b) the Class A and B Common Stock of the Company, the same percentage of
Pledged Shares shall consent to the proposed action as the percentage of
all outstanding Other Class B Shares that have consented to such action;
for such purpose, the total number of outstanding shares of Class
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B Common Stock shall be determined as of the record date for the taking of
such action.
6. The parties acknowledge that a Termination Event has occurred and that
the limitations set forth in Section 7.2(c) with respect to the sale or
disposition of Excluded Shares, are no longer in effect.
7. Section 8.5 of the Partnership Agreement is hereby amended to provide
that Robert B. Stein, Jr. is hereby designated as the Tax Matters Partner.
8. The parties hereto agree to continue the business of the Partnership,
notwithstanding the withdrawal of Charles Nirenberg from the Partnership.
9. The following is hereby deleted from Section 10.2: "in the event
Gregory Landry and the Managing Partner each furnish a written consent to such
modification or amendment, Mr. Landry's consent will be considered null and void
and shall be deemed to not have been cast; provided further, however,".
10. Section 10.6 of the Partnership Agreement is hereby deleted and the
following new Section 10.6 is inserted in its place:
10.6 ENTIRE AGREEMENT. This Agreement, together with the Partnership
Agreement and the letter from Charles Nirenberg to FCN Properties
Corporation, DM Associates Limited Partnership, New DM Management
Associates I, New DM Management Associates II, The Nirenberg Family
Charitable Foundation, Inc. (k/n/a The Nirenberg Foundation, Inc.), HNB
Investment Corp., Mr. Gregory G. Landry, Mr. Robert B. Stein, Jr., and Mr.
Mitchell J. Kupperman, dated January 25, 1995 and agreed to in writing by
such addressees, a copy of which is attached hereto as Exhibit A,
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constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersedes any prior agreement or
understanding among them, oral or written.
11. References in Sections 1.8, 1.17 and 6.5 of the Agreement to Charles
Nirenberg are hereby deleted. Section 1.13 of the Partnership Agreement is
hereby amended by deleting the reference to Charles Nirenberg and substituting
therefor a reference to Robert B. Stein, Jr.
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12. Any notice required with respect to any of the matters set forth
herein is hereby waived.
13. Except to the extent expressly amended herein, the Partnership
Agreement shall continue in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement this 1st day
of December, 1995.
/s/ Robert B. Stein, Jr.
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Robert B. Stein, Jr.
/s/ Gregory G. Landry
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Gregory G. Landry
/s/ Mitchell J. Kupperman
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Mitchell J. Kupperman
The undersigned Class B limited partners of DM Associates Limited
Partnership consent to this First Amendment to Partnership Agreement of New DM
Management Associates I.
THE NIRENBERG FOUNDATION, INC.
By /s/ Charles Nirenberg
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Charles Nirenberg
Its President
December 1, 1995
/s/ Charles Nirenberg
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Charles Nirenberg
December 1, 1995