NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereof, the Participants severally agree with each other as follows: FIRST: The Participants hereby constitute JOHN BURNHAM & COMPANY, INC. the Syndicate Managers (hereinafter called the "Managers") under this agreement. SECOND: Each Participant, by this signature hereto, is bound for the amount of his participation in the Syndicate as set opposite his signature affixed hereto and agrees to comply with all directions of the Managers in regard to Syndicate matters and to make all payments to the Managers as and when called by the Managers. Calls by the Managers upon Participants to make payment of their participation will be made ratably in the discretion of the Managers, in full or from time to time in part. All payments shall be made in cash at the office designated by the Managers and within five days after each call by the Managers. THIRD: Participants shall share ratably in the profits and losses upon Syndicate transactions, but nothing herein contained shall constitute the parties hereto partners or shall render any one of the Participants liable to contribute more than the amount of his participation as set opposite his name hereto affixed. FOURTH: The Managers are hereby specifically authorized by the Partici pants as follows: (a) To purchase the shares in such amounts and at such times as in their discretion they shall deem advisable, and also to purchase from themselves in their individual capacity and from other Participants, and to purchase from others, in the open market or at private sale or otherwise shares in such amounts and at such prices, in their discretion, as they may deem advisable, and for all of the above mentioned purposes to apply the moneys paid by the Participants and moneys received from the sale of shares or otherwise hereunder, provided, however, that at no time shall the total liability of the Syndicate, either for long or short account, exceed the total number of shares subscribed for by the Syndicate. (b) To receive the shares so purchased for the benefit of the Syndicate. (c) To buy, sell, purchase, repurchase and trade in the shares as they may deem advantageous for the Syndicate, in their sole judgment and discretion, with the right and privilege in their discretion to deal in puts and calls of the shares if the same should seem advisable, and to ultiize for the purpose of buying or trading in any such shares any funds of the Syndicate, whether derived from participation hereunder, or from the proceeds of the sale of shares acquired by the Syndicate, or otherwise, provided only that the participation or obligation of each Participant hereunder shall not be thereby increased beyond the amount of his participation as stated herein. (d) From time to time to borrow money on behalf of the Syndicate and for the purposes thereof, and to pledge or hypothecate all shares in their possession or under their control, and also this Agreement and the obligations of the participants hereunder, as collateral security for all sums so borrowed, or to agree to pledge or hypothecate the same, as the Managers may deem wise, provided always that the respective liabilities of the Participants shall not in any event be increased above the full amount of their respective participation. (e) During the life of this Syndicate and up to and including the final distribution hereunder, the Managers, on behalf of the Syndicate, may make any and all arrangements and may perform any and all acts not especially mentioned herein that, in the exercise of their unrestricted discretion, they shall deem to be expedient in order to consummate the performance of this agreement or to promote or protect the interests of the Syndicate. FIFTH: The title to all of the shares acquired by the Managers for and on behalf of the Participants, as in this agreement provided, shall vest in the Managers and the same shall be held by them for the joint account of the Participants until the termination of this Agreement; and while the same shall remain in their possession, the Managers shall collect all dividends declared and paid on such stock for the joint account of the Participants and shall have full power and authority to vote the said shares of stock as fully and with the same effect as the Participants might or could do were they the absolute owners thereof. Any and all moneys received by the Managers hereunder may be held by them as Bankers in general account. SIXTH: The Syndicate will expire on Sept. 27, 1929, but may be extended by the Syndicate Managers, without notice, for an additional period or periods not exceeding ninety (90) days in the aggregate. The Syndicate Managers reserve the right, however, to terminate the Syndicate at any time. SEVENTH: The Managers may incur such expenses and obligations in the performance of this agreement as the Syndicate Managers may deem necessary or proper, including advertising expenses, counsel fees, and commissions and brokerage on the purchase and sale of shares either at public or private sale or purchase, and the Syndicate Managers are specifically authorized to pay to themselves any such brokerage or commission upon the purchase or sale of shares made by them hereunder, and all expenses and disbursements paid or incurred by the Managers in connection with the Syndicate shall be charged to the Syndicate hereunder. EIGHTH: The Participants shall share the Syndicate profits and losses pro rata, and upon the termination or expiration of the Syndicate the Managers shall distribute to the Participants pro rata all shares and/or cash remaining in the Syndicate account after deduction of all charges and expenses incurred hereunder. The apportionment and distribution by the Managers of the profits, expenses and losses of the Syndicate shall be binding and conclusive upon the Participants, and upon such distribution the Managers shall be discharged from all liability hereunder. The Managers, upon request, shall render to the Participants a full statement of the apportionment and distribution of profits and expenses of the Syndicate. NINTH: The Managers shall be Participants hereunder on the same terms as other Participants and shall have full power to sell to the Syndicate shares owned by them or associates, to the same extent as if they were neither Managers of or Participants in this Agreement, at such price or prices as in their absolute discretion they may determine. The Managers shall not be liable here under except for the failure to exercise good faith in carrying out the obligations hereby imposed. In case any Participant shall fail to perform any of his undertakings, other Participants may be received to take the place of the Participant so failing to perform his undertaking upon the written consent of the Managers. Upon the failure of any of the Participants to perform any of his undertakings hereunder, the Managers shall have the right, at their option, and in their discretion, to preclude a participant from all existing and all further interest and participation in the Syndicate, and thereupon all interest and right of such defaulting Participant shall cease and determine, and inasmuch as the successful carrying out of this agreement depends upon full and complete performance by each and every Participant, and inasmuch as the damages resulting from any Participant's failure to perform would be of an uncertain nature and incapable of exact ascertainment, the Managers shall have the right, in their discretion, either to forfeit as liquidated damages any payments such Participant may have theretofore made hereunder and such Participant does hereby transfer and assign to the Syndicate Managers such sum or sums as said Participant shall have theretofore paid, the acceptance thereof by the Syndicate Managers to be full settlement and discharge of any liability of the Participant to the Syndicate and of the Syndicate to the Participant; or said Managers may hold such Participant liable for the balance of his subscription and recover from such Participant all damages caused to the Syndicate by the failure of such Participant to perform. The death or default of any Participant shall not dissolve the Syndicate. TENTH: No Participant shall have the right to transfer his participation or any part thereof or any interest therein, either directly or indirectly, without the written consent of the Managers. No Participant may withdraw and receive his pro rata share of the shares at any time during the life of the Syndicate except with the written consent of the Managers and upon such terms as they may determine. ELEVENTH. Each Participant shall furnish to the Mánagers his address, to which notices, calls or other communications may be sent, and any notice, call or other communication mailed to the Participant at such address shall be deemed to have been received by him. TWELFTH: This Agreement may be executed in counterpart and shall bind and benefit the several parties and their respective executors, administrators, successors and assigns. IN WITNESS WHEREOF, the parties hereto have hereunto affixed their hands and seals as of the date above first written. JOHN BURNHAM & Co., Syndicate Managers. NAME PARTICIPANTS ADDRESS Paul B. Klugh, 3620 Iron St., Chicago---. Seneca Securities Corporation, by E. H. McDonald, Jr., Pres., 120 S. La Irving Hewitt, 120 S. La Salle St., Chicago, Illinois. Additional (Redmond & Co.) SHARES 9,700 19, 400 900 10,000 7,000 3,000 AGREEMENT made this 30th day of April, 1930 between Redmond & Company, a co-partnership, Stroud & Company, Incorporated, a Delaware Corporation, and Chandler & Co. Inc., a New York Corporation, witnesseth 1. The parties hereto agree to form a joint account in which each party shall have a one-third interest for the purpose of distributing and selling Class "B" Common Stock of The United States Dairy Products Corporation. 2. For the purpose of providing stock for such joint account, Chandler & Co. Inc. agrees to assign or cause to be assigned to the parties hereto, an option to purchase all or any part of 60,000 shares of such Class "B" Common Stock at $20.00 a share which said option extends until June 1, 1930. Chandler & Co. Inc. further agrees to assign or cause to be assigned to the parties hereto a further option to purchase all or any part of 40,000 additional shares of such stock at $22.50 per share which option extends until December 31, 1930 to be effective only provided the option on all of the 60,000 shares hereinbefore mentioned has been exercised. The foregoing assignments shall be subject to the following terms: (a) Chandler & Co. Inc. shall have the right on or before May 20, 1930 to exercise the foregoing option on its own behalf or to enter into a binding agreement to exercise such option on its own behalf on or before June 1, 1930 with respect to the 15,000 shares out of the hereinbefore mentioned option for 60,000 shares for the purpose of covering its present short position in such shares. Chandler & Co. Inc. shall be required to exercise the option on the aforesaid 15,000 shares provided the parties hereto shall notify Chandler & Co. Inc. that they desire to borrow such 15,000 shares for the purpose of making deliveries against short sales made for the joint account. (b) Chandler & Co. Inc. shall have the right in case on or before May 20, 1930 the option for the entire 60,000 shares is not exercised or a binding agreement entered into by the parties hereto to exercise such option on or before June 1, 1930, to exercise the option for its own account with respect to any portion of such shares the option for which has not been exercised or agreed to be exercised for the joint account as aforesaid. In the event that the additional option for 40,000 shares becomes effective, Chandler & Co. Inc. shall have the right in case, on or before December 15, 1930, the option for the entire 40,000 shares is not exercised or a binding agreement entered into by the parties bereto, to exercise such option on or before December 31, 1930 to exercise the option for its own account with respect to any portion of such shares the option for which has not been exercised or agreed to be exercised as aforesaid. (e) Chandler & Co. Inc. shall be entitled to a commission of $1.00 per share on any or all of said shares the option for which is exercised by the parties hereto for the joint account provided, however, said sum of $1.00 per share shall not apply to the 15,000 shares or any part thereof the option for which may be exercised or agreed to be exercised by Chandler & Co. Inc. as aforesaid. 3. Chandler & Co. Inc. will endeavor to obtain an option or options for the benefit of the parties hereto to purchase 28,000 additional shares of said stock at $21.50 per share said option or options to extend until December 31, 1930. In order to enable Chandler & Co. Inc. to cover their short position at April 25, 1930, over and above the 15,000 shares above referred to, as well as their short position in joint account with Stroud & Company, Incorporated, Chandler & Co. Inc. shall have the first right to take up to but not exceeding 7,283 shares of said stock for the purpose of covering such shortage. 4. Chandler & Co. Inc. agrees to procure letters from the owners of at least 105,000 shares of said stock agreeing not to sell the same before December 31, 1930 without the consent of the parties hereto. 5. Chandler & Co. Inc. agrees that it will loan or cause to be loaned to the joint account, if required, up to an aggregate amount of 35,000 shares of said stock of which 20,000 shares will be provided by Stroud & Company, Incorporated and 15,000 shares by Chandler & Co. Inc. The price at which said stock shall be loaned shall not exceed the option price for said stock at that time in effect and no demand shall be made for the return of said stock so loaned prior to the expiration date of the options then in effect. It is agreed that the joint account shall never be short of a greater number of shares of said stock than can be borrowed from Chandler & Co. Inc. or Stroud & Company, Incorporated unless additional stock can be borrowed from others through Chandler & Co. Inc. on terms similar to those above set forth. Stock borrowed from others, however, subsequent to June 1, 1930 shall not be required to be loaned for the entire period until the expiration of the option, but may be loaned for a period not less than 60 days and notice requiring the return of such stock shall be given 10 days before delivery is required. All stock so borrowed shall be returned by the joint account either through their purchases in the open market or through the exercise of the above mentioned options. The moneys paid by the joint account against a loan of this stock shall be non-interest bearing. 6. All books and accounts with reference to said joint account shall be kept by Chandler & Co. Inc. No purchasing of shares of such stock for the joint account shall be made on the open market or otherwise except with the consent of the parties hereto and then only to cover in whole or in part any short position of the joint account. Such purchases when made shall be handled by Chandler & Co. Inc. as Syndicate Managers hereunder. 7. In order to assist in establishing a short position in the market and thereby to aid in the distribution of such stock, Chandler & Co. Inc. agree that until a short position of 5,000 shares has been established by the joint account, the parties hereto for the joint account shall have the right to put to Chandler & Co. Inc. up to but not exceeding 5,000 shares of such stock at a price not in excess of $24.00 per share. 8. The parties hereto agree to use their best efforts to place and distribute such shares. 9. Chandler & Co. Inc. agrees to arrange, by the establishment of a Committee or otherwise, that the parties hereto shall be kept fully informed with respect to the operations and business of the United States Dairy Products Corporation. 10. All wholesaling shall be for the joint account. The concession allowed to dealers shall be mutually agreed upon by the members of the joint account from time to time. The retail price on any day shall be governed by the closing sale price in the market of the previous day. 11. The joint account shall be charged only with the out-of-pocket expenses of the parties hereto incurred for the joint account including advertising, printing, etc. and Chandler & Co. Inc. shall make no charge for their services as Syndicate Managers or in keeping the records of the joint account. 12. Any net profits of the joint account after paying all expenses as above mentioned and the $1.00 per share to Chandler & Co. Inc. as provided in Paragraph 2 (c), hereof, shall be divided upon the termination of the joint account equally between the parties hereto unless an earlier distribution in whole or in part shall be mutually agreed upon. 13. The joint account may be terminated by any one of the parties hereto upon 10 days written notice to the other parties. Upon such termination a full accounting shall be made but no valuation shall be given to any portion of the shares remaining in the option over and above that necessary to cover the short position of the joint account. The party giving notice of termina tion shall have no further interest in such option, but the same shall belong to the other parties hereof. Unless terminated as aforesaid, this agreement shall extend to and terminate on December 31, 1930. 14. At the request of the parties hereto, Chandler & Co. Inc. will cause the United States Dairy Products Corporation to make application to list said "B" shares of its stock upon the New York Stock Exchange. 15. Chandler & Co. Inc. agrees to procure letters from the owners of at least 27,000 Stock Purchase Warrants, Series of 1934, to the effect that they agree not to sell stock if such Warrants are exercised on or before December 31, 1930 without the consent of the parties hereto. |