Advisory Board. (a) A board (an “Advisory Board”) shall be appointed by the General Partner, all the members of which shall only be selected by the General Partner from among the Limited Partners and Parallel Fund Limited Partners (or their respective representatives) that, together with their affiliated (including, to the extent determined by the General Partner, commonly advised or managed) Limited Partners and Parallel Fund Limited Partners, hold Aggregate Commitments of at least $50 million and who are not Affiliates of the General Partner. The General Partner may appoint new members to fill any vacancies on the Advisory Board arising from time to time so long as such appointments are in compliance with this Section 8.1. The General Partner shall have the right to remove, or place restrictions on participation by, any Advisory Board member at any time (i) after the Limited Partner or Parallel Fund Limited Partner that such member represents, together with its Affiliates, ceases to have a Commitment, Feeder Vehicle Commitment and/or Parallel Fund Commitment equal in the aggregate to at least 50% of the Aggregate Commitments of such Persons as of their admission to the Partnership, the Feeder Vehicle or the Parallel Fund, as applicable, as increased following such admission pursuant to Section 7.6 or any similar provision of the Feeder Vehicle Agreement or the Parallel Fund Agreement, (ii) for cause, (iii) after such member ceases to be an employee of the Limited Partner or Parallel Fund Limited Partner he or she initially represents (or an employee of such Limited Partner’s or Parallel Fund Limited Partner’s Affiliate or advisor), (iv) for any reason with the approval of a majority of the other Advisory Board members, (v) pursuant to Section 7.9(d) or (vi) if such member’s position on the Advisory Board could make the Partnership a “foreign person” within the meaning of CFIUS or make an investment or transaction subject to review by CFIUS or any similar national security investment clearance regulator. (b) The Advisory Board shall perform the duties expressly contemplated in this Agreement, may periodically review the valuations of the Partnership’s assets made by the General Partner and shall provide such other advice and counsel as is requested by the General Partner in connection with the Partnership’s investments, potential conflicts of interest and other Partnership matters; provided that the General Partner shall retain ultimate responsibility for asset valuations (subject to the provisions of Article X) and for making all decisions relating to the operation and management of the Partnership or relating to the conduct of its business, including making all investment decisions. All Advisory Board consents, approvals, disapprovals, votes, determinations and other actions shall be authorized by a majority of the non-abstaining Advisory Board members pursuant to a meeting or written consent of a majority of the non-abstaining Advisory Board members. As referenced in this Agreement, the approval of the Advisory Board shall mean the approval, consent or other authorization of the Advisory Board. (c) Meetings of the Advisory Board members may be conducted in person, telephonically or through the use of other communications equipment by means of which all Persons participating in the meeting can communicate with each other. The General Partner shall be entitled to have representatives attend and participate in all Advisory Board meetings as a non-voting chairman and may permit non-voting observers to attend such meetings. The Partnership shall reimburse each Advisory Board member, representative of the General Partner, and permitted observer for his or her reasonable out-of-pocket expenses incurred in connection with the proceedings of the Advisory Board, other than any such proceedings that take place in connection with a general meeting of the Limited Partners. Except as contemplated in this Section (d) The General Partner is authorized, in its sole discretion, to seek Advisory Board approval in connection with (i) approvals required under the Investment Advisers Act including any approvals required under Section 206(3) thereof or (ii) any consent to a transaction that would result in any “assignment” (within the meaning of the Investment Advisers Act) with respect to the General Partner, the Management Company or any other investment advisory affiliate of the General Partner, and such Advisory Board approval shall constitute consent of the Limited Partners and the Partnership for purposes of the Investment Advisers Act. Each Limited Partner agrees that, with respect to any Advisory Board approval sought by the General Partner relating to this Agreement or the arrangements contemplated hereby, such approval shall be binding upon the Partnership and each Partner. Each Limited Partner further agrees that any such approval alternatively may be granted by Limited Partners and Parallel Fund Limited Partners holding a majority of the Aggregate Commitments held by such Persons. Notwithstanding anything to the contrary in this Agreement, if the (A) Advisory Board waives any conflict of interest or duty of the General Partner or any other Conflict Party or (B) the General Partner or any other Conflict Party acts in a manner, or pursuant to the standards and procedures, approved by the Advisory Board with respect to a conflict of interest, then, in each case, such Person shall not be in breach of any such duty or this Agreement and shall not have any liability to the Partnership or the Limited Partners for such actions taken in good faith by them.
Appears in 2 contracts
Sources: Limited Partnership Agreement, Limited Partnership Agreement
Advisory Board. (a) A board The Manager shall, promptly following the last of the dates provided in the respective agreements governing the Parallel Investment Entities as of which additional investors can no longer be admitted to any such entity, select and form an "ADVISORY BOARD" (as herein called), which shall consist of at least three but not more than five individuals who are representatives of BOCP and of investors (excluding the General Partner or an “Affiliate thereof) in any Parallel Investment Entity; provided, however, that no single Eligible Investor shall have more than one representative serving on the Advisory Board”) Board at any one time; and provided, further, that one member of the Advisory Board shall at all times be appointed a limited partner of the EnCap Fund Partnership and a second member of the Advisory Board shall at all times be a limited partner of EnCap Energy Capital Fund III-B, L.P. The initial members of the Advisory Board shall serve until December 31, 1998. As of January 1 of each year thereafter, the Manager shall nominate a new Advisory Board which must be approved in writing by a majority in interest of BOCP and the investors in each Parallel Investment Entity voting as a single group (based on the amounts of their respective agreements to contribute and/or loan capital to the Partnership or a Parallel Investment Entity and excluding any vote by the General Partner, all the members of ) and which shall only be selected by serve for the General Partner from among remainder of such calendar year and until the Limited Partners and Parallel Fund Limited Partners (or their respective representatives) that, together with their affiliated (including, to the extent determined by the General Partner, commonly advised or managed) Limited Partners and Parallel Fund Limited Partners, hold Aggregate Commitments of at least $50 million and who are not Affiliates of the General Partnersuccessor board has been so approved. The General Partner may appoint new members to fill any vacancies Any vacancy arising on the Advisory Board arising from time to time so long as such appointments are in compliance with this Section 8.1shall be filled by the Manager. The General Partner shall have the right to remove, or place restrictions on participation by, any Advisory Board Any member at any time (i) after the Limited Partner or Parallel Fund Limited Partner that such member represents, together with its Affiliates, ceases to have a Commitment, Feeder Vehicle Commitment and/or Parallel Fund Commitment equal in the aggregate to at least 50% of the Aggregate Commitments of such Persons as of their admission to the Partnership, the Feeder Vehicle or the Parallel Fund, as applicable, as increased following such admission pursuant to Section 7.6 or any similar provision of the Feeder Vehicle Agreement or the Parallel Fund Agreement, (ii) for cause, (iii) after such member ceases to be an employee of the Limited Partner or Parallel Fund Limited Partner he or she initially represents (or an employee of such Limited Partner’s or Parallel Fund Limited Partner’s Affiliate or advisor), (iv) for any reason with the approval of a majority of the other Advisory Board members, (v) pursuant to Section 7.9(d) or (vi) if such member’s position on the Advisory Board could make may be removed at any time, with or without cause, by written consent signed by the 66 2/3% in interest of BOCP and the investors in each Parallel Investment Entity as a single group (based on the amounts of their respective agreements to contribute and/or loan capital to the Partnership a “foreign person” within the meaning of CFIUS or make an investment or transaction subject to review by CFIUS or any similar national security investment clearance regulator.or
(b) The functions of the Advisory Board shall be (i) to resolve any questions relating to a conflict of interest or a potential conflict of interest between the Manager or any of its Affiliates, on one hand, and the Partnership, BOCP, a Parallel Investment Entity, or the investors therein, on the other hand, and to approve any contract or other transaction between the Partnership and a Parallel Investment Entity, on the one hand, and the Manager or an Affiliate thereof, on the other hand; (ii) to consult with and advise the Manager on such other matters, including investment strategy, about which the Manager may from time to time, in its sole discretion, determine to consult with the Advisory Board; (iii) to review with the Manager the annual operating budgets of the Partnership and the Parallel Investment Entities; (iv) to approve each determination of Market Value which is used in the calculation of Preferred Return Payout or Catch-Up Payout; and (v) to approve such other matters and perform such other functions as are provided for in this Agreement and/or in any agreements governing a Parallel Investment Entity; provided, that the duties expressly contemplated functions and activities of the Advisory Board and each member thereof acting in such capacity shall be limited to those permitted under Section 3.03(b) of the Act for limited partners who are deemed not to participate in the control of the business of a partnership. The approval of the Advisory Board of any conflict, potential conflict or transaction pursuant to subsection (i) above in this Section shall constitute the approval thereof or the consent thereto by BOCP as required pursuant to, or for purposes of, Section 2.2 or elsewhere in this Agreement.
(c) The Advisory Board shall have the authority to adopt rules and procedures, may periodically review not inconsistent with this Agreement or the valuations of the Partnership’s assets made by the General Partner and shall provide such other advice and counsel as is requested by the General Partner in connection with the Partnership’s investmentsagreement governing each Parallel Investment Entity, potential conflicts of interest and other Partnership matters; provided that the General Partner shall retain ultimate responsibility for asset valuations (subject to the provisions of Article X) and for making all decisions relating to the operation and management of the Partnership or relating to the conduct of its businessaffairs; provided, including making all investment decisions. All however, that (i) in any event such rules and procedures shall include the requirement that each member shall be required to recuse himself from voting on any matter being considered by the Advisory Board consentsfor which such member (or the investor represented by such member) has a conflict of interest, (ii) except when a greater number is required elsewhere in this Agreement, all approvals, disapprovals, votes, determinations and other actions taken by the Advisory Board shall be authorized by a majority in number of the non-abstaining members of the Advisory Board members pursuant then holding office and eligible to a meeting or written consent of a majority of vote on the non-abstaining matter being considered, and (iii) except as provided in subsection (b) above, in no event shall the Advisory Board members. As referenced in this Agreement(or any member thereof) have the power to bind the Partnership, BOCP, the approval Parallel Investment Entities, or the investors in each Parallel Investment Entity, or the authority to act for or on behalf of any of them. Without expanding the terms of subsection (b) above, the Manager shall, if requested by the Advisory Board, meet with or otherwise make itself reasonably available to, the Advisory Board on a quarterly basis and at a mutually convenient time.
(d) The members of the Advisory Board shall mean the approval, consent or other authorization exercise their best judgment in carrying out their functions. Each member of the Advisory Board.
(c) Meetings , BOCP and each investor in a Parallel Investment Entity associated with a member of the Advisory Board members may and their respective Affiliates shall be conducted in person, telephonically or through indemnified to the use of other communications equipment by means of which all Persons participating extent set forth in the meeting can communicate with each otherrespective agreements governing the Partnership -26- 30 and the Parallel Investment Entities, except that the expense of such indemnity shall be borne in the manner provided in Section 5.1(c).
(e) The Advisory Board will serve without compensation. The General Partner shall be entitled to have representatives attend and participate in Partnership, however, will reimburse all Advisory Board meetings as a non-voting chairman and may permit non-voting observers to attend such meetings. The Partnership shall reimburse each Advisory Board member, representative of the General Partner, and permitted observer for his or her reasonable out-of-pocket expenses of any member representing the Partnership incurred in connection with the proceedings attending meetings and otherwise as a result of their service on the Advisory Board, other than any such proceedings that take place in connection with a general meeting of the Limited Partners. Except as contemplated in this Section
(d) The General Partner is authorized, in its sole discretion, to seek Advisory Board approval in connection with (i) approvals required under the Investment Advisers Act including any approvals required under Section 206(3) thereof or (ii) any consent to a transaction that would result in any “assignment” (within the meaning of the Investment Advisers Act) with respect to the General Partner, the Management Company or any other investment advisory affiliate of the General Partner, and such Advisory Board approval shall constitute consent of the Limited Partners and the Partnership for purposes of the Investment Advisers Act. Each Limited Partner agrees that, with respect to any Advisory Board approval sought by the General Partner relating to this Agreement or the arrangements contemplated hereby, such approval Such reimbursement shall be binding upon borne in the Partnership and each Partner. Each Limited Partner further agrees that any such approval alternatively may be granted by Limited Partners and Parallel Fund Limited Partners holding a majority of the Aggregate Commitments held by such Persons. Notwithstanding anything to the contrary manner provided in this Agreement, if the (A) Advisory Board waives any conflict of interest or duty of the General Partner or any other Conflict Party or (B) the General Partner or any other Conflict Party acts in a manner, or pursuant to the standards and procedures, approved by the Advisory Board with respect to a conflict of interest, then, in each case, such Person shall not be in breach of any such duty or this Agreement and shall not have any liability to the Partnership or the Limited Partners for such actions taken in good faith by themSection 5.1(c).
Appears in 1 contract
Sources: Management Agreement (Encap Energy Capital Fund Iii Lp)
Advisory Board. (a) A The General Partner shall appoint a board (an “Advisory Board”) shall be appointed by the General Partnerconsisting of at least three (3), but no more than nine (9), individuals, all the members of which shall only be selected by the General Partner from among the Limited Partners and Parallel Fund Limited Partners (or their respective representatives) that). Subject to the foregoing, each Limited Partner and Parallel Fund Limited Partner, together with their affiliated (includingrespective Affiliates, whose aggregate commitments to the extent determined by Partnership and/or Parallel Fund equal to at least €30 million shall be entitled to appoint one (1) representative (and any replacement representative from time to time) reasonably acceptable to the General Partner, commonly advised or managed) Partner to serve as a member of the Advisory Board. Each Advisory Board representative shall be selected from among Limited Partners and Parallel Fund Limited PartnersPartners who, hold Aggregate Commitments of together with their respective Affiliates, have aggregate commitments to the Partnership and/or Parallel Fund equal to at least $50 million and who are not Affiliates of €20 million; provided that one (1) Advisory Board representative may be selected from among Limited Partners or Parallel Fund Limited Partners who, together with their respective Affiliates, have aggregate commitments to the General PartnerPartnership and/or Parallel Fund equal to less than €20 million. The General Partner may appoint new members to fill any vacancies on the Advisory Board arising from time to time so long as such appointments are in compliance with this Section 8.1. The General Partner shall have the right to remove, or place restrictions on participation by, remove any Advisory Board member at any time (i) after the Limited Partner or Parallel Fund Limited Partner that such member represents, together with its Affiliates, ceases to have a Commitment, Feeder Vehicle Commitment and/or Parallel Fund Commitment equal in the aggregate to at least 50% of €20 million (or, if such Limited Partner or Parallel Fund Limited Partner has a Commitment and/or Parallel Fund Commitment less than €20 million, a Commitment and/or Parallel Fund Commitment less than the Aggregate Commitments of Commitment and/or Parallel Fund Commitment such Persons as of their admission Limited Partner and/or Parallel Fund Limited Partner had at the time its representative was appointed to the PartnershipAdvisory Board), the Feeder Vehicle or the Parallel Fund(ii) for cause (which, as applicablefor purposes hereof, as increased following such admission pursuant to Section 7.6 or any similar provision shall mean a criminal conviction, a material breach of the Feeder Vehicle this Agreement or the Parallel Fund Agreement, (ii) for causefraud, or committing an act of gross negligence, wilful misconduct, bad faith or reckless disregard in connection with the operation or affairs of the Partnership or Parallel Fund), (iii) after such member ceases to be an employee employee, consultant or advisor of the Limited Partner or Parallel Fund Limited Partner he or she initially represents (or an employee employee, consultant or advisor of such Limited Partner’s or Parallel Fund Limited Partner’s Affiliate or advisor), or (iv) for any reason with the approval of a majority of the other Advisory Board members, (v) pursuant to Section 7.9(d) or (vi) if such member’s position on 7.9(j). Each Limited Partner entitled to appoint a representative to the Advisory Board could make pursuant to this Section 8.1 shall cause such representative to maintain the Partnership a “foreign person” within confidentiality of information received in connection therewith to the meaning of CFIUS or make an investment or transaction subject same extent as such Limited Partner is required to review by CFIUS or any similar national security investment clearance regulatordo so pursuant to this Agreement.
(b) The Advisory Board shall perform the duties expressly contemplated in this Agreement, may periodically review the valuations of the Partnership’s and the Parallel Fund’s assets made by the General Partner and shall may provide such other advice and counsel as is requested by the General Partner in connection with the Partnership’s and the Parallel Fund’s investments, potential conflicts of interest and other Partnership and Parallel Fund matters; including:
(i) approving any related-party transactions or arrangements entered into between (A) any Taaleri Person on the one hand and (B) the Partnership, the Parallel Fund, any Alternative Investment Vehicle and/or any Portfolio Company on the other hand;
(ii) advising on conflicts of interests on a binding basis;
(iii) approving investment decisions that exceed the investment limits set out in Section 6.6, subject, in each case, to the maximum investment limit the Advisory Board may approve as set forth therein;
(iv) approving replacement Key Persons, SE Europe Key Persons and Super Key Persons;
(v) inspecting all books, correspondence, minutes, records and bank statements of the Partnership and the Parallel Fund;
(vi) undertaking or arranging for any investigations over the activities of the Partnership, the General Partner or the Manager as necessary in connection with the matters referred to it pursuant to this Agreement;
(vii) approving any change of auditors; and
(viii) discussing any matter that is subject to the consent of the Limited Partners and/or Parallel Fund Limited Partners and to the extent the Advisory Board considers it necessary or appropriate, issuing a recommendation in relation to such matter, provided that the General Partner shall retain ultimate responsibility for asset valuations (subject to the provisions of Article X) and for making all decisions relating to the operation and management of the Partnership or relating to the conduct of its businessactivities, including making all investment decisions. .
(c) The General Partner shall provide the Advisory Board with any information reasonably requested by the Advisory Board in connection with the matters referred to it pursuant to this Agreement;
(d) The Advisory Board members shall not participate in the management of the Partnership or the Parallel Fund nor shall any member of the Advisory Board owe any fiduciary duty or corresponding duty to the Partnership, the Parallel Fund, any Partner or Parallel Fund Partner or any other investor in the fund known as “Taaleri SolarWind II”.
(e) All Advisory Board consents, approvals, disapprovals, votes, determinations and other actions shall be authorized by a majority of the non-abstaining Advisory Board members pursuant to a meeting or by the written consent of a majority of the non-abstaining Advisory Board members. As referenced members (unless otherwise set out in this Agreement, ); provided that any Advisory Board member representing or appointed by the approval Feeder Vehicle shall be a member of the Feeder Vehicle Advisory Board and, for the avoidance of doubt, shall not be a Taaleri Person or a partner, manager, member, officer or employee of a Taaleri Person. Any Advisory Board member may attend and vote in any Advisory Board meeting by telephone or videoconference and any absentations shall be counted as a negative vote.
(f) The Advisory Board shall mean meet as frequently as necessary but in any event no less than four (4) times per calendar year during the approvalInvestment Period and, consent thereafter, no less than two (2) times per calendar year. An Advisory Board meeting may be convened by the General Partner or other authorization of the any Advisory Board.
(c) Board member. Meetings of the Advisory Board members may be conducted in person, telephonically or through the use of other communications equipment by means of which all Persons participating in the meeting can communicate with each other, provided that at least two (2) Advisory Board meetings per calendar year shall be in person. In the event that an Advisory Board member is unable to attend an Advisory Board meeting for any reason, the Limited Partner(s) and/or Parallel Fund Limited Partner(s) that appointed such Advisory Board member pursuant to Section 8.1(a) above shall be permitted to designate another individual to serve as their representative at such Advisory Board meeting. The General Partner shall and/or the Manager shall, unless excluded by the Advisory Board members, be entitled to have representatives attend and participate in all Advisory Board meetings as a non-voting chairman and may permit non-voting observers to attend such meetings. .
(g) The Partnership shall reimburse each Advisory Board member, representative of the General Partner, and permitted observer member for his or her reasonable out-of-pocket expenses incurred in connection with the proceedings of the Advisory Board, other than any such proceedings that take place in connection with a general meeting of the Limited Partners. Except as contemplated in this Section
(d) The General Partner is authorized, in its sole discretion, to seek Advisory Board approval in connection with (i) approvals required under the Investment Advisers Act including any approvals required under Section 206(3) thereof or (ii) any consent to a transaction that would result in any “assignment” (within the meaning of the Investment Advisers Act) with respect to the General Partner, the Management Company or any other investment advisory affiliate of the General Partner, and such Advisory Board approval shall constitute consent of the Limited Partners and the Partnership for purposes of the Investment Advisers Act. Each Limited Partner agrees that, with respect to any Advisory Board approval sought by the General Partner relating to this Agreement or the arrangements contemplated hereby, such approval shall be binding upon the Partnership and each Partner. Each Limited Partner further agrees that any such approval alternatively may be granted by Limited Partners and Parallel Fund Limited Partners holding a majority of the Aggregate Commitments held by such Persons. Notwithstanding anything to the contrary in this Agreement, if the (A) Advisory Board waives any conflict of interest or duty of the General Partner or any other Conflict Party or (B) the General Partner or any other Conflict Party acts in a manner, or pursuant to the standards and procedures, approved by the Advisory Board with respect to a conflict of interest, then, in each case, such Person shall not be in breach of any such duty or this Agreement and shall not have any liability to the Partnership or the Limited Partners for such actions taken in good faith by them.
Appears in 1 contract
Sources: Limited Partnership Agreement
Advisory Board. (a) A board The Manager shall, promptly following the last of the dates provided in the respective agreements governing the Parallel Investment Entities as of which additional investors can no longer be admitted to any such entity, select and form an "ADVISORY BOARD" (as herein called), which shall consist of at least three but not more than five individuals who are representatives of BOCP and of investors (excluding the General Partner or an “Affiliate thereof) in any Parallel Investment Entity; provided, however, that no single Eligible Investor shall have more than one representative serving on the Advisory Board”) Board at any one time; and provided, further, that one member of the Advisory Board shall at all times be appointed a limited partner of the EnCap Fund Partnership and a second member of the Advisory Board shall at all times be a limited partner of EnCap Energy Capital Fund III-B, L.P. The initial members of the Advisory Board shall serve until December 31, 1998. As of January 1 of each year thereafter, the Manager shall nominate a new Advisory Board which must be approved in writing by a majority in interest of BOCP and the investors in each Parallel Investment Entity voting as a single group (based on the amounts of their respective agreements to contribute and/or loan capital to the Partnership or a Parallel Investment Entity and excluding any vote by the General Partner, all the members of ) and which shall only serve for the remainder of such calendar year and until the successor board has been so approved. Any vacancy arising on the Advisory Board shall be selected filled by the General Partner from among Manager. Any member of the Limited Partners Advisory Board may be removed at any time, with or without cause, by written consent signed by the 66 2/3% in interest of BOCP and the investors in each Parallel Fund Limited Partners Investment Entity as a single group (or based on the amounts of their respective representatives) that, together with their affiliated (including, agreements to contribute and/or loan capital to the extent determined Partnership or a Parallel Investment Entity and excluding any vote by the General Partner, commonly advised or managed) Limited Partners and Parallel Fund Limited Partners, hold Aggregate Commitments of at least $50 million and who are not Affiliates of the General Partner). The General Partner may appoint new members to fill any vacancies on the Advisory Board arising from time to time so long as such appointments are in compliance with this Section 8.1. The General Partner shall have the right to remove, or place restrictions on participation by, any Advisory Board member at any time (i) after the Limited Partner or Parallel Fund Limited Partner that such member represents, together with its Affiliates, ceases to have a Commitment, Feeder Vehicle Commitment and/or Parallel Fund Commitment equal in the aggregate to at least 50% of the Aggregate Commitments of such Persons as of their admission to the Partnership, the Feeder Vehicle or the Parallel Fund, as applicable, as increased following such admission pursuant to Section 7.6 or any similar provision of the Feeder Vehicle Agreement or the Parallel Fund Agreement, (ii) for cause, (iii) after such member ceases to be an employee of the Limited Partner or Parallel Fund Limited Partner he or she initially represents (or an employee of such Limited Partner’s or Parallel Fund Limited Partner’s Affiliate or advisor), (iv) for any reason with the approval of a majority of the other Advisory Board members, (v) pursuant to Section 7.9(d) or (vi) if such member’s position on the Advisory Board could make the Partnership a “foreign person” within the meaning of CFIUS or make an investment or transaction subject to review by CFIUS or any similar national security investment clearance regulator.Any
(b) The functions of the Advisory Board shall be (i) to resolve any questions relating to a conflict of interest or a potential conflict of interest between the Manager or any of its Affiliates, on one hand, and the Partnership, BOCP, a Parallel Investment Entity, or the investors therein, on the other hand, and to approve any contract or other transaction between the Partnership and a Parallel Investment Entity, on the one hand, and the Manager or an Affiliate thereof, on the other hand; (ii) to consult with and advise the Manager on such other matters, including investment strategy, about which the Manager may from time to time, in its sole discretion, determine to consult with the Advisory Board; (iii) to review with the Manager the annual operating budgets of the Partnership and the Parallel Investment Entities; (iv) to approve each determination of Market Value which is used in the calculation of Preferred Return Payout or Catch-Up Payout; and (v) to approve such other matters and perform such other functions as are provided for in this Agreement and/or in any agreements governing a Parallel Investment Entity; provided, that the duties expressly contemplated functions and activities of the Advisory Board and each member thereof acting in such capacity shall be limited to those permitted under Section 3.03(b) of the Act for limited partners who are deemed not to participate in the control of the business of a partnership. The approval of the Advisory Board of any conflict, potential conflict or transaction pursuant to subsection (i) above in this Section shall constitute the approval thereof or the consent thereto by BOCP as required pursuant to, or for purposes of, Section 2.2 or elsewhere in this Agreement.
(c) The Advisory Board shall have the authority to adopt rules and procedures, may periodically review not inconsistent with this Agreement or the valuations of the Partnership’s assets made by the General Partner and shall provide such other advice and counsel as is requested by the General Partner in connection with the Partnership’s investmentsagreement governing each Parallel Investment Entity, potential conflicts of interest and other Partnership matters; provided that the General Partner shall retain ultimate responsibility for asset valuations (subject to the provisions of Article X) and for making all decisions relating to the operation and management of the Partnership or relating to the conduct of its businessaffairs; provided, including making all investment decisions. All however, that (i) in any event such rules and procedures shall include the requirement that each member shall be required to recuse himself from voting on any matter being considered by the Advisory Board consentsfor which such member (or the investor represented by such member) has a conflict of interest, (ii) except when a greater number is required elsewhere in this Agreement, all approvals, disapprovals, votes, determinations and other actions taken by the Advisory Board shall be authorized by a majority in number of the non-abstaining members of the Advisory Board members pursuant then holding office and eligible to a meeting or written consent of a majority of vote on the non-abstaining matter being considered, and (iii) except as provided in subsection (b) above, in no event shall the Advisory Board members. As referenced in this Agreement(or any member thereof) have the power to bind the Partnership, BOCP, the approval Parallel Investment Entities, or the investors in each Parallel Investment Entity, or the authority to act for or on behalf of any of them. Without expanding the terms of subsection (b) above, the Manager shall, if requested by the Advisory Board, meet with or otherwise make itself reasonably available to, the Advisory Board on a quarterly basis and at a mutually convenient time.
(d) The members of the Advisory Board shall mean the approval, consent or other authorization exercise their best judgment in carrying out their functions. Each member of the Advisory Board.
(c) Meetings , BOCP and each investor in a Parallel Investment Entity associated with a member of the Advisory Board members may and their respective Affiliates shall be conducted in person, telephonically or through indemnified to the use of other communications equipment by means of which all Persons participating extent set forth in the meeting can communicate with each otherrespective agreements governing the Partnership and the Parallel Investment Entities, except that the expense of such indemnity shall be borne in the manner provided in Section 5.1(c).
(e) The Advisory Board will serve without compensation. The General Partner shall be entitled to have representatives attend and participate in Partnership, however, will reimburse all Advisory Board meetings as a non-voting chairman and may permit non-voting observers to attend such meetings. The Partnership shall reimburse each Advisory Board member, representative of the General Partner, and permitted observer for his or her reasonable out-of-pocket expenses of any member representing the Partnership incurred in connection with the proceedings attending meetings and otherwise as a result of their service on the Advisory Board, other than any such proceedings that take place in connection with a general meeting of the Limited Partners. Except as contemplated in this Section
(d) The General Partner is authorized, in its sole discretion, to seek Advisory Board approval in connection with (i) approvals required under the Investment Advisers Act including any approvals required under Section 206(3) thereof or (ii) any consent to a transaction that would result in any “assignment” (within the meaning of the Investment Advisers Act) with respect to the General Partner, the Management Company or any other investment advisory affiliate of the General Partner, and such Advisory Board approval shall constitute consent of the Limited Partners and the Partnership for purposes of the Investment Advisers Act. Each Limited Partner agrees that, with respect to any Advisory Board approval sought by the General Partner relating to this Agreement or the arrangements contemplated hereby, such approval Such reimbursement shall be binding upon borne in the Partnership and each Partner. Each Limited Partner further agrees that any such approval alternatively may be granted by Limited Partners and Parallel Fund Limited Partners holding a majority of the Aggregate Commitments held by such Persons. Notwithstanding anything to the contrary manner provided in this Agreement, if the (A) Advisory Board waives any conflict of interest or duty of the General Partner or any other Conflict Party or (B) the General Partner or any other Conflict Party acts in a manner, or pursuant to the standards and procedures, approved by the Advisory Board with respect to a conflict of interest, then, in each case, such Person shall not be in breach of any such duty or this Agreement and shall not have any liability to the Partnership or the Limited Partners for such actions taken in good faith by themSection 5.1(c).
Appears in 1 contract
Advisory Board. (a) A board (an “Advisory Board”) shall be appointed by The Manager shall, promptly following the General Partner, all last of the members dates provided in the respective agreements governing the Parallel Investment Entities as of which additional investors can no longer be admitted to any such entity, select and form an "ADVISORY BOARD" (as herein called), which shall only be selected by consist of at least three but not more than five individuals who are representatives of BOCP and of investors (excluding the General Partner from among the Limited Partners and or an Affiliate thereof) in any Parallel Fund Limited Partners (or their respective representatives) thatInvestment Entity; provided, together with their affiliated (includinghowever, to the extent determined by the General Partner, commonly advised or managed) Limited Partners and Parallel Fund Limited Partners, hold Aggregate Commitments of at least $50 million and who are not Affiliates of the General Partner. The General Partner may appoint new members to fill any vacancies that no single Eligible Investor shall have more than one representative serving on the Advisory Board arising from time to time so long as such appointments are in compliance with this Section 8.1. The General Partner shall have the right to remove, or place restrictions on participation by, any Advisory Board member at any time (i) after the Limited Partner or Parallel Fund Limited Partner one time; and provided, further, that such one member represents, together with its Affiliates, ceases to have a Commitment, Feeder Vehicle Commitment and/or Parallel Fund Commitment equal in the aggregate to at least 50% of the Aggregate Commitments of such Persons as of their admission to the Partnership, the Feeder Vehicle or the Parallel Fund, as applicable, as increased following such admission pursuant to Section 7.6 or any similar provision of the Feeder Vehicle Agreement or the Parallel Fund Agreement, (ii) for cause, (iii) after such member ceases to be an employee of the Limited Partner or Parallel Fund Limited Partner he or she initially represents (or an employee of such Limited Partner’s or Parallel Fund Limited Partner’s Affiliate or advisor), (iv) for any reason with the approval of a majority of the other Advisory Board members, (v) pursuant to Section 7.9(d) or (vi) if such member’s position on the Advisory Board could make the Partnership a “foreign person” within the meaning of CFIUS or make an investment or transaction subject to review by CFIUS or any similar national security investment clearance regulator.
(b) The Advisory Board shall perform the duties expressly contemplated in this Agreement, may periodically review the valuations of the Partnership’s assets made by the General Partner and shall provide such other advice and counsel as is requested by the General Partner in connection with the Partnership’s investments, potential conflicts of interest and other Partnership matters; provided that the General Partner shall retain ultimate responsibility for asset valuations (subject to the provisions of Article X) and for making all decisions relating to the operation and management of the Partnership or relating to the conduct of its business, including making all investment decisions. All Advisory Board consents, approvals, disapprovals, votes, determinations and other actions shall be authorized by a majority of the non-abstaining Advisory Board members pursuant to a meeting or written consent of a majority of the non-abstaining Advisory Board members. As referenced in this Agreement, the approval of the Advisory Board shall mean at all times be a limited partner of the approvalEnCap Fund Partnership and a second member of the Advisory Board shall at all times be a limited partner of EnCap Energy Capital Fund III-B, L.P. The initial members of the Advisory Board shall serve until December 31, 1998. As of January 1 of each year thereafter, the Manager shall nominate a new Advisory Board which must be approved in writing by a majority in interest of BOCP and the investors in each Parallel Investment Entity voting as a single group (based on the amounts of their respective agreements to contribute and/or loan capital to the Partnership or a Parallel Investment Entity and excluding any vote by the General Partner) and which shall serve for the remainder of such calendar year and until the successor board has been so approved. Any vacancy arising on the Advisory Board shall be filled by the Manager. Any member of the Advisory Board may be removed at any time, with or without cause, by written consent signed by the 66 2/3% in interest of BOCP and the investors in each Parallel Investment Entity as a single group (based on the amounts of their respective agreements to contribute and/or loan capital to the Partnership or other authorization a Parallel Investment Entity and excluding any vote by the General Partner). Any member of the Advisory Board may, by written notice to the Manager, appoint an alternate to act for such member in his or her absence and/or at any meeting of the Advisory Board.
(cb) Meetings The functions of the Advisory Board members shall be (i) to resolve any questions relating to a conflict of interest or a potential conflict of interest between the Manager or any of its Affiliates, on one hand, and the Partnership, BOCP, a Parallel Investment Entity, or the investors therein, on the other hand, and to approve any contract or other transaction between the Partnership and a Parallel Investment Entity, on the one hand, and the Manager or an Affiliate thereof, on the other hand; (ii) to consult with and advise the Manager on such other matters, including investment strategy, about which the Manager may be conducted from time to time, in personits sole discretion, telephonically or through determine to consult with the use Advisory Board; (iii) to review with the Manager the annual operating budgets of other communications equipment by means the Partnership and the Parallel Investment Entities; (iv) to approve each determination of Market Value which all Persons participating is used in the meeting can communicate with calculation of Preferred Return Payout or Catch-Up Payout; and (v) to approve such other matters and perform such other functions as are provided for in this Agreement and/or in any agreements governing a Parallel Investment Entity; provided, that the functions and activities of the Advisory Board and each othermember thereof acting in such capacity shall be limited to those permitted under Section 3.03(b) of the Act for limited partners who are deemed not to participate in the control of the business of a partnership. The General Partner approval of the Advisory Board of any conflict, potential conflict or transaction pursuant to subsection (i) above in this Section shall constitute the approval thereof or the consent thereto by BOCP as required pursuant to, or for purposes of, Section 2.2 or elsewhere in this Agreement.
(c) The Advisory Board shall have the authority to adopt rules and procedures, not inconsistent with this Agreement or the agreement governing each Parallel Investment Entity, relating to the conduct of its affairs; provided, however, that (i) in any event such rules and procedures shall include the requirement that each member shall be entitled required to have representatives attend and participate in all recuse himself from voting on any matter being considered by the Advisory Board meetings for which such member (or the investor represented by such member) has a conflict of interest, (ii) except when a greater number is required elsewhere in this Agreement, all approvals, disapprovals, and other actions taken by the Advisory Board shall be authorized by a majority in number of the members of the Advisory Board then holding office and eligible to vote on the matter being considered, and (iii) except as provided in subsection (b) above, in no event shall the Advisory Board (or any member thereof) have the power to bind the Partnership, BOCP, the Parallel Investment Entities, or the investors in each Parallel Investment Entity, or the authority to act for or on behalf of any of them. Without expanding the terms of subsection (b) above, the Manager shall, if requested by the Advisory Board, meet with or otherwise make itself reasonably available to, the Advisory Board on a non-voting chairman quarterly basis and may permit non-voting observers at a mutually convenient time.
(d) The members of the Advisory Board shall exercise their best judgment in carrying out their functions. Each member of the Advisory Board, BOCP and each investor in a Parallel Investment Entity associated with a member of the Advisory Board and their respective Affiliates shall be indemnified to attend the extent set forth in the respective agreements governing the Partnership and the Parallel Investment Entities, except that the expense of such meetingsindemnity shall be borne in the manner provided in Section 5.1(c).
(e) The Advisory Board will serve without compensation. The Partnership shall Partnership, however, will reimburse each Advisory Board member, representative of the General Partner, and permitted observer for his or her all reasonable out-of-pocket expenses of any member representing the Partnership incurred in connection with the proceedings attending meetings and otherwise as a result of their service on the Advisory Board, other than any such proceedings that take place in connection with a general meeting of the Limited Partners. Except as contemplated in this Section
(d) The General Partner is authorized, in its sole discretion, to seek Advisory Board approval in connection with (i) approvals required under the Investment Advisers Act including any approvals required under Section 206(3) thereof or (ii) any consent to a transaction that would result in any “assignment” (within the meaning of the Investment Advisers Act) with respect to the General Partner, the Management Company or any other investment advisory affiliate of the General Partner, and such Advisory Board approval shall constitute consent of the Limited Partners and the Partnership for purposes of the Investment Advisers Act. Each Limited Partner agrees that, with respect to any Advisory Board approval sought by the General Partner relating to this Agreement or the arrangements contemplated hereby, such approval Such reimbursement shall be binding upon borne in the Partnership and each Partner. Each Limited Partner further agrees that any such approval alternatively may be granted by Limited Partners and Parallel Fund Limited Partners holding a majority of the Aggregate Commitments held by such Persons. Notwithstanding anything to the contrary manner provided in this Agreement, if the (A) Advisory Board waives any conflict of interest or duty of the General Partner or any other Conflict Party or (B) the General Partner or any other Conflict Party acts in a manner, or pursuant to the standards and procedures, approved by the Advisory Board with respect to a conflict of interest, then, in each case, such Person shall not be in breach of any such duty or this Agreement and shall not have any liability to the Partnership or the Limited Partners for such actions taken in good faith by themSection 5.1(c).
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