AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF TRIAN SPV (SUB) V, L.P. Dated June 1, 2009
Exhibit
3
AMENDED
AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
TRIAN
SPV (SUB) V, L.P.
Dated
June 1, 2009
TABLE OF
CONTENTS
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ARTICLE
I GENERAL PROVISIONS
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Sec.
1.01
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Formation
of the Partnership
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Sec.
1.02
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Partnership
Name and Address
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Sec.
1.03
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Fiscal
Year
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Sec.
1.04
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Liability
of Partners
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Sec.
1.05
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Purposes
of the Partnership
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Sec.
1.06
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Assignability
of Interest
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ARTICLE
II MANAGEMENT OF THE PARTNERSHIP
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Sec.
2.01
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Management
Generally
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Sec.
2.02
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Authority
of the Managing General Partner
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Sec.
2.03
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Reliance
by Third Parties
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Sec.
2.04
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Activity
of the General Partners
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Sec.
2.05
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Exculpation
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Sec.
2.06
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Indemnification
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Sec.
2.07
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Management
Fee; Payment of Certain Costs and Expenses.
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Sec.
2.08
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Principal
Transactions
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ARTICLE
III CAPITAL ACCOUNTS OF PARTNERS AND OPERATION
THEREOF
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Sec.
3.01
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Definitions
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Sec.
3.02
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Capital
Contributions
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Sec.
3.03
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Capital
Accounts
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Sec.
3.04
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Partnership
Percentages
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Sec.
3.05
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Allocation
of Net Capital Appreciation or Net Capital
Depreciation
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Sec.
3.06
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Amendment
of Incentive Allocation
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Sec.
3.07
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Valuation
of Assets
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Sec.
3.08
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Liabilities
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Sec.
3.09
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Allocation
for Tax Purposes
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Sec.
3.10
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Determination
by the Managing General Partner of Certain Matters
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Sec.
3.11
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Adjustments
to Take Account of Certain Events
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ARTICLE
IV ADMISSION OF NEW PARTNERS
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Sec.
4.01
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New
Partners
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ARTICLE
V WITHDRAWALS AND DISTRIBUTIONS OF
CAPITAL
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Sec.
5.01
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Withdrawal
of Initial Limited Partner
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Sec.
5.02
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Withdrawals
and Distributions in General
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Sec.
5.03
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Withdrawals
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Sec.
5.04
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Required
Withdrawals
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Sec.
5.05
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Death,
Disability, etc. of Limited Partners
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Sec.
5.06
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Distributions
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Sec.
5.07
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Effective
Date of Withdrawal
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Sec.
5.08
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Limitations
on Withdrawal of Capital Account
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ARTICLE
VI DURATION AND DISSOLUTION OF THE
PARTNERSHIP
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Sec.
6.01
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Duration
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Sec.
6.02
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Dissolution
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ARTICLE
VII TAX RETURNS; REPORTS TO
PARTNERS
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Sec.
7.01
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Independent
Auditors
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Sec.
7.02
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Filing
of Tax Returns
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Sec.
7.03
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Tax
Matters Partner
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Sec.
7.04
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Reports
to Current Partners
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Sec.
7.05
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Reports
to Partners and Former Partners
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Sec.
7.06
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Partner
Tax Basis
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ARTICLE
VIII INVESTOR COMMITTEE
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Sec.
8.01
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Investor
Committee
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ARTICLE
IX MISCELLANEOUS
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Sec.
9.01
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General
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Sec.
9.02
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Power
of Attorney
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Sec.
9.03
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Amendments
to Partnership Agreement
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Sec.
9.04
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Non-Voting
Interests of Registered Fund Limited Partners
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Sec.
9.05
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Choice
of Law
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Sec.
9.06
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Consent
to Jurisdiction
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Sec.
9.07
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Tax
Elections
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Sec.
9.08
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No
Third Party Rights
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Sec.
9.09
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Confidentiality
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Sec.
9.10
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Notices
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Sec.
9.11
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Goodwill
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Sec.
9.12
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Headings
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Sec.
9.13
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Pronouns
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--
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AMENDED
AND RESTATED
TRIAN SPV
(SUB) V, L.P.
Dated
June 1, 2009
This
Amended and Restated Limited Partnership Agreement dated on the date first above
written (the "Agreement") among the undersigned (herein called the "Partners",
which term shall include any persons hereafter admitted to Trian SPV (SUB) V,
L.P. (the "Partnership") pursuant to Article IV of this Agreement and shall
exclude any persons who cease to be Partners pursuant to Article V of this
Agreement) shall govern the Partnership.
WHEREAS,
the Administrative General Partner (as defined in Section 1.01) and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as the initial limited partner (the "Initial Limited Partner"),
heretofore entered into an Initial Exempted Limited Partnership Agreement dated
May 26, 2009 (the "Initial Partnership Agreement"), and have formed and
registered the Partnership as an exempted limited partnership pursuant to The
Exempted Limited Partnership Law (as amended) of the Cayman Islands (the "Law");
and
WHEREAS,
additional limited partners wish to be admitted as Limited Partners (as defined
in Section 1.04) of the Partnership and the parties hereto desire to continue a
limited partnership under the provisions of the Law and to set forth the terms
pursuant to which the Partnership shall be governed.
NOW,
THEREFORE, in consideration of the mutual promises and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Initial Partnership Agreement is amended
and restated in its entirety to read as follows:
ARTICLE
I
General
Provisions
Sec.
1.01 Formation of the
Partnership . The
Partnership was formed and registered as an exempted limited partnership by the
execution of the Initial Partnership Agreement and the filing of a Section 9
Statement with the Registrar of Exempted Limited Partnerships of the Cayman
Islands on May 27, 2009. Trian Partners Cayman, Ltd., a Cayman
Islands exempted company serving as the administrative general partner of the
Partnership (the "Administrative General Partner"), shall cause to be executed,
filed and recorded, with the proper offices in the Cayman Islands, such
certificates, and shall cause to be made such publications, as shall be required
by the Law. For so long as the interests in the Partnership are held
by more than one Limited Partner and no more than fifteen Limited Partners, the
majority in number of these Limited Partners shall be capable of appointing or
removing the General Partners (as defined in Section 1.04) for the purpose of
ensuring that the Partnership is not required to register as a mutual fund under
the Mutual Funds Law (as amended) Revision of the Cayman Islands until such time
as there are more than fifteen Limited Partners.
Sec.
1.02 Partnership Name and
Address . The
name of the Partnership is Trian SPV (SUB) V, L.P. Its registered
office is located at the offices of ▇▇▇▇▇▇▇ Sachs (Cayman) Trust, Limited,
Gardenia Court, Suite 3307, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇,
Cayman Islands, or at such other location in the Cayman Islands as the Managing
General Partner in the future may designate. The Administrative
General Partner shall promptly notify the Limited Partners of any change in the
Partnership's address.
Sec.
1.03 Fiscal Year . The
fiscal year of the Partnership (herein called the "fiscal year") shall end on
December 31 unless another date is required under the United States Internal
Revenue Code of 1986, as amended (the "Code"), for U.S. Federal tax
purposes.
Sec.
1.04 Liability of
Partners . The
names of all of the Partners and the amounts of their respective contributions
to the Partnership (herein called the "Capital Contributions") are set forth in
the books and records of the Partnership.
Trian
Partners GP, L.P., a Delaware limited partnership, shall be the managing general
partner (herein called the "Managing General Partner" and, together with the
Administrative General Partner, the "General Partners" or each, a "General
Partner"). The General Partners shall, in the event that the assets
of the Partnership are inadequate, be liable for all debts and obligations of
the Partnership.
The
Partners designated in the books and records of the Partnership as limited
partners (herein called the "Limited Partners"), and former Limited Partners
(including the Initial Limited Partner), shall have no liability for any debt or
obligation of the Partnership except to the extent of their respective interests
in the Partnership, nor any obligation to contribute or make payments to the
Partnership, except as provided by the Law or pursuant to the terms of this
Agreement.
As used
in this Section 1.04, the terms "interests in the Partnership" and "interest in
the Partnership" shall mean, with respect to any fiscal year (or relevant
portion thereof) and with respect to each Partner (or former Partner), the
Capital Account(s) (as defined in Section 3.03) that such Partner (or former
Partner) would have received (or in fact did receive) pursuant to the terms and
provisions of Article V upon withdrawal from the Partnership as of the end of
such fiscal year (or relevant portion thereof).
The
Managing General Partner may, in its sole discretion, issue multiple classes of
interests, which classes may carry different rights or be issued on different
terms.
As used
in this Agreement, the terms "former Limited Partner" and "former Partner" refer
to such persons or entities as hereafter from time to time cease to be a Limited
Partner or Partner, respectively, pursuant to the terms and provisions of this
Agreement.
Sec.
1.05 Purposes of the
Partnership . The
Partnership is established for the purposes of engaging in any and all
transactions permitted under applicable law including, without limitation,
investing in Securities (as hereinafter defined) and engaging in all activities
and transactions as the Managing General Partner may deem necessary or advisable
in connection therewith, including, without limitation:
(a) to
invest, on margin or otherwise, in (i) securities and other financial
instruments of or relating to a U.S. "mid-cap" company to be identified by the
Managing General Partner or any successor company or company that has been spun
out of such company (such company, the "Company"), including, without
limitation: common stock; preferred stock; shares of beneficial
interest; American Depositary Receipts; bonds and other fixed income
investments, notes and debentures (whether subordinated, convertible or
otherwise), and (ii) derivative products relating to securities issued by the
Company, including, without limitation: futures contracts (and
options thereon) relating to stock indices, currencies, United States Government
securities and securities of non-U.S. governments, other financial instruments
and all other commodities, swaps, options, warrants, repurchase agreements,
reverse repurchase agreements, caps, collars, floors and forward rate agreements
(all such items in clauses (i) and (ii) being called herein a "Security" or
"Securities"), and to sell Securities short and cover such sales;
(b) to engage
in such other lawful transactions as the Managing General Partner may from time
to time determine in furtherance of the purpose set forth in Section 1.05(a);
and
(c) to do
such other acts as is necessary or advisable in connection with the maintenance
and administration of the Partnership.
Sec.
1.06 Assignability of
Interest . A
Partner may not pledge, transfer or assign its interest in the Partnership other
than by operation of law pursuant to the death, bankruptcy or dissolution of
such Partner, or with the consent of the Managing General Partner, which may be
withheld in its sole discretion. In no event, however, will any
transferee or assignee be admitted as a Partner without the consent of the
Managing General Partner, which may be withheld in its sole
discretion. Any attempted pledge, transfer or assignment not made in
accordance with this Section 1.06 shall be void.
ARTICLE
II
Management
of the Partnership
Sec.
2.01 Management
Generally . The
management, conduct and control of the Partnership shall be vested exclusively
in the Managing General Partner. Except as authorized by the Managing
General Partner, neither the Administrative General Partner nor the Limited
Partners shall have any part in the management of the Partnership, nor shall
they have any authority or right to act on behalf of the Partnership in
connection with any matter.
Sec.
2.02 Authority of the Managing
General Partner .
(a) The
Managing General Partner shall oversee the administration of the Partnership,
and shall have the power to:
(i) communicate
with the Partners, including furnishing reports as set forth in Article
VII;
(ii) maintain
the principal books and records of the Partnership;
(iii) cause the
preparation of all necessary tax returns of the Partnership;
(iv) conduct
meetings of the Partners;
(v) provide
administrative, accounting and secretarial services to the
Partnership;
(vi) bring and
defend actions before any governmental, administrative or other regulatory
agency, body or commission, for and on behalf of the Partnership;
and
(vii) do all
things and discharge all duties required of, or imposed on, a general partner by
law, and do any other things and discharge any other duties required of or
imposed on a general partner by law.
(b) The
Managing General Partner shall have the power on behalf and in the name of the
Partnership to carry out any and all of the objects and purposes of the
Partnership set forth in Section 1.05, and to perform all acts and enter into
and perform all contracts and other undertakings that it may deem necessary or
advisable or incidental thereto, including, without limitation, the power
to:
(i) provide
research and analysis and direct the formulation of investment policies and
strategies for the Partnership;
(ii) acquire a
long position or a short position with respect to any Security and make
purchases or sales increasing, decreasing or liquidating such position or
changing from a long position to a short position or from a short position to a
long position, without any limitation as to the frequency of the fluctuation in
such positions or as to the frequency of the changes in the nature of such
positions;
(iii) purchase
Securities and hold them for investment, and initiate tender offers and proxy
contests and other shareholder actions with respect to Securities, and take
other actions to influence the management of issuers of Securities;
(iv) enter
into contracts for or in connection with investments in Securities;
(v) invest in
other pooled investment vehicles for cash management purposes, which investments
shall be subject in each case to the terms and conditions of the respective
governing document for such vehicle;
(vi) possess,
transfer, mortgage, pledge or otherwise deal in, and exercise all rights,
powers, privileges and other incidents of ownership or possession with respect
to, Securities and other property and funds held or owned by the
Partnership;
(vii) lend,
either with or without security, any Securities, funds or other properties of
the Partnership, including by entering into reverse repurchase agreements, and,
from time to time, without limit as to the amount, borrow or raise funds,
including by entering into repurchase agreements, and secure the payment of
obligations of the Partnership by mortgage upon, or pledge or hypothecation of,
all or any part of the property of the Partnership;
(viii) open,
maintain and close accounts, including margin and custodial accounts, with
brokers, including brokers affiliated with the General Partners, which power
shall include the authority to issue all instructions and authorizations to
brokers regarding the Securities and/or money therein; to pay, or authorize the
payment and reimbursement of, brokerage commissions that may be in excess of the
lowest rates available that are paid to brokers who execute transactions for the
account of the Partnership and who (i) supply, or pay for (or rebate a portion
of the Partnership's brokerage commissions to the Partnership for payment of)
the cost of, brokerage, research or execution services utilized by the
Partnership or the Other Accounts (as defined in (x) below) and/or (ii) pay
for (or rebate a portion of the Partnership's brokerage commissions for the
payment of) obligations of the Partnership (as provided in Section 2.08 hereof)
or the Partnership's share of such obligations (such as computer facilities and
the cost of an accounting software package), provided that the
Partnership does not pay rates of commission in excess of what is competitively
available from comparable brokerage firms for comparable services, taking into
account various factors, including commission rates, reliability, financial
responsibility, strength of the broker and ability of the broker to efficiently
execute transactions, the broker's facilities, and the broker's provision or
payment of the costs of research and other services or property that are of
benefit to the Partnership, the Management Company (as defined in (xiv) below)
and the Other Accounts;
(ix) open,
maintain and close accounts, including custodial accounts, with banks, including
banks located outside the United States, and draw checks or other orders for the
payment of monies;
(x) combine
purchase or sale orders on behalf of the Partnership with orders for the General
Partners, the Management Company or their respective Affiliates (as defined in
Section 2.04) or other accounts to whom the General Partners or any of their
Affiliates provides investment services ("Other Accounts") and allocate the
Securities or other assets so purchased or sold, on an average price basis,
among such accounts;
(xi) enter
into arrangements with brokers to open "average price" accounts wherein orders
placed during a trading day are placed on behalf of the Partnership and Other
Accounts and are allocated among such accounts using an average
price;
(xii) organize
one or more corporations or other entities to hold record title, as nominee for
the Partnership (whether alone or together with the Other Accounts), to
Securities or funds of the Partnership;
(xiii) organize
one or more direct or indirect subsidiary entities;
(xiv) retain
Trian Fund Management, L.P. (the "Management Company") to provide certain
management and administrative services to the Partnership and to cause the
Partnership to compensate the Management Company for such services; provided, however, management,
control and conduct of the activities of the Partnership shall remain the
responsibility of the Managing General Partner;
(xv) retain
any other persons, firms or entities selected by the Managing General Partner to
provide certain management and administrative services to the Partnership and to
cause the Partnership to compensate such other persons, firms or entities for
such services; provided, however, management,
control and conduct of the activities of the Partnership shall remain the
responsibility of the Managing General Partner;
(xvi) retain
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Cayman) Trust, Limited or other persons, firms or entities
selected by the Managing General Partner to provide certain management and
administrative services to the Partnership (▇▇▇▇▇▇▇ Sachs (Cayman) Trust,
Limited or any such other persons, firm or entity providing such services from
time to time is herein called the "Administrator") and to cause the Partnership
to compensate the Administrator for such services; provided, however, management,
control and conduct of the activities of the Partnership shall remain the
responsibility of the Managing General Partner;
(xvii) cause the
Partnership to engage in agency, agency cross and principal transactions with
Affiliates to the extent permitted by applicable securities laws; provided, however, that, to the
extent required by applicable law, in no event shall the Partnership engage in a
principal transaction except pursuant to Section 2.08;
(xviii) maintain
for the conduct of the Partnership's affairs one or more offices and in
connection therewith rent or acquire office space, and do such other acts as the
Managing General Partner may deem necessary or advisable in connection with the
maintenance and administration of the Partnership;
(xix) engage
personnel, whether part-time or full-time, and attorneys, independent
accountants or such other persons as the Managing General Partner may deem
necessary or advisable;
(xx) authorize
any partner, employee or other agent of the General Partners or agent or
employee of the Partnership to act for and on behalf of the Partnership in all
matters incidental to the foregoing;
(xxi) do any
and all acts on behalf of the Partnership as it may deem necessary or advisable
in connection with the maintenance and administration of the Partnership, and
exercise all rights of the Partnership, with respect to its interest in any
person, including, without limitation, the voting of Securities, participation
in arrangements with creditors, the institution and settlement or compromise of
suits and administrative proceedings and other like or similar matters;
and
(xxii) delegate
such of its duties and functions as it may deem appropriate to the
Administrative General Partner or any other persons.
Sec.
2.03 Reliance by Third
Parties . Persons
dealing with the Partnership are entitled to rely conclusively upon the
certificate of a General Partner, to the effect that it is then acting as a
General Partner, and upon the power and authority of the General Partners as
herein set forth.
Sec.
2.04 Activity of the General
Partners .
(a) The
Managing General Partner shall devote, and shall cause the Management Company to
devote, so much of their time to the affairs of the Partnership as in the
judgment of the Managing General Partner the conduct of its business shall
reasonably require, and none of the General Partners, the Management Company or
their respective Affiliates shall be obligated to do or perform any act or thing
in connection with the business of the Partnership not expressly set forth
herein. Except as expressly provided in this Section 2.04, nothing
contained in this Agreement, and no waivable provision of applicable law, shall
be deemed to preclude the General Partners, the Management Company or their
Affiliates or any shareholder, member, partner, director, officer or employee
thereof (collectively, the "Management Group") from exercising investment
responsibility, from engaging directly or indirectly in any other business or
from directly or indirectly purchasing, selling, holding or otherwise dealing
with any Securities for the account of any such other business, for their own
accounts, for any of their family members or for other clients. No
Limited Partner shall, by reason of being a partner in the Partnership, have any
right to participate in any manner in any profits or income earned, derived by
or accruing to the Management Group from the conduct of any business other than
the business of the Partnership (to the extent provided herein) or from any
transaction in Securities effected by any of the Management Group for any
account other than that of the Partnership.
(b) Trian
Partners, L.P. (the "U.S. Fund"), Trian Partners Master Fund, L.P. (the
"Offshore Master Fund") and any other investment vehicles or managed accounts
formed to invest substantially in parallel with such vehicles, subject to tax
and regulatory considerations ("Parallel Vehicles", collectively with the U.S.
Fund and the Offshore Master Fund, the "Other Investors"), will make investments
in Securities alongside the Partnership. The Managing General Partner
may commence acquisition of the Company's Securities prior to the initial
closing of the Partnership (the "Initial Closing") through the Other
Investors. After the Initial Closing, further purchases of the
Company's Securities will generally be allocated amongst the Partnership and the
Other Investors pro rata based on the maximum amounts to
be thereafter invested in the Company by each of the vehicles, as determined by
the Managing General Partner in its sole discretion.
(c) Notwithstanding
the foregoing, with respect to investments in Securities that the Partnership
and one or more of the Other Investors elect to pursue, the Limited Partners
acknowledge and agree that the Affiliated Investors (as defined in Section
2.04(e)) may co-invest with the Other Investors and the Partnership, but only if
such co-investment (and subsequent disposition) is at the same time and price as
applies to the Other Investors and the Partnership, unless otherwise approved by
the Investor Committee (as defined in Section 8.01). If multiple
purchases of the same Security are made over time, Affiliated Investors may
reduce or eliminate their participation in such later
purchases. Additionally, if Affiliated Investors do not participate
at the same percentage level in each purchase made as part of a purchase
program, they will ensure that their per-security profit is not higher than that
of the Other Investors and the Partnership.
(d) The
Limited Partners acknowledge and agree that the relationships referred to in
this Section 2.04 present potential conflicts of interest between the
Partnership on the one hand, and Affiliated Investors on the other
hand. In addition, the Limited Partners acknowledge and agree that
the Managing General Partner may cause the Partnership, either alone or together
with other members of a group (including the U.S. Fund, the Offshore Master Fund
and any Parallel Vehicles), to acquire a "control" position in the Securities of
the Company, and may secure the appointment of persons selected by the Managing
General Partner or other members of the group to the Company's management team
or board of directors. In so doing, the Limited Partners acknowledge
and agree that the Managing General Partner may acquire fiduciary duties to the
Company and to the other shareholders of the Company; and that these fiduciary
duties may compel the Managing General Partner to take actions that, while in
the best interests of the Company and/or its shareholders and/or other third
party constituencies, may not be in the best interests of the Limited
Partners. Accordingly, the Limited Partners acknowledge and agree
that the Managing General Partner may have a conflict of interest between the
fiduciary duties (if any) that it owes to the Company and its shareholders and
other third party constituencies under applicable law, on the one hand, and
those that it owes to the Limited Partners, on the other hand. In the
event that a situation that may present a conflict of interest arises, the
Managing General Partner may refer such situation to the Investor Committee or
another independent third party for a resolution.
(e) Definitions:
(i) "Affiliate"
shall mean, with respect to any Person, any Person controlling, controlled by or
under common control with, such Person;
(ii) "Affiliated
Investors" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. May, ▇▇▇▇▇▇ ▇. Garden, the Managing
General Partner and/or their respective Affiliates;
(iii) "Non-Affiliated
Investor" shall mean an investor who is not an Affiliated Investor;
(iv) "Person"
shall mean any natural person, partnership, limited liability company,
corporation, trust or other entity; and
(v) "Principals"
shall mean ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. May and ▇▇▇▇▇▇ ▇. Garden.
Sec.
2.05 Exculpation .
(a) None of
the General Partners, any Investor Committee member, the Management Company,
their respective Affiliates, and any of their respective shareholders, members,
partners, directors, officers and employees (each, an "Indemnified Party" and
collectively, "Indemnified Parties") shall be liable to any Partner or the
Partnership for (i) any acts or omissions arising out of, related to or in
connection with the Partnership or any entity in which it has an interest, any
transaction or activity relating to the Partnership or any entity in which it
has an interest, any investment or proposed investment made or held, or to be
made or held by the Partnership, or this Agreement or any similar matter, unless
such action or inaction was made in bad faith or constitutes fraud, willful
misconduct or gross negligence (which "gross negligence", whenever used herein,
shall have the meaning under the laws of the State of Delaware, United States)
or (ii) any act or omission of any broker or agent of any Indemnified Party,
provided that
the selection, engagement or retention of such broker or agent was not made by
the Indemnified Party seeking exculpation in bad faith and does not constitute
fraud, willful misconduct or gross negligence of the Indemnified Party seeking
exculpation. Each of the Indemnified Parties may consult with counsel
and accountants in respect of the Partnership's affairs and be fully protected
and justified in any action or inaction that is taken in accordance with the
advice or opinion of such counsel or accountants, provided that their
selection of such counsel or accountants was not made by the Indemnified Party
seeking exculpation in bad faith and does not constitute fraud, willful
misconduct or gross negligence of the Indemnified Party seeking
exculpation.
(b) Notwithstanding
any of the foregoing to the contrary, the provisions of this Section 2.05
shall not be construed so as to provide for the exculpation of an Indemnified
Party for any liability (including liability under U.S. Federal securities laws
which, under certain circumstances, impose liability even on persons that act in
good faith), to the extent (but only to the extent) that such liability may not
be waived, modified or limited under applicable law, but shall be construed so
as to effectuate the provisions of this Section 2.05 to the fullest extent
permitted by law.
Sec.
2.06 Indemnification .
(a) To the
fullest extent permitted by law, the Partnership shall indemnify and hold
harmless each Indemnified Party from and against any loss, cost or expense
suffered or sustained by an Indemnified Party by reason of (i) any acts,
omissions or alleged acts or omissions arising out of or in connection with the
Partnership, or any entity in which it has an interest, any investment or
proposed investment made or held, or to be made or held by the Partnership, or
this Agreement or any similar matter (collectively, "Covered Acts"), including,
without limitation, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding, or claim, provided that such
acts, omissions or alleged acts or omissions upon which such actual or
threatened action, proceeding or claim are based were not made in bad faith or
did not constitute fraud, willful misconduct or gross negligence by the
Indemnified Party seeking indemnification, or (ii) any acts or omissions,
or alleged acts or omissions, of any broker or agent of any Indemnified Party
(collectively, "Covered Broker Acts"), provided that the
selection, engagement or retention of such broker was not made by the
Indemnified Party seeking indemnification in bad faith and does not constitute
fraud, willful misconduct or gross negligence of the Indemnified Party seeking
indemnification. Additionally, the Partnership (and not any
Indemnified Party) will be responsible for any losses resulting from trading
errors and similar human errors, absent bad faith, willful misconduct or gross
negligence. The Partnership shall advance to any Indemnified Party
reasonable attorneys' fees and other costs and expenses incurred in connection
with the defense of any action or proceeding that arises out of any Covered Act
or any Covered Broker Act whether or not the provisos of (i) or (ii)
apply. In the event that such an advance is made by the Partnership,
the Indemnified Party shall agree to reimburse the Partnership for such fees,
costs and expenses to the extent that it shall be finally determined by
non-appealable order of a court of competent jurisdiction that it was not
entitled to indemnification under this Section 2.06. The foregoing
provisions shall survive the termination of this Agreement.
(b) Notwithstanding
any of the foregoing to the contrary, the provisions of this Section 2.06
shall not be construed so as to provide for the indemnification of an
Indemnified Party for any liability (including liability under Federal
securities laws which, under certain circumstances, impose liability even on
persons that act in good faith) to the extent (but only to the extent) that such
indemnification would be in violation of applicable law, but shall be construed
so as to effectuate the provisions of this Section 2.06 to the fullest extent
permitted by law. The Managing General Partner shall have the
authority to enter into separate agreements to give effect to the obligation to
indemnify pursuant to this Section 2.06.
Sec.
2.07 Management Fee; Payment of
Certain Costs and Expenses.
(a) The
Partnership will pay a quarterly management fee on the first day of each quarter
(the "Management Fee") to the Management Company equal to 0.5% (2.0% per annum)
of the beginning balance for the quarter of each Capital Account (as defined in
Section 3.03) of a Limited Partner. A pro rata portion of the
quarterly Management Fee will be paid out of any capital contributions made by
new or existing Limited Partners to the Partnership on any date that does not
fall on the first day of a fiscal quarter. Such Management Fee will
be paid upon contribution of the funds to the Partnership. In the
case of a withdrawal by a Limited Partner other than as of the last day of a
quarter, a pro
rata portion of
the Management Fee (based on the actual number of days remaining in such partial
quarter) will be repaid by the Management Company to the Partnership and
distributed to the withdrawing Limited Partner.
(b) The
General Partner's capital account will not be debited with any Management
Fee. The Management Company may, in its sole discretion, elect to
reduce, waive or calculate differently the Management Fee with respect to any
Affiliated Investor or an Affiliate, employee or relative of an Affiliated
Investor or its Affiliates, or for any other Limited Partner.
(c) The
Management Company will bear the administrative expenses of the Partnership,
including costs and expenses related to salaries, employee benefits and bonuses
of employees, occupancy expenses and accounting expenses (other than accounting
expenses relating to investments or prospective investments and audit and tax
return preparation fees).
(d) The
Partnership will bear its own expenses including, but not limited to, expenses
relating to the cost of purchasing investments (e.g., brokerage commissions and
trading costs), fees of the Administrator (or to the extent any services
typically provided by an administrator are provided by the Management Company,
the Managing General Partner or any of their respective employees or affiliates,
the cost of such services in amounts not to exceed those that would be payable
to administrators engaged to perform such services as reasonably determined by
the Managing General Partner in good faith), organizational expenses, expenses
relating to the offer and sale of limited partnership interests in the
Partnership, financing fees, prime brokerage fees, filing fees, entity-level
taxes, registration fees and similar fees, audit and tax return preparation
fees, fees in respect of consulting, custodial, accounting, investment banking,
appraisal and financial advisory services provided by non-affiliated third
parties relating to investments or prospective investments, due diligence
expenses and fees relating to investments or prospective investments, conduct of
proxy contests and tender offers, litigation expenses and legal expenses
(including the cost of in-house counsel of the Management Company, the Managing
General Partner and their respective affiliates in amounts not to exceed those
that would be payable to outside counsel engaged to perform such services as
reasonably determined by the Managing General Partner in good faith) incurred in
connection with the making or administration of investments (to the extent not
borne by the Company and regardless of whether consummated), liability insurance
covering the Managing General Partner, the Management Company and their
respective affiliates, members, directors, officers, employees and agents, and
extraordinary expenses and other similar expenses related to the Partnership as
the Managing General Partner determines in its sole discretion. The
expenses (other than the Management Fee) will be shared by all of the Partners
including the Managing General Partner.
(e) Organizational
expenses of the Partnership may be capitalized and amortized by the Partnership
over up to a 60-month period from the Initial Closing.
Sec.
2.08 Principal
Transactions . Each
Limited Partner acknowledges that from time to time, the Managing General
Partner may deem it appropriate for the Partnership to engage in "principal
transactions" (as defined in Section 2.06(3) of the Investment Advisers Act of
1934, as amended). Each Limited Partner hereby agrees that any
"principal transaction" will be considered and approved or disapproved, to the
extent required by applicable law, by the Investor Committee or another
independent representative appointed by the Managing General Partner, as
determined by the Managing General Partner in its sole discretion. In
no event shall any such transaction be entered into unless it complies with
applicable law.
ARTICLE
III
Capital
Accounts of Partners
and
Operation Thereof
Sec.
3.01 Definitions . For
the purposes of this Agreement, unless the context otherwise
requires:
(a) The term
"Accounting Period" shall mean the following periods: The initial
Accounting Period shall begin upon the commencement of the Partnership. Each
subsequent Accounting Period shall commence immediately after the close of the
immediately preceding Accounting Period. Each Accounting Period
hereunder shall close at the close of business on the first to occur of
(i) the last day of each quarter of the Partnership, (ii) the date
immediately prior to the effective date of the admission of a new Partner
pursuant to Section 4.01, (iii) the date immediately prior to the effective
date of an additional Capital Contribution pursuant to Section 3.02,
(iv) any date on which a Partner makes a withdrawal from a Capital Account,
(v) any date on which the Managing General Partner makes a distribution to
Partners or other disposition of all or a portion of the Securities or proceeds
from the sale thereof, (vi) the date when the Partnership shall dissolve or
(vii) such other date as is determined by the Managing General
Partner.
(b) The term
"Beginning Value" shall, with respect to any Accounting Period, mean the value
of the Partnership's Net Assets at the beginning of such Accounting Period after
giving effect to withdrawals relating to the immediately preceding Withdrawal
Date and after giving effect to payment of the Management Fee.
(c) The term
"Ending Value" shall, with respect to any Accounting Period, mean the value of
the Partnership's Net Assets at the end of such Accounting Period (before any
reduction for Withholding Taxes (as defined in Section 3.01(g))).
(d) The term
"Net Assets" shall mean the excess of the Partnership's assets (valued in
accordance with Section 3.07) over its liabilities (determined in accordance
with Section 3.08).
(e) The term
"Net Capital Appreciation" shall, with respect to any Accounting Period, mean
the excess, if any, of the Ending Value over the Beginning Value.
(f) The term
"Net Capital Depreciation" shall, with respect to any Accounting Period, mean
the excess, if any, of the Beginning Value over the Ending Value.
(g) The term
"Withholding Tax" shall mean tax withheld from the income of the Partnership or
paid over by the Partnership that is determined based on the status of a
Partner.
Sec.
3.02 Capital
Contributions . (a) Each
Partner has paid or conveyed by way of contribution to the Partnership cash (a
"Capital Contribution") having an aggregate value as set forth in the
Partnership's books and records. Additional Capital Contributions may
be made by Limited Partners only in accordance with the provisions of this
Section 3.02.
(b) With the
prior approval of the Managing General Partner, a Limited Partner may make
additional Capital Contributions to the Partnership in cash at such time as the
Managing General Partner may permit.
(c) Subject
to the prior approval of the Managing General Partner, each Limited Partner may
make additional Capital Contributions in respect of an Indirect Investor's (as
defined below) subscription to the Feeder Fund (as defined below) or capital
contribution to a Limited Partner (including the Intermediate Fund (as defined
below)), as the case may be. Any such Capital Contributions shall be
made in accordance with the provisions of this Section 3.02. For
purposes of this Agreement the "Feeder Fund" shall mean Trian SPV V, Ltd., a
Cayman Islands exempted company, and the "Intermediate Fund" shall mean Trian
SPV V, L.P., a Cayman Islands exempted limited partnership.
(d) The
interests in the Partnership may be divided into separate Capital Accounts to
correspond with each subscription or capital contribution by an Indirect
Investor with respect to the classes, series and/or holders of interests or
shares issued by the Intermediate Fund or the Feeder Fund to the respective
Indirect Investors. Any Capital Contributions by the Intermediate
Fund that are derived from capital contributions made to the Intermediate Fund
or subscriptions made to the Feeder Fund by Indirect Investors shall be credited
to the corresponding Capital Accounts. Any holder (other than the
Feeder Fund) of a direct interest in the Intermediate Fund or any shareholder of
the Feeder Fund is hereinafter called an "Indirect Investor."
Sec.
3.03 Capital Accounts . A
separate capital account (herein called the "Capital Account") shall be
established on the books of the Partnership for each General Partner and for
each Limited Partner for each separate Capital Contribution made by such
Partner, and such Capital Accounts of any particular Limited Partner shall be
separated as and to the extent provided in or pursuant to Section
3.02(d). The Capital Account of each Partner shall be in an amount
equal to such Partner's initial Capital Contribution with respect to such
Capital Account, adjusted as hereinafter provided. At the end of each
Accounting Period, each Capital Account of a Partner shall be (i) increased
or decreased by the amount credited or debited to such Capital Account of such
Partner pursuant to Section 3.05; and (ii) decreased by the amount of any
withdrawals made by such Partner from such Capital Account pursuant to Section
5.03 or any distributions made to such Partner from such Capital Account
pursuant to Section 5.06. At the beginning of each fiscal quarter,
each Capital Account of a Limited Partner shall be decreased by the amount of
the Management Fee calculated in respect of such Capital Account pursuant to
Section 2.07. The Capital Account of each Limited Partner also shall
be decreased by the amount of any fee paid with respect to any interest
purchased on a date that does not fall on the first day of a fiscal
quarter.
For
administrative convenience, the Managing General Partner may combine multiple
Capital Accounts in respect of any particular Indirect Investor that have been
established pursuant to Section 3.02(d) that have the same characteristics
(e.g., remaining Lock-up Period (as defined in Section 5.02), Loss Recovery
Account (as defined in Section 3.05(c)) and fee terms).
Sec.
3.04 Partnership
Percentages . A
"Partnership Percentage" shall be determined for each Capital Account for each
Accounting Period of the Partnership by dividing the amount of such Capital
Account by the aggregate Capital Accounts of all Partners as of the beginning of
such Accounting Period after taking into account Capital Contributions,
withdrawals and distributions, as of such date. The sum of the
Partnership Percentages shall equal 100 percent.
Sec.
3.05 Allocation of Net Capital
Appreciation or Net Capital Depreciation .
(a) At the
end of each Accounting Period, each Capital Account of each Partner (including
each General Partner) for such Accounting Period shall be adjusted by crediting
(in the case of Net Capital Appreciation) or debiting (in the case of Net
Capital Depreciation) the Net Capital Appreciation or Net Capital Depreciation,
as the case may be, in proportion to their respective Partnership
Percentages.
(b) Subject
to Section 3.05(c), at the end of each fiscal year of the Partnership, or at
such other times as are required by Section 3.05(d), 20% of the Net Capital
Appreciation, if any, allocated to each Capital Account of a Limited Partner for
such fiscal year over the Management Fee (and in the case of the Feeder Fund or
the Intermediate Fund, expenses paid directly by the Feeder Fund or the
Intermediate Fund) debited to such Capital Account of a Limited Partner pursuant
to Section 2.07 for such fiscal year shall be reallocated to the Capital Account
of the General Partner (the "Incentive Allocation"); provided, however, that the Net
Capital Appreciation upon which the calculation of the Incentive Allocation is
based shall be reduced to the extent of any unrecovered balance remaining in the
Loss Recovery Account maintained on the books and records of the Partnership for
such Related Capital Account (as defined below). The amount of the
unrecovered balance remaining in the Loss Recovery Account at the time of
calculating the Incentive Allocation shall be the amount existing immediately
prior to its reduction pursuant to the second clause of the second sentence of
Section 3.05(c). The Managing General Partner may, in its sole
discretion, elect to reduce, waive or calculate differently the Incentive
Allocation with respect to any Affiliated Investor or an Affiliate, employee or
relative of an Affiliated Investor or its Affiliates, or for any other Limited
Partner.
(c) There
shall be established on the books of the Partnership for each Capital Account a
memorandum account (the "Loss Recovery Account"), the opening balance of which
shall be zero. For purposes of this Section 3.05, the Capital Account
with respect to which a Loss Recovery Account was established shall be referred
to as the "Related Capital Account." At the end of each fiscal year
or at such other date during a fiscal year as the calculation of an Incentive
Allocation is required to be made for such Partner under this Section 3.05, the
balance in each Loss Recovery Account shall be adjusted as
follows: first, if there has been, in the aggregate, Net Capital
Depreciation (as adjusted pursuant to the last sentence of this paragraph) with
respect to a Related Capital Account since the immediately preceding date as of
which a calculation of an Incentive Allocation was made (or if no calculation
has yet been made with respect to such Capital Account, since its creation), an
amount equal to such Net Capital Depreciation shall be credited to such Loss
Recovery Account, and, second, if there has been, in the aggregate, Net Capital
Appreciation (as adjusted pursuant to the last sentence of this paragraph) with
respect to such Related Capital Account since the immediately preceding date as
of which a calculation of an Incentive Allocation was made, an amount equal to
such Net Capital Appreciation, before any Incentive Allocation to the Managing
General Partner, shall be debited to and reduce any unrecovered balance in such
Loss Recovery Account, but not below zero. Solely for purposes of
this Section 3.05(c), in determining a Limited Partner's Loss Recovery Account,
Net Capital Appreciation and Net Capital Depreciation for any applicable period
shall be calculated by taking into account the amount of the Management Fee (and
in the case of the Feeder Fund or the Intermediate Fund, expenses paid directly
by the Feeder Fund or the Intermediate Fund), if any, debited to such Limited
Partner's Capital Account for such period.
In the
event that a Limited Partner withdraws all or a portion of a Capital Account
when there is an unrecovered balance in the Loss Recovery Account established in
respect of such Capital Account (other than a withdrawal to pay Feeder Fund
expenses as described in Section 5.03(d)), the unrecovered balance in such Loss
Recovery Account shall be reduced as of the beginning of the next Accounting
Period by an amount equal to the product obtained by multiplying the balance in
such Loss Recovery Account by a fraction, the numerator of which is the amount
of the withdrawal from such Capital Account made by such Limited Partner with
respect to the immediately preceding Withdrawal Date (other than a withdrawal
described in Section 5.03(d)) and the denominator of which is the balance in
such Capital Account on the last day of the prior Accounting
Period. Additional Capital Contributions shall not affect any Loss
Recovery Account.
(d) In the
event that (i) the Partnership is dissolved other than at the end of a fiscal
year, (ii) the effective date of a Limited Partner's partial or complete
withdrawal from any particular Capital Account is other than a fiscal year end,
or (iii) a partial or complete distribution of all of the amounts contained in a
Limited Partner's Capital Account occurs on a date other than a fiscal year end,
then for purposes of determining the Incentive Allocation, Net Capital
Appreciation shall be determined through the termination date (for all Limited
Partners), withdrawal date or distribution date (for the Capital Account
relating to such withdrawal or distribution (as applicable) only) as if such
dates were the end of the fiscal year, and the Incentive Allocation shall be
made at that time.
(e) For
purposes of determining the impact of withdrawals on Incentive Allocations and
Loss Recovery Accounts with respect to: (i) Limited Partners having
multiple Capital Accounts other than as contemplated in Section 3.02(d); and
(ii) any Limited Partner holding multiple Capital Accounts that have been
established in respect of any particular Indirect Investor, pursuant to Section
3.02(d), withdrawals will be deemed to be made in respect of such Capital
Accounts on a "first in -first out" basis.
(f) In the
event the Managing General Partner determines that, based upon tax or regulatory
reasons, or any other reasons as to which the Managing General Partner and any
Limited Partner agree, such Partner (or any Indirect Investor) should not
participate in the Net Capital Appreciation or Net Capital Depreciation,
attributable to any Security, type of Security or to any other transaction, or
event if any, the Managing General Partner may allocate such Net Capital
Appreciation or Net Capital Depreciation only to the Capital Accounts of
Partners in respect of which such reasons do not apply. In addition,
if for any of the reasons described above, the Managing General Partner
determines that a Partner (or any Indirect Investor) should have no interest
whatsoever in a particular Security, type of Security or transaction, the
interests in such Security, type of Security or transaction may be set forth in
a separate memorandum account in which Partners shall participate only with
respect to Capital Accounts that the Managing General Partner determines should
have an interest in such Security, type of Security or transaction (any such
Partner, for such Security, type of Security or transaction, being referred to
the extent of such participating Capital Account as an "Unrestricted Partner")
and in the Net Capital Appreciation and Net Capital Depreciation for each such
memorandum account, which shall be separately calculated.
(g) At the
end of each Accounting Period during which a memorandum account created pursuant
to Section 3.05(f) (a "Memorandum Account") was in existence (or during which an
interest in particular Securities was otherwise allocated away from the Capital
Accounts of one or more Limited Partners), the Capital Accounts of each
Unrestricted Partner may be debited pro rata in accordance
with the Capital Accounts of all Unrestricted Partners at the opening of such
Accounting Period in an amount equal to the interest that would have accrued on
the amount used to purchase the Securities attributable to the Memorandum
Account (the "Purchase Price") had the Purchase Price earned interest at the
rate per annum being paid by the Partnership from time to time during the
applicable Accounting Period for borrowed funds, or, if funds have not been
borrowed by the Partnership during such Accounting Period, at the interest rate
per annum that the Managing General Partner determines would have been paid if
funds had been borrowed by the Partnership during such Accounting
Period. The amount so debited shall then be credited to the Capital
Accounts of all of the Partners pro rata in accordance
with their Capital Accounts as of the opening of the Accounting
Period.
(h) If the
Partnership incurs a Withholding Tax or other tax obligation with respect to the
share of Partnership income allocable to any Partner, then the Managing General
Partner, without limitation of any other rights of the Partnership or the
Managing General Partner, shall cause the amount of such obligation to be
debited against the Capital Account(s) of such Partner as of the close of the
Accounting Period during which the Partnership pays such obligation or has the
Withholding Tax withheld from its income. The Managing General
Partner shall not be obligated to apply for or obtain a reduction of or
exemption from Withholding Tax on behalf of any Partner that may be eligible for
such reduction or exemption.
Sec.
3.06 Amendment of Incentive
Allocation . The
Managing General Partner shall have the right to amend, without the consent of
the Limited Partners, Section 3.05 of this Agreement so that the Incentive
Allocation therein provided conforms to any applicable requirements of the U.S.
Securities and Exchange Commission (the "SEC") and other regulatory authorities;
provided, however, that no such
amendment shall increase the Incentive Allocation that otherwise would be
computed with respect to a Capital Account, other than as provided in Section
3.05.
Sec.
3.07 Valuation of
Assets .
(a) Securities
that are listed on a securities exchange shall be valued at their last sales
prices on the date of determination on the primary securities exchange on which
such Securities shall have traded on such date (or, in the event that the date
of determination is not a date upon which a securities exchange was open for
trading, on the last prior date on which such securities exchange was so open
not more than 10 days prior to the date of determination). Securities
that are not listed on an exchange but are traded over-the-counter shall be
valued at the mean between the last "bid" and "asked" price for such security on
such date. Securities not denominated in U.S. dollars shall be
translated into U.S. dollars at prevailing exchange rates as the Managing
General Partner may determine in good faith.
(b) All other
assets of the Partnership (except goodwill, which shall not be taken into
account) shall be assigned such value as the Managing General Partner may
determine in good faith.
(c) If the
Managing General Partner determines in its sole discretion that the valuation of
any Securities pursuant to Section 3.07(a) does not fairly represent market
value, the Managing General Partner may value such Securities as it determines
in good faith and shall set forth the basis of such valuation in writing in the
Partnership's records.
(d) All
values assigned to Securities and other assets by the Managing General Partner
pursuant to this Section 3.07 shall be final and conclusive as to all of the
Partners.
Sec.
3.08 Liabilities . Liabilities
shall be determined using generally accepted accounting principles, as a
guideline, applied on a consistent basis; provided, however, that the
Managing General Partner in its discretion may provide reserves and holdbacks
for estimated accrued expenses, liabilities or contingencies, including general
reserves for unspecified contingencies (even if such reserves or holdbacks are
not in accordance with generally accepted accounting principles).
Sec.
3.09 Allocation for Tax
Purposes . For
each fiscal year, items of income, deduction, gain, loss or credit shall be
allocated for U.S. income tax purposes among the Partners in such manner as to
reflect equitably amounts credited or debited to each Partner's Capital
Account(s) for the current and prior fiscal years (or relevant portions
thereof). Allocations under this Section 3.09 shall be made pursuant
to the principles of Section 704(b) and 704(c) of the Code, and U.S. Treasury
Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and
1.704-3(e) promulgated thereunder, as applicable, or the successor provisions to
such Section and Treasury Regulations. Notwithstanding anything to
the contrary in this Agreement, there shall be allocated to the Partners such
gains or income as shall be necessary to satisfy the "qualified income offset"
requirements of U.S. Treasury Regulations
Section 1.704-1(b)(2)(ii)(d).
If the
Partnership realizes ordinary income and/or capital gains (including short-term
capital gains) for U.S. Federal income tax purposes (collectively, "income") for
any fiscal year during or as of the end of which one or more Positive Basis
Partners (as hereinafter defined) withdraw from the Partnership pursuant to
Article V, the Managing General Partner may elect, in its discretion, to
allocate such income (including items of income) as follows: (i)
first, among such completely withdrawing Positive Basis Partners, pro rata in proportion to the respective
Full Positive Basis (as hereinafter defined) of each such completely withdrawing
Positive Basis Partner, until either the full amount of such income shall have
been so allocated or the Full Positive Basis of each such Positive Basis Partner
shall have been eliminated, (ii) then, among such partially withdrawing Positive
Basis Partners, prorata in proportion to the
respective Partial Positive Basis (as hereinafter defined) of each such
partially withdrawing Positive Basis Partner, until either the remaining amount
of such income shall have been so allocated or the Partial Positive Basis of
each such Positive Basis Partner shall have been eliminated and (iii) then any
income not so allocated to Positive Basis Partners to the other Partners in such
manner as shall equitably reflect the amounts allocated to such Partners'
Capital Accounts pursuant to Section 3.05.
If the
Partnership realizes deductions, ordinary losses and/or capital losses
(including long-term capital losses) for U.S. Federal income tax purposes
(collectively, "losses") for any fiscal year during or as of the end of which
one or more Negative Basis Partners (as hereinafter defined) withdraw from the
Partnership pursuant to Article V, the Managing General Partner may elect, in
its discretion, to allocate such losses (including items of loss) as
follows: (i) first, among such completely withdrawing Negative Basis
Partners, prorata in proportion to the
respective Full Negative Basis (as hereinafter defined) of each such completely
withdrawing Negative Basis Partner, until either the full amount of such losses
shall have been so allocated or the Full Negative Basis of each such Negative
Basis Partner shall have been eliminated, (ii) then, among such partially
withdrawing Negative Basis Partners, prorata in proportion to the
respective Partial Negative Basis (as hereinafter defined) of each such
partially withdrawing Negative Basis Partner, until either the remaining amount
of such losses shall have been so allocated or the Partial Negative Basis of
each such Negative Basis Partner shall have been eliminated and (iii) then any
losses not so allocated to Negative Basis Partners to the other Partners in such
manner as shall equitably reflect the amounts allocated to such Partners'
Capital Accounts pursuant to Section 3.05.
As used
herein, (i) the term "Full Positive Basis" shall mean, with respect to
any completely withdrawing Partner and as of any time of calculation,
the amount by which (x) its interest in the Partnership (determined in
accordance with Section 1.04) as of such time plus an amount equal to any
deemed distributions to such Partner for U.S. Federal income tax purposes
pursuant to Section 752(b) of the Code resulting from its withdrawal
exceeds (y) its "adjusted tax basis", for U.S. Federal income tax purposes, in
its interest in the Partnership as of such time, (ii) the term "Partial Positive
Basis" shall mean, with respect to any partially withdrawing Partner and as of
the time of calculation, the amount by which the amount received (or to be
received) upon such partial withdrawal as of such time plus an amount equal to
any deemed distributions to such Partner for U.S. Federal income tax purposes
pursuant to Section 752(b) of the Code resulting from its withdrawal exceeds the
product of (x) its "adjusted tax basis," for U.S. Federal income tax purposes,
in its interest in the Partnership as of such time and (y) a fraction, the
numerator of which is the amount received (or to be received) upon such partial
withdrawal, and the denominator of which is the value of such partially
withdrawing Partner's Capital Account immediately prior to such partial
withdrawal and (iii) the term "Positive Basis Partner" shall mean any
Partner that withdraws some or all of its interest in the Partnership and who
has Full Positive Basis or Partial Positive Basis as of the effective date of
such withdrawal (determined prior to any allocations made pursuant to this
Section 3.09).
As used
herein, (i) the term "Full Negative Basis" shall mean, with respect to any
completely withdrawing Partner and as of any time of calculation, the amount by
which (x) its interest in the Partnership (determined in accordance with
Section 1.04) as of such time plus an amount equal to any deemed
distributions to such Partner for U.S. Federal income tax purposes pursuant to
Section 752(b) of the Code resulting from its withdrawal is less than (y)
its "adjusted tax basis", for U.S. Federal income tax purposes, in its interest
in the Partnership as of such time, (ii) the term "Partial Negative Basis" shall
mean, with respect to any partially withdrawing Partner and as of the time of
calculation, the amount by which the amount received (or to be received) upon
such partial withdrawal as of such time plus an amount equal to any deemed
distributions to such Partner for U.S. Federal income tax purposes pursuant to
Section 752(b) of the Code resulting from its withdrawal is less than the
product of (x) its "adjusted tax basis," for U.S. Federal income tax purposes,
in its interest in the Partnership as of such time and (y) a fraction, the
numerator of which is the amount received (or to be received) upon such partial
withdrawal, and the denominator of which is the value of such partially
withdrawing Partner's Capital Account immediately prior to such partial
withdrawal and (ii) the term "Negative Basis Partner" shall mean any Partner
that withdraws some or all of its interest in the Partnership and who has Full
Negative Basis or Partial Negative Basis as of the effective date of its
withdrawal (determined prior to any allocations made pursuant to this
Section 3.09).
Notwithstanding
anything to the contrary in this Section 3.09, if a General Partner withdraws
all or a portion of its Capital Account during any tax year, the Managing
General Partner may specially allocate income to such General Partner equal to
the amount by which such withdrawal plus an amount equal to any deemed
distributions to such General Partner exceed its adjusted tax basis, for income
tax purposes, in its interest in the Partnership (determined prior to any such
allocations).
Sec.
3.10 Determination by the
Managing General Partner of Certain Matters . All
matters concerning the valuation of Securities and other assets, liabilities,
profits and losses of the Partnership, the allocation of income, deductions,
gains and losses among the Partners, including taxes thereon, and accounting
procedures, not expressly provided for by the terms of this Agreement, shall be
determined by the Managing General Partner whose determination shall be final
and conclusive as to all of the Partners.
Sec.
3.11 Adjustments to Take Account
of Certain Events . If
the Code or Treasury Regulations promulgated thereunder require a withholding or
other adjustment to the Capital Account of a Partner or some other event occurs
necessitating in the Managing General Partner's judgment an equitable
adjustment, the Managing General Partner shall make such adjustments in the
determination and allocation among the Partners of Net Capital Appreciation, Net
Capital Depreciation, Capital Accounts, Partnership Percentages, Management Fee,
Incentive Allocation, items of income, deduction, gain, loss, credit or
withholding for tax purposes, accounting procedures or such other financial or
tax items as shall equitably take into account such event and applicable
provisions of law, and the determination thereof by the Managing General Partner
shall be final and conclusive as to all of the Partners.
ARTICLE
IV
Admission
of New Partners
Sec.
4.01 New Partners . Subject
to the condition that each new Partner shall execute an appropriate supplement
to this Agreement pursuant to which it agrees to be bound by the terms and
provisions hereof, the Managing General Partner may, in its sole discretion,
admit one or more new Partners as of the first Business Day of each month or at
such other times as determined by the Managing General Partner in its sole
discretion. A "Business Day" shall be any day on which commercial
banks in New York City and the Cayman Islands are open for
business. Admission of a new Partner shall not be a cause for
dissolution of the Partnership. In no event will the Partnership at
any time have more than 100 Partners. For purposes of this section,
the number of Partners of the Partnership shall be determined in accordance with
U.S. Treasury Regulations Section 1.7704-1(h).
ARTICLE
V
Withdrawals
and Distributions
of
Capital
Sec.
5.01 Withdrawal of Initial
Limited Partner . The Initial Limited Partner has made a
Capital Contribution of USD 1.00 to the capital of the
Partnership. Upon one or more additional Partners becoming Limited
Partners, the Initial Limited Partner shall automatically withdraw as a Limited
Partner and shall accordingly cease to be a Limited Partner and shall be
entitled to receive, and the Partnership shall pay to the Initial Limited
Partner, the amount of USD 1.00, and no more and shall have no further interest
or obligation of any kind whatsoever as a Partner of the
Partnership.
Sec.
5.02 Withdrawals and
Distributions in General . No
Partner shall be entitled to (i) receive distributions from the Partnership,
except as provided in Section 5.06 and Section 6.02 or (ii) withdraw
any amount from a Capital Account, except as provided in Section 5.03, or
upon the consent of, and upon such terms as may be determined by, the Managing
General Partner in its sole discretion.
Sec.
5.03 Withdrawals .
(a) Subject
to Sections 5.03(b), 5.03(c), 5.03(d), 5.06, 5.07 and 5.08, each Limited
Partner shall have the right, upon at least 65 days' prior written notice
delivered to the Administrator, to withdraw all or a portion of the balance of a
Capital Account established for such Limited Partner with respect to any
particular Capital Contribution, determined in the case of the Feeder Fund in
accordance with Section 3.02(d) as of (i) the last day of the fiscal quarter
ending on or immediately following the later of (a) the expiration of the
36-month period commencing on the date of the creation of such Capital Account
and (b) the Company's third annual shareholder meeting following the
Partnership's Initial Closing date (the "Lock-Up Period") and (ii) the last day
of each fiscal quarter thereafter. For Limited Partners with multiple
Capital Accounts, including multiple Capital Accounts established on account of
any particular Indirect Investor, withdrawals will be deemed to be made on a
"first in - first out" basis. Each date as of which a Limited Partner
is permitted to withdraw all or a portion of the balance in a Capital Account
shall herein be referred to as a "Withdrawal Date." If a Withdrawal
Date does not fall on a Business Day, the Withdrawal Date will be the next
Business Day. Withdrawal requests will be irrevocable by the Limited
Partner upon receipt by the Managing General Partner, but such irrevocability
may be waived by the Managing General Partner in its sole
discretion. The Lock-up Period shall also apply to withdrawals
(excluding withdrawals of Incentive Allocation) from the Capital Accounts of the
Managing General Partner. Upon the expiration of the Lock-up Period
with respect to any Capital Contribution made by the Managing General Partner,
the Managing General Partner may, on any Withdrawal Date, withdraw amounts in
the applicable Capital Account.
(b) Payment
of the amount withdrawn shall be made within 30 days of the Withdrawal Date;
provided, however, that if a
Limited Partner elects to withdraw 90% or more of its Capital Account(s)
established in respect of the Capital Contributions of any particular Indirect
Investor pursuant to Section 3.02(d), the Partnership shall pay the Limited
Partner an amount equal to at least 90% of its estimated withdrawal proceeds
(computed on the basis of unaudited data as of the Withdrawal Date) within 30
days after the Withdrawal Date and the balance of the withdrawal shall be paid
(subject to audit adjustments) within 30 days after completion of the audit of
the Partnership's books for the calendar year in which such Withdrawal Date
occurs. No interest will be paid on any balance due after a
Withdrawal Date. The interests (or portion thereof being withdrawn)
of a Limited Partner that gives notice of withdrawal pursuant to this Section
5.03(b) shall not be included in calculating the Partnership Percentages of the
Limited Partners required to take any action under this Agreement.
(c) In the
event that aggregate withdrawal requests are received for any Withdrawal Date in
an amount in excess of 20% of the net asset value of the Partnership as of such
date, the Managing General Partner may, in its sole discretion, (i) satisfy all
such withdrawal requests, or (ii) reduce all withdrawal requests pro rata so that only
20%, or more, in the sole discretion of the Managing General Partner, of the net
asset value of the Partnership is withdrawn on such Withdrawal Date (such
limitation, the "Gate"). A withdrawal request that is not satisfied
in full as of the intended Withdrawal Date because of the application of the
Gate will be satisfied at subsequent quarter-end Withdrawal Dates subject to the
Gate; provided,
however, that
the withdrawal request will be fully satisfied (subject to the suspension
provisions described in Section 5.08) no later than the last day of the twelfth
full month following the initial Withdrawal Date to which the withdrawal request
relates. Until the Withdrawal Date as of which a withdrawal becomes
fully satisfied, the Capital Account of the withdrawing Partner will remain at
risk.
(d) The
Managing General Partner reserves the right to enter into agreements with one or
more Limited Partners that contain different withdrawal rights than those
described in Section 5.03(a) including a shorter withdrawal notice period and
more frequent withdrawal rights. In addition, the Managing General
Partner may waive notice requirements and require or permit withdrawals under
such other circumstances as it approves, including to pay expenses of the Feeder
Fund and/or the Intermediate Fund approved by the Management
Company.
Sec.
5.04 Required
Withdrawals . The
Managing General Partner may, in its sole discretion, require a Limited Partner
to withdraw all or any part of its Capital Accounts at any time, for any reason
or no reason, upon five days' prior written notice. The Managing
General Partner also may terminate the entire interest of any Limited Partner in
respect of any particular Capital Account(s) immediately in the event that the
Managing General Partner, in its sole discretion, determines that (i) the
Limited Partner or any Indirect Investor has made a material omission or
material misstatement of fact with regard to the information such Limited
Partner or such Indirect Investor provided to the Partnership or the Feeder
Fund, (ii) such Partner's continued participation in the Partnership may cause
the Partnership to fail to qualify for the safe harbor from "publicly traded
partnership" status set forth in U.S. Treasury Regulations Section 1.7704-1(h)
or (iii) such Limited Partner's or Indirect Investor's continued ownership of an
interest in the Partnership or in the Limited Partner, respectively, may cause
adverse legal, tax, regulatory or other consequences to the
Partnership. The Partner receiving such notice shall be treated for
all purposes and in all respects as a Partner who has given notice of withdrawal
of all or part of its Capital Accounts, as the case may be, under Section
5.03.
Sec.
5.05 Death, Disability, etc. of
Limited Partners . The
death, disability, incapacity, adjudication of incompetency, termination,
bankruptcy, insolvency or dissolution of a Limited Partner shall not dissolve
the Partnership. The legal representatives of a Limited Partner shall
succeed as assignee to the Limited Partner's interest in the Partnership upon
the death, disability, incapacity, adjudication of incompetency, termination,
bankruptcy, insolvency or dissolution of such Limited Partner, but shall not be
admitted as a substituted Partner without the consent of the Managing General
Partner, in its sole discretion.
Sec.
5.06 Distributions .
(a) The
Managing General Partner may at any time (including during the Lock-up Period),
in its sole discretion, make distributions in cash or in kind (i) in
connection with a withdrawal of funds from the Partnership by a Partner; provided that any
distribution in-kind pursuant to this clause (a)(i) need not be pro rata and (ii) at
any time to all of the Partners on a pro rata basis in
accordance with the Partners' Partnership Percentages; provided, that the
Managing General Partner may elect, in its sole discretion, to give Limited
Partners the option of opting out of any distributions pursuant to clause
(ii). Additionally, upon the sale of all or substantially all of the
Securities (and the determination of the Managing General Partner that the
Partnership no longer intends to acquire Securities), the Managing General
Partner will distribute the proceeds thereof to the Partners pro rata in accordance
with their respective Partnership Percentages.
(b) If a
distribution is made in kind, immediately prior to such distribution, the
Managing General Partner shall determine the fair market value of the property
distributed and adjust the Capital Accounts of all Partners upwards or downwards
as if such gain or loss had been recognized upon an actual sale of such property
and allocated pursuant to Section 3.05. Each such distribution shall
reduce the Capital Account(s) of the distributee Partner by the fair market
value thereof.
(c) The
provisions of this Section 5.06 shall apply to distributions made in connection
with any withdrawal under this Article V and in connection with dissolution
pursuant to Article VI, unless otherwise provided for in Article
VI.
(d) (i) The
Managing General Partner may withhold and pay over to the U.S. Internal Revenue
Service (or any other relevant taxing authority or withholding agent) such
amounts as the Partnership is required to withhold or pay over, pursuant to the
Code or any other applicable law, on account of a Partner's distributive share
of the Partnership's items of gross income, income or gain.
(ii) For
purposes of this Agreement, any taxes so withheld or paid over by the
Partnership with respect to a Partner's distributive share of the Partnership's
gross income, income or gain shall be deemed to be a distribution or payment to
such Partner, reducing the amount otherwise distributable to such Partner,
pursuant to this Agreement and reducing the Capital Account(s) of such
Partner. If the amount of such taxes is greater than any such
distributable amounts, then such Partner and any successor to such Partner's
interest shall pay the amount of such excess to the Partnership, as a
contribution to the capital of the Partnership.
(iii) The
Managing General Partner shall not be obligated to apply for or obtain a
reduction of or exemption from withholding tax on behalf of any Partner that may
be eligible for such reduction or exemption. To the extent that a
Partner claims to be entitled to a reduced rate of, or exemption from, a
withholding tax pursuant to an applicable income tax treaty, or otherwise, the
Partner shall furnish the Managing General Partner with such information and
forms as such Partner may be required to complete where necessary to comply with
any and all laws and regulations governing the obligations of withholding tax
agents. Each Partner represents and warrants that any such
information and forms furnished by such Partner shall be true and accurate and
agrees to indemnify the Partnership and each of the Partners from any and all
damages, costs and expenses resulting from the filing of inaccurate or
incomplete information or forms relating to such withholding taxes.
Sec.
5.07 Effective Date of
Withdrawal . Unless
otherwise specified herein, the effective date of a Partner's withdrawal with
respect to any of its Capital Accounts shall mean the day immediately
following: (i) the Withdrawal Date in the case of a withdrawal
pursuant to Section 5.03(a), or (ii) the date determined by the Managing
General Partner if such Partner shall be required to withdraw from the
Partnership pursuant to Section 5.04. In the event the Withdrawal
Date of a Partner shall be a date other than the last day of a fiscal year of
the Partnership, each Capital Account of the withdrawing Partner that is subject
to such withdrawal shall be adjusted pursuant to Section 3.05(b) as if the
Withdrawal Date of such Partner's withdrawal were the last day of a fiscal
year.
Sec.
5.08 Limitations on Withdrawal of
Capital Account .
(a) The right
of any Partner or its legal representatives to withdraw any amount from a
Capital Account and to have distributed to it any such amount (or any portion
thereof) pursuant to this Article V is subject to the provision by the Managing
General Partner for all Partnership liabilities in accordance with the Law and
for reserves for contingencies and estimated accrued expenses and liabilities in
accordance with Section 3.08, and for projected Incentive
Allocations. In addition, no withdrawal shall be permitted that would
result in a Capital Account having a negative balance. The unused
portion of any reserve shall be distributed to the Partners to which the reserve
applied, with interest at the prevailing savings bank rate for unrestricted
deposits from time to time in effect in New York, New York, as determined by the
Managing General Partner, after the Managing General Partner shall have
determined that the need therefor shall have ceased.
(b) The
Managing General Partner may suspend withdrawal
rights (including the right to receive withdrawal proceeds), in whole or in
part: (i) during any period when any stock exchange or
over-the-counter market on which any of the Partnership's investments are
quoted, traded or dealt in is closed, other than for ordinary holidays and
weekends, or during periods in which dealings are restricted or suspended; (ii)
during the existence of any state of affairs as a result of which, in the
opinion of the Managing General Partner, disposal of part or all of the assets
of the Partnership or the calculation of the net asset value would not be
reasonably practicable or would be seriously prejudicial to the non-withdrawing
Limited Partners; (iii) during any breakdown in the means of communication
normally employed in determining the price or value of the Partnership's assets
or liabilities, or of current prices in any stock market as aforesaid, or when
for any other reason the prices or values of any assets or liabilities of the
Partnership cannot reasonably be promptly and accurately ascertained; (iv)
during any period when the transfer of funds involved in the realization or
acquisition of any investments cannot, in the opinion of the Managing General
Partner, be effected at normal rates of exchange; or (v) where such withdrawal
would impede a pending tender offer, proxy contest, shareholder vote or other
hostile action with respect to the Company. Upon the determination by
the Managing General Partner that any of the
above-mentioned conditions no longer applies, withdrawal rights shall be
promptly reinstated, and any pending withdrawal requests shall be honored as of
the end of the fiscal quarter following such determination.
(c) No
partial withdrawals will be permitted if such withdrawal will cause the
aggregate Capital Account balances established with respect to a Limited Partner
or an Indirect Investor to fall below $5 million, unless approved by the
Managing General Partner in its sole discretion.
(d) The
Managing General Partner, by written notice to any Limited Partner, may suspend
withdrawal rights of such Limited Partner (including the right to receive
withdrawal proceeds) if the Managing General Partner reasonably deems it
necessary to do so to comply with anti-money laundering laws and regulations or
any other legal or regulatory requirement applicable to the Partnership, the
Administrative General Partner, the Management Company, the Managing General
Partner, the Administrator and their respective Affiliates or any of the
Partnership's other service providers.
ARTICLE
VI
Duration
and Dissolution of the Partnership
Sec.
6.01 Duration . The
Partnership shall continue until the earliest of (i) a determination by the
Managing General Partner, in its sole discretion, that the Partnership should be
dissolved, (ii) the termination, bankruptcy, insolvency or dissolution of the
Managing General Partner, or (iii) such time as the Managing General Partner
determines that the Partnership no longer holds and no longer intends to acquire
Securities. Upon a determination to dissolve the Partnership,
withdrawal requests and distributions in respect of pending withdrawals may not
be made (other than pursuant to Section 5.03(d)).
Sec.
6.02 Dissolution .
(a) Upon a
determination to dissolve the Partnership or the occurrence of any of the events
set out in Section 6.01, in accordance with this Agreement and the Law, the
Managing General Partner shall, subject to applicable law, within no more than
30 days after completion of a final audit of the Partnership's financial
statements (which shall be performed within 90 days of such determination or
occurrence), make distributions out of the Partnership's assets, in the
following manner and order:
(i) to
creditors, including Partners who are creditors, to the extent otherwise
permitted by law, in satisfaction of liabilities of the Partnership (whether by
payment or by establishment of reserves); and
(ii) to the
Partners in the proportion of their respective Capital Accounts.
(b) The
Managing General Partner, in its discretion, at any time and from time to time,
may designate one or more liquidators, including, without limitation, one or
more members of the General Partners, who shall have full authority to wind up
and liquidate the business of the Partnership and to make final distributions as
provided in this Section 6.02. The appointment of any liquidator may
be revoked or a successor or additional liquidator or liquidators may be
appointed at any time by an instrument in writing signed by the Managing General
Partner. Any such liquidator may receive compensation as shall be
fixed, from time to time, by the Managing General Partner.
(c) In the
event that the Partnership is dissolved on a date other than the last day of a
fiscal year, the date of such dissolution shall be deemed to be the last day of
a fiscal year for purposes of adjusting the Capital Accounts of the Partners
pursuant to Section 3.05. For purposes of distributing the assets of
the Partnership upon dissolution, the Managing General Partner shall be entitled
to a return, on a pari passu basis with the
Limited Partners, of the amount standing to its credit in its Capital
Accounts.
ARTICLE
VII
Tax
Returns; Reports to Partners
Sec.
7.01 Independent
Auditors . The
financial statements of the Partnership shall be audited by an independent
certified public accountant selected by the Managing General Partner as of the
end of each fiscal year of the Partnership.
Sec.
7.02 Filing of Tax
Returns . The
Managing General Partner or its designated agent shall prepare and file, or
cause the accountants of the Partnership to prepare and file, a U.S. Federal
information tax return in compliance with Section 6031 of the Code, and any
required state and local income tax and information returns for each tax year of
the Partnership.
Sec.
7.03 Tax Matters
Partner . The
Managing General Partner shall be designated on the Partnership's annual U.S.
Federal information tax return, and have full powers and responsibilities, as
the Tax Matters Partner of the Partnership for purposes of Section 6231(a)(7) of
the Code. Each person (for purposes of this Section 7.03, called a
"Pass-Thru Partner") that holds or controls an interest as a Partner on behalf
of, or for the benefit of, another person or persons, or which Pass-Thru Partner
is beneficially owned (directly or indirectly) by another person or persons,
shall, within 30 days following receipt from the Tax Matters Partner of any
notice, demand, request for information or similar document, convey such notice
or other document in writing to all holders of beneficial interests in the
Partnership holding such interests through such Pass-Thru Partner. In
the event the Partnership shall be the subject of an income tax audit by any
U.S. Federal, state or local authority, to the extent the Partnership is treated
as an entity for purposes of such audit, including administrative settlement and
judicial review, the Tax Matters Partner shall be authorized to act for, and its
decision shall be final and binding upon, the Partnership and each Partner
thereof. All expenses incurred in connection with any such audit,
investigation, settlement or review shall be borne by the
Partnership.
Sec.
7.04 Reports to Current
Partners . Within
90 days after the end of each audit date, or as soon thereafter as is reasonably
possible, the Partnership shall cause its auditor to prepare and mail to each
Partner, together with the report thereon of the accountants selected by the
Managing General Partner, an audited financial report (which need not include
the list of the Partnership's investments that may be required by generally
accepted accounting principles) setting forth:
(a) a balance
sheet of the Partnership as of the end of such fiscal year;
(b) a
statement showing the Net Capital Appreciation or Net Capital Depreciation, as
the case may be, for such year;
(c) such
Partner's Capital Account as of the end of such year; and
(d) such
Partner's Capital Account and Partnership Percentage for the then current
Accounting Period.
The
Partnership will also provide periodic unaudited performance information, no
less frequently than quarterly, to the Limited Partners.
Sec.
7.05 Reports to Partners and
Former Partners . Within
90 days of the end of each fiscal year, or as soon thereafter as is reasonably
possible, the Partnership shall prepare and mail, or cause its accountants to
prepare and mail, to each Partner and, to the extent necessary, to each former
Partner (or its legal representatives), a report setting forth in sufficient
detail such information as shall enable such Partner or former Partner (or such
Partner's or former Partner's legal representatives) to prepare its U.S. Federal
income tax return, if applicable, in accordance with the laws, rules and
regulations then prevailing.
Sec.
7.06 Partner Tax
Basis . Upon
request of the Managing General Partner, each Partner agrees to provide to the
Managing General Partner information regarding its adjusted tax basis in its
Partnership interest along with documentation substantiating such
amount.
ARTICLE
VIII
Investor
Committee
Sec.
8.01 Investor
Committee .
(a) The
Managing General Partner may appoint (and may periodically reconstitute) an
investor committee (the "Investor Committee") consisting of at least three
individuals representing Indirect Investors in the Intermediate Fund and in the
Feeder Fund that are not Affiliated Investors and wish to serve as
members.
(b) The
Investor Committee shall provide such advice and counsel (if any) as may be
requested by the Managing General Partner in connection with, among other
things, the Funds' investments and potential conflicts of
interest. Majority approval of the Investor Committee with respect to
any investment or transaction for which the Managing General Partner has sought
such approval will be binding on all Limited Partners and no Limited Partner
shall have any claim in respect of any investment or transaction approved by the
Investor Committee, including, but not limited to breach by the Managing General
Partner of its fiduciary duties or breach of this Agreement. An
appointment to the Investor Committee is not transferable without the consent of
the Managing General Partner, which consent may be given or withheld in its sole
discretion.
(c) Meetings
of the Investor Committee shall be held upon the request of the Managing General
Partner. No fees shall be paid by the Partnership to members of the
Investor Committee; however, reasonable expenses incurred in attending meetings
of the Investor Committee will be reimbursed by the Partnership.
ARTICLE
IX
Miscellaneous
Sec.
9.01 General . This
Agreement: (i) shall be binding on the executors,
administrators, estates, heirs, and legal successors and representatives of the
Partners; and (ii) may be executed, through the use of separate signature
pages or supplemental agreements, in any number of counterparts with the same
effect as if the parties executing such counterparts had all executed one
counterpart; provided, however, that each
such counterpart shall have been executed by the Managing General
Partner.
Sec.
9.02 Power of
Attorney . Each
of the Partners hereby appoints the Managing General Partner as its true and
lawful representative and attorney-in-fact, in its name, place and stead to
make, execute, sign, acknowledge, swear to and file:
(a) a
Certificate of Limited Partnership of the Partnership and any amendments thereto
as may be required under the Law;
(b) any duly
adopted amendment to this Agreement;
(c) any and
all instruments, certificates and other documents that may be deemed necessary
or desirable to effect the dissolution and winding-up of the Partnership
(including, but not limited to, a Certificate of Cancellation of the Certificate
of Limited Partnership); and
(d) any
business certificate, fictitious name certificate, amendment thereto or other
instrument or document of any kind necessary or desirable to accomplish the
business, purpose and objectives of the Partnership, or required by any
applicable U.S. Federal, state or local law.
The power
of attorney granted hereby is intended to secure an interest in property and, in
addition, the obligations of each relevant Limited Partner under this Agreement,
and shall be irrevocable and shall survive, and shall not be affected by, the
subsequent death, disability, incapacity, adjudication of incompetency,
termination, bankruptcy, insolvency or dissolution of such Limited Partner;
provided, however, that such
power of attorney will terminate upon the substitution of another limited
partner for all of such Limited Partner's interest in the Partnership or upon
the complete withdrawal of such Limited Partner from participation in the
Partnership.
Sec.
9.03 Amendments to Partnership
Agreement . The
terms and provisions of this Agreement may be modified or amended and/or the
Partnership may be restructured at any time and from time to time with the
written consent of Limited Partners having in excess of 50% of the Partnership
Percentages of the Limited Partners and the affirmative vote of the Managing
General Partner, insofar as is consistent with the laws governing this
Agreement; provided, however, that without
the consent of the Limited Partners, the Managing General Partner may amend this
Agreement to: (i) reflect changes validly made in the membership
of the Partnership and the Capital Contributions and Partnership Percentages of
the Partners; (ii) change the provisions relating to the Incentive
Allocation as provided in, and subject to the provisions of, Section 3.06;
(iii) reflect a change in the name of the Partnership; (iv) make a
change that is necessary or, in the opinion of the Managing General Partner,
advisable to qualify the Partnership as a limited partnership or a partnership
in which the Limited Partners have limited liability under the laws of any U.S.
or non-U.S. jurisdiction, or ensure that the Partnership will not be treated as
an association taxable as a corporation or as a publicly traded partnership
taxable as a corporation for U.S. Federal tax purposes; (v) make a change
that does not adversely affect the Limited Partners in any material respect;
(vi) make a change that is necessary or desirable to cure any ambiguity, to
correct or supplement any provision in this Agreement that would be inconsistent
with any other provision in this Agreement, or to make any other provision with
respect to matters or questions arising under this Agreement that will not be
inconsistent with the provisions of this Agreement, in each case so long as such
change does not adversely affect the Limited Partners in any material respect;
(vii) make a change that is necessary or desirable to satisfy any
requirements, conditions or guidelines contained in any opinion, directive,
order, statute, ruling or regulation of any U.S. Federal, state or non-U.S.
governmental entity, so long as such change is made in a manner that minimizes
any adverse effect on the Limited Partners; (viii) make a change that is
required or contemplated by this Agreement; (ix) make a change in any
provision of this Agreement that requires any action to be taken by or on behalf
of the General Partners or the Partnership pursuant to applicable Cayman Islands
law if the provisions of applicable Cayman law are amended, modified or revoked
so that the taking of such action is no longer required; (x) prevent the
Partnership from in any manner being deemed an "Investment Company" subject to
the provisions of the U.S. Investment Company Act of 1940, as amended (the "1940
Act"); (xi) change the legal structure of the Partnership (for example, from a
partnership to a limited liability company or exempted company); or
(xii) make any other amendments and/or restructurings similar to the
foregoing. Each Partner, however, must approve of any amendment that
would (a) reduce its Capital Account or rights of contribution or
withdrawal; or (b) amend the provisions of this Agreement relating to
amendments.
Sec.
9.04 Non-Voting Interests of
Registered Fund Limited Partners . A
Limited Partner interest owned by an investment fund registered as an investment
company under the 1940 Act (a "Registered Fund Limited Partner"), or by an
Affiliate of a Registered Fund Limited Partner, or by a person controlling,
controlled by or under common control with a Registered Fund Limited Partner,
shall be a Non-Voting Interest; provided, however, that such
Non-Voting Interest shall be permitted to vote on matters with respect to which
voting rights are not considered to be "voting securities" as defined under
Section 2(a)(42) of the 1940 Act.
Except as
provided in this Section 9.04, an interest held by a Registered Fund Limited
Partner as a Non-Voting Interest shall be identical in all regards to all other
interests held by Limited Partners.
Sec.
9.05 Choice of Law . Notwithstanding
the place where this Agreement may be executed by any of the parties hereto, the
parties expressly agree that all of the terms and provisions hereof shall be
construed under the laws of the Cayman Islands applicable to contracts made and
to be entirely performed in such state and, without limitation thereof, that the
Law as now adopted or as may be hereafter amended shall govern the partnership
aspects of this Agreement.
Sec.
9.06 Consent to
Jurisdiction . To
the fullest extent permitted by law, in the event of any dispute arising out of
the terms and conditions of this Agreement, the parties hereto consent and
submit to the jurisdiction of the courts of the State of New York in the county
of New York and of the U.S. District Court for the Southern District of New
York.
Sec.
9.07 Tax Elections . The
Managing General Partner may, in its sole discretion, cause the Partnership to
make or revoke any tax election that the Managing General Partner deems
appropriate, including without limitation an election pursuant to Section 754 of
the Code and an election to cause the Partnership to be classified as a
partnership for U.S. Federal tax purposes.
Sec.
9.08 No Third Party
Rights . Except
for the provisions of Sections 2.05 and 2.06, the provisions of this Agreement,
including, without limitation, the provisions of Section 1.04 and Section 5.03,
are not intended to be for the benefit of any creditor or other person (other
than the Partners in their capacities as such) to whom any debts, liabilities or
obligations are owed by (or who otherwise have a claim against or dealings with)
the Partnership or any Partner, and no such creditor or other person shall
obtain any rights under any of such provisions (whether as a third party
beneficiary or otherwise) or shall by reason of any such provisions make any
claim in respect to any debt, liability or obligation (or otherwise) including
any debt, liability or obligation pursuant to Section 1.04, against the
Partnership or any Partner. Any amendment, modification or repeal of
Sections 2.05 and 2.06 shall not adversely affect any right or protection of any
person in respect of any act or omission occurring prior to the time of such
amendment, modification or repeal.
Sec.
9.09 Confidentiality . (a) In
connection with the organization of the Partnership and its ongoing business,
the Limited Partners (and the Indirect Investors) will receive or have access to
confidential proprietary information concerning the Partnership, including,
without limitation, portfolio positions, valuations, information regarding
potential investments, financial information, trade secrets and the like (the
"Confidential Information"), which is proprietary in nature and
non-public. Other than Affiliated Investors, no Partner, nor any
Affiliate of any Partner, shall disclose or cause to be disclosed any
Confidential Information to any person nor use any Confidential Information for
its own purposes or its own account, except in connection with its investment in
the Partnership and except as otherwise required by any regulatory authority,
law or regulation, or by legal process. Notwithstanding anything
herein to the contrary, each Partner (and each employee, representative or other
agent of such Partner) may disclose to any and all persons, without limitation
of any kind, the tax treatment and tax structure of (i) the Partnership and (ii)
any of its transactions, and all materials of any kind (including opinions or
other tax analyses) that are provided to the Partner relating to such tax
treatment and tax structure, it being understood that "tax treatment" and "tax
structure" do not include the name or other identifying information of the
Partnership or a transaction.
(b) The
Managing General Partner or its Affiliates shall be the only party to
communicate with the Company or to make any public statements, public
disclosures or any other third party communications on behalf of the Partnership
relating to the Company, the Securities, this Agreement or the activities of the
Managing General Partner and its Affiliates pursuant to this Agreement,
including the making of any proposals regarding corporate transactions involving
the Company or the Securities.
Sec.
9.10 Notices . Each
notice relating to this Agreement shall be in writing and delivered in person,
by registered or certified mail, by Federal Express or similar overnight courier
service or by telecopy. All notices to the Partnership shall be
addressed to its principal office and place of business. All notices
addressed to a Partner shall be addressed to such Partner at the address set
forth on the books and records of the Partnership. Any Partner may
designate a new address by written notice to that effect given to the
Partnership. Unless otherwise specifically provided in this
Agreement, a notice shall be deemed to have been effectively given when
delivered personally, if delivered on a Business Day; the next Business Day
after personal delivery if delivered personally on a day that is not a Business
Day; four Business Days after being deposited in the United States mail, postage
prepaid, return receipt requested, if mailed; on the next Business Day after
being deposited for next day delivery with Federal Express or similar overnight
courier; when receipt is acknowledged, if telecopied on a Business Day; and the
next Business Day following the day on which receipt is acknowledged if
telecopied on a day that is not a Business Day.
Sec.
9.11 Goodwill . No
value shall be placed on the name or goodwill of the Partnership, which shall
belong exclusively to the Managing General Partner.
Sec.
9.12 Headings . The
titles of the Articles and the headings of the Sections of this Agreement are
for convenience of reference only, and are not to be considered in construing
the terms and provisions of this Agreement.
Sec.
9.13 Pronouns . All
pronouns shall be deemed to refer to the masculine, feminine, neuter, singular
or plural, as the identity of the person or persons, firm or corporation may
require in the context thereof.
IN
WITNESS WHEREOF, the undersigned have hereunto set their hands as of the date
first set forth above.
GENERAL
PARTNERS:
TRIAN
PARTNERS GP,
L.P. TRIAN
PARTNERS CAYMAN, LTD.
By: Trian
Partners General Partner, LLC
its
general
partner By: /s/▇▇▇▇▇▇ ▇.
GARDEN
Name: ▇▇▇▇▇▇
▇. Garden
Title: Director
By: /s/▇▇▇▇▇▇ ▇.
GARDEN
Name: ▇▇▇▇▇▇
▇. Garden
Title: Member
LIMITED
PARTNER:
Executed
as a Deed by
TRIAN SPV
V, L.P.
By: Trian
Partners GP, L.P.
its
general partner
By: Trian
Partners General Partner, LLC
its
general partner
By: /s/▇▇▇▇▇▇ ▇.
GARDEN
Name: ▇▇▇▇▇▇
▇. Garden
Title: Member
In the
presence of: /s/▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Witness
INITIAL
LIMITED PARTNER:
Solely to
reflect the withdrawal of the Initial Limited
Partner
pursuant to Section 5.01
▇▇▇▇▇
▇▇▇▇▇▇▇▇
By: /s/▇▇▇▇▇
▇▇▇▇▇▇▇▇
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