LIMITED PARTNERSHIP AGREEMENT Exhibit B.
OF
CADUCEUS CAPITAL, L.P.
(Amended and Restated as of January 1, 1994)
AGREEMENT OF LIMITED PARTNERSHIP, dated as of __________, by
and among Caduceus Management Partners, L.P. as general partner (the "General
Partner") and all the parties who sign copies of this agreement to become
Limited Partners. (The General Partner and the persons who sign as Limited
Partners are sometimes collectively referred to as the "Partners").
ARTICLE I
General Provisions
Section 1.01 Formation. The original parties hereto formed
Caduceus Capital, L.P. as a limited partnership (the "Partnership") pursuant to
the provisions of the Delaware Revised Uniform Limited Partnership Act. The
existence of the Partnership commenced upon the filing with the Secretary of
State of Delaware of a Certificate of Limited Partnership in accordance with the
provisions of such law.
Section 1.02 Partnership Name. The name of the Partnership is
Caduceus Capital, L.P.
Section 1.03 Purpose. The primary purpose of the Partnership
is to invest, reinvest and trade in securities, other financial instruments and
rights and options relating thereto.
Section 1.04 Registered Office and Agent for Service of
Process. The registered office of the Partnership is at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the registered agent for service of process at
such office is The Corporation Trust Company.
Section 1.05 Place of Business. The principal place of
business of the Partnership shall be at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or such other place as the General Partner shall determine from time to
time.
Section 1.06. Fiscal Year and Fiscal Periods. The fiscal year
of the Partnership shall end on December 31 of each year, subject to change by
the General Partner from time to time. A new fiscal period ("Fiscal Period")
shall commence on the first day of each fiscal year, on each date of any capital
contribution to the Partnership and on each date next following the date of any
withdrawal of capital or retirement of any Partner from the Partnership, and the
prior Fiscal Period shall end on the date immediately preceding such date of
commencement of a new Fiscal Period.
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Section 1.07 Liability of Limited Partners. The Limited
Partners shall not be liable for any liabilities, or for the payment of any
debts and obligations, of the Partnership unless such Limited Partner, in
addition to the exercise of his rights and powers as a Limited Partner,
participates in the control of the Partnership or knowingly permits his name to
be used in the name of the Partnership.
Section 1.08 Assignability of the Interest of a Limited
Partner. The limited partnership interest of any Limited Partner in the
Partnership, in whole or in part, or any beneficial interest therein, may not be
assigned without the prior written consent of the General Partner, which consent
may be withheld in the General Partner's sole discretion. Upon such an
assignment of a limited partnership interest, the assignee shall become a
Limited Partner upon the execution of such agreements and other documents as
shall be required by the General Partner.
ARTICLE II
Composition and Admissions
Section 2.01 Partners. The names and addresses of the General
Partner and of each of the Limited Partners shall be set forth in a schedule of
the Partnership to be kept on file at all times at the principal place of
business of the Partnership. A Partner may change his or its address for
purposes of this Agreement upon 5 days prior written notice to the General
Partner.
Section 2.02 Admission of Partners. With the prior consent of
the General Partner, additional Limited Partners may be admitted to the
Partnership on any date selected by the General Partner. The General Partner may
admit additional or substitute General Partners to the Partnership on the first
day of any fiscal quarter, provided that the General Partner shall, not less
than 45 days prior to the proposed admission of any additional or substitute
General Partner, give notice of such admission to all of the Limited Partners.
Contributions to the capital of the Partnership shall be made in cash or, at the
discretion of the General Partner, in securities acceptable to the General
Partner or partly in cash and partly in securities acceptable to the General
Partner, such securities to be valued in accordance with the provisions of
Section 8.02(b). Each Partner who has contributed or may contribute securities
to the Partnership shall, prior to the date of any such contribution, furnish to
the Partnership evidence, satisfactory to the General Partner, as to his dates
of acquisition of such securities, his unencumbered ownership thereof and his
adjusted basis thereof for federal income tax purposes. Each Partner who
contributes securities to the Partnership shall consent and agree to pay to the
Partnership, concurrently with such contribution, or, alternatively, to have
deducted from such contribution, en' amount as the General Partner, in its sole
discretion, may determine to cover the costs of selling such securities and
investing the proceeds. In connection with the admission of a Partner to the
Partnership, such Partner shall, in advance of such admission and as a condition
thereto,
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sign a copy of this Agreement or a supplement hereto pursuant to which he agrees
to be bound by the terms of this Agreement.
ARTICLE 111
Management of Partnership
Section 3.01 Actions of the General Partner. The Partnership
shall be managed by its General Partner, Caduceus Management Partners, L.P. The
General Partner may appoint such agents of the Partnership as it deems necessary
who shall hold such offices and shall, under the direction of the General
Partner, exercise such powers of the General Partner in the management of the
Partnership and perform such duties in connection therewith as shall be
determined from time to time by the General Partner. The General Partner shall
devote so much of its time and efforts to the affairs of the Partnership as may,
in its judgment, be necessary to accomplish the purposes of the Partnership.
Nothing herein contained shall prevent the General Partner, its partners and
affiliates, or any employee, officer or shareholder thereof from conducting any
other business, including any business with respect to securities. Without
limiting the generality of the foregoing, the General Partner, its partners,
affiliates, or any employee, officer or shareholder thereof, from conducting any
other buisness, including any business with respect to securities. Without
limiting the generality of the foregoing, the General Partner, its partners,
affiliates, and any employee, officer or shareholder thereof, may act as
investment advisers or investment managers for others, may manage funds or
capital for others, may have, make and maintain investments in their own name or
through other entities, and may serve as officers, directors, consultants,
partners or stockholders of one or more investment funds, partnerships,
securities firms or advisory firms. It is recognized that in effecting
transactions, it may not always be possible, or consistent with the investment
objectives of the various persons described above and of the Partnership, to
take or liquidate the same investment positions at the same time or at the same
prices.
Section 3.02 Powers of the General Partner. The General
Partner, subject to the restrictions herein contained, shall have the power on
behalf of the Partnership:
(a) to purchase, hold and sell securities of any sort and
rights therein, on margin or otherwise;
(b) to sell short securities of any sort and rights therein,
on margin or otherwise, and to cover such short sales;
(c) to write, purchase, hold, sell and otherwise deal in put
and call options and any combination thereof on stocks, bonds and stock
market indices;
(d) to purchase, hold, sell and otherwise deal in commodities,
commodity contracts, commodity futures and options in respect thereof
(but the General Partner will
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not do so until, to the extent required, it has registered as a
commodity pool operator with the Commodity Futures Trading Commission);
(e) to purchase, hold, sell and otherwise deal in financial
futures and contracts relating to stock indices (and options thereon)
(but the General Partner will not do so until, to the extent required,
it has registered as a commodity pool operator with the Commodity
Futures Trading Commission);
(f) to purchase, hold, sell and otherwise deal in foreign
currencies and futures contracts relating thereto (and options thereon)
(but the General Partner will not do so until, to the extent required,
it has registered as a commodity pool operator with the Commodity
Futures Trading Commission);
(g) to conduct margin accounts with brokers; to open, maintain
and close bank accounts and draw checks or other orders for the payment
of moneys; to pledge securities for loans, and, in connection with any
such pledge, to effect borrowings from brokers, banks and other
financial institutions,
(h) to enter into, make and perform any other contracts,
agreements or other undertakings it may deem advisable in conducting
the business of the Partnership, including but not limited to
contracts, agreements or other undertakings with persons, firms or
corporations with which the General Partner, or any of its officers or
employees, or any other Partner is affiliated; and
(i) to act for the Partnership in all other matters.
Section 3.03 Restrictions on the General Partner. The General
Partner shall not on behalf of the Partnership (a) invest more than 15% of its
net assets (computed at the time the investment is made) in the securities of
any one company, (b) invest more than 10% of its assets (computed at cost at the
time of the investment) in non-marketable or illiquid securities; or (c) invest
in real estate.
Section 3.04 Limitation of Liability; Indemnification.
(a) Neither the General Partner, its partners, affiliates, any
employee, officer or shareholder thereof, nor any person or persons designated
pursuant to Section 6.02 shall be liable for any loss or cost arising out of, or
in connection with, or any act or activity undertaken (or omitted to be
undertaken) in fulfillment of any obligation or responsibility under this
Agreement, including any such loss sustained by reason of any investment or the
sale or retention of any security or other asset of the Partnership, except that
any person exculpated from liability under this Section shall not be exculpated
from any liability arising from losses caused by his, her or its gross
negligence or willful malfeasance.
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(b) The Partnership shall indemnify the General Partner, its
partners, affiliates and any employee, officer or shareholder thereof, from and
against any and all losses or costs suffered or sustained by the General
Partner, its partners or affiliates or any officer or employee thereof, arising
out of or in connection with any act or activities undertaken (or omitted to be
undertaken) in fulfillment of any obligation or responsibility under this
Agreement, including, without limitation, any judgment, settlement, reasonable
attorney's fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action or proceeding, except that any person
entitled to be indemnified under this Section shall not be indemnified for any
loss or expense arising out of his, her or its gross negligence or willful
malfeasance.
ARTICLE IV
Expenses of Partnership, Organizational Expenses
and Fee to the General Partner
Section 4.01 Expenses of Partnership Generally. The General
Partner shall be authorized to incur all expenses on behalf of the Partnership
which it deems necessary or desirable. All expenses incurred in connection with
the operation of the Partnership. shall be the responsibility of, and be borne
by, the Partnership. To the extent the General Partner pays expenses for which
the Partnership is responsible, it shall be entitled to be reimbursed by the
Partnership for such amounts. The General Partner shall be empowered to reduce
the expenses of the Partnership through the use of "soft" or commission dollars
to the extent legally permissible. The General Partner (or an affiliate of the
General Partner) will bear overhead expenses of the Partnership, including
salaries of administrative personnel and research assistants, travel and
research related expenses.
Section 4.02 Organizational Expenses. The General Partner
shall be authorized to incur on behalf of the Partnership the organizational
expenses of the Partnership, including all expenses incurred in connection with
the offer and sale of interests in the Partnership ("Organizational Expenses").
Organizational Expenses shall be paid by the Partnership and shall be amortized
over a period of 60 months from the formation of the Partnership.
Section 4.03 Management Fee Payable to the General Partner. In
consideration for the General Partner bearing certain expenses and providing
other services, each Limited Partner shall pay the General Partner (or any
person or entity designated by it) a quarterly management fee (the "Management
Fee") of 1.25% per annum of their Capital Accounts. Limited Partners who have
made net capital contributions to the Partnership of $5,000,000 or more will be
charged a Management Fee of 1.00% per annum of their Capital Accounts. Limited
Partners who are partners of the General Partner, or who are employees or
partners of any entities affiliated with partners of the General Partner, and
their respective family members ("Sponsor Affiliates") and certain partners who
became Limited Partners prior to November 1, 1993 may, at the discretion of the
General Partner, be charged a reduced Management Fee. The
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Management Fee will be debited to the Capital Account of each Limited Partner,
based on the amount of the Capital Account of each Limited Partner at the end of
each quarter (adjusted for any contributions or withdrawals made during the
quarter). The Management Fee will be paid to the General Partner (or any person
or entity designated by the General Partner) within 10 days after the end of
each quarter and prorated for periods less than a full fiscal quarter.
ARTICLE V
Withdrawals from Capital Accounts and Retirements
Section 5.01 Permissible Withdrawals. A Partner may withdraw
all or any part of his Capital Account (as defined in Section 7.01) in the
manner and to the extent provided in Section 5.02.
Section 5.02 Withdrawal Procedure.
(a) A Limited Partner may withdraw all or any part of his
Capital Account as of the last day of any fiscal quarter; provided, however,
that a Limited Partner may not withdraw all or any part of his Capital Account
until one year following the date of his admission to the Partnership (or until
December 31, 1993 in the case of a Limited Partner admitted in connection with
the initial offering of the Partnership); provided further that any partial
withdrawal by a Limited Partner must be at least 25% of such Limited Partner's
Capital Account at the time of the withdrawal; and provided further that a
Limited Partner may not, without the consent of the General Partner, make a
partial withdrawal which would reduce his Capital Account to less than
$1,000,000. Any Limited Partner desiring to make a withdrawal from his Capital
Account shall, not less than 30 days before the end of such fiscal quarter, give
written notice of (i) such Limited Partner's intention to make such withdrawal
and (ii) the amount thereof or the basis on which the amount thereof is to be
determined.
(b) The General Partner may withdraw all or any part of its
Capital Account as of the end of any fiscal quarter; provided, however, no such
withdrawal may be made by the General Partner prior to December 31, 1993; and
provided, further, that if the amount so proposed to be withdrawn by the General
Partner as of any withdrawal date would reduce his Capital Account to less than
his original capital contribution, the General Partner shall, not less than 45
days before the end of such fiscal quarter, give notice to the other Partners of
(i) its intention to make such withdrawal and (ii) the amount of such withdrawal
or the manner in which the amount of such withdrawal is to be determined.
(c) A Partner withdrawing his entire Capital Account as of the
end of any fiscal quarter pursuant to this Section 5.02 shall be deemed to have
retired as of the date of such withdrawal.
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Section 5.03 Payment on Retirement. Retirement of a Partner,
whether by (a) withdrawal of such Partner's entire Capital Account or (b) action
of the General Partner under Section 5.04, shall be subject to the provisions of
Article X.
Section 5.04 Mandatory Retirement of a Limited Partner. If the
General Partner, in its sole discretion, deems it to be in the best interests of
the Partnership or the General Partner, it may require any Limited Partner to
retire from the Partnership on the last day of any fiscal quarter on not less
than 20 days notice. A Limited Partner who dies or becomes bankrupt or
incapacitated may, in the sole discretion of the General Partner, be retired
from the Partnership at the end of the fiscal year during which such event
occurs. If the General Partner, in its sole discretion, deems it to be in the
best assets of the Partnership to do so because the continued participation of
any Limited Partner in the Partnership might cause the Partnership to violate
any law, the General Partner may on 5 days notice require the retirement of such
Limited Partner at any time, such retirement to be effective on the date
specified in such notice. A Limited Partner who is so required to retire
pursuant to this Section 5.04 shall be entitled to receive the value of his
liquidating Share (as defined in Section 10.01) computed as of the date on which
such Limited Partner's retirement shall become effective.
Section 5.05 Distributions in Cash or in Kind. All
distributions to a Partner by reason of withdrawals or retirements from the
Partnership shall be made in cash or, in the discretion of the General Partner,
in securities selected by the General Partner or partly in cash and partly in
securities selected by the General Partner.
ARTICLE VI
Term and Dissolution of Partnership
Section 6.01 Term of Partnership. Unless dissolved as
hereinafter provided, the Partnership shall continue until December 31, 1993 and
thereafter from year to year.
Section 6.02 Dissolution of Partnership. The Partnership may
be dissolved at any time by the General Partner, and thereupon the affairs of
the Partnership shall be wound up by the General Partner. The bankruptcy or
dissolution of the General Partner shall dissolve the Partnership provided,
however, that, in such event, if the Limited Partners unanimously select a
general partner who agrees to continue the Partnership, the Partnership shall
not be dissolved. In the event of the dissolution of the Partnership, the
affairs of the Partnership shall be promptly wound up by the person or persons
previously designated by the General Partner or, if the General Partner has made
no such designation, by the person or persons designated by Limited Partners
owning a majority in interest of the Capital Accounts of all the Limited
Partners as of the date of dissolution of the Partnership. Such person or
persons shall take all steps necessary or appropriate to wind up the affairs of
the Partnership as promptly as practicable thereafter. Such person or persons is
hereinafter referred to as the "Liquidator". Neither the admission of
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Partners nor the retirement, bankruptcy, dissolution, death or incapacity of a
Limited Partner shall dissolve the Partnership.
Section 6.03 Procedure on Winding Up.
(a) Upon the winding up of the Partnership, a full accounting
of the assets and liabilities of the Partnership shall be taken and the assets
of the Partnership shall be liquidated to the extent determined by the General
Partner (or the Liquidator) and, as promptly as practicable, the cash proceeds
thereof shall be applied in the following order of priority:
(i) to the payment of all debts to non-Partners,
taxes, obligations and liabilities of the Partnership
including the expenses of liquidation;
(ii) to the payment of all debts to Partners; and
(iii) to the payment to Partners of their remaining
Capital Accounts in proportion to the amounts thereof.
(b) In the winding up of the Partnership, the General Partner
(or the Liquidator) may establish reserves for contingent liabilities of the
Partnership in an amount (including estimated expenses, if any, in connection
therewith) determined by the General Partner (or the Liquidator) and, upon the
satisfaction of such contingent liabilities, the amounts, if any, remaining in
such reserves shall be (distributed as provided in subparagraph (a)(iii) of this
Section 6.03.
(c) Distributions to a Partner pursuant to subsection (a)(iii)
may be made in installments and shall be made in cash or, in the discretion of
the General Partner (or the Liquidator), in securities selected by the General
Partner (or the Liquidator), or partly in cash and partly in securities selected
by the General Partner (or the Liquidator).
(d) Upon the winding up of the Partnership, the name of the
Partnership and its goodwill shall not be appraised, sold or otherwise
liquidated but shall remain the exclusive property of the General Partner.
(e) As promptly as possible after the completion of the
winding up of the Partnership, the General Partner (or the Liquidator) shall
cause to be prepared and forwarded to each Partner a final statement and report
of the Partnership.
(f) If the Partnership is wound up by the Liquidator, the
Liquidator shall be entitled to reasonable compensation for his services in
winding up the Partnership.
ARTICLE VII
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Capital Accounts and Capital Contributions
Section 7.01 Capital Accounts. A Partner's "Capital Account"
as of a particular date shall consist of the following:
(a) an amount equal to such Partner's original capital
contribution;
(b) any additional capital contributions made on or before
such date; and
(c) the adjustments, if any, to such account in accordance
with the provisions of Section 7,03, Article VII and Section 1.01.
Section 7.02 Capital Contributions. Each Limited Partner must
make a minimum contribution of $1,000,000 to the Partnership, unless the General
Partner exercise its discretion to waive this minimum requirement. Contributions
to the capital of the Partnership shall be made in cash or, at the discretion of
the General Partner, in securities acceptable to the General Partner, such
securities to be valued in accordance with the provisions of Section 8.02(b).
The General Partner shall at all times maintain its Capital Account equal to at
least 1% of the total capital of the Partnership.
Section 7.03 Adjustments to Capital Accounts for Withdrawals.
The amount of withdrawals, if any, made by a Partner shall be deducted from such
Partner's Capital Account as of the date of such withdrawal.
Section 7.04 Additional Contributions to Capital. A Partner
may, with the consent of the General Partner, make additional contributions to
the capital of the Partnership on any date or dates selected by the General
Partner.
ARTICLE VIII
Allocation of Net Profits and Net Losses and
Determination of Net Profits and Net Losses
Section 8.01 Allocation of Net Profits and Net Losses.
(a) Except as otherwise provided in Section 8.03 regarding the
treatment of the "Hot Issues Account" (as defined therein), any Net Profits or
Net Losses (as defined in Section 8.02) during any Fiscal Period shall be
allocated as of the end of such Fiscal Period to the Capital Accounts of all the
Partners in the proportions which (i) each Partner's Capital Account as of the
beginning of such Fiscal Period bore to (ii) the sum of the Capital Accounts of
all the Partners as of the beginning of such Fiscal Period.
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(b) If in any fiscal year ("Current Year") the Net Profits
allocated to a particular Limited Partner's Capital Account (except for
employees, family members or affiliates of the General Partner) pursuant to
Section 8.01 (a) exceed the Net Losses so allocated to such Limited Partner's
Capital Account, there shall be reallocated to the General Partner as of the end
of the Current Year an amount equal to 20% of such excess, provided, however,
that this reallocation will be subject to a loss carryforward provision such
that the amount so reallocated to the General Partner for the Current Year may
not exceed 20% of the excess of the Net Profits for the Current Year over the
loss carryforward amount, if any, applicable to the Current Year and, provided,
however, the amount reallocated to the General Partner shall not exceed the Net
Profits of the Partnership for the fiscal year. For purposes of the first
proviso of the preceding sentence, the loss carryforward amount applicable to
the Current Year shall be the sum of all prior year Net Losses allocated to the
Limited Partner and not subsequently offset by prior year Net Profits. The loss
carryforward amount shall be reduced proportionately to reflect any net
withdrawals made by such Limited Partner subsequent to any such prior year Net
Losses.
The total amount so reallocated pursuant to this Section 8.01
(b) shall be credited as of the end of the fiscal year to the Capital Account of
the General Partner (and to the Capital Accounts of such Limited Partners as may
from time to time be designated by the General Partner in its sole discretion);
provided that the portion, if any, of such Net Profit that has been reallocated
to the Capital Account of the General Partner pursuant to this subsection (b)
which is represented by net unrealized gains may not be withdrawn by the General
Partner from its Capital Account until such gains are realized.
Sponsor Affiliates and certain partners who became Limited
Partners prior to November 1, 1993 may be charged a lower incentive allocation.
(c) In the event of the retirement of a Partner at anytime
other than the end of a fiscal year, the allocation and/or deduction provided
for in Section 8.01 (b) shall be made with respect to such Partner for the
Fiscal Period ending on such date as though the last day of such Fiscal Period
was the last day of a fiscal year. The amount so deducted from the Capital
Accounts of all Partners who so retire shall be held in a "Suspense Account"
until the end of such fiscal year at which time the total of such amounts shall
be credited to the Capital Accounts of the General Partner up to the amount by
which the Net Profit of the Partnership for such fiscal year exceeds the amount
reallocated from the Limited Partners under Section 8.01 (b) or such fiscal
year, and the balance, if any, of such amount shall be credited to the Capital
Accounts of the Partners as of the last day of such fiscal year.
Section 8.02 Determination of Net Profits and Net Losses. "Net
Profits" or "Net Losses" of the Partnership shall mean the net operating profits
or net operating losses, as the case may be, for a Fiscal Period determined on
the accrual basis of accounting in accordance with generally accepted accounting
principles consistently applied and further in accordance with the following:
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(a) Net Profits and Net Losses shall include realized and
unrealized profits and losses with respect to all securities positions.
In such computation, realized and unrealized profits and losses shall
mean for each position held in a security during any Fiscal Period, the
realized or unrealized appreciation or the realized or unrelated
depreciation, as the case may be, with respect to such position,
determined by comparing the net proceeds from the closing or deemed
closing of such position or the market value of such position at the
end of such Fiscal Period with (i) the cost of such position if
established during such Fiscal Period or (ii) if such position was
established during a prior Fiscal Period, the market value of such
position at the end of the last preceding Fiscal Period.
(b) The market value of positions in securities shall be as
follows: securities that are listed on the consolidated tape and are
freely transferable shall be valued at their last sales price on the
consolidated tape on the date of determination or, if no sales occurred
on such day, at the "bid" price on the consolidated tape at the close
of business on such day and if sold short at the "asked" price at the
close of business on such day. Securities traded over the counter which
are freely transferable shall be valued at the last sales price on the
date of determination, or, if no sales occurred on such day, at the
"bid" price at the close of business on such day and if sold short at
the "asked" price at the close of business on such day. Notwithstanding
the foregoing, if the securities to be valued constitute a block which,
in the judgment of the General Partner, could not be liquidated in a
reasonable time without depressing the market, such block shall then be
valued by the General Partner but not at a unit value in excess of the
quoted market price for such security. All other assets of the
Partnership shall be valued in the manner determined by the General
Partner.
(c) There shall be deducted in computing Net Profits and Net
Losses estimated expenses, including accounting and legal services in
respect of the particular Fiscal Period (whether performed therein or
to be performed thereafter), and such reserves for contingent
liabilities of the Partnership, including related expenses, if any, in
connection therewith, as the General Partner shall determine. There
shall be separately charged to each Limited Partner, the fee described
in Section 4.03 to the General Partner.
(d) In computing the Net Profits and Net Losses of the
Partnership, the Organizational Expenses of the Partnership incurred
pursuant to Section 4.02 shall be amortized over a period of 60 months
from the formation of the Partnership and the amortizable portion of
the Organizational Expenses shall be deducted in computing Net Profits
and Net Losses.
Section 8.03 Hot Issues. In the event the General Partner
decides to invest in securities which are the subject of a public distribution
and which the General Partner, in its sole discretion, believes may become a
"hot issue" as that term is defined in Article 111, Section 1 of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. (the
"Association"), such investment shall be made in accordance with the following
provisions:
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(a) any such investment made in a particular Fiscal Period
shall be made in a special account (the "Hot Issues Account");
(b) only those Partners who do not fall within the
proscription of Article 111, Section 1 of said Rules of Fair Practice
("Unrestricted Partners") shall have any beneficial interest in the Hot
Issues Account;
(c) each Unrestricted Partner shall have a beneficial interest
in the Hot Issues Account for any Fiscal Period in the proportion which
(i) such Unrestricted Partner's Capital Account as of the beginning of
the Fiscal Period bore to (ii) the sum of the Capital Accounts of all
Unrestricted Partners as of the beginning of such Fiscal Period;
(d) funds required to make a particular investment shall be
referred to the Hot Issues Account from the regular account of the
Partnership; securities involved in the public distribution shall be
purchased in the Hot Issues Account, held in the Hot Issues Account and
eventually sold from the Hot Issues Account or transferred to the
regular account at fair market value as of the day of transfer as
determined by the General Partner with such transfer being treated as a
sale; if such securities are sold from the Hot Issues Account, the
proceeds of the sale shall be transferred from the Hot Issues Account
to the regular account of the Partnership;
(e) as of the last day of each Fiscal Period in which a
particular investment or investments are held in the Hot Issues
Account: (A) interest shall be debited to the Capital Accounts of the
Unrestricted Partners in accordance with their beneficial interests in
the Hot Issues Account at the interest rate being paid by the
Partnership from time to time for borrowed funds during the period in
that Fiscal Period that funds from the regular account have been held
in or made available to the particular Hot issues Account or, if no
such funds are being borrowed during such period, the interest rate
that the General Partner determines would have been paid if funds had
been borrowed by the Partnership during such period and such interest
shall be credited to the Capital Accounts of all the Partners, both
General and Limited, in the proportions which (i) each Partner's
Capital Account as of the beginning of such Fiscal Period bore to (ii)
the sum of the Capital Accounts of all Partners as of the beginning of
such Fiscal Period and (B) any Net Profits or Net Losses during such
Fiscal Period with respect to the Hot Issues Account shall be allocated
to the Capital Accounts of the Unrestricted Partners in accordance with
their beneficial interests in the Hot Issues Account during such Fiscal
Period; and
(f) the determination of the General Partner as to whether a
particular Partner falls within the proscription of Article 111,
Section 1 of said Rules of Fair Practice shall be final.
Section 8.04 Allocation of Prior Fiscal Period Items. Anything
herein to the contrary notwithstanding, any item of income, gain, loss or
deduction for a Fiscal Period
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attributable to any Partnership matter or transaction occurring during a prior
Fiscal Period (such items of income, gain, loss or deduction are referred to
herein as "Prior Fiscal Period items") which shall exceed the lesser of (a) $
100,000 or (b) one percent of the Capital Accounts of all Partners as of the
beginning of the current Fiscal Period may, in the discretion of the General
Partner, be allocated among the Partners (including persons who have ceased to
be Partners) in proportion to their Capital Accounts as of the beginning of such
prior Fiscal Period. In the case of a person who is a Partner during the Current
Fiscal Period, the Prior Fiscal Period Items shall be considered an item of Net
Profit or Net Loss for the Current Fiscal Period for purposes of Section 8-01
(b). In the case of a person who has ceased to be a Partner, the Prior Fiscal
Period Items shall be considered an Item of Net Profit or Net Loss in the last
fiscal period in which such person was a Partner for purposes of computing the
allocation of such Prior Fiscal Period Items between the person who ceased to be
a Partner and the General Partner.
ARTICLE IX
Allocation of Income For Tax Purposes
Section 9.01 Ordinary Deductions and Ordinary Income. For
Federal income tax purposes, all items of deduction other than realized capital
losses, and all items of income other than capital gains, shall be allocated, as
nearly as is practicable, in accordance with the manner in which such items of
deduction or income affected the amounts which were either deducted from or
added to the Capital Accounts of the Partners.
Section 9.02 Capital Gains and Losses. For Federal income tax
purposes, capital gains and capital losses (short-term and long-term, as the
case may be) recognized by the Partnership shall be allocated, as nearly as is
practicable, in accordance with the manner in which the aggregate of the
increase or decrease in the value of the securities positions giving rise to
such gains or losses was added to or deducted from the Capital Accounts of the
Partners.
Section 9.03 Allocation of Capital Gains to Retiring Partners.
Notwithstanding Section 9.02 above, in the event a Partner withdraws all of his
Capital Account from the Partnership, the General Partner in its sole discretion
may make a special allocation to said Partner for Federal income tax purposes in
the last year that such Partner participates in the Partnership's operations of
the net capital gains recognized by the Partnership in such a manner as will
reduce the amount, if any, by which such Partner's Liquidating Share (as defined
in Section 10.01 ) exceeds his Federal income tax basis in his interest in the
Partnership before such allocation. For example, if a Partner retires at a time
when his Capital Account reflects significant unrealized gains which should be
appropriately taxed to such retiring Partner rather than the remaining Partners
in the Partnership, the General Partner may, in its sole discretion, employ the
provisions of this Section 9.03 in order to fairly apportion the realized gains
for the fiscal year such Partner retires between such retiring Partner and the
remaining Partners.
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ARTICLE X
Payments to and by a Person
Who Has Ceased to be a Partner
Section 10.01 Payments on Retirement, Death, Bankruptcy,
Insanity or Disability of any Partner. Within thirty days after (a) the date of
retirement of a Partner in accordance with the terms of this Agreement or (b) in
the discretion of the General Partner, the day of the fiscal year during which a
Partner died or became bankrupt or legally incapacitated, there shall be paid or
distributed to such Partner or to the legal representative of such Partner, an
amount in cash or, as determined by the General Partner, securities selected by
the General Partner or in cash and securities selected by the General Partner,
equal in value to not less than 95% of the estimated amount of the Liquidating
Share (as hereinafter defined) of such Partner. Promptly after the General
Partner has determined the Capital Accounts of the Partners as of such date and,
if such date is the last day of a fiscal year and the independent public
accountants have completed its examination thereof required by Section 11.03,
the Partnership shall pay to such Partner or its representative, in cash or such
securities or cash and such securities, as determined by the General Partner,
the amount of the excess, if any, of the Liquidating Share of such Partner over
the amount so paid, or such Partner or representative shall pay to the
Partnership the amount of the excess, if any, of the amount so paid over such
Liquidating Share, in each case together with interest thereon, to the extent
permitted by applicable law, from the applicable date referred to in clauses (a)
or (b) above to the date of the payment at an annual rate equal to 1/2 of 1%
above the brokers' call rate charged by the Partnership's principal broker. The
term "Liquidating Share", when used with respect to any retiring, deceased,
bankrupt or legally incapacitated Partner, shall mean the Capital Account of
such Partner on the date in question after giving effect to all adjustments
thereto.
Section 10.02 Reserve for Liability and Payments of Prior
Fiscal Period Items by Person Who Has Ceased to be a Partner.
(a) The right of any retired, deceased, bankrupt or legally
incapacitated Partner (or his legal representative) to have distributed
the Liquidating Share of such Partner shall in all instances be subject
to retention by the Partnership of a reserve, in such amount as shall
be determined by the General Partner, in its sole discretion, for
Partnership liabilities and for other contingencies. Commencing on the
applicable date referred to in clauses (a) and (b) of Section 10.01,
the reserve shall bear interest, payable on each December 31 after such
date, at an annual rate equal to 1/2 of 1% above the brokers' call rate
charged by the Partnership's principal broker. Upon the determination
of the General Partner that such reserve (or portion thereof) is no
longer required there shall be distributed to such Partner his
proportionate share of the reserve which is no longer required together
with interest thereon.
(b) A person who has ceased to be a Partner will be liable for
his proportionate share of Prior Fiscal Period Items as provided in
Section 804 in excess of
15
his share of the reserve established with respect to such person
pursuant to Section 10.02(a) and such person shall pay his share of
such amounts promptly on demand, but the amount to be paid shall not be
in excess of his Capital Account at the time such Prior Fiscal Period
Item arose.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Withholding Taxes. Any taxes, fees or other
charges the Partnership is required to withhold under applicable law with
respect to any Partner shall be withheld by the Partnership (and paid to the
appropriate governmental authorities) and shall be deducted from the Capital
Account of such Partner as of the last day of the Fiscal Period with respect to
which such amount is required to be withheld.
Section 11.02 Maintaining Books of Account. Proper and
complete books of account shall be kept at all times and shall be open to
inspection by any Partner or their accredited representative at reasonable times
during office hours.
Section 11.03 Audit of Books. The books of account and records
of the Partnership shall be audited as of the end of each fiscal year by
independent certified public accountants designated from time to time by the
General Partner.
Section 11.04 Amendment of Agreement. This Agreement may be
amended by the General Partner in any manner that does not adversely affect the
rights of any Limited Partner. This Agreement may also be amended by action
taken by both (a) the General Partner and (b) the Limited Partners owning a
majority in interest of the Capital Accounts owned by the Limited Partners at
the time of the amendment, provided that such amendment does not discriminate
among the Limited Partners.
Section 11.05 Notices. All notices provided for under this
Agreement shall be in writing and shall be deemed to have been duly given as of
the date of postmark if sent by first class mail to such Partner's address as
set forth in the schedule in the files of the Partnership as of the date of such
notice.
Section 11.06 Reports to Partners. The Partnership shall
furnish to the Partners reports with respect to the Partnership's activities
after the end of each fiscal quarter and audited financial reports of the
Partnership prepared by the Partnership's independent certified accountants
promptly after the end of each fiscal year. In addition, as promptly as
practicable after the end of each fiscal year, the Partnership shall send to
each Partner a report indicating the amounts representing their respective share
of net long-term capital gain or loss, net short-term capital gain or loss,
operating profit or loss and dividends for purposes of reporting such amounts
for income tax purposes.
16
Section 11.07 Binding Effect of Agreement. This Agreement,
including Section 11.09 hereof, shall be binding on the successors, assigns and
the legal representatives of each of the Partners.
Section 11.08 Counterparts. This Agreement may be executed in
more than one counterpart with the same effect as if the Partners executing the
several counterparts had all executed one document.
Section 11.09 Designation of Attorney. Each of the undersigned
for himself or herself hereby irrevocably constitutes and appoints ▇▇▇▇▇▇ ▇.
lsaly and ▇▇▇▇▇ ▇▇▇▇▇ his true and lawful attorneys in his name, place and
▇▇▇▇▇, to make, execute, sign and file:
(a) the Certificate of Limited Partnership and any amendment
thereto or termination thereof which is or may be required by the laws
of the State of Delaware;
(b) any certificate required by reason of the dissolution of
the Partnership; and
(c) any application, certificate, report or similar instrument
or document required to be submitted by or on behalf of the Partnership
to any governmental or administrative agency or body, to any securities
exchange, board of trade, clearing corporation or association or to any
self-regulatory organization or trade association.
Said attorneys are not by this Section 11.09 granted any
authority on behalf of the undersigned to amend this Agreement in any way that
adversely affects a Limited Partner.
17
IN WITNESS WHEREOF, the undersigned has hereunto signed this
Agreement as of the date first written above.
General Partner: Limited Partner:
CADUCEUS MANAGEMENT PARTNERS, /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
L.P. ----------------------------------
Signature of Limited Partner
By: Caduceus Capital Management, Inc. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Partner ----------------------------------
Type in Name of Limited Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date of Signature: 12/31/92
-------------------------------- ----------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 6/29/94 Date of Signature: 4/30/93
----------------- ----------
18
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
Croesus Investment Partners VI ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 4/3/95 Date of Signature: 4/30/95
----------------- ------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 6/28/96 Date of Signature: 11/4/96
----------------- ------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
Steveb ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 11/4/96 Date of Signature: 11/4/96
----------------- ------------
19
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Signature of Limited Partner
The Pooled Employee Trust Funds of Carolina First Bank
------------------------------------------------------
Type in Name of Limited Partner
Date of Signature: 10/31/96
-----------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Signature of Limited Partner
▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Type in Name of Limited Partner
Date of Signature: 11/1/96
------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Signature of Limited Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Type in Name of Limited Partner
Date of Signature: 4/30/96
------------