1
Exhibit 10.15
TAMP II INCENTIVE PLAN
LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
2
TABLE OF CONTENTS
Page
----
ARTICLE I - General Provisions ...............................................1
SECTION 1.01. Definitions .............................................1
(a) Agreement .................................................1
(b) Capital Account............................................1
(c) Capital Contribution.......................................1
(d) Certificate of Limited Partnership.........................1
(e) Code ......................................................1
(f) General Partner............................................1
(g) Limited Partner............................................1
(h) Partner....................................................2
(i) Partnership................................................2
(j) Securities.................................................2
(k) TAH........................................................2
(l) ULPA.......................................................2
(m) Voting Control.............................................2
SECTION 1.02. Partnership Name.........................................2
SECTION 1.03. Fiscal Year..............................................2
SECTION 1.04. Nature and Liability of Partners.........................2
SECTION 1.05. Purposes of Partnership..................................2
SECTION 1.06. Powers of Partnership....................................3
SECTION 1.07. General Partner as Limited Partner.......................3
ARTICLE II - Management of Partnership........................................4
SECTION 2.01. General..................................................4
SECTION 2.02. Services of General Partner..............................4
SECTION 2.03. Compensation of General Partner..........................4
(a) No Management Fee..........................................4
(b) Expenses...................................................4
SECTION 2.04. Restrictions.............................................4
(a) No Services by Limited Partners............................4
(b) Partnership Credit.........................................5
(c) Limitation on Borrowing and Pledging.......................5
(d) Additional Restrictions....................................5
SECTION 2.05. Reliance by Third Parties.................................5
SECTION 2.06. Partner's Transactions....................................5
SECTION 2.07. Exculpation of Liability..................................5
SECTION 2.08. Indemnification...........................................6
ARTICLE III - Capital Accounts; Allocations; Distributions....................6
SECTION 3.01. Capital Contributions.....................................6
(a) Contributions.............................................7
(i)
3
Page
----
(b) Borrowing.............................................. 7
(c) Vesting................................................ 7
SECTION 3.02. Capital Accounts................................... 8
SECTION 3.03. Deficit Capital Accounts........................... 8
SECTION 3.04. Allocations........................................ 8
(a) Book Items............................................. 8
(b) Tax Items.............................................. 9
(c) Allocations on Withdrawal.............................. 9
(d) Qualified Income Offset................................ 9
(e) General Partner Nonrecourse Debt....................... 9
(f) Curative Allocations................................... 10
SECTION 3.05. Distributions to Partners.......................... 10
(a) Distributions to Partners.............................. 10
(b) Application of Distributions........................... 10
(c) Repayment of Distributions............................. 10
SECTION 3.06. No Interest on Capital............................. 11
ARTICLE IV - Withdrawal of Limited Partner............................ 11
SECTION 4.01. Withdrawal of Limited Partner...................... 11
SECTION 4.02. Legal Representatives.............................. 11
SECTION 4.03. Mandatory Withdrawal............................... 11
SECTION 4.04. Liquidating Share.................................. 12
SECTION 4.05. Cessation of Participation......................... 12
ARTICLE V - Transfer of Partnership Interests......................... 12
SECTION 5.01. Assignability of Interests......................... 12
SECTION 5.02. Substituted Limited Partners....................... 13
SECTION 5.03. Obligations of Assignee............................ 13
ARTICLE VI - Duration and Termination of Partnership.................. 13
SECTION 6.01. Duration........................................... 13
SECTION 6.02. Withdrawal of Limited Partner...................... 13
SECTION 6.03. Withdrawal of General Partner...................... 13
SECTION 6.04. Liquidation........................................ 14
SECTION 6.05. Distribution Upon Termination...................... 15
ARTICLE VII - Reports to Partners..................................... 15
SECTION 7.01. Financial Records.................................. 15
SECTION 7.02. Annual Reports..................................... 15
SECTION 7.03. Inspection......................................... 16
SECTION 7.04. Tax Returns........................................ 16
ARTICLE VIII - Valuation.............................................. 16
(ii)
4
Page
----
SECTION 8.01. Valuation of Partnership Net Worth................. 16
SECTION 8.02. Valuation Date..................................... 16
SECTION 8.03. Valuing Securities and Other Assets................ 16
ARTICLE IX - Miscellaneous............................................ 17
SECTION 9.01. Admission of Limited Partners...................... 17
(a) Additional Limited Partners............................ 17
(b) Substituted Limited Partners........................... 17
(c) Procedure.............................................. 17
SECTION 9.02. Disputed Matters................................... 18
SECTION 9.03. Payments in Kind................................... 18
SECTION 9.04. General............................................ 18
SECTION 9.05. Notices............................................ 19
(a) To the Partners........................................ 19
(b) To the Partnership..................................... 19
SECTION 9.06. Execution of Certificate of Limited Partnership and
Other Documents............................................. 19
SECTION 9.07. Force Majeure...................................... 19
SECTION 9.08. Amendments......................................... 19
SECTION 9.09. Headings........................................... 20
SECTION 9.10. Power of Attorney.................................. 20
(iii)
5
TAMP II
INCENTIVE PLAN LIMITED PARTNERSHIP
LIMITED PARTNERSHIP AGREEMENT
BY THIS LIMITED PARTNERSHIP AGREEMENT made and entered into as of
February 28,1995, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding Corporation, a corporation organized
under the laws of the Commonwealth of Massachusetts, as general partner, and
those persons and entities executing this Agreement or counterparts thereof and
listed on Exhibit A (as it may be amended from time to time) as limited
partners, hereby form a limited partnership pursuant to the laws of the
Commonwealth of Massachusetts.
ARTICLE I - General Provisions
SECTION 1.01. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) Agreement. "Agreement" means this Limited Partnership Agreement as
it may from time to time be amended.
(b) Capital Account. "Capital Account" means those separate capital
accounts which are maintained for each Partner as defined in Section 3.02.
(c) Capital Contribution. "Capital Contribution" means the total amount
of money paid to the Partnership by each Partner as set forth on the signature
page hereof or counterpart thereof and reflected on Exhibit A hereto.
(d) Certificate of Limited Partnership. The "Certificate of Limited
Partnership" means the certificate of limited partnership for the Partnership
and all amendments thereto required under the laws of the Commonwealth of
Massachusetts to be signed and sworn to by the Partners of the Partnership and
filed for recording in the appropriate public offices within the Commonwealth of
Massachusetts to perfect or maintain the Partnership as a limited partnership
under the laws of the Commonwealth of Massachusetts and/or to effect the
admission, withdrawal or substitution of any Partner of the Partnership.
(e) Code. "Code" means the Internal Revenue Code, as amended.
(f) General Partner. "General Partner" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding
Corporation, a Massachusetts corporation, or any person substituted for or who
succeeds ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding Corporation as such general partner pursuant to
the terms of this Agreement.
6
(g) Limited Partner. "Limited Partner" means any person who is or shall
become a Limited Partner of the Partnership.
(h) Partner. "Partner" means the General Partner or any Limited
Partner.
(i) Partnership. "Partnership" means TAMP II Incentive Plan Limited
Partnership, a Massachusetts limited partnership.
(j) Securities. "Securities" means securities of every kind or
description.
(k) TAH. "TAH" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding Corporation, a
Massachusetts corporation. The affiliates of TAH shall include all corporations
and partnerships (i) over which TAH or any of its affiliates has Voting Control,
(ii) which, directly or indirectly, have Voting Control over TAH, and (iii)
which are under Voting Control of any corporation or partnership described in
the immediately preceding clause (ii).
(l) ULPA. "ULPA" means the Massachusetts Uniform Limited Partnership
Act, as amended from time to time.
(m) Voting Control. "Voting Control" means the right to vote 50% or
more of the securities having the right to elect the directors of a corporation
or the right to designate a majority of the general partners of a partnership.
SECTION 1.02. Partnership Name. The Partnership shall do business under
the name and style of "TAMP II Incentive Plan Limited Partnership," or such
other name as the General Partner may designate.
SECTION 1.03. Fiscal Year. The fiscal year of the Partnership shall be
the calendar year, or such other fiscal year as the General Partner shall
designate or the Code shall require.
SECTION 1.04. Nature and Liability of Partners. The General Partner
shall have such liability for the repayment, satisfaction and discharge of the
debts, liabilities and obligations of the Partnership as is provided by the ULPA
for a general partner of a limited partnership. The Limited Partners who execute
this Agreement or are otherwise admitted as Limited Partners shall be liable to
the Partnership for the repayment, satisfaction and discharge of its debts,
liabilities and obligations only (i) to the extent of their respective Capital
Contributions and (ii) to the extent provided in Section 38 of the ULPA.
The Partners hereby agree among themselves to share in accordance with
the terms of this Agreement all losses, liabilities or expenses suffered or
incurred by virtue of the operation of the Partnership, provided that Limited
Partners shall share such losses, liabilities, and expenses only up to the limit
of their respective Capital Contributions.
2
7
The General Partner agrees to assume and be liable for all such losses,
liabilities and expenses not covered by the aggregate Capital Contributions of
the Partners.
SECTION 1.05. Purposes of Partnership. The purposes of the Partnership
are to make investments in the Securities of publicly and privately held
companies and partnerships, in order to provide incentives to senior managers of
TAH or its affiliates who are given the opportunity to participate as Limited
Partners in the Partnership. Limited Partnership interests shall be allocated
initially by TAH based on the contributions of such managers to the business of
TAH and its affiliates and shall be subject to future vesting, redemption and
other provisions hereof which relate to the continued service of such managers.
SECTION 1.06. Powers of Partnership. In furtherance of the purposes of
the Partnership set forth in Section 1.05, the Partnership shall have the
following powers:
(a) To purchase or otherwise acquire, hold, and sell or
otherwise dispose of Securities, without regard to whether such
Securities are publicly traded, readily marketable, or otherwise
restricted as to transfer or resale;
(b) Subject to the limitations set forth in paragraph 2.04(c),
to possess, transfer, mortgage, pledge or otherwise deal in, and to
exercise all rights, powers, privileges and other incidents of
ownership or possession with respect to, Securities held or owned by
the Partnership, and to carry Securities in the name of a nominee or
nominees;
(c) Subject to the limitations set forth in paragraph 2.04(c),
to borrow or raise moneys, and to guarantee the obligations of others
and to sell, pledge or otherwise dispose of bonds or other obligations
of the Partnership for its purposes;
(d) To have and maintain an office within the Commonwealth of
Massachusetts and in connection therewith to rent or acquire office
space, engage personnel and do such other acts and things as may be
necessary or advisable in connection with the maintenance of such
office, and on behalf of and in the name of the Partnership to pay and
incur reasonable expenses and obligations for legal, accounting,
consultative and custodial services, and all other reasonable costs and
expenses incident to the operation of the Partnership;
(e) To form and own one or more corporations, trusts or
limited partnerships, provided that no entity so formed may do directly
or indirectly what the Partnership is prohibited by this Agreement from
doing; and
(f) To enter into, make and perform all such contracts,
agreements and other undertakings as may be necessary or advisable or
incident to the carrying out of the foregoing objects and purposes.
3
8
SECTION 1.07. General Partner as Limited Partner. The General Partner
may also be a Limited Partner, and in such event its rights, powers,
restrictions and liabilities as a General Partner shall remain unaffected, and
in addition, it shall, in respect of its interest as a Limited Partner, have all
of the rights and powers and be subject to all of the restrictions and
liabilities of a Limited Partner.
ARTICLE II - Management of Partnership
SECTION 2.01. General. The management, operation and policy
determinations of the Partnership shall be, and hereby are, vested in the
General Partner who shall manage the Partnership's affairs. Except as otherwise
expressly provided herein, the General Partner shall have the power to exercise
the powers, rights and authority granted to the General Partner hereunder on
behalf and in the name of the Partnership.
SECTION 2.02. Services of General Partner. The General Partner shall
(i) provide investment advice to the Partnership and shall bear the cost of
securing information with respect to prospective investments, (ii) maintain the
books and records of the Partnership, (iii) provide routine bookkeeping and
recordkeeping services and custody of Partnership securities, and (iv) provide
office space, office and executive staff, and office supplies and equipment for
the use of the Partnership. The General Partner shall be required to devote only
such time as is necessary to perform such services and to supervise the
activities of the Partnership, and directly or through its parent or affiliates
it may engage or invest in other businesses and activities of every nature,
including those competitive with the activities of the Partnership, without the
Partnership or any Partner having any right by virtue of this Agreement to an
interest in such other businesses or activities or any profits thereof.
SECTION 2.03. Compensation of General Partner.
(a) No Management Fee. The General Partner shall not receive
any fees or compensation from the Partnership for its services to the
Partnership.
(b) Expenses. The General Partner shall be reimbursed from the
Partnership for all reasonable expenditures made on behalf of the
Partnership or incurred incident to the operation of the Partnership,
including, without limitation, all legal, consulting and audit
expenses incurred in the organization of the Partnership, preparing any
amendment to the Partnership Agreement, and performing any other legal
and audit services for the Partnership, interest expenses, and
brokerage fees, commissions and discounts incurred in connection with
the purchase or sale of Securities, and other out-of-pocket expenses
incurred in connection with the making and monitoring of the
Partnership investments and the administration of the Partnership.
4
9
SECTION 2.04. Restrictions. Partners shall be restricted in their
activities as follows:
(a) No Services by Limited Partners. The Limited Partners
shall not participate in the management of the Partnership and shall
not hold themselves out as General Partners or take any action on
behalf of the Partnership or in any way commit the Partnership to any
agreement or contract and shall have no right or authority to do any of
the foregoing.
(b) Partnership Credit. No Partner shall lend or use the funds
or credit of the Partnership or employ the Partnership's name for any
purpose whatsoever, except that the General Partner may do so for the
purposes of the Partnership or as permitted by paragraph (c) of this
Section.
(c) Limitation on Borrowing and Pledging.
(i) If in the reasonable judgment of the General
Partner it is desirable to do so to accomplish the purposes of
the Partnership, the Partnership may borrow money from banks
or other recognized financial institutions and secure payment
of any such borrowing by hypothecation or pledge of
Partnership properties or otherwise provided that (A) any such
borrowing has an original maturity of less than one year and
(B) the aggregate of all indebtedness of the Partnership for
money borrowed outstanding at any one time does not exceed 5%
of the sum of the Capital Contributions of all Partners.
(ii) The Partnership may guarantee the obligations of
others provided that the amount guaranteed, together with any
amount borrowed, shall at no time exceed the limitation set
forth in clause (i)(B) above.
(iii) Notwithstanding the foregoing, the Partnership
may borrow funds from TAH or its successors or assume
obligations of Limited Partners to TAH or its successors under
the terms which the General Partner deems appropriate in
connection with the redemption or withdrawal under Article IV
of the interests of Limited Partners who have outstanding
obligations to TAH under paragraph 3.01(b).
(d) Additional Restrictions. The Partnership shall not make
short sales of Securities not owned by the Partnership.
SECTION 2.05. Reliance by Third Parties. Notwithstanding any other
provision of this Article II, any third party dealing with the Partnership may
rely conclusively upon the authority, power and right of the General Partner
acting under this Agreement. This Section shall not be deemed to limit the
liabilities and obligations of the General Partner as set forth in this
Agreement.
5
10
SECTION 2.06. Partner's Transactions. Nothing in this Agreement shall
be construed to prohibit any Partner from buying or selling securities for such
Partner's own account, including securities of the same issuers as those held by
the Partnership.
SECTION 2.07. Exculpation of Liability. The General Partner and its
Affiliates (as defined in Section 2.08) shall have no liability to the
Partnership or to any Partner for any loss suffered by the Partnership which
arises out of any action or inaction of the General Partner or its Affiliates if
the General Partner or its Affiliates, in good faith, determined that such
course of conduct was in the best interests of the Partnership and such course
of conduct did not constitute negligence or misconduct of the General Partner or
its Affiliates.
SECTION 2.08. Indemnification. The General Partner and its Affiliates
shall be indemnified by the Partnership against any losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims sustained by
them in connection with the Partnership, provided that the same were not the
result of gross negligence or willful misconduct on the part of the General
Partner or its Affiliates.
Notwithstanding the above, the General Partner and its Affiliates shall
not be indemnified by the Partnership for any losses, liabilities or expenses
arising from or out of an alleged violation of federal or state securities laws
unless (1) there has been a successful adjudication on the merits of each count
involving alleged securities law violations; or (2) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction or
(3) with respect to a settlement of claims against a particular indemnitee, a
court of competent jurisdiction approves such settlement and finds that
indemnification of the settlement and related costs should be made.
The Partnership shall not incur the cost of the portion of any
insurance which insures any party against any liability as to which such party
is herein prohibited from being indemnified.
For the purposes of Sections 2.07 and 2.08, the term "Affiliates" shall
mean any person performing services on behalf of the Partnership who: (1)
directly or indirectly controls, is controlled by, or is under common control
with the General Partner; or (2) owns or controls 10% or more of the outstanding
voting securities of the General Partner; or (3) is an officer, director,
employee or agent of the General Partner or of any of the persons identified in
the preceding clauses (l) or (2).
The right of indemnification hereby provided shall not be exclusive of
or affect any other rights to which the General Partner or any Affiliate may be
entitled. Nothing contained in this Section 2.08 shall limit any lawful rights
to indemnification existing independently of this Section.
The right of indemnification provided by this Section 2.08 shall not be
construed to increase the liability of Limited Partners as set forth In Section
1.04.
6
11
ARTICLE III - Capital Accounts; Allocations; Distributions
SECTION 3.01. Capital Contributions.
(a) Contributions. On or prior to the date of becoming a Limited
Partner of the Partnership, each Limited Partner shall make the Capital
Contribution in cash as set forth next to his/her name on Exhibit A. The Capital
Contribution of the General Partner shall at all times be not less than one
percent (1%) of the aggregate of all Capital Contributions of the Partners and
the General Partner shall make any additional Capital Contributions required to
maintain such Capital Contribution of not less than one percent (1%). The
aggregate of all Capital Contributions shall be, and hereby is agreed to be,
available to the Partnership to carry out the purposes and objects of the
Partnership.
(b) Borrowing. Limited Partners may be given the opportunity prior to
the due date of any Capital Contribution, to borrow all or any part of such
contribution from TAH upon such terms as may be offered by TAH. Such terms may
include, without limitation, the following:
(i) The principal of the loan may accelerate and be payable
earlier than the date due (i) to the extent of any distributions
payable to a borrower as a Limited Partner under Section 3.05(a)(i),
(ii) upon the termination of the employment of the borrower by TAH and
its affiliates, other than a termination occasioned by the death or
disability of the borrower, or (iii) upon the termination of the
borrower's interest in the Partnership.
(ii) The General Partner may have the right to offset loan
obligations due TAH against distributions or other payments due the
borrower as a Limited Partner hereunder and to cause the payment of
such loans to the extent of such distributions or payments.
(c) Vesting. Notwithstanding the foregoing, the interest of each
individual Limited Partner shall be subject to a vesting requirement that the
Limited Partner remain in the employment of TAH or any of its affiliates for a
consecutive period of three (3) years after the date of such Limited Partner's
admission to the Partnership. This vesting requirement may be waived in whole or
in part by the General Partner in its discretion and shall be waived in the
event of termination of employment due to normal retirement under the employer's
policies, death or disability. Upon termination of such employment of an
individual Limited Partner for any reason within three (3) years from the date
of such Limited Partner's admission to this Partnership, unless the General
Partner otherwise determines in its discretion:
7
12
(i) The remaining principal and accrued interest on any loans
owed by the Limited Partner under subparagraph (b) hereof shall be
immediately due and payable;
(ii) The right of the Limited Partner to any distributions of
assets of the Partnership under Section 3.05 shall terminate; and
(iii) The Limited Partner shall be required to withdraw from
the Partnership in accordance with Section 4.03 and such Limited
Partner's interest shall be liquidated under Section 4.04 or
purchased by the General Partner on equivalent terms for retransfer to
one or more substituted Limited Partners under Section 5.02 and the
proceeds of such liquidation or purchase shall be applied to payment of
the remaining principal and accrued interest of any loans owed by the
Limited Partner under subparagraph (b) hereof before any payment or
distribution thereof is made to the Limited Partner.
SECTION 3.02. Capital Accounts. A separate capital account (each, a
"Capital Account") shall be established for each Partner and shall be maintained
in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv),
and this Section 3.02 shall be interpreted and applied in a manner consistent
therewith. Whenever the Partnership would be permitted to adjust the Capital
Accounts of the Partners pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(f) Partnership shall so adjust the Capital Accounts of the
Partners. In any event, the Partnership shall adjust the Capital Accounts of the
Partners annually, and upon the admission of a new Partner or the withdrawal of
an existing Partner, to reflect revaluations of Partnership property in
accordance with Article VIII. Whenever the Capital Accounts of the Partners are
adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(f) to
reflect revaluations of Partnership property, (i) the Capital Accounts of the
Partners shall be adjusted in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization
and gain or loss, as computed for book purposes in accordance with Article VIII,
with respect to such property, and (ii) the Partners' distributive shares of
depreciation, depletion, amortization and gain or loss, as computed for tax
purposes, with respect to such property shall be determined so as to take
account of the variation between the adjusted federal income tax basis and book
value of such property in the same manner as under Code Section 704(c).
SECTION 3.03. Deficit Capital Accounts. It upon the liquidation of the
General Partner's interest in the Partnership the General Partner has a deficit
balance in its Capital Account, the General Partner shall contribute to the
Partnership an amount equal to such deficit balance. Any such contribution shall
be made by the General Partner no later than the end of the taxable year of the
Partnership during which such liquidation occurs (or, if later, within ninety
(90) days after such liquidation). This Section 3.03 is intended to comply with
the requirements of Treasury Regulations
8
13
Section 1.704-1(b)(2)(ii)(b)(3) and shall be interpreted and applied in a manner
consistent therewith.
SECTION 3.04. Allocations.
(a) Book Items. Items of income, gain, deduction and loss as computed
for book purposes (including any such items resulting from any revaluation of
property under Section 3.02) for any fiscal year or portion thereof shall be
allocated among the Partners pro rata in proportion to the Capital Account
balances of the Partners.
(b) Tax Items. Items of income, gain, deduction and loss, as computed
for federal income tax purposes, shall be allocated in the same manner as under
Code Section 704(c).
(c) Allocations on Withdrawal. If a Limited Partner's interest in the
Partnership is liquidated by the Partnership pursuant to Section 4.04 and the
Limited Partner receives less than the amount of the balance in his/her Capital
Account, then the excess of (i) the balance in his/her Capital Account over (ii)
the amount distributed by the Partnership shall be allocated among all the
remaining Partners in proportion to their Capital Account balances. This
provision shall be applied so as to maintain equality between the Capital
Accounts of the Partners and the amount of Partnership capital reflected on the
Partnership's balance sheet, as computed for book purposes, in accordance with
Treasury Regulations Section 1.704-1(b)(2)(iv)(q). Further, notwithstanding
sections 3.02 and 9.01(b), if a Limited Partner's interest is purchased by the
General Partner pursuant to Section 3.01(c)(iii) and the purchase price is less
than the balance of the Capital Account of the Limited Partner, then (i) the
excess of (x) the balance in the Limited Partner's Capital Account over (y) the
amount paid by the General Partner shall be allocated among all the remaining
Partners in proportion to their Capital Account balances and (ii) the General
Partner (and any assignee of the General Partner) shall have a Capital Account
balance with respect to the purchased interest in the Partnership equal to the
purchase price paid by the General Partner.
(d) Qualified Income Offset. No allocation shall be made pursuant to
Section 3.04(a) to the extent that it shall cause or increase a deficit balance
in any Limited Partner's Capital Account (in excess of such Partner's
obligation, if any, to restore a deficit in his/her Capital Account) as of the
end of the Partnership taxable year to which such allocation relates. In making
the foregoing determination, a Limited Partner's Capital Account shall be
reduced by the amounts described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6). Any Limited Partner who unexpectedly
receives an adjustment, allocation or distribution described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) shall be allocated items
of income and gain in an amount and manner
9
14
sufficient to eliminate, to the extent required by the Treasury Regulations,
such deficit balance as quickly as possible. This Section 3.04(d) is intended
to comply with the alternate test for economic effect set forth in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in
a manner consistent therewith.
(e) General Partner Nonrecourse Debt. If a Partner makes a nonrecourse
loan to the Partnership which is "partner nonrecourse debt" within the meaning
of Treasury Regulations Section 1.704-2(b)(4), then any item of Partnership
loss, deduction or Code Section 705(a)(2)(B) expenditure that is attributable to
such debt shall be allocated to such Partner and appropriate items of income
and gain shall be "charged back" to such Partner. This Section 3.04(e) is
intended to comply with Treasury Regulations Section 1.704-2(i) and shall be
interpreted and applied in a manner consistent herewith.
(f) Curative Allocations. The allocations set forth in Sections 3.04(d)
and 3.04(e) (the "Regulatory Allocations") are intended to comply with the
requirements of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and Treasury
Regulations Section 1.704-(2)(i), respectively. Notwithstanding any other
provisions of this Section 3.04 (other than the Regulatory Allocations), the
Regulatory Allocations shall be taken into account in allocating other items of
income, gain, deduction and loss among the Partners, pursuant to Sections
3.04(a) and 3.04(c), so that, to the extent possible, the net amount of such
allocations of other items and the Regulatory Allocations to each Partner shall
be equal to the net amount that would have been allocated to each such Partner
if the Regulatory Allocations had not occurred.
SECTION 3.05. Distributions to Partners.
(a) Distributions to Partners.
(i) It shall be within the sole discretion of the General
Partner as to whether, when and in what amount a distribution of cash
or other assets of the Partnership shall be made. Such distributions
(other than a distribution made in connection with the withdrawal of a
Partner under Article IV) shall be made to all of the Partners in the
ratio that their respective Capital Accounts bear to one another at the
time of the distribution.
(ii) The General Partner may, but shall not be required to,
make annual distributions to each Partner in an amount which the
General Partner estimates is sufficient to pay federal and state income
taxes attributable to allocations under Section 3.04(b).
Notwithstanding Section 3.05(a)(i), any distributions made pursuant to
this Section 3.05(a)(ii) shall be made to the Partners in proportion to
the excess
10
15
of cumulative income and gain over cumulative deductions and losses
allocated to each of the Partners pursuant to Section 3.04(b).
(b) Application of Distributions. To the extent that there is
any amount due from a Limited Partner to TAH under a loan made pursuant
to paragraph 3.01(b), each distribution to a Limited Partner (except a
distribution under subsection(a)(ii) hereof) shall be applied in
payment of such obligation of such Partner.
(c) Repayment of Distributions. Partners shall be required to
repay Partnership distributions to the extent provided in the ULPA.
SECTION 3.06. No Interest on Capital. No Partner shall be entitled to
receive interest from the Partnership on his/her Capital Account.
ARTICLE IV - Withdrawal of Limited Partner
SECTION 4.01. Withdrawal or Limited Partner. Except as otherwise
provided in Section 4.03 hereof, no Limited Partner shall be permitted to
withdraw from the Partnership until his interest in the Partnership is vested
under paragraph 3.01(c) and then only with the approval of the General Partner,
which approval may be withheld if the General Partner does not believe that such
withdrawal is in the best interests of the other Limited Partners, whether
because of the cash position of the Partnership, the undesirability of
liquidating any of the investments of the Partnership, or otherwise. The
following provisions shall govern with respect to any withdrawals approved by
the General Partner:
(a) No such withdrawal shall be made except as of the last day
of a fiscal year of the Partnership;
(b) Partial withdrawals shall not be permitted and a Partner
desiring to withdraw must withdraw his/her entire interest in the
Partnership;
(c) The Partner desiring to withdraw must notify the General
Partner in writing at least sixty (60) days prior to the close or the
fiscal year in which such Partner wishes to effect his/her withdrawal;
and
(d) The General Partner may, if necessary to accommodate a
request for withdrawal by a Limited Partner, attempt to obtain a
purchaser of the whole or a part of such Limited Partner's interest.
SECTION 4.02. Legal Representatives. In the event any Limited Partner
shall die or shall be declared incompetent or insane or shall be adjudicated a
bankrupt, the legal representative of such Limited Partner shall upon written
notice to the General
11
16
Partner of the happening of any of such events become an assignee of such
Limited Partner's interest subject to all of the terms of this Agreement as then
in effect. Such legal representative may not withdraw from the Partnership
except in accordance with Section 4.01. If the General Partner does not approve
withdrawal of the interest of such legal representative, the General Partner
will use its best efforts, without legal obligation, to find another person,
suitable to the General Partner, willing to assume the Partnership interest of
such legal representative.
SECTION 4.03. Mandatory Withdrawal. Unless the General Partner
otherwise determines, an individual Limited Partner shall be required to
withdraw from the Partnership upon the termination of his/her employment by TAH
and its affiliates prior to the vesting of his/her interest under paragraph
3.01(c), except for a termination by reason of normal retirement under the
employer's policies, death or disability, and such Limited Partner's Partnership
interest shall be liquidated under Section 4.04 or purchased by the General
Partner for retransfer to substituted Limited Partners under Section
3.01(c)(iii).
SECTION 4.04. Liquidating Share. In the event any Limited Partner shall
withdraw or be required to withdraw in accordance with the provisions of this
Article IV, there shall be paid to such Limited Partner or his/her legal
representative within 60 days after the last day of the fiscal year of the
Partnership which constitutes the effective date of withdrawal, an amount equal
to such Partner's positive Capital Account balance as of the effective date of
withdrawal; provided, however, that in the event of a mandatory withdrawal under
Section 4.03, such Partner shall be paid an amount equal to the lesser of (i)
his/her Capital Contribution(s) less distributions paid to such Partner prior to
the withdrawal date, other than distributions paid under Section 3.05(a)(ii), or
(ii) his/her positive Capital Account balance.
SECTION 4.05. Cessation of Participation. From and after the effective
date of withdrawal of a Partner from the Partnership under this Article IV, no
interest shall be payable on such Partner's interest in the Partnership to the
date of payout.
ARTICLE V - Transfer of Partnership Interests
SECTION 5.01. Assignability of Interests.
(a) Subject to the provisions or Section 4.02 hereof, the
interest of a Limited Partner shall not be assignable without the prior
written consent of the General Partner. No assignment shall be binding
upon the Partnership until the General Partner receives an executed
copy of such assignment in form and substance satisfactory to the
General Partner. The assignee of such interest may become a substituted
Limited Partner only upon the terms and conditions of Sections 5.02 and
9.01.
12
17
(b) The interest of the General Partner shall not be
assignable; provided, however, that in no event shall the interest of
the General Partner be reduced below a 1% interest in the Capital
Accounts of the Partners and that such interest may be assigned to a
successor to all or substantially all of the business of the General
Partner the Voting Control of which is held by those persons then
holding Voting Control of the General Partner upon (i) the execution by
the General Partner of a written assignment, the execution by the
successor of this Agreement, and the written assumption by the
successor of the obligations of the General Partner hereunder; and (ii)
the receipt by the Partnership of an opinion of counsel that such
assignment and assumption will not result in the Partnership being
classified as an association for Federal income tax purposes. In the
event of such assignment, the successor shall become the General
Partner hereunder, and the predecessor and successor General Partner
shall cause the execution of any necessary papers including, without
limitation, an amendment to the Certificate of Limited Partnership to
record the substitution of the successor as General Partner.
SECTION 5.02. Substituted Limited Partners. No Limited Partner shall
have the right to substitute an assignee as a Limited Partner in his/her place.
The General Partner shall have the right, in its discretion, to admit as a
substituted Limited Partner any person, firm or corporation acquiring a
partnership interest by assignment from another Limited Partner or from the
General Partner. The admission of an assignee as a substituted Limited Partner
shall be conditioned upon the assignee's written assumption of all obligations
of the assigning Limited Partner and execution of this Agreement as a Limited
Partner. Upon acceptance of a substituted Limited Partner, the General Partner
shall forthwith amend the Certificate of Limited Partnership and any other
necessary papers to show the substitution of such assignee in place of the
assigning Limited Partner. The General Partner's failure or refusal to admit an
assignee as a substituted Limited Partner shall not affect the right of such
assignee to receive the share of profits or other distribution or compensation
to which its assignor would otherwise be entitled.
SECTION 5.03. Obligations of Assignee. Any assignee, irrespective of
whether such assignee has accepted and adopted in writing the terms and
provisions of this Agreement, shall be deemed by the acceptance of such
assignment to have agreed to be subject to the terms and provisions of this
Agreement in the same manner as its assignor.
ARTICLE VI - Duration and Termination of Partnership
SECTION 6.01. Duration. Except as provided in Section 6.03, the
Partnership shall continue for a period of twenty (20) years from and after the
date hereof, provided, however, that with the written consent of the General
Partner and Limited Partners representing at least sixty-six and two-thirds
percent (66 2/3%) of the combined Capital
13
18
Accounts of all the Limited Partners, the Partnership may be terminated at any
time after its first full fiscal year.
SECTION 6.02. Withdrawal of Limited Partner. If any Limited Partner
shall withdraw, die, be declared incompetent or insane, or be adjudicated a
bankrupt, such event shall not cause the dissolution or termination of the
Partnership, and the Partnership shall continue until terminated pursuant to
Section 6.01 or Section 6.03.
SECTION 6.03. Withdrawal of General Partner.
(a) The General Partner may withdraw at any time after
February 28, 2000 by giving 90 days prior written notice to the other
Partners. If Limited Partners whose Capital Accounts constitute in
excess of 66 2/3% of all Capital Accounts consent in writing executed
within such 90-day period to the continuation of the Partnership and
elect a new General Partner, the Partnership shall not terminate but
shall continue in existence as though no such withdrawal or filing had
occurred, except that the new General Partner shall be substituted for
the former General Partner. Any Limited Partner who does not consent to
such continuation shall have the right to withdraw by giving notice
within 90 days after having been notified of the continuation of the
Partnership and shall be paid in the manner set forth in Section 4.04.
(b) In the event that the Limited Partners shall have
determined to continue the Partnership, the former General Partner (or
its representative, successors or assigns) shall become a Limited
Partner of the Partnership upon the effective date of such continuation
to the extent of its then interest in the Partnership as a General
Partner. Thereafter, except as otherwise provided below, such former
General Partner (or its representative) shall be treated as a Limited
Partner for all purposes of this Agreement, shall have all of the
rights and obligations of a Limited Partner hereunder, including the
right to receive allocations and distributions on the same basis as all
other Limited Partners, and shall not be entitled to receive any
further allocations or distributions to which the General Partner is
entitled hereunder. Upon becoming a Limited Partner, such former
General Partner's Capital Account and Capital Commitment shall
initially be the same as they were on the effective date of such
continuation. Once the General Partner ceases to be such for whatever
reason and becomes a Limited Partner hereunder, such former General
Partner will no longer be personally liable with respect to Partnership
liabilities arising out of events and transactions occurring after its
termination as General Partner (i.e., its Capital Account will be
debited for its share, if any, as Limited Partner of the losses and
expenses arising out of such liabilities but it will not be required to
make additional contributions to the Partnership to satisfy such
liabilities). However, a former General Partner will remain personally
liable for all Partnership liabilities arising out of events and
transactions occurring prior to such former General Partner's
termination as General Partner (i.e., its Capital Account will be
debited for its share of losses
14
19
and expenses arising out of such liabilities and it will be required to
make additional contributions to the Partnership to the extent of a
deficit in its Capital Account due to such liabilities arising out of
events and transactions occurring prior to its termination).
SECTION 6.04. Liquidation. Upon the termination of the Partnership the
General Partner, or if there be no General Partner, then a person selected by
Limited Partners representing in excess of fifty percent (50%) of the combined
Capital Accounts of all Limited Partners, shall act as the liquidator (or
liquidators) of the Partnership with full power and authority to:
(a) sell, at such prices and upon such terms as the liquidator
in its sole discretion may deem appropriate, any or all of the
Securities, properties and assets of the Partnership, provided that
such sales shall only be made for cash and, when possible, consummated
within ninety (90) days after the date of termination; and provided
further that the liquidator shall not deal directly or indirectly with
the Partnership for its own account without the approval in writing of
all of the Limited Partners; and
(b) within ninety (90) days after the date of termination or
as soon thereafter as possible, effect distribution of the properties
and assets of the Partnership in cash or in kind in the manner set
forth in Section 6.05.
SECTION 6.05. Distribution Upon Termination. Upon liquidation of the
Partnership, the assets of the Partnership remaining after the payment, or
reasonable provision therefor, of all Partnership liabilities (and the
establishment of reasonable reserves for contingent liabilities) shall be
distributed to the Partners in proportion to and to the extent of the positive
balances of their respective Capital Accounts. This Section 6.05 is intended to
comply with the requirements of Treasury Regulations Section
1.704-1(b)(2)(ii)(b)(2) and shall be interpreted and applied in a manner
consistent therewith.
ARTICLE VII - Reports to Partners
SECTION 7.01. Financial Records. The General Partner shall keep books
of account in which shall be entered fully and accurately the transactions of
the Partnership and financial records appropriate to the business of the
Partnership.
SECTION 7.02. Annual Reports. Within one hundred twenty (120) days
after the end of each fiscal year and upon liquidation of the Partnership, the
General Partner shall prepare and mail to each Partner and to each former
Partner who withdrew during the applicable fiscal year or its legal
representative, a report stating in sufficient detail such transactions effected
by the Partnership during such fiscal year as shall enable such Partner or
former Partner or the legal representative of such former Partner to prepare its
respective income tax returns, including:
15
20
(a) such Partner's Capital Account balance as of the close of
such fiscal year;
(b) the sum of the Capital Account balances as of such date of
all the Partners;
(c) statement of assets and liabilities of the Partnership;
(d) profit and loss statement;
(e) statement of holdings of Securities of the Partnership;
(f) a description of the nature of each of the Partnership's
investments, the cost thereof and the valuation thereof established
pursuant to Article VIII; and
(g) such other financial information and documents as the
General Partner deems appropriate, as a Limited Partner may reasonably
request, or as is required by this Agreement and any amendments hereto.
SECTION 7.03. Inspection. A Limited Partner shall have the right at
reasonable times to inspect the books and records of the Partnership and to
discuss its affairs with the agents of the General Partner.
SECTION 7.04. Tax Returns. The General Partner will file all Federal,
state or other income tax returns required of the Partnership and will supply to
each Limited Partner such Partner's Form K-1 submitted with the Partner's
Federal tax return. Upon the request of any Partner, subject to the approval of
the General Partner, the Partnership shall elect, pursuant to Code Section 754,
to adjust the basis of Partnership property as permitted and provided in Code
Sections 734 and 743.
ARTICLE VIII - Valuation
SECTION 8.01. Valuation of Partnership Net Worth. In determining the
net worth of the Partnership, the value of any Partnership asset, the Capital
Accounts of the Partners, the value of any distribution, or in determining value
for any other purpose under this Agreement, the provisions of this Article VIII
shall apply.
SECTION 8.02. Valuation Date. Valuation shall be determined by the
General Partner as of the close of business on the Market Day preceding the last
day of each fiscal year of the Partnership or as of the close of business on the
date with respect to which valuation is to be taken, or if such day is not a
Market Day, then on the Market Day next preceding such date, as the case may be.
A Market Day shall be a day on which the New York Stock Exchange is open for
regular trading. If a valuation is taken
16
21
other than in connection with the annual reports described in Section 7.02, the
General Partner shall give notice of such valuation to the Limited Partners
promptly after it is determined.
SECTION 8.03. Valuing Securities and Other Assets. The following
provisions shall apply in valuing the assets of the Partnership:
(a) Listed Securities which are not restricted as to
saleability or transferability shall be valued at the closing price as
of the Valuation Date. If any listed Security was not traded on such
date, then the mean of the closing high bid and low asked prices as of
the close of business on such date shall be used.
(b) Unlisted securities which are readily marketable shall be
valued at the mean of the closing bid and asked prices as of the
Valuation Date.
(c) Securities, whether listed or unlisted, for which market
quotations are available, but which are restricted as to saleability or
transferability, shall be valued as provided in (a) and (b) above, less
a discount of from ten percent (10%) to twenty-five percent (25%) of
the value thereof as determined in good faith by the General Partner.
In determining the amount of such discount the General Partner shall
give consideration to the nature and length of such restriction and the
relative volatility of the market price of such Security.
(d) Securities for which market quotations are not readily
available and all other assets of the Partnership shall be valued at a
fair value as determined in good faith by the General Partner.
(e) Interests in other partnerships shall be valued by each
partnership at the times and upon the terms provided in its partnership
agreement unless the General Partner of this Partnership otherwise
determines.
(f) Liabilities shall include, in addition to those recorded
on the books of the Partnership, such other accrued or contingent
liabilities as shall be determined in accordance with generally
accepted accounting principles.
(g) In determining the value of the interest of any Partner in
the Partnership, neither the goodwill nor the right to use the firm
name or trade name of the Partnership shall be considered as an asset
of the Partnership.
ARTICLE IX - Miscellaneous
SECTION 9.01. Admission of Limited Partners. Except as provided in this
Section, no new Limited Partner shall be admitted to the Partnership and no
additional contribution of capital by a Limited Partner to the Partnership shall
be accepted.
17
22
(a) Additional Limited Partners. Additional Limited Partners
may be admitted in the discretion of the General Partner as of the
first day of July or the first day of January of any year and the
interest of such additional Limited Partner in the Partnership shall be
established by creating a Capital Account for such additional Limited
Partner as of that day in an amount equal to the contribution made by
such additional Limited Partner to the Partnership.
(b) Substituted Limited Partners. Substituted Limited Partners
may also be admitted in the discretion of the General Partner by
assignment or transfer of the interest of a Limited Partner or the
General Partner in accordance with Article V or Sections 3.01(c)(iii),
4.01(d) or 4.02, in which case the substituted Limited Partner will
take over the Capital Account of his assignor or transferor.
(c) Procedure. The admission of a new Limited Partner, whether
an additional Limited Partner or a substituted Limited Partner, shall
be accomplished in accordance with the following procedures: Each
Limited Partner so admitted shall (i) sign a counterpart copy of this
Agreement, which shall be accepted by its execution by the General
Partner, as well as any other documents required by the General
Partner, and (ii) make payment of his/her Capital Commitment, or
purchase price in the case of a substituted Limited Partner, as
determined by the General Partner, and (iii) an amendment to the
Partnership's Certificate of Limited Partnership shall be filed to
reflect such addition. Each such new Limited Partner shall thereafter
be entitled to and subject to all the rights and liabilities of Limited
Partners as set forth herein.
SECTION 9.02. Disputed Matters. Any controversy or dispute out of this
Agreement, interpretation of any of the provisions hereof, or the actions of the
General or Limited Partners hereunder shall be submitted to arbitration before
the National Association of Securities Dealers, Inc. ("NASD") under the rules
then obtaining of the NASD. If the NASD refuses to accept jurisdiction of the
matter, then the dispute shall be submitted to arbitration before the American
Arbitration Association under the rules then obtaining of said Association. Any
such arbitration shall be held in Boston, Massachusetts, and judgment upon any
award thus obtained may be entered in any court having jurisdiction thereof. In
any such arbitration each party to the arbitration shall bear its own expenses,
including expenses of attorneys, financial experts and other witnesses; and any
arbitration fees and expenses of the arbitrators shall be divided equally
between the disputing parties.
SECTION 9.03. Payments in Kind. In the event the Partnership is
required or elects to make a payment or other distribution to or on behalf of
any Partner or to the legal representative, liquidator, or receiver of any
deceased, incompetent, insane or bankrupt Partner, the General Partner may (but
shall not be obligated to) make such payment or distribution, either wholly or
partially, in Securities or other property of the Partnership. The amount of any
such payment or distribution shall be deemed to be equal to the value of such
securities or other property, as determined under Article VIII,
18
23
as of the effective date of their distribution to or on behalf of the Partner or
the Partner's legal representatives and the decisions of the General Partner
with respect to in-kind payments, including decisions with respect to selection,
apportionment and valuation of Securities or other property, shall be conclusive
and binding upon all Partners.
SECTION 9.04. General. This Agreement: (a) shall be binding on the
executors, administrators, estates, heirs and legal successors of the Partners;
(b) shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts; (c) may be executed in more than one counterpart
as of the day and year first above written; provided, however, that each
separate counterpart shall have been executed by the General Partner; and (d)
contains the entire Agreement among the Partners relating to the subject matter
hereof. The waiver of any of the provisions, terms or conditions contained in
this Agreement shall not be considered as a waiver of any of the other
provisions, terms or conditions hereof.
SECTION 9.05. Notices.
(a) To the Partners. Any notice to be given hereunder by the
Partnership to any Partner shall be in writing and signed by the
General Partner. Any such notice shall be conclusively deemed to have
been given if either delivered in person to such Partner or mailed by
registered or certified mail to such Partner at such Partner's address
set forth in Exhibit A. Any Partner may change their address for notice
by written notice to the Partnership.
(b) To the Partnership. Any notice to be given hereunder to
the Partnership shall be in writing and signed by the Partner giving
notice. Any such notice shall be conclusively deemed to have been given
if delivered in person or mailed by registered or certified mail,
postage prepaid to the General Partner at its address set forth in
Exhibit A, or such other address as the General Partner may from time
to time designate by notice to all Partners.
SECTION 9.06. Execution of Certificate of Limited Partnership and Other
Documents. The General Partner agrees to prepare and file and the Partners agree
to execute a certificate of limited partnership, any amendments thereto, and
such other instruments, documents and papers as the General Partner deems
necessary or appropriate to carry out the intent of this Agreement, and to take
such other action as the General Partner deems appropriate to maintain the
Partnership's status as a Limited Partnership under the ULPA.
SECTION 9.07. Force Majeure. Whenever any act or thing is required of
the Partnership hereunder within any specified period of time, the Partnership
shall be entitled to such additional period of time to do such acts or things as
shall equal any period of delay resulting from causes beyond the reasonable
control of the Partnership, including, without limitation, bank holidays,
actions of governmental agencies, closing the
19
24
New York Stock Exchange at times other than normal closing dates, and financial
crises of a nature materially affecting the purchase and sale of Securities.
SECTION 9.08. Amendments. Except as otherwise specifically provided
herein, the terms and provisions of this Agreement may be modified or amended at
any time and from time to time only with the written consent of (1) the General
Partner and (2) Limited Partners (excluding TAH) representing in excess of fifty
percent (50%) of the combined Capital Accounts of all Limited Partners insofar
as is consistent with the laws governing this Agreement; provided, however, that
without the specific written consent of each Partner adversely affected thereby
no such modification or amendment shall (i) increase the obligation of a Limited
Partner beyond that set forth in Section 1.04, (ii) reduce the Capital Account
of any Partner or its rights to distribution and withdrawal with respect
thereto; or (iii) amend Section 1.05 to permit Partnership activities which
would subject a Limited Partner to Federal or state taxation which such Partner
would not be subject to in the absence of such activity. Without unanimous
consent no amendment or modification may be made (x) which would cause the
Partnership to cease to be a Limited Partnership under applicable state law or
(y) which would amend this Section 9.08.
SECTION 9.09. Headings. Article, Section, Paragraph and Subparagraph
headings are for convenience of reference only, and are not part of this
Agreement, and shall not be considered in interpreting this Agreement.
SECTION 9.10. Power of Attorney. Each Limited Partner does hereby
constitute and appoint ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ and
each of them, its true and lawful representative, in its name, place and stead,
to make, execute, sign, acknowledge, deliver and file all such instruments,
documents and certificates which may from time to time be required by the laws
of the United States of America, the Commonwealth of Massachusetts, or any other
state in which the Partnership shall determine to do business, or any political
subdivision or agency thereof, to effectuate, implement and continue the valid
and subsisting existence of the Partnership, including, without limitation, a
Certificate of Limited Partnership and amendments thereto and any such
certificate or amendment filed for the purpose of admitting the undersigned as
Limited Partners of the Partnership.
20
25
IN WITNESS WHEREOF, the General Partner and the Limited Partners have
hereunto set their hands and seals as of the date first set forth above.
GENERAL PARTNER
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding Corporation
By:_________________________________________
LIMITED PARTNER
____________________________________________
____________________________________________
(Print Name)
S.S.#_______________________________________
Allocation Accepted: $______________________
STATE OF )
) ss:
COUNTY OF )
Then personally appeared before me _____________________, known to me,
and acknowledged the same to be his/her free act and deed.
____________________________________________
Notary
21
26
EXHIBIT A
General Partner
---------------
Capital
Name Address Contribution
---- ------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holding One Beacon Street 1% of total
Corporation ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Capital as
General
Partner
Limited Partners
----------------
Capital
Name Address Contribution
---- ------- ------------
$
---------
22
27
TA INCENTIVE PLAN 3
INVESTMENT ANALYSIS 12/18/97
BATTERY ▇▇▇▇▇▇▇▇ TECHNOLOGY (40%)
SUMMIT III ADVENT VII VENTURES III PARTNERS LP LEADERS II SUMMIT IV TOTAL
---------- ---------- ------------ ----------- ---------- ---------- ----------
COMMITTED $1,000,000 $600,000 $1,000,000 $1,000,000 $1,000,000 $ 400,000 $5,000,000
CONTRIBUTED 1992 $ 100,000 $ 100,000
CONTRIBUTED 1993 $ 300,000 $ 60,000 $ 360,000
CONTRIBUTED 1994 $ 200,000 $180,000 $ 125,000 $ 170,000 $ 675,000
CONTRIBUTED 1995 $ 250,000 $ 90,000 $ 325,000 $ 100,000 $ 400,000 $ 40,000 $1,205,000
CONTRIBUTED 1996 $210,000 $ 375,000 $ 330,000 $ 250,000 $ 120,000 $1,285,000
CONTRIBUTED 1997 $ 50,000 $ 60,000 $ 100,000 $ 225,000 $ 150,000 $ 120,000 $ 705,000
========== ======== ========== ========== ========== ========== ==========
REMAINING COMMITMENT $ 100,000 $ 0 $ 75,000 $ 175,000 $ 200,000 $ 120,000 $ 670,000