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Exhibit (a)(2)
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TROON PARTNERS, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
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LIMITED PARTNERSHIP AGREEMENT
DATED AS OF DECEMBER 19, 1996
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▇▇▇▇▇▇▇▇▇▇▇ TOWER
ONE WORLD FINANCIAL CENTER, 33RD FLOOR
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II ORGANIZATION; ADMISSION OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Formation of Limited Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Principal and Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Objective and Business of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 General Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.7 Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.8 Organizational Limited Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.9 Both General and Limited Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.10 Limited Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1 Management and Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.2 Actions by Individual General Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3 Meetings of Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.4 Advice and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Custody of Assets of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.6 Brokerage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.7 Other Activities of Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.9 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.10 Fees, Expenses and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE IV TERMINATION OF STATUS AS GENERAL PARTNER, TRANSFERS AND REPURCHASES . . . . . . . . . . . . . . 21
4.1 Termination of Status of the Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.2 Termination of Status of an Individual General Partner . . . . . . . . . . . . . . . . . . . 21
4.3 Removal of General Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Transfer of Interests of General Partners . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.5 Transfer of Interests of Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.6 Repurchase of Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE V CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1 Contributions to Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.2 Rights of Partners to Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.3 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.4 Allocation of Net Profit and Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.5 Allocation of Insurance Premiums and Proceeds . . . . . . . . . . . . . . . . . . . . . . . 27
5.6 Allocation of Certain Withholding Taxes and Other Expenditures . . . . . . . . . . . . . . . 27
5.7 Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.8 Incentive Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.9 Allocation to Avoid Capital Account Deficits . . . . . . . . . . . . . . . . . . . . . . . . 29
5.10 Allocations Prior to Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.11 Tax Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.12 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VI DISSOLUTION AND LIQUIDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.2 Liquidation of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VII ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1 Accounting and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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7.2 Determinations By Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.3 Valuation of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.1 Amendment of Partnership Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.2 Special Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.4 Agreement Binding Upon Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 38
8.5 Applicability of 1940 Act and Form N-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.6 Choice of Law; Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.7 Not for Benefit of Creditors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.8 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.9 Merger and Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.10 Pronouns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.12 Certification of Non-Foreign Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
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TROON PARTNERS, L.P.
LIMITED PARTNERSHIP AGREEMENT
THIS LIMITED PARTNERSHIP AGREEMENT of Troon Partners, L.P. (the
"Partnership") is dated as of December 19, 1996 by and among Troon Management,
L.L.C., a Delaware limited liability company, as the Manager, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as
the Individual General Partners and those persons hereinafter admitted and
listed on Schedule I hereto as General Partners and as Limited Partners.
W I T N E S S E T H :
WHEREAS, the Partnership has heretofore been formed as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act pursuant
to an initial Certificate of Limited Partnership (the "Certificate") dated and
filed with the Secretary of State of Delaware on December 12, 1996;
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual covenants hereinafter set forth, it is hereby agreed as follows:
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ARTICLE I
DEFINITIONS
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For purposes of this Agreement:
ADVICE AND MANAGEMENT Those services provided to the Partnership by the Manager
pursuant to Section 3.4(b) hereof.
ADVISERS ACT The Investment Advisers Act of 1940 and the rules, regulations
and orders thereunder, as amended from time to time, or any
successor law.
AFFILIATE An affiliated person as such term is defined in the 1940 Act.
AGREEMENT This Limited Partnership Agreement, as amended from time to time.
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ALLOCATION CHANGE With respect to each Limited Partner for each Allocation Period,
the difference between:
(1) the sum of (a) the balance of such Limited
Partner's Capital Account as of the close of the
Allocation Period (after giving effect to all
allocations to be made to such Limited Partner's
Capital Account as of such date other than any
Incentive Allocation to be debited against such
Limited Partner's Capital Account), plus (b) any
debits to such Limited Partner's Capital Account
during the Allocation Period to reflect any actual
or deemed distributions or repurchases with
respect to such Limited Partner's Interest, plus
(c) any debits to such Limited Partner's Capital
Account during the Allocation Period to reflect
any Insurance premiums allocable to such Limited
Partner, plus (d) any debits to such Limited
Partner's Capital Account during the Allocation
Period to reflect any items allocable to such
Limited Partner's Capital Account pursuant to
Section 5.6 hereof other than Management Fees; and
(2) the sum of (a) the balance of such Limited
Partner's Capital Account as of the commencement
of the Allocation Period, plus (b) any credits to
such Limited Partner's Capital Account during the
Allocation Period to reflect any contributions by
such Limited Partner to the capital of the
Partnership, plus (c) any credits to such Limited
Partner's Capital Account during the Allocation
Period to reflect any Insurance proceeds allocable
to such Limited Partner.
If the amount specified in clause (1) exceeds the amount
specified in clause (2), such difference shall be a POSITIVE
ALLOCATION CHANGE, and if the amount specified in clause (2)
exceeds the amount specified in clause (1), such difference shall
be a NEGATIVE ALLOCATION CHANGE.
If an Allocation Period is less than 12 complete calendar months
(an "Incomplete Allocation Period"), then solely for purposes of
determining the Incentive Allocation, the
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Positive Allocation Change shall be measured from the beginning
of the last preceding Allocation Period that commenced at least
12 complete calendar months prior to the end of the Incomplete
Allocation Period (disregarding all Incentive Allocations made
from the Limited Partner since such last preceding Allocation
Period) through the end of the Incomplete Allocation Period, less
the Positive Allocation Change for such prior Allocation Period.
ALLOCATION PERIOD With respect to each Limited Partner, the period commencing as of
the date of admission of such Limited Partner to the Partnership
and ending at the close of business on the last day of the
twelfth complete calendar month since the admission of such
Limited Partner to the Partnership, and thereafter each period
commencing as of the day following the last day of the preceding
Allocation Period with respect to such Limited Partner, and
ending at the close of business on the first to occur of the
following:
(1) the last day of a Fiscal Year;
(2) the day as of which the Partnership repurchases
the entire Interest of such Limited Partner;
(3) the day as of which the Partnership admits as a
substituted Limited Partner a person to whom the
Interest of such Limited Partner has been
Transferred (unless there is no change of
beneficial ownership); and
(4) the day as of which the authority of the Manager
to provide Advice and Management is terminated
pursuant to Section 3.4(a) hereof.
CAPITAL ACCOUNT With respect to each Partner, the capital account established and
maintained on behalf of each Partner pursuant to Section 5.3
hereof.
CERTIFICATE The Certificate of Limited Partnership of the Partnership and any
amendments thereto as filed with the office of the Secretary of
State of Delaware.
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CLOSING DATE The first date on or as of which a Limited Partner other than the
Organizational Limited Partner is admitted to the Partnership.
CODE The United States Internal Revenue Code of 1986, as amended and
as hereafter amended from time to time, or any successor law.
DELAWARE ACT The Delaware Revised Uniform Limited Partnership Act as in effect
on the date hereof and as amended from time to time, or any
successor law.
FISCAL PERIOD The period commencing on the Closing Date, and thereafter each
period commencing on the day immediately following the last day
of the preceding Fiscal Period and ending at the close of
business on the first to occur of the following dates:
(1) the last day of a Fiscal Year;
(2) the day preceding any day as of which a
contribution to the capital of the Partnership
is made pursuant to Section 5.1; or
(3) any day (other than one specified in clause (2)
above) as of which this Agreement provides for
any amount to be credited to or debited against
the Capital Account of any Partner, other than
an amount to be credited to or debited against
the Capital Accounts of all Partners in
accordance with their respective Partnership
Percentages.
FISCAL YEAR The period commencing on the Closing Date and ending on December
31, 1997, and thereafter each period commencing on January 1 of
each year and ending on December 31 of each year (or on the date
of a final distribution pursuant to Section 6.2 hereof), unless
the Individual General Partners shall elect another fiscal year
for the Partnership that is a permissible taxable year under the
Code.
FORM N-2 The Partnership's Registration Statement on Form N-2 filed with
the Securities and Exchange Commission, as amended from time to
time.
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GENERAL PARTNERS The Manager and the Individual General Partners in such persons'
capacity as general partners of the Partnership, collectively,
and GENERAL PARTNER means any of the General Partners.
INCENTIVE ALLOCATION With respect to any Limited Partner, 20% of the amount,
determined as of the close of each Allocation Period with respect
to such Limited Partner, by which such Limited Partner's Positive
Allocation Change for such Allocation Period, if any, exceeds any
positive balance in such Limited Partner's Loss Recovery Account
as of the most recent prior date as of which any adjustment has
been made thereto.
INDEPENDENT GENERAL PARTNERS Those Individual General Partners who are not "interested
persons" of the Partnership as such term is defined in the 1940
Act.
INDIVIDUAL GENERAL PARTNERS Those natural persons admitted to the Partnership as General
Partners; such term shall not include the Manager.
INSURANCE One or more "key man" insurance policies on the life of any
principal of a member of the Manager, the benefits of which are
payable to the Partnership.
INTEREST The entire ownership interest in the Partnership at any
particular time of a Partner or other person to whom an Interest
or portion thereof has been transferred pursuant to Sections 4.4
or 4.5 hereof, including the rights and obligations of such
Partner or other person under this Agreement and the Delaware
Act.
LIMITED PARTNER Any person who shall have been admitted to the Partnership as a
limited partner (including any General Partner in such person's
capacity as a limited partner of the Partnership but excluding
any General Partner in such person's capacity as a general
partner of the Partnership) until the Partnership repurchases the
entire Interest of such person as a limited partner pursuant to
Section 4.6 hereof or a substituted Limited Partner or Partners
are admitted with respect to any such person's entire Interest as
a limited partner pursuant to Section 4.5 hereof.
LOSS RECOVERY ACCOUNT A memorandum account to be recorded in the books and records of
the Partnership with respect to each Limited Partner, which shall
have an initial balance of zero and
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which shall be adjusted as follows:
(1) As of the first day after the close of each Allocation Period
for such Limited Partner, the balance of the Loss Recovery
Account shall be increased by the amount, if any, of such
Limited Partner's Negative Allocation Change for such
Allocation Period and shall be reduced (but not below zero) by
the amount, if any, of such Limited Partner's Positive
Allocation Change for such Allocation Period.
(2) The balance of the Loss Recovery Account shall be reduced (but
not below zero) as of the first date as of which the Capital
Account balance of any Limited Partner is reduced as a result
of repurchase or transfer with respect to such Limited
Partner's Interest by an amount determined by multiplying (a)
such positive balance by (b) a fraction, (i) the numerator of
which is equal to the amount of the repurchase or transfer, and
(ii) the denominator of which is equal to the balance of such
Limited Partner's Capital Account immediately before giving
effect to such repurchase or transfer.
No transferee of any Interest shall succeed to any Loss Recovery
Account balance or portion thereof attributable to the transferor
unless the Transfer by which such transferee received such
Interest did not involve a change of beneficial ownership.
MANAGER Troon Management, L.L.C., a limited liability company organized
under Delaware law, or any other person admitted to the
Partnership as the Manager.
NEGATIVE ALLOCATION CHANGE The meaning given such term in the definition of Allocation
Change.
NET ASSETS The total value of all assets of the Partnership, less an amount
equal to all accrued debts, liabilities and obligations of the
Partnership, calculated before giving effect to any repurchases
of Interests.
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NET PROFIT OR NET LOSS The amount by which the Net Assets as of the close of business on
the last day of a Fiscal Period exceed (in the case of Net
Profit) or are less than (in the case of Net Loss) the Net Assets
as of the commencement of the same Fiscal Period (or, with
respect to the initial Fiscal Period of the Partnership, at the
close of business on the Closing Date), such amount to be
adjusted to exclude:
(1) the amount of any Insurance premiums or proceeds
to be allocated among the Capital Accounts of
the Partners pursuant to Section 5.5 hereof; and
(2) any items to be allocated among the Capital
Accounts of the Partners on a basis which is not
in accordance with the respective Partnership
Percentages of all Partners as of the
commencement of such Fiscal Period pursuant to
Sections 5.6 and 5.7 hereof.
1940 ACT The Investment Company Act of 1940 and the rules, regulations and
orders thereunder, as amended from time to time, or any successor
law.
1934 ACT The Securities Exchange Act of 1934 and the rules, regulations
and orders thereunder, as amended from time to time, or any
successor law.
OPCO ▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc., or any successor thereto.
OPCO SERVICES Such management and administrative services as Opco shall provide
to the Partnership pursuant to a separate written agreement with
the Partnership as contemplated by Section 3.10(a) hereof.
ORGANIZATIONAL LIMITED PARTNER ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
PARTNERS The General Partners and the Limited Partners, collectively.
PARTNERSHIP The limited partnership governed hereby, as such limited
partnership may from time to time be constituted.
PARTNERSHIP PERCENTAGE A percentage established for each Partner on the Partnership's
books as of the first day of each Fiscal
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Period. The Partnership Percentage of a Partner for a Fiscal
Period shall be determined by dividing the balance of the
Partner's Capital Account as of the commencement of such Fiscal
Period by the sum of the Capital Accounts of all of the Partners
as of the commencement of such Fiscal Period. The sum of the
Partnership Percentages of all Partners for each Fiscal Period
shall equal 100%.
POSITIVE ALLOCATION CHANGE The meaning given such term in the definition of Allocation
Change.
RELATED PERSON With respect to any person, (i) a relative, spouse or relative of
a spouse who has the same principal residence as such person,
(ii) any trust or estate in which such person and any persons who
are related to such person collectively have more than 50% of the
beneficial interests (excluding contingent interests) and
(iii) any corporation or other organization of which such person
and any persons who are related to such person collectively are
beneficial owners of more than 50% of the equity securities
(excluding directors' qualifying shares) or equity interests.
SECURITIES Securities (including, without limitation, equities, debt
obligations, options, and other "securities" as that term is
defined in Section 2(a)(36) of the ▇▇▇▇ ▇▇▇) and any contracts
for forward or future delivery of any security, debt obligation,
currency or commodity, all manner of derivative instruments and
any contracts based on any index or group of securities, debt
obligations, currencies or commodities, and any options thereon.
TRANSFER The assignment, transfer, sale, encumbrance, pledge or other
disposition of all or any portion of an Interest, including any
right to receive any allocations and distributions attributable
to an Interest.
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ARTICLE II
ORGANIZATION; ADMISSION OF PARTNERS
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2.1 FORMATION OF LIMITED PARTNERSHIP.
The General Partners shall execute and file in accordance with
the Delaware Act any amendment to the Certificate and shall execute and file
with applicable governmental authorities any other instruments, documents and
certificates which, in the opinion of the Partnership's legal counsel, may from
time to time be required by the laws of the United States of America, the State
of Delaware or any other jurisdiction in which the Partnership shall determine
to do business, or any political subdivision or agency thereof, or which such
legal counsel may deem necessary or appropriate to effectuate, implement and
continue the valid existence and business of the Partnership.
2.2 NAME.
The name of the Partnership shall be "Troon Partners, L.P." or
such other name as the Manager may hereafter adopt with the approval of the
Individual General Partners upon (i) causing an appropriate amendment to the
Certificate to be filed in accordance with the Delaware Act and (ii) sending
notice thereof to each Partner.
2.3 PRINCIPAL AND REGISTERED OFFICE.
The Partnership shall have its principal office at the
principal office of the Manager, or at such other place designated from time to
time by the Individual General Partners.
The Partnership shall have its registered office in Delaware
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and shall have
Corporation Service Company as its registered agent for service of process in
Delaware, unless a different registered office or agent is designated from time
to time by the Individual General Partners.
2.4 DURATION.
The term of the Partnership commenced on the filing of the
Certificate with the Secretary of State of Delaware and shall continue until
the Partnership is dissolved pursuant to Section 6.1 hereof (unless its term is
extended).
2.5 OBJECTIVE AND BUSINESS OF THE PARTNERSHIP.
(a) The objective and business of the Partnership is to
purchase, sell (including short sales), invest and trade in Securities, and to
engage in any financial or derivative transactions
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relating thereto or otherwise. The Partnership may execute, deliver and
perform all contracts, agreements and other undertakings and engage in all
activities and transactions as may in the opinion of the General Partners be
necessary or advisable to carry out its objective or business.
(b) The Partnership shall operate as a closed-end,
non-diversified, management investment company in accordance with the 1940 Act
and subject to any fundamental policies and investment restrictions set forth
in the Form N-2.
2.6 GENERAL PARTNERS.
(a) Prior to the Closing Date, the Manager may admit any
person who shall agree to be bound by all of the terms of this Agreement as an
Individual General Partner, subject to such person's election as such prior to
the Closing Date by the Manager and the Organizational Limited Partner. After
the Closing Date, the Individual General Partners may, subject to the
provisions of paragraphs (a) and (b) of this Section 2.6 with respect to the
number of and vacancies in the position of Individual General Partners and the
provisions of Section 3.3 hereof with respect to the election of Individual
General Partners by Partners, admit any person who shall agree to be bound by
all of the terms of this Agreement as an Individual General Partner. The
Manager may admit to the Partnership as a substitute Manager any person to
which it has Transferred its Interest as the Manager pursuant to Section 4.4
hereof. The Individual General Partners may admit to the Partnership any
person as a new Manager if the status of the Manager is terminated pursuant to
Section 4.1 hereof and both the Individual General Partners (including a
majority of the Independent General Partners by vote cast in person at a
meeting called for such purpose) and Partners holding not less than a majority
of the total number of votes eligible to be cast by all Partners elect to
continue the business of the Partnership as provided in Section 6.1(a)(3)
hereof. The names and mailing addresses of the General Partners, and the
Capital Contribution of the Manager, shall be set forth on Schedule I hereto.
The General Partners shall be listed separately as the "Individual General
Partners" and the "Manager." The number of Individual General Partners shall
be fixed from time to time by the Individual General Partners but, at the
Closing Date, shall not be less than five. At and after the Closing Date, not
less than a majority of the Individual General Partners shall be Independent
General Partners.
(b) The Manager shall serve for the duration of the term
of the Partnership, unless its status as the Manager shall be sooner terminated
pursuant to Section 4.1 hereof. Each Individual General Partner admitted to
the Partnership shall serve for the duration of the term of the Partnership,
unless his status as an Individual General Partner shall be sooner terminated
pursuant to Section 4.2 hereof. In the event of any vacancy in the position of
an Individual General Partner, the remaining Individual General Partners may
appoint an individual to serve in such capacity, so long as immediately after
such appointment at least two-thirds (2/3) of the Individual General Partners
then serving would have been elected by the Partners. The Individual General
Partners may call a meeting of Partners to fill any vacancy in the position of
an Individual General Partner, and shall do so within 60 days after any date on
which Individual General Partners who were elected by the Partners cease to
constitute a majority of the Individual General Partners then serving.
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(c) In the event that no Individual General Partner
remains to continue the business of the Partnership, the Manager shall promptly
call a meeting of the Partners, to be held within 60 days after the date on
which the last Individual General Partner ceased to act in that capacity, for
the purpose of determining whether to continue the business of the Partnership
and, if the business shall be continued, of electing the required number of
Individual General Partners. If the Partners shall determine at such meeting
not to continue the business of the Partnership or if the required number of
Individual General Partners is not elected within 60 days after the date on
which the last Individual General Partner ceased to act in that capacity, then
the Partnership shall be dissolved pursuant to Section 6.1 hereof and the
assets of the Partnership shall be liquidated and distributed pursuant to
Section 6.2 hereof.
2.7 LIMITED PARTNERS.
The Manager (subject to any policies established by the
Individual General Partners) may at any time and without advance notice to or
consent from any other Partner admit any person who shall agree to be bound by
all of the terms of this Agreement as a Limited Partner. The Manager may in
its absolute discretion reject subscriptions for limited partnership Interests
in the Partnership. The admission of any person as a Limited Partner shall be
effective upon the revision of Schedule I to this Agreement to reflect the name
and the required contribution to the capital of the Partnership of such
additional Limited Partner.
2.8 ORGANIZATIONAL LIMITED PARTNER.
Upon the admission of any Limited Partner, the Organizational
Limited Partner shall withdraw from the Partnership as the Organizational
Limited Partner and shall be entitled to the return of his Capital
Contribution, if any, without interest or deduction.
2.9 BOTH GENERAL AND LIMITED PARTNER.
A Partner may at the same time be a General Partner and a
Limited Partner, in which event such Partner's rights and obligations in each
capacity shall be determined separately in accordance with the terms and
provisions hereof or as provided in the Delaware Act.
2.10 LIMITED LIABILITY.
Except as provided under applicable law, a Limited Partner
shall not be liable for the Partnership's obligations in any amount in excess
of the capital account balance of such Partner, plus such Partner's share of
undistributed profits and assets.
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----------------------
ARTICLE III
MANAGEMENT
----------------------
3.1 MANAGEMENT AND CONTROL.
(a) The ultimate authority over the management and
control of the business of the Partnership shall be vested in the Individual
General Partners, who shall have the right, power and authority, on behalf of
the Partnership and in its name, to exercise all rights, powers and authority
of general partners under the Delaware Act and to do all things necessary and
proper to carry out the objective and business of the Partnership and their
duties hereunder. The parties hereto intend that, except to the extent
otherwise expressly provided herein, (i) each Individual General Partner shall
be vested with the same powers, authority and responsibilities on behalf of the
Partnership as are customarily vested in each director of a Delaware
corporation and (ii) each Independent General Partner shall be vested with the
same powers, authority and responsibilities on behalf of the Partnership as are
customarily vested in each director of a closed-end management investment
company registered under the 1940 Act that is organized as a Delaware
corporation who is not an "interested person" of such company as such term is
defined in the 1940 Act. During any period in which the Partnership shall have
no Individual General Partners, the Manager shall continue the management and
control of the Partnership.
(b) The Manager shall be the designated tax matters
partner for purposes of Section 6231(a)(7) of the Code. Each Partner agrees
not to treat, on his personal return or in any claim for a refund, any item of
income, gain, loss, deduction or credit in a manner inconsistent with the
treatment of such item by the Partnership. The Manager shall have the
exclusive authority and discretion to make any elections required or permitted
to be made by the Partnership under any provisions of the Code or any other
revenue laws.
(c) Limited Partners shall have no right to participate
in and shall take no part in the management or control of the Partnership's
business and shall have no right, power or authority to act for or bind the
Partnership. Limited Partners shall have the right to vote on any matters only
as provided in this Agreement or on any matters that require the approval of
the holders of voting securities under the 1940 Act or as otherwise required in
the Delaware Act.
3.2 ACTIONS BY INDIVIDUAL GENERAL PARTNERS.
(a) Unless provided otherwise in this Agreement, the
Individual General Partners shall act only: (i) by the affirmative vote of a
majority of the Individual General Partners (which majority shall include any
requisite number of Independent General Partners required by the ▇▇▇▇ ▇▇▇)
present at a meeting duly called at which a quorum of the Individual General
Partners shall be present (in person or, if in person attendance is not
required by the 1940 Act, by telephone) or (ii) by unanimous written consent of
all of the Individual General Partners without a meeting, if permissible under
the 1940 Act.
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(b) The Individual General Partners may designate from
time to time a Principal Individual General Partner, who shall preside at all
meetings. Meetings of the Individual General Partners may be called by the
Principal Individual General Partner or by any two Individual General Partners,
and may be held on such date and at such time and place as the Individual
General Partners shall determine. Each Individual General Partner shall be
entitled to receive written notice of the date, time and place of such meeting
within a reasonable time in advance of the meeting. Notice need not be given
to any Individual General Partner who shall attend a meeting without objecting
to the lack of notice or who shall execute a written waiver of notice with
respect to the meeting. Individual General Partners may attend and participate
in any meeting by telephone except where in person attendance at a meeting is
required by the 1940 Act. A majority of the Individual General Partners shall
constitute a quorum at any meeting.
3.3 MEETINGS OF PARTNERS.
(a) Actions requiring the vote of the Partners may be
taken at any duly constituted meeting of the Partners at which a quorum is
present. Meetings of the Partners may be called by the Manager, by the
Individual General Partners or by Partners holding 25% or more of the total
number of votes eligible to be cast by all Partners, and may be held at such
time, date and place as the Manager shall determine. The Manager shall arrange
to provide written notice of the meeting, stating the date, time and place of
the meeting and the record date therefor, to each Partner entitled to vote at
the meeting within a reasonable time prior thereto. Failure to receive notice
of a meeting on the part of any Partner shall not affect the validity of any
act or proceeding of the meeting, so long as a quorum shall be present at the
meeting. Only matters set forth in the notice of a meeting may be voted on by
the Partners at a meeting. The presence in person or by proxy of Partners
holding a majority of the total number of votes eligible to be cast by all
Partners as of the record date shall constitute a quorum at any meeting. In
the absence of a quorum, the Manager may adjourn a meeting to the time or times
as determined by the Manager without additional notice to the Partners. Except
as otherwise required by any provision of this Agreement or of the 1940 Act,
(i) those candidates receiving a plurality of the votes cast at any meeting of
Partners shall be elected as Individual General Partners and (ii) all other
actions of the Partners taken at a meeting shall require the affirmative vote
of Partners holding a majority of the total number of votes eligible to be cast
by those Partners who are present in person or by proxy at such meeting.
(b) Each Partner shall be entitled to cast at any meeting
of Partners a number of votes equivalent to such Partner's Partnership
Percentage as of the record date for such meeting. The Manager shall establish
a record date not less than 10 nor more than 60 days prior to the date of any
meeting of Partners to determine eligibility to vote at such meeting and the
number of votes which each Partner will be entitled to cast thereat, and shall
maintain for each such record date a list setting forth the name of each
Partner and the number of votes that each Partner will be entitled to cast at
the meeting.
(c) A Partner may vote at any meeting of Partners by a
proxy properly executed in writing by the Partner and filed with the
Partnership before or at the time of the meeting. A proxy may be suspended or
revoked, as the case may be, by the Partner executing the proxy by a later
writing delivered to the Partnership at any time prior to exercise of the proxy
or if the Partner
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executing the proxy shall be present at the meeting and decide to vote in
person. Any action of the Partners that is permitted to be taken at a meeting
of the Partners may be taken without a meeting if consents in writing, setting
forth the action taken, are signed by Partners holding a majority of the total
number of votes eligible to be cast or such greater percentage as may be
required in order to approve such action.
3.4 ADVICE AND MANAGEMENT.
(a) The Manager shall provide Advice and Management to
the Partnership under the general supervision of the Individual General
Partners, subject to the initial approval thereof of such authority prior to
the Closing Date by the Individual General Partners (including the vote of a
majority of the Independent General Partners at a meeting called for such
purpose) and by the Organizational Limited Partner. The authority of the
Manager granted under this Section 3.4 shall become effective upon such initial
approvals and shall terminate: (i) if any period of 12 consecutive months
following the first twelve consecutive months of the effectiveness of such
authority shall conclude without the approval of the continuation of such
authority by (A) the vote of a majority (as defined in the ▇▇▇▇ ▇▇▇) of the
outstanding voting securities of the Partnership or (B) the Individual General
Partners, and in either case, approval by a majority of the Independent General
Partners by vote cast in person at a meeting called for such purpose; (ii) if
revoked by the Individual General Partners or by vote of a majority (as defined
in the ▇▇▇▇ ▇▇▇) of the outstanding voting securities of the Partnership, in
either case with 60 days prior written notice to the Manager; (iii) at the
election of the Manager with 60 days prior written notice to the Individual
General Partners; or (iv) upon the termination of the status of the Manager
pursuant to Section 4.1(a) hereof other than by reason of a Transfer of the
Manager's Interest pursuant to Section 4.4 hereof that does not involve an
"assignment" within the meaning of the 1940 Act. The authority of the Manager
under this Section 3.4 shall not be terminated in the event of a Transfer of
the Manager's Interest pursuant to Section 4.4 that does not involve an
"assignment" within the meaning of the 1940 Act, and shall instead be vested in
such Transferee. The authority of the Manager to provide Advice and Management
pursuant to this Section 3.4 shall automatically terminate upon the occurrence
of any event in connection with the Manager, its provision of Advice and
Management, this Agreement or otherwise constituting an "assignment" within the
meaning of the 1940 Act. If the authority of the Manager under this Section
3.4 is terminated as provided herein, the Individual General Partners may
appoint, subject to the approval thereof by a majority of the Independent
General Partners and by vote of a majority (as defined in the ▇▇▇▇ ▇▇▇) of the
outstanding voting securities of the Partnership, a person or persons to
provide Advice and Management to the Partnership, and shall cause the terms and
conditions of such appointment to be stated in an agreement executed on behalf
of the Partnership and such person or persons.
(b) So long as the Manager has been and continues to be
authorized to provide Advice and Management, it shall have, subject to any
policies and restrictions set forth in any current offering memorandum issued
by the Partnership, this Agreement, the Form N-2 or the 1940 Act, or adopted
from time to time by the Individual General Partners and communicated in
writing to the Manager, full discretion and authority (i) to manage the assets
and liabilities of the Partnership and (ii) to manage the day-to-day business
and affairs of the Partnership. In furtherance
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of and subject to the foregoing, the Manager shall have full power and
authority on behalf of the Partnership:
(1) to purchase, sell, exchange, trade and otherwise deal
in and with Securities and other property of the
Partnership and to loan Securities of the
Partnership;
(2) to open, maintain and close accounts with brokers and
dealers, to make all decisions relating to the
manner, method and timing of Securities and other
investment transactions, to select and place orders
with brokers, dealers or other financial
intermediaries for the execution, clearance or
settlement of any transactions on behalf of the
Partnership on such terms as the Manager considers
appropriate, and to grant limited discretionary
authorization to such persons with respect to price,
time and other terms of investment and trading
transactions;
(3) to borrow from banks or other financial institutions
and to pledge Partnership assets as collateral
therefor, to trade on margin, to exercise or refrain
from exercising all rights regarding the
Partnership's investments, and to instruct custodians
regarding the settlement of transactions, the
disbursement of payments to Partners with respect to
repurchases of Interests and the payment of
Partnership expenses, including those relating to the
organization and registration of the Partnership;
(4) to issue to any Partner an instrument certifying that
such Partner is the owner of an Interest;
(5) to call and conduct meetings of Partners at the
Partnership's principal office or elsewhere as it may
determine and to assist the Individual General
Partners in calling and conducting meetings of the
Individual General Partners;
(6) to engage such attorneys, accountants and other
professional advisers and consultants as the Manager
may deem necessary or advisable in connection with
the affairs of the Partnership or as may be directed
by the Individual General Partners;
(7) to engage the services of others to assist the
Manager in providing, or to provide under the
Manager's control and supervision, Advice and
Management to the Partnership at the expense of the
Manager;
(8) to assist in the preparation and filing of any
required tax or information returns to be made by the
Partnership;
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(9) as directed by the Individual General Partners, to
commence, defend and conclude any action, suit,
investigation or other proceeding that pertains to
the Partnership or any assets of the Partnership;
(10) if directed by the Individual General Partners, to
arrange for the purchase of (A) Insurance, or (B) any
insurance covering the potential liabilities of the
Partnership or relating to the performance of the
Individual General Partners or the Manager, or any of
their principals, directors, officers, members,
employees and agents; and
(11) to execute, deliver and perform such contracts,
agreements and other undertakings, and to engage in
such activities and transactions as are necessary and
appropriate for the conduct of the business of the
Partnership.
3.5 CUSTODY OF ASSETS OF THE PARTNERSHIP.
The Manager shall not have any authority to hold or have
possession or custody of any funds, Securities or other properties of the
Partnership. The physical possession of all funds, Securities or other
properties of the Partnership shall at all times, be held, controlled and
administered by one or more custodians retained by the Partnership. The
Manager shall have no responsibility with respect to the collection of income,
physical acquisition or the safekeeping of the funds, Securities or other
assets of the Partnership, and all such duties of collection, physical
acquisition or safekeeping shall be the sole obligation of such custodians.
3.6 BROKERAGE.
In the course of selecting brokers, dealers and other
financial intermediaries for the execution, clearance and settlement of
transactions for the Partnership pursuant to section 3.4(b)(2) and (3) hereof,
the Manager may, subject to such policies as are adopted by the Partnership and
to the provisions of applicable law, agree to such commissions, fees and other
charges on behalf of the Partnership as it shall deem reasonable in the
circumstances taking into account all such factors as it deems relevant
(including the quality of research and other services made available to it even
if such services are not for the exclusive benefit of the Partnership and the
cost of such services does not represent the lowest cost available) and shall
be under no obligation to combine or arrange orders so as to obtain reduced
charges unless otherwise required under the federal securities laws. The
Manager may, subject to such procedures as may be adopted by the Individual
General Partners, use Affiliates of the Manager as brokers to effect the
Partnership's Securities transactions and the Partnership may pay such
commissions to such brokers in such amounts as are permissible under applicable
law.
3.7 OTHER ACTIVITIES OF PARTNERS.
(a) The General Partners shall not be required to devote
full time to the affairs of the Partnership, but shall devote such time as may
reasonably be required to perform their obligations under this Agreement.
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(b) Any Partner, and any Affiliate of any Partner, may
engage in or possess an interest in other business ventures or commercial
dealings of every kind and description, independently or with others,
including, but not limited to, acquisition and disposition of Securities,
provision of investment advisory or brokerage services, serving as directors,
officers, employees, advisors or agents of other companies, partners of any
partnership, members of any limited liability company, or trustees of any
trust, or entering into any other commercial arrangements. No Partner shall
have any rights in or to such activities of any other Partner, or any profits
derived therefrom.
(c) The Manager, and its members, directors, officers,
employees and beneficial owners, may from time to time acquire, possess,
manage, hypothecate and dispose of Securities or other investment assets, and
engage in any other investment transaction, for any account over which it or
they exercise discretionary authority, including their own accounts, the
accounts of their families, the account of any entity in which they have a
beneficial interest or the accounts of others for whom they may provide
investment advisory or other services, notwithstanding the fact that the
Partnership may have or may take a position of any kind or otherwise; provided,
however, that the Manager shall not cause the Partnership to purchase any asset
from or sell any asset to any such discretionary account without the consent of
the Individual General Partners and in accordance with the 1940 Act.
3.8 DUTY OF CARE.
(a) A General Partner shall not be liable to the
Partnership or to any of its Partners for any loss or damage occasioned by any
act or omission in the performance of his or its services under this Agreement,
unless it shall be determined by final judicial decision on the merits from
which there is no further right to appeal that such loss is due to an act or
omission of such General Partner constituting willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
such General Partner's office.
(b) Limited Partners not in breach of any obligation
hereunder or under any agreement pursuant to which the Limited Partner
subscribed for an Interest shall be liable to the Partnership, any Partner or
third parties only as provided under the Delaware Act.
3.9 INDEMNIFICATION.
(a) To the fullest extent permitted by law, the
Partnership shall, subject to Section 3.9(b) hereof, indemnify each General
Partner (including for this purpose each director, officer, member, partner,
employee or agent of, or any person who controls, a General Partner or a member
thereof, and their executors, heirs, assigns, successors or other legal
representatives), against all losses, claims, damages, liabilities, costs and
expenses, including, but not limited to, amounts paid in satisfaction of
judgments, in compromise, or as fines or penalties, and reasonable counsel
fees, incurred in connection with the defense or disposition of any action,
suit, investigation or other proceeding, whether civil or criminal, before any
judicial, arbitral, administrative or legislative body, in which such
indemnitee may be or may have been involved as a party or otherwise, or with
which such indemnitee may be or may have been threatened, while in office or
thereafter, by reason of being or having been a general partner of the
Partnership or the past or present performance of services to the Partnership
by such indemnitee, except to the extent such
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loss, claim, damage, liability, cost or expense shall have been finally
determined in a decision on the merits in any such action, suit, investigation
or other proceeding to have been incurred or suffered by such indemnitee by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office.
The rights of indemnification provided under this Section 3.9 shall not be
construed so as to provide for indemnification of a General Partner for any
liability (including liability under federal securities laws which, under
certain circumstances, impose liability even on persons that act in good faith)
to the extent (but only to the extent) that such indemnification would be in
violation of applicable law, but shall be construed so as to effectuate the
applicable provisions of this Section 3.9 to the fullest extent permitted by
law.
(b) Expenses, including reasonable counsel fees, so
incurred by any such indemnitee (but excluding amounts paid in satisfaction of
judgments, in compromise, or as fines or penalties), may be paid from time to
time by the Partnership in advance of the final disposition of any such action,
suit, investigation or proceeding upon receipt of an undertaking by or on
behalf of such indemnitee to repay to the Partnership amounts so paid if it
shall ultimately be determined that indemnification of such expenses is not
authorized under Section 3.9(a) hereof; provided, however, that (i) such
indemnitee shall provide security for such undertaking, (ii) the Partnership
shall be insured by or on behalf of such indemnitee against losses arising by
reason of such indemnitee's failure to fulfill his or its undertaking, or (iii)
a majority of the Independent General Partners (excluding any General Partner
who is either seeking advancement of expenses hereunder or is or has been a
party to any other action, suit, investigation or proceeding involving claims
similar to those involved in the action, suit, investigation or proceeding
giving rise to a claim for advancement of expenses hereunder) or independent
legal counsel in a written opinion shall determine based on a review of readily
available facts (as opposed to a full trial-type inquiry) that there is reason
to believe such indemnitee ultimately will be entitled to indemnification.
(c) As to the disposition of any action, suit,
investigation or proceeding (whether by a compromise payment, pursuant to a
consent decree or otherwise) without an adjudication or a decision on the
merits by a court, or by any other body before which the proceeding shall have
been brought, that an indemnitee is liable to the Partnership or its Partners
by reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office,
indemnification shall be provided pursuant to Section 3.9(a) hereof if (i)
approved as in the best interests of the Partnership by a majority of the
Independent General Partners (excluding any General Partner who is either
seeking indemnification hereunder or is or has been a party to any other
action, suit, investigation or proceeding involving claims similar to those
involved in the action, suit, investigation or proceeding giving rise to a
claim for indemnification hereunder) upon a determination based upon a review
of readily available facts (as opposed to a full trial-type inquiry) that such
indemnitee acted in good faith and in the reasonable belief that such actions
were in the best interests of the Partnership and that such indemnitee is not
liable to the Partnership or its Partners by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of such indemnitee's office, or (ii) the Individual General Partners
secure a written opinion of independent legal counsel based upon a review of
readily available facts (as opposed to a full trial-type inquiry) to the effect
that such indemnification would not protect such indemnitee against any
liability to the Partnership
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or its Partners to which such indemnitee would otherwise be subject by reason
of willful misfeasance, bad faith, gross negligence, or reckless disregard of
the duties involved in the conduct of such indemnitee's office.
(d) Any indemnification or advancement of expenses made
pursuant to this Section 3.9 shall not prevent the recovery from any indemnitee
of any such amount if such indemnitee subsequently shall be determined in a
decision on the merits in any action, suit, investigation or proceeding
involving the liability or expense that gave rise to such indemnification or
advancement of expenses to be liable to the Partnership or its Partners by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office.
In (i) any suit brought by a General Partner (or other person entitled to
indemnification hereunder) to enforce a right to indemnification under this
Section 3.9 it shall be a defense that, and (ii) in any suit in the name of the
Partnership to recover any indemnification or advancement of expenses made
pursuant to this Section 3.9 the Partnership shall be entitled to recover such
expenses upon a final adjudication that, the General Partner or other person
claiming a right to indemnification under this Section 3.9 has not met the
applicable standard of conduct set forth in this Section 3.9. In any such suit
brought to enforce a right to indemnification or to recover any indemnification
or advancement of expenses made pursuant to this Section 3.9, the burden of
proving that the General Partner or other person claiming a right to
indemnification is not entitled to be indemnified, or to any indemnification or
advancement of expenses, under this Section 3.9 shall be on the Partnership (or
any Partner acting derivatively or otherwise on behalf of the Partnership or
its Partners).
(e) An indemnitee may not satisfy any right of
indemnification or advancement of expenses granted in this Section 3.9 or to
which he or it may otherwise be entitled except out of the assets of the
Partnership, and no Partner shall be personally liable with respect to any such
claim for indemnification or advancement of expenses.
(f) The rights of indemnification provided hereunder
shall not be exclusive of or affect any other rights to which any person may be
entitled by contract or otherwise under law. Nothing contained in this Section
3.9 shall affect the power of the Partnership to purchase and maintain
liability insurance on behalf of any General Partner or other person.
3.10 FEES, EXPENSES AND REIMBURSEMENT.
(a) So long as Opco provides Opco Services to the
Partnership, it shall be entitled to receive such fees as may be agreed to by
Opco and the Partnership pursuant to a separate written agreement.
(b) The Individual General Partners may cause the
Partnership to compensate each Individual General Partner for his services as
such. In addition, the Individual General Partners shall be reimbursed by the
Partnership for reasonable out-of-pocket expenses incurred by them in
performing their duties under this Agreement.
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(c) The Partnership shall bear all expenses incurred in
the business of the Partnership other than those specifically required to be
borne by the Manager pursuant hereto. Expenses to be borne by the Partnership
include, but are not limited to, the following:
(1) all costs and expenses related to portfolio
transactions and positions for the
Partnership's account, including, but not
limited to, brokerage commissions, research
fees, interest and commitment fees on loans
and debit balances, borrowing charges on
Securities sold short, dividends on
Securities sold short but not yet purchased,
custodial fees, margin fees, transfer taxes
and premiums, taxes withheld on foreign
dividends and indirect expenses from
investments in investment funds;
(2) all costs and expenses associated with the
organization and registration of the
Partnership (which shall be amortized over a
60 month period), certain offering costs and
the costs of compliance with any applicable
federal or state laws;
(3) the costs and expenses of holding any
meetings of any Partners that are regularly
scheduled, permitted or are required to be
held by this Agreement, the 1940 Act or other
applicable law;
(4) fees and disbursements of any attorneys,
accountants, auditors and other consultants
and professionals engaged on behalf of the
Partnership;
(5) the costs of a fidelity bond and any
liability insurance obtained on behalf of the
Partnership or its General Partners;
(6) any fees payable to Opco for Opco Services
and the fees of custodians and persons
providing administrative services to the
Partnership; and
(7) such other types of expenses as may be
approved from time to time by the Individual
General Partners, other than those required
to be borne by the Manager, as provided in
Section 3.10(d) below.
The Manager shall be entitled to reimbursement from the Partnership for any of
the above expenses that it pays on behalf of the Partnership.
(d) Subject to procuring any required regulatory
approvals, from time to time the Partnership may, alone or in conjunction with
other accounts for which the Manager, or any Affiliate of the Manager, acts as
general partner or investment adviser, purchase Insurance in such amounts, from
such insurers and on such terms as the Individual General Partners shall
determine.
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----------------------
ARTICLE IV
TERMINATION OF STATUS AS GENERAL
PARTNER, TRANSFERS AND REPURCHASES
----------------------
4.1 TERMINATION OF STATUS OF THE MANAGER.
(a) The status of the Manager shall terminate if the
Manager (i) shall be dissolved or otherwise shall terminate its existence; (ii)
shall voluntarily withdraw as Manager; (iii) shall be removed; (iv) shall
transfer its Interest as Manager as permitted under Section 4.4 hereof and such
person to which such Interest is transferred is admitted as a substitute
Manager pursuant to Section 2.6(a) hereof; or (v) shall otherwise cease to be a
general partner of the Partnership under Section 17-402(4) or (5) of the
Delaware Act.
(b) The Manager may not voluntarily withdraw as Manager
until the earliest of (i) one year from the date on which the Manager shall
have given the Individual General Partners written notice of its intention to
effect such withdrawal (or upon lesser notice if in the opinion of counsel to
the Partnership, such withdrawal is not likely to cause the Partnership to lose
its partnership tax classification or as otherwise permitted by Rule 2a19-2 of
the 1940 Act); (ii) the date on which the authority of the Manager to provide
Advice and Management is terminated (other than at the election of the Manager)
pursuant to Section 3.4(a) hereof, unless within 30 days after such
termination, the Individual General Partners request the Manager not to
withdraw, in which case 180 days after the date of such termination; and (iii)
the date on which one or more persons shall have agreed to assume the
obligations of the Manager hereunder with the approval of the Individual
General Partners and such other approvals as may be required by the 1940 Act.
4.2 TERMINATION OF STATUS OF AN INDIVIDUAL GENERAL PARTNER.
The status of an Individual General Partner shall terminate if
the Individual General Partner (i) shall die; (ii) shall be adjudicated
incompetent; (iii) shall voluntarily withdraw as an Individual General Partner
(upon not less than 90 days' prior written notice to the other Individual
General Partners); (iv) shall be removed; (v) shall be certified by a physician
to be mentally or physically unable to perform his duties hereunder; (vi) shall
be declared bankrupt by a court with appropriate jurisdiction, file a petition
commencing a voluntary case under any bankruptcy law or make an assignment for
the benefit of creditors; (vii) shall have a receiver appointed to administer
the property or affairs of such Partner; or (viii) shall otherwise cease to be
a general partner of the Partnership under the Delaware Act.
4.3 REMOVAL OF GENERAL PARTNERS.
Any General Partner may be removed either by (a) the vote or
written consent of at least two-thirds (2/3) of the Individual General Partners
not subject to the removal vote or (b) the
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vote or written consent of Partners holding not less than two-thirds (2/3) of
the total number of votes eligible to be cast by all Partners.
4.4 TRANSFER OF INTERESTS OF GENERAL PARTNERS.
The Manager may not Transfer its Interest as the Manager
except to a person who has agreed to be bound by all of the terms of this
Agreement and, if the Transfer would constitute an "assignment" within the
meaning of the 1940 Act, with the prior approval of (a) the Individual General
Partners (including a majority of the Independent General Partners by vote cast
in person at a meeting called for such purpose) and (b) Partners holding a
majority (as defined in the ▇▇▇▇ ▇▇▇) of the total number of votes eligible to
be cast by all Partners. By executing this Agreement, each other Partner shall
be deemed to have consented to any such Transfer permitted by the preceding
sentence. Individual General Partners may not Transfer their Interests as
Individual General Partners.
4.5 TRANSFER OF INTERESTS OF LIMITED PARTNERS.
(a) An Interest or portion thereof of a Limited Partner
may be Transferred only (i) by operation of law pursuant to the death,
bankruptcy, insolvency or dissolution of such Limited Partner or (ii) with the
written consent of the Manager (which may be withheld in its sole and absolute
discretion) in connection with a Transfer to an entity that does not result in
a change of beneficial ownership. In addition, the Manager may not consent to
a Transfer of an Interest or a portion thereof of a Limited Partner unless the
person to whom such Interest is transferred (or each of such person's
beneficial owners if such a person is a "private investment company" as defined
in Rule 205-3(g)(2) under the Advisers Act) is a person whom the Manager
believes meets the requirements of paragraph (b)(1) of Rule 205-3 under the
Advisers Act or successor rule thereto. Any transferee which acquires an
Interest by operation of law as the result of the death, bankruptcy, insolvency
or dissolution of a Limited Partner or otherwise, shall be entitled to the
allocations and distributions allocable to the Interest so acquired and to
Transfer such Interest in accordance with the terms of this Agreement, but
shall not be entitled to the other rights of a Limited Partner unless and until
such transferee becomes a substituted Limited Partner. If a Limited Partner
transfers an Interest or portion thereof with the approval of the Manager, the
Manager, unless otherwise directed by the Individual General Partners, shall
promptly take all necessary actions so that each transferee or successor to
whom such Interest or portion thereof is transferred is admitted to the
Partnership as a Limited Partner. Each Limited Partner and transferee agrees
to pay all expenses, including attorneys' and accountants' fees, incurred by
the Partnership in connection with such Transfer.
(b) Each Limited Partner shall indemnify and hold
harmless the Partnership, the Individual General Partners, the Manager, each
other Limited Partner and any Affiliate of the foregoing against all losses,
claims, damages, liabilities, costs and expenses (including legal or other
expenses incurred in investigating or defending against any such losses,
claims, damages, liabilities, costs and expenses or any judgments, fines and
amounts paid in settlement), joint or several, to which such persons may become
subject by reason of or arising from (i) any Transfer made by such Limited
Partner in violation of this Section 4.5 and (ii) any misrepresentation by such
Limited Partner in connection with any such Transfer.
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4.6 REPURCHASE OF INTERESTS.
(a) Except as otherwise provided in this Agreement, no
Partner or other person holding an Interest or portion thereof shall have the
right to withdraw or tender to the Partnership for repurchase an Interest or
portion thereof. The Individual General Partners may from time to time, in
their complete and exclusive discretion and on such terms and conditions as
they may determine, direct the Manager to cause the Partnership to repurchase
Interests or portions thereof pursuant to written tenders. However, the
Partnership shall not offer to repurchase Interests on more than one occasion
during any one Fiscal Year (other than during its first full Fiscal Year,
during which it may make two such offers) unless it has received an opinion of
counsel to the effect that such more frequent offers would not cause any
adverse tax consequences to the Partnership or its investors. In determining
whether to cause the Partnership to repurchase Interests or portions thereof
pursuant to written tenders, the Individual General Partners shall consider the
recommendation of the Manager, and shall also consider the following factors,
among others:
(1) whether any Partners have requested to tender
Interests or portions thereof to the
Partnership;
(2) the liquidity of the Partnership's assets;
(3) the investment plans and working capital
requirements of the Partnership;
(4) the relative economies of scale with respect
to the size of the Partnership;
(5) the history of the Partnership in
repurchasing Interests or portions thereof;
(6) the economic condition of the securities
markets; and
(7) the anticipated tax consequences of any
proposed repurchases of Interests or portions
thereof.
The Individual General Partners shall cause the Partnership to repurchase
Interests or portions thereof pursuant to written tenders only on terms fair to
the Partnership and to all Partners or one or more classes of Partners
(including persons holding Interests acquired from Partners), as applicable.
(b) A Limited Partner who tenders for repurchase such
Partner's Interest or portion thereof shall be required to maintain a Capital
Account balance equal to the greater of $150,000 or the amount of Incentive
Allocation that would be debited against such Capital Account if the date of
repurchase of such Interest or portion thereof were a date on which an
Incentive Allocation would otherwise be made.
(c) Except as set forth in Section 4.6(d) and (e) hereof,
the Manager may tender its Interest or a portion thereof as a general partner
of the Partnership under Section 4.6(a) hereof
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only if and to the extent that (1) such repurchase would not cause the value of
the Capital Account of the Manager to be less than the value thereof required
to be maintained pursuant to Section 5.1(c) hereof or (2), in the opinion of
legal counsel to the Partnership, such repurchase would not jeopardize the
classification of the Partnership as a partnership for U.S. federal income tax
purposes.
(d) Not later than 180 days after termination pursuant to
Section 3.4(a) hereof of its authority to provide Advice and Management, the
Manager may, by written notice to the Individual General Partners, tender to
the Partnership all or any portion of its Capital Account which it is not
required to maintain pursuant to Section 5.1(c) hereof until the termination of
its status as the Manager pursuant to Section 4.1(a) hereof. Not later than 30
days after the receipt of such notice, the Individual General Partners shall
cause the tendered portion of such Capital Account to be repurchased by the
Partnership for cash, subject to any adjustment pursuant to Section 5.7 hereof.
(e) If the Manager's status as Manager is terminated
pursuant to Section 4.1 hereof and the business of the Partnership is continued
pursuant to Section 6.1(a)(3) hereof, the former Manager (or its trustee or
other legal representative) may, by written notice to the Individual General
Partners within 60 days of the action resulting in the continuation of the
Partnership pursuant to Section 6.1(a)(3) hereof, tender to the Partnership all
or any portion of its Interest. Not later than thirty (30) days after the
receipt of such notice, the Individual General Partners shall cause such
Interest to be repurchased by the Partnership for cash in an amount equal to
the balance of the former Manager's Capital Account or applicable portion
thereof, subject to any adjustment pursuant to Section 5.7 hereof. If the
former Manager does not tender to the Partnership all of its Interest as
permitted by this Section 4.6(d) such Interest shall be thereafter deemed to be
and shall be treated in all respects as the Interest of a Limited Partner.
(f) The Individual General Partners may cause the
Partnership to repurchase an Interest or portion thereof of a Limited Partner
or any person acquiring an Interest or portion thereof from or through a
Limited Partner in the event that the Individual General Partners determine or
have reason to believe that:
(1) such an Interest or portion thereof has been
transferred in violation of Section 4.5
hereof, or such an Interest or portion
thereof has vested in any person by operation
of law as the result of the death,
dissolution, bankruptcy or incompetency of a
Partner;
(2) ownership of such an Interest by a Partner or
other person will cause the Partnership to be
in violation of, or require registration of
any Interest or portion thereof under, or
subject the Partnership to additional
registration or regulation under, the
securities or commodities laws of the United
States or any other relevant jurisdiction;
(3) continued ownership of such an Interest may
be harmful or injurious to the business or
reputation of the Partnership, the Individual
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General Partners or the Manager, or may
subject the Partnership or any of the
Partners to an undue risk of adverse tax or
other fiscal consequences;
(4) any of the representations and warranties
made by a Partner in connection with the
acquisition of an Interest or portion thereof
was not true when made or has ceased to be
true; or
(5) it would be in the best interests of the
Partnership, as determined by the Individual
General Partners in their absolute
discretion, for the Partnership to repurchase
such an Interest or portion thereof.
(g) Repurchases of Interests or portions thereof by the
Partnership shall be payable promptly after the effective date of such
repurchase in cash, without interest, or, in the discretion of the Manager, in
marketable Securities (or any combination of marketable Securities and cash)
having a value, determined as of the date of repurchase, equal to the amount to
be repurchased. All such repurchases shall be subject to any and all
conditions as the Individual General Partners may impose in their sole
discretion and shall be effective as of a date set by the Individual General
Partners which is not less than 60 days after receipt by the Partnership of all
eligible written tenders of Interests or portion thereof. The amount due to
any Partner whose Interest or portion thereof is repurchased shall be equal to
the value of such Partner's Capital Account or portion thereof as applicable as
of the effective date of repurchase, after giving effect to all allocations to
be made to such Partner's Capital Account as of such date.
----------------------
ARTICLE V
CAPITAL
----------------------
5.1 CONTRIBUTIONS TO CAPITAL.
(a) The minimum initial contribution of each Partner to
the capital of the Partnership shall be such amount as the Manager, in its
discretion, may determine from time to time (subject to any policies
established by the Individual General Partners), but in no event shall be less
than $150,000. The amount of the initial contribution of each Partner shall be
recorded by the Manager upon acceptance as a contribution to the capital of the
Partnership. Individual General Partners shall not be entitled to make
voluntary contributions of capital to the Partnership as general partners of
the Partnership, but may make voluntary contributions to the capital of the
Partnership as limited partners if permitted by the Manager.
(b) The Limited Partners may make additional
contributions to the capital of the Partnership of at least $25,000 and
effective as of such times as the Manager, in its discretion may permit
(subject to any policies established by the Individual General Partners), but
no Limited
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Partner shall be obligated to make any additional contribution to the capital
of the Partnership except to the extent provided in Section 5.7 hereof.
(c) The Manager may make additional contributions to the
capital of the Partnership of at least $25,000 and effective as of such times
as it may determine; and shall be required to make additional contributions to
the capital of the Partnership from time to time to the extent necessary to
maintain the balance of its capital account at an amount, if any, necessary to
ensure that the Partnership will be treated as a partnership for federal income
tax purposes. Except as provided above or in the Delaware Act, no General
Partner shall be required or obligated to make any additional contributions to
the capital of the Partnership.
(d) Except as otherwise permitted by the Manager, (i)
initial and any additional contributions to the capital of the Partnership by
any Partner shall be payable in cash or in such Securities that the Manager, in
its absolute discretion, may agree to accept on behalf of the Partnership, and
(ii) initial and any additional contributions in cash shall be payable in
readily available funds at the date of the proposed acceptance of the
contribution. The Partnership shall charge each Partner making a contribution
in Securities to the capital of the Partnership such amount as may be
determined by the Individual General Partners not exceeding 2% of the value of
such contribution in order to reimburse the Partnership for any costs incurred
by the Partnership by reason of accepting such Securities, and any such charge
shall be due and payable by the contributing Partner in full at the time the
contribution to the capital of the Partnership to which such charges relate is
due. The value of contributed Securities shall be determined in accordance
with Section 7.3 hereof as of the date of contribution.
(e) The minimum initial and additional contributions set
forth in (a) and (b) of this Section 5.1 may be reduced by the Manager upon
approval of the Individual General Partners.
5.2 RIGHTS OF PARTNERS TO CAPITAL.
No Partner shall be entitled to interest on his contribution
to the capital of the Partnership, nor shall any Partner be entitled to the
return of any capital of the Partnership except (i) upon the repurchase by the
Partnership of a part or all of such Partner's Interest pursuant to Section 4.6
hereof, (ii) pursuant to the provisions of Section 5.7(c) hereof or (iii) upon
the liquidation of the Partnership's assets pursuant to Section 6.2 hereof. No
Partner shall be liable for the return of any such amounts. No Partner shall
have the right to require partition of the Partnership's property or to compel
any sale or appraisal of the Partnership's assets.
5.3 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain a separate Capital
Account for each Partner.
(b) Each Partner's Capital Account shall have an initial
balance equal to the amount of cash and the value of any Securities (determined
in accordance with Section 7.3 hereof) constituting such Partner's initial
contribution to the capital of the Partnership.
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(c) Each Partner's Capital Account shall be increased by
the sum of (i) the amount of cash and the value of any Securities (determined
in accordance with Section 7.3 hereof) constituting additional contributions by
such Partner to the capital of the Partnership permitted pursuant to Section
5.1 hereof, plus (ii) any amount credited to such Partner's Capital Account
pursuant to Sections 5.4 through 5.7 hereof.
(d) Each Partner's Capital Account shall be reduced by
the sum of (i) the amount of any repurchase of the Interest, or portion
thereof, of such Partner or distributions to such Partner pursuant to Sections
4.6, 5.12 or 6.2 hereof which are not reinvested, plus (ii) any amounts debited
against such Partner's Capital Account pursuant to Sections 5.4 through 5.8
hereof.
5.4 ALLOCATION OF NET PROFIT AND LOSS.
Subject to Section 5.9 hereof, as of the last day of each
Fiscal Period, any Net Profit or Net Loss for the Fiscal Period shall be
allocated among and credited to or debited against the Capital Accounts of the
Partners in accordance with their respective Partnership Percentages for such
Fiscal Period.
5.5 ALLOCATION OF INSURANCE PREMIUMS AND PROCEEDS.
(a) Any premiums payable by the Partnership for Insurance
purchased pursuant to Section 3.10(d) hereof shall be apportioned evenly over
each Fiscal Period or portion thereof falling within the period to which such
premiums relate under the terms of such Insurance, and the portion of the
premiums so apportioned to any Fiscal Period shall be allocated among and
debited against the Capital Accounts of each Partner who is a partner of the
Partnership during such Fiscal Period in accordance with such Partner's
Partnership Percentage for such Fiscal Period.
(b) Proceeds, if any, to which the Partnership may become
entitled pursuant to such Insurance shall be allocated among and credited to
the Capital Accounts of each Partner who is a partner of the Partnership during
the Fiscal Period in which the event which gives rise to recovery of proceeds
occurs in accordance with such Partner's Partnership Percentage for such Fiscal
Period.
5.6 ALLOCATION OF CERTAIN WITHHOLDING TAXES AND OTHER
EXPENDITURES.
(a) If the Partnership incurs a withholding tax or other
tax obligation with respect to the share of Partnership income allocable to any
Partner, then the Manager, without limitation of any other rights of the
Partnership or the General Partners, shall cause the amount of such obligation
to be debited against the Capital Account of such Partner when the Partnership
pays such obligation, and any amounts then or thereafter distributable to such
Partner shall be reduced by the amount of such taxes. If the amount of such
taxes is greater than any such distributable amounts, then such Partner and any
successor to such Partner's Interest shall pay to the Partnership as a
contribution to the capital of the Partnership, upon demand of the Manager, the
amount of such excess. The Manager shall not be obligated to apply for or
obtain a reduction of or exemption from withholding tax on behalf of any
Partner that may be eligible for such reduction or exemption; provided, that in
the event that the Manager determines that a Partner is eligible for a refund
of any
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withholding tax, the Manager may, at the request and expense of such Partner,
assist such Partner in applying for such refund.
(b) Except as otherwise provided for in this Agreement
and unless prohibited by the 1940 Act, any expenditures payable by the
Partnership, to the extent determined by the Manager to have been paid or
withheld on behalf of, or by reason of particular circumstances applicable to,
one or more but fewer than all of the Partners, shall be charged to only those
Partners on whose behalf such payments are made or whose particular
circumstances gave rise to such payments. Such charges shall be debited from
the Capital Accounts of such Partners as of the close of the Fiscal Period
during which any such items were paid or accrued by the Partnership.
5.7 RESERVES.
(a) Appropriate reserves may be created, accrued and
charged against Net Assets and proportionately against the Capital Accounts of
the Partners for contingent liabilities, if any, as of the date any such
contingent liability becomes known to the Manager, such reserves to be in the
amounts which the Manager in its sole discretion deem necessary or appropriate.
The Manager may increase or reduce any such reserves from time to time by such
amounts as the Manager in its sole discretion deem necessary or appropriate.
The amount of any such reserve, or any increase or decrease therein, shall be
proportionately charged or credited, as appropriate, to the Capital Accounts of
those parties who are Partners at the time when such reserve is created,
increased or decreased, as the case may be; provided, however, that if any such
individual reserve item, adjusted by any increase therein, exceeds the lesser
of $500,000 or 1% of the aggregate value of the Capital Accounts of all such
Partners, the amount of such reserve, increase, or decrease shall instead be
charged or credited to those parties who were Partners at the time, as
determined by the Manager in its sole discretion, of the act or omission giving
rise to the contingent liability for which the reserve was established,
increased or decreased in proportion to their Capital Accounts at that time.
(b) If at any time an amount is paid or received by the
Partnership (other than contributions to the capital of the Partnership,
distributions or repurchases of Interests or portions thereof) and such amount
exceeds the lesser of $500,000 and/or 1% of the aggregate value of the Capital
Accounts of all Partners at the time of payment or receipt and such amount was
not accrued or reserved for but would nevertheless, in accordance with the
Partnership's accounting practices, be treated as applicable to one or more
prior Fiscal Periods, then such amount shall be proportionately charged or
credited, as appropriate, to those parties who were Partners during such prior
Fiscal Period or Periods.
(c) If any amount is required by paragraph (a) or (b) of
this Section 5.7 to be charged or credited to a party who is no longer a
Partner, such amount shall be paid by or to such party, as the case may be, in
cash, with interest from the date on which the Manager determines that such
charge or credit is required. In the case of a charge, the former Partner
shall be obligated to pay the amount of the charge, plus interest as provided
above, to the Partnership on demand; provided, however, that (i) in no event
shall a former Partner be obligated to make a payment exceeding the amount of
such Partner's Capital Account at the time to which the charge relates; and
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(ii) no such demand shall be made after the expiration of three years since the
date on which such party ceased to be a Partner. To the extent that a former
Partner fails to pay to the Partnership, in full, any amount required to be
charged to such former Partner pursuant to paragraph (a) or (b), whether due to
the expiration of the applicable limitation period or for any other reason
whatsoever, the deficiency shall be charged proportionately to the Capital
Accounts of the Partners at the time of the act or omission giving rise to the
charge to the extent feasible, and otherwise proportionately to the Capital
Accounts of the current Partners.
5.8 INCENTIVE ALLOCATION.
(a) So long as the authority of the Manager to provide
Advice and Management under Section 3.4 hereof shall remain effective, the
Incentive Allocation shall be debited against the Capital Account of each
Limited Partner as of the last day of each Allocation Period with respect to
such Limited Partner and the amount so debited shall simultaneously be credited
to the Capital Account of the Manager, or, subject to compliance with the 1940
Act and the Advisers Act, to the Capital Accounts of such Partners as have been
designated in any written notice delivered by the Manager to the Individual
General Partners within 90 days after the close of such Allocation Period.
(b) Within 30 days of each Allocation Period with respect
to each Limited Partner, the Manager may withdraw up to 98% of the Incentive
Allocation (computed on the basis of unaudited data) that was credited to the
Manager's Capital Account and debited from such Limited Partner's Capital
Account with respect to such Allocation Period only if and to the extent that
such withdrawal would not cause the value of the Manager's Capital Account to
be less than the value thereof required to be maintained pursuant to Section
5.1(c) hereof. Subject to the criteria set forth in items (1) and (2) of this
clause (b), the Partnership shall pay the Manager the undrawn balance of such
Incentive Allocation (subject to audit adjustments) within 30 days after the
completion of the audit of the Partnership's books. Any amount of such
Incentive Allocation not withdrawn by the Manager pursuant to the first
sentence of this Section 5.8(b) shall be deemed reinvested in the Partnership
by the Manager.
5.9 ALLOCATION TO AVOID CAPITAL ACCOUNT DEFICITS.
To the extent that any debits pursuant to Sections 5.4 through
5.7 hereof would reduce the balance of the Capital Account of any Limited
Partner below zero, that portion of any such debits shall instead be allocated
to the Capital Account of the Manager. Any credits in any subsequent Fiscal
Period which would otherwise be allocable pursuant to Sections 5.4 through 5.7
hereof to the Capital Account of any Limited Partner previously affected by the
application of this Section 5.9 shall instead be allocated to the Capital
Account of the Manager in such amounts as are necessary to offset all previous
debits attributable to such Limited Partner pursuant to this Section 5.9 not
previously recovered.
5.10 ALLOCATIONS PRIOR TO CLOSING DATE.
Any net cash profits or any net cash losses realized by the
Partnership from the purchase or sale of Securities during the period ending on
the day prior to the Closing Date shall be
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allocated to the Capital Account of the Manager. (No unrealized item of profit
or loss shall be allocated pursuant to this Section 5.10 to the Capital Account
of any Partner.)
5.11 TAX ALLOCATIONS.
For each fiscal year, items of income, deduction, gain, loss
or credit shall be allocated for income tax purposes among the Partners in such
manner as to reflect equitably amounts credited or debited to each Partner's
Capital Account for the current and prior fiscal years (or relevant portions
thereof). Allocations under this Section 3.09 shall be made pursuant to the
principles of Sections 704(b) and 704(c) of the Internal Revenue Code of 1986,
as amended (the "Code"), and in conformity with Regulations Sections
1.704-1(b)(2)(iv)(f), 1.704-1(b)(4)(i) and 1.704-3(e) promulgated thereunder,
as applicable, or the successor provisions to such Section and Regulations.
Notwithstanding anything to the contrary in this Agreement, there shall be
allocated to the Partners such gains or income as shall be necessary to satisfy
the "qualified income offset" requirement of Treasury Regulation Section
1.704- 1(b)(2)(ii)(d).
If the Partnership realizes net capital gains for Federal
income tax purposes for any fiscal year as of the end of which one or more
Positive Basis Partners (as hereinafter defined) withdraw from the Partnership
pursuant to Articles IV or VI hereof, the General Partners may elect to
allocate such net gains as follows: (i) to allocate such net gains among such
Positive Basis Partners, pro rata in proportion to the respective Positive
Basis (as hereinafter defined) of each such Positive Basis Partner, until
either the full amount of such net gains shall have been so allocated or the
Positive Basis of each such Positive Basis Partner shall have been eliminated
and (ii) to allocate any net gains not so allocated to Positive Basis Partners
to the other Partners in such manner as shall equitably reflect the amounts
credited to such Partners' Capital Accounts pursuant to Section 3.05.
As used herein, (i) the term "Positive Basis" shall mean, with
respect to any Partner and as of any time of calculation, the amount by which
its interest in the Partnership (determined in accordance with Section 1.03) as
of such time exceeds its "adjusted tax basis", for Federal income tax purposes,
in its interest in the Partnership as of such time (determined without regard
to any adjustments made to such "adjusted tax basis" by reason of any transfer
or assignment of such interest, including by reason of death), and (ii) the
term "Positive Basis Partner" shall mean any Partner who withdraws from the
Partnership and who has Positive Basis as of the effective date of its
withdrawal, but such Partner shall cease to be a Positive Basis Partner at such
time as it shall have received allocations pursuant to clause (i) of the
preceding sentence equal to its Positive Basis as of the effective date of its
withdrawal.
5.12 DISTRIBUTIONS.
(a) The Individual General Partners may, in their
sole discretion, authorize the Partnership to make distributions in cash at any
time to all of the Partners on a pro rata basis in accordance with the
Partners' Partnership Percentages.
(b) The Manager may withhold taxes from any
distribution to any Partner to the extent required by the Code or any other
applicable law. For purposes of this
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Agreement, any taxes so withheld by the Partnership with respect to any amount
distributed by the Partnership to any Partner shall be deemed to be a
distribution or payment to such Partner, reducing the amount otherwise
distributable to such Partner pursuant to this Agreement and reducing the
Capital Account of such Partner.
----------------------
ARTICLE VI
DISSOLUTION AND LIQUIDATION
----------------------
6.1 DISSOLUTION.
(a) The Partnership shall be dissolved:
(1) on December 31, 2021, unless both (i) the
Individual General Partners, and (ii) a
majority (as defined in the ▇▇▇▇ ▇▇▇) of the
outstanding voting securities of the
Partnership, shall elect within 60 days of
such date to continue the business of the
Partnership;
(2) upon the affirmative vote to dissolve the
Partnership by both (i) the Individual
General Partners and (ii) Partners holding at
least two-thirds (2/3) of the total number of
votes eligible to be cast by all Partners;
(3) upon either of (i) an election by the Manager
to dissolve the Partnership or (ii) the
termination of the Manager's status as such
pursuant to Section 4.1 hereof (other than in
conjunction with a Transfer of the Interest
of the Manager permitted by Section 4.4
hereof to a person who is admitted as a
substitute Manager pursuant to Section 2.6(a)
hereof), unless as to either event both (i)
the Individual General Partners, and (ii)
Partners holding not less than two-thirds
(2/3) of the total number of votes eligible
to be cast by all Partners, shall elect
within 60 days after such event to continue
the business of the Partnership and either a
person has been admitted to the Partnership
as the Manager or one or more general
partners have agreed to make such
contributions to the capital of the
Partnership as are required to be made by the
Manager pursuant to Section 5.1(c) hereof;
(4) upon the failure of Partners to elect
successor Individual General Partners at a
meeting called by the Manager in accordance
with Section 2.6(c) hereof when no Individual
General Partner remains to continue the
business of the Partnership;
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(5) upon the expiration of any two year period
which commences on the date on which any
Limited Partner has submitted a written
notice to the Partnership requesting to
tender his entire Interest for repurchase by
the Partnership if such Limited Partner has
not been permitted to do so at any time
during such period; or
(6) as required by operation of law.
Dissolution of the Partnership shall be effective on the later of the day on
which the event giving rise to the dissolution shall occur or the conclusion of
any applicable 60 day period during which the Individual General Partners and
Partners may elect to continue the business of the Partnership as provided
above, but the Partnership shall not terminate until the assets of the
Partnership have been liquidated in accordance with Section 6.2 hereof and the
Certificate has been canceled.
(b) Upon the occurrence of an event of withdrawal under
Section 17-402 of the Delaware Act with respect to any General Partner
(including any event specified in Section 4.1, 4.2, 4.3 or 4.4 hereof that
causes such General Partner to cease to be a Partner in the Partnership), all
remaining General Partners are authorized to carry on the business of the
Partnership as permitted by Section 17-801(3) of the Delaware Act and to the
extent permitted by this Agreement. Except as provided in Section 6.1(a)
hereof or in the Delaware Act, the death, mental illness, dissolution,
termination, liquidation, bankruptcy, reorganization, merger, sale of
substantially all of the stock or assets of or other change in the ownership or
nature of a Partner, the admission to the Partnership of a new Partner, the
withdrawal of a Partner from the Partnership, or the transfer by a Partner of
his Interest to a third party shall not cause the Partnership to dissolve.
6.2 LIQUIDATION OF ASSETS.
(a) Upon the dissolution of the Partnership as provided
in Section 6.1 hereof, the Individual General Partners or the Manager shall
promptly liquidate the business and administrative affairs of the Partnership,
except that if the Individual General Partners or the Manager are unable to
perform this function, a liquidator elected by Partners holding a majority of
the total number of votes eligible to be cast by all Partners shall promptly
liquidate the business and administrative affairs of the Partnership. Net
Profit and Net Loss during the period of liquidation shall be allocated
pursuant to Section 5.4 hereof. The proceeds from liquidation (after
establishment of appropriate reserves for contingencies in such amount as the
Individual General Partners, Manager or liquidator shall deem appropriate in
their or its sole discretion as applicable) shall be distributed in the
following manner:
(1) the debts, of the Partnership, other than
debts, liabilities or obligations to
Partners, and the expenses of liquidation
(including legal and accounting expenses
incurred in connection therewith), up to and
including the date that distribution of the
Partnership's assets to the Partners has been
completed, shall first be paid on a pro rata
basis;
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(2) such debts, liabilities or obligations as are
owing to the Partners shall next be paid in
their order of seniority and on a pro rata
basis; and
(3) the Partners shall next be paid on a pro rata
basis the positive balances of their
respective Capital Accounts after giving
effect to all allocations to be made to such
Partners' Capital Accounts for the Fiscal
Period ending on the date of the
distributions under this Section 6.2(a)(3).
(b) Anything in this Section 6.2 to the contrary
notwithstanding, upon dissolution of the Partnership, the Individual General
Partners, Manager or other liquidator may distribute ratably in kind any assets
of the Partnership; provided, however, that if any in-kind distribution is to
be made (i) the assets distributed in kind shall be valued pursuant to Section
7.3 hereof as of the actual date of their distribution and charged as so valued
and distributed against amounts to be paid under Section 6.2(a) above, and (ii)
any profit or loss attributable to property distributed in-kind shall be
included in the Net Profit or Net Loss for the Fiscal Period ending on the date
of such distribution.
----------------------
ARTICLE VII
ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS
----------------------
7.1 ACCOUNTING AND REPORTS.
(a) The Partnership shall adopt for tax accounting
purposes any accounting method which the Manager shall decide in its sole
discretion is in the best interests of the Partnership. The Partnership's
accounts shall be maintained in U.S. currency.
(b) After the end of each taxable year, the Partnership
shall furnish to each Partner such information regarding the operation of the
Partnership and such Partner's Interest as is necessary for Partners to
complete federal and state income tax or information returns and any other tax
information required by federal or state law.
(c) Except as otherwise required by the 1940 Act, or as
may otherwise be permitted by rule, regulation or order, within 60 days after
the close of the period for which a report required under this Section 7.1(c)
is being made, the Partnership shall furnish to each Limited Partner a
semi-annual report and an annual report containing the information required by
such Act. The Partnership shall cause financial statements contained in each
annual report furnished hereunder to be accompanied by a certificate of
independent public accountants based upon an audit performed in accordance with
generally accepted accounting principles. The Partnership may furnish to each
Partner such other periodic reports in as it deems necessary or appropriate in
its discretion.
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(d) The Manager shall provide the Individual General
Partners with the identity of the members of the Manager and shall thereafter
notify the Individual General Partners of any change in the membership of the
Manager within a reasonable time after such change.
7.2 DETERMINATIONS BY MANAGER.
(a) All matters concerning the determination and
allocation among the Partners of the amounts to be determined and allocated
pursuant to Article V hereof, including any taxes thereon and accounting
procedures applicable thereto, shall be determined by the Manager unless
specifically and expressly otherwise provided for by the provisions of this
Agreement or required by law, and such determinations and allocations shall be
final and binding on all the Partners.
(b) The Manager may make such adjustments to the
computation of Net Profit or Net Loss, the Allocation Change with respect to
any Limited Partner, or any components comprising any of the foregoing as it
considers appropriate to reflect fairly and accurately the financial results of
the Partnership and the intended allocation thereof among the Partners.
7.3 VALUATION OF ASSETS.
(a) Except as may be required by the 1940 Act, the
Individual General Partners shall value or have valued any Securities or other
assets and liabilities of the Partnership as of the close of business on the
last day of each Fiscal Period in accordance with such valuation procedures as
shall be established from time to time by the Individual General Partners and
which conform to the requirements of the 1940 Act. In determining the value of
the assets of the Partnership, no value shall be placed on the goodwill or name
of the Partnership, or the office records, files, statistical data or any
similar intangible assets of the Partnership not normally reflected in the
Partnership's accounting records, but there shall be taken into consideration
any items of income earned but not received, expenses incurred but not yet
paid, liabilities fixed or contingent, the unamortized portion of any
organizational expenses and any other prepaid expenses to the extent not
otherwise reflected in the books of account, and the value of options or
commitments to purchase or sell Securities or commodities pursuant to
agreements entered into prior to such valuation date.
(b) The value of Securities and other assets of the
Partnership and the net worth of the Partnership as a whole determined pursuant
to this Section 7.3 shall be conclusive and binding on all of the Partners and
all parties claiming through or under them.
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----------------------
ARTICLE VIII
MISCELLANEOUS PROVISIONS
----------------------
8.1 AMENDMENT OF PARTNERSHIP AGREEMENT.
(a) Except as otherwise provided in this Section 8.1,
this Agreement may be amended, in whole or in part, with the approval of (i)
the Individual General Partners (including the vote of a majority of the
Independent General Partners, if required by the 1940 Act), (ii) the Manager
and (iii) a majority (as defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting
securities of the Partnership.
(b) Any amendment that would:
(1) increase the obligation of a Partner to make
any contribution to the capital of the
Partnership;
(2) reduce the Capital Account of a Partner
other than in accordance with Article V; or
(3) modify the events causing the dissolution of
the Partnership;
may be made only if (i) the written consent of each Partner adversely affected
thereby is obtained prior to the effectiveness thereof or (ii) such amendment
does not become effective until (A) each Limited Partner has received written
notice of such amendment and (B) any Limited Partner objecting to such
amendment has been afforded a reasonable opportunity (pursuant to such
procedures as may be prescribed by the Individual General Partners) to tender
his entire Interest for repurchase by the Partnership.
(c) The Manager may at any time without the consent of
the other Partners:
(1) amend Schedule I hereto to reflect any change
required to be made therein pursuant to the
terms of this Agreement;
(2) restate this Agreement together with any
amendments hereto which have been duly
adopted in accordance herewith to incorporate
such amendments in a single, integrated
document;
(3) amend this Agreement (other than with respect
to the matters set forth in Section 8.1(b)
hereof) to effect compliance with any
applicable law or regulation or to cure any
ambiguity or to correct or supplement any
provision hereof which may be inconsistent
with
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any other provision hereof, provided that
such action does not adversely affect the
rights of any Partner in any material
respect; and
(4) amend this Agreement to make such changes as
may be necessary or desirable, based on
advice of legal counsel to the Partnership,
to assure the Partnership's continuing
eligibility to be classified for U.S. federal
income tax purposes as a partnership which is
not treated as a corporation under Section
7704(a) of the Code,
subject, however, to the limitation that any amendment to this Agreement
pursuant to Sections 8.1(c)(3) or (4) hereof shall be valid only if approved by
the Individual General Partners (including the vote of a majority of the
Independent General Partners, if required by the 1940 Act).
(d) The Manager shall give prior written notice of any
proposed amendment to this Agreement (other than any amendment of the type
contemplated by clause (1) or (2) of Section 8.1(c) hereof) to each Partner,
which notice shall set forth (i) the text of the proposed amendment or (ii) a
summary thereof and a statement that the text thereof will be furnished to any
Partner upon request.
8.2 SPECIAL POWER OF ATTORNEY.
(a) Each Partner hereby irrevocably makes, constitutes
and appoints the Manager, each of the Individual General Partners, acting
severally, and any liquidator of the Partnership's assets appointed pursuant to
Section 6.2 hereof with full power of substitution, the true and lawful
representatives and attorneys-in-fact of, and in the name, place and stead of,
such Partner, with the power from time to time to make, execute, sign,
acknowledge, swear to, verify, deliver, record, file and/or publish:
(1) any amendment to this Agreement which
complies with the provisions of this
Agreement (including the provisions of
Section 8.1 hereof);
(2) any amendment to the Certificate required
because this Agreement is amended, including,
without limitation, an amendment to
effectuate any change in the membership of
the Partnership; and
(3) all such other instruments, documents and
certificates which, in the opinion of legal
counsel to the Partnership, may from time to
time be required by the laws of the United
States of America, the State of Delaware or
any other jurisdiction in which the
Partnership shall determine to do business,
or any political subdivision or agency
thereof, or which such legal counsel may deem
necessary or appropriate to effectuate,
implement and continue the valid existence
and business of the Partnership as a limited
partnership under the Delaware Act.
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(b) Each Partner is aware that the terms of this
Agreement permit certain amendments to this Agreement to be effected and
certain other actions to be taken or omitted by or with respect to the
Partnership without such Partner's consent. If an amendment to the Certificate
or this Agreement or any action by or with respect to the Partnership is taken
in the manner contemplated by this Agreement, each Partner agrees that,
notwithstanding any objection which such Partner may assert with respect to
such action, the attorneys-in-fact appointed hereby are authorized and
empowered, with full power of substitution, to exercise the authority granted
above in any manner which may be necessary or appropriate to permit such
amendment to be made or action lawfully taken or omitted. Each Partner is
fully aware that each Partner will rely on the effectiveness of this special
power-of-attorney with a view to the orderly administration of the affairs of
the Partnership.
(c) This power-of-attorney is a special power-of-attorney
and is coupled with an interest in favor of the Manager and each of the
Individual General Partners and as such:
(1) shall be irrevocable and continue in full
force and effect notwithstanding the
subsequent death or incapacity of any party
granting this power-of-attorney, regardless
of whether the Partnership or the Manager or
Individual General Partners shall have had
notice thereof; and
(2) shall survive the delivery of a Transfer by a
Partner of the whole or any portion of such
Partner's Interest, except that where the
transferee thereof has been approved by the
Individual General Partners for admission to
the Partnership as a substituted Partner,
this power-of-attorney given by the
transferor shall survive the delivery of such
assignment for the sole purpose of enabling
the Manager or Individual General Partners to
execute, acknowledge and file any instrument
necessary to effect such substitution.
8.3 NOTICES.
Notices which may or are required to be provided under this
Agreement by any party to another party shall be made by hand delivery,
registered or certified mail return receipt requested, commercial courier
service, telex or telecopier, and shall be addressed to the respective parties
hereto at their addresses as set forth on Schedule I hereto (or to such other
addresses as may be designated by any party hereto by notice addressed to the
Manager in the case of notice given to any Partner, and to each of the Partners
in the case of notice given to the Manager). Notices shall be deemed to have
been provided when delivered by hand, on the date indicated as the date of
receipt on a return receipt or when received if sent by commercial courier
service, telex or telecopier. A document that is not a notice and that is
required to be provided under this Agreement by any party to another party may
be delivered by any reasonable means.
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8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors, assigns,
executors, trustees or other legal representatives, but the rights and
obligations of the parties hereunder may not be Transferred or delegated except
as provided in this Agreement and any attempted Transfer or delegation thereof
which is not made pursuant to the terms of this Agreement shall be void.
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2.
The parties hereto acknowledge that this Agreement is not
intended to, and does not, set forth the substantive provisions contained in
the 1940 Act and the Form N-2 which affect numerous aspects of the conduct of
the Partnership's business and of the rights, privileges and obligations of the
Partners. Each provision of this Agreement shall be subject to and interpreted
in a manner consistent with the applicable provisions of the 1940 Act and the
Form N-2.
8.6 CHOICE OF LAW; ARBITRATION.
(a) Notwithstanding the place where this Agreement may
executed by any of the parties hereto, the parties expressly agree that all the
terms and provisions hereof shall be construed under the laws of the State of
Delaware, including the Delaware Act without regard to the conflict of law
principles of such State.
(B) UNLESS OTHERWISE AGREED IN WRITING, EACH PARTNER
AGREES TO SUBMIT ALL CONTROVERSIES ARISING BETWEEN PARTNERS OR ONE OR MORE
PARTNERS AND THE PARTNERSHIP TO ARBITRATION IN ACCORDANCE WITH THE PROVISIONS
SET FORTH BELOW AND UNDERSTAND THAT:
(1) ARBITRATION IS FINAL AND BINDING ON THE
PARTIES;
(2) THEY ARE WAIVING THEIR RIGHT TO SEEK REMEDIES
IN COURT, INCLUDING THE RIGHT TO A JURY
TRIAL;
(3) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE
LIMITED AND DIFFERENT FROM COURT PROCEEDINGS;
(4) THE ARBITRATOR'S AWARD IS NOT REQUIRED TO
INCLUDE FACTUAL FINDINGS OR LEGAL REASONING
AND A PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY ARBITRATORS IS
STRICTLY LIMITED; AND
(5) THE PANEL OF ARBITRATORS WILL TYPICALLY
INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR
ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
(B) ALL CONTROVERSIES THAT MAY ARISE AMONG PARTNERS AND
ONE OR MORE PARTNERS AND THE PARTNERSHIP CONCERNING THIS AGREEMENT SHALL BE
DETERMINED BY ARBITRATION IN NEW YORK CITY IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT, TO THE FULLEST
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43
EXTENT PERMITTED BY LAW. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
DETERMINED BEFORE AND IN ACCORDANCE WITH THE RULES THEN OBTAINING OF EITHER THE
NEW YORK STOCK EXCHANGE, INC. (THE "NYSE") OR THE NATIONAL ASSOCIATION OF
SECURITIES DEALERS, INC. (THE "NASD"), AS THE PARTNER OR ENTITY INSTITUTING THE
ARBITRATION MAY ELECT. IF THE NYSE OR NASD DOES NOT ACCEPT THE ARBITRATION FOR
CONSIDERATION, THE ARBITRATION SHALL BE SUBMITTED TO, AND DETERMINED IN
ACCORDANCE WITH THE RULES THEN OBTAINING OF, THE CENTER FOR PUBLIC RESOURCES,
INC. IN NEW YORK CITY. JUDGMENT ON ANY AWARD OF ANY SUCH ARBITRATION MAY BE
ENTERED IN THE SUPREME COURT OF THE STATE OF NEW YORK OR IN ANY OTHER COURT
HAVING JURISDICTION OF THE PERSON OR PERSONS AGAINST WHOM SUCH AWARD IS
RENDERED. ANY NOTICE OF SUCH ARBITRATION OR FOR THE CONFIRMATION OF ANY AWARD
IN ANY ARBITRATION SHALL BE SUFFICIENT IF GIVEN IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT. EACH PARTNER AGREES THAT THE DETERMINATION OF
THE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE UPON THEM.
(C) NO PARTNER SHALL BRING A PUTATIVE OR CERTIFIED CLASS
ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION
AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS
ACTION; OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE
CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION
UNTIL: (I) THE CLASS CERTIFICATION IS DENIED; OR (II) THE CLASS IS DECERTIFIED;
OR (III) THE PARTNER IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE
TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY
RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
8.7 NOT FOR BENEFIT OF CREDITORS.
The provisions of this Agreement are intended only for the
regulation of relations among past, present and future Partners and the
Partnership. This Agreement is not intended for the benefit of non-Partner
creditors and no rights are granted to non-Partner creditors under this
Agreement.
8.8 CONSENTS.
Any and all consents, agreements or approvals provided for or
permitted by this Agreement shall be in writing and a signed copy thereof shall
be filed and kept with the books of the Partnership.
8.9 MERGER AND CONSOLIDATION.
(a) The Partnership may merge or consolidate with or into
one or more limited partnerships formed under the Delaware Act or other
business entities pursuant to an agreement of merger or consolidation which has
been approved in the manner contemplated by Section 17-211(b) of the Delaware
Act.
(b) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, an agreement of merger or consolidation approved
in accordance with Section 17-211(b) of the Delaware Act may, to the extent
permitted by Section 17-211(g) of the Delaware Act, (i) effect any amendment to
this Agreement (ii) effect the adoption of a new partnership agreement
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for the Partnership if it is the surviving or resulting limited partnership in
the merger or consolidation, or (iii) provide that the partnership agreement of
any other constituent partnership to the merger or consolidation (including a
limited partnership formed for the purpose of consummating the merger or
consolidation) shall be the partnership agreement of the surviving or resulting
limited partnership.
8.10 PRONOUNS.
All pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the person or persons,
firm or corporation may require in the context thereof.
8.11 CONFIDENTIALITY.
(a) A Limited Partner may obtain from the Partnership
such information regarding the affairs of the Partnership as is just and
reasonable under the Delaware Act, subject to reasonable standards (including
standards governing what information and documents are to be furnished, at what
time and location and at whose expense) established by the General Partners.
(b) Each Partner covenants that, except as required by
applicable law or any regulatory body, it will not divulge, furnish or make
accessible to any other person the name and/or address (whether business,
residence or mailing) of any Limited Partner (collectively, "Confidential
Information") without the prior written consent of the Manager, which consent
may be withheld in the Manager's sole discretion.
(c) Each Partner recognizes that in the event that this
Section 8.11 is breached by any Partner or any of its principals, partners,
members, directors, officers, employees or agents or any of its affiliates,
including any of such affiliates' principals, partners, members, directors,
officers, employees or agents, irreparable injury may result to the
non-breaching Partners and the Partnership. Accordingly, in addition to any
and all other remedies at law or in equity to which the non-breaching Partners
and the Partnership may be entitled, such Partners shall also have the right to
obtain equitable relief, including, without limitation, injunctive relief, to
prevent any disclosure of Confidential Information, plus reasonable attorneys'
fees and other litigation expenses incurred in connection therewith. In the
event that any non-breaching Partner or the Partnership determines that any of
the other Partners or any of its principals, partners, members, directors,
officers, employees or agents or any of its affiliates, including any of such
affiliates' principals, partners, members, directors, officers, employees or
agents should be enjoined from or required to take any action to prevent the
disclosure of Confidential Information, each of the other non-breaching
Partners agrees to pursue in a court of appropriate jurisdiction such
injunctive relief.
8.12 CERTIFICATION OF NON-FOREIGN STATUS.
Each Limited Partner or transferee of an Interest from a
Limited Partner shall certify, upon admission to the Partnership and at such
other time thereafter as the Manager may request, whether he is a "United
States Person" within the meaning of Section 7701(a)(30) of the Code on forms
to be provided by the Partnership, and shall notify the Partnership within 30
days of
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45
any change in such Partner's status. Any Limited Partner who shall fail to
provide such certification when requested to do so by the Manager may be
treated as a non-United States Person for purposes of U.S. federal tax
withholding.
8.13 SEVERABILITY.
If any provision of this Agreement is determined by a court of
competent jurisdiction not to be enforceable in the manner set forth in this
Agreement, each Partner agrees that it is the intention of the Partners that
such provision should be enforceable to the maximum extent possible under
applicable law. If any provisions of this Agreement are held to be invalid or
unenforceable, such invalidation or unenforceability shall not affect the
validity or enforceability of any other provision of this Agreement (or portion
thereof).
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THE UNDERSIGNED ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS
ENTIRETY BEFORE SIGNING, INCLUDING THE PRE- DISPUTE ARBITRATION CLAUSE SET
FORTH IN SECTION 8.6 AND THE CONFIDENTIALITY CLAUSE SET FORTH IN SECTION 8.11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MANAGER:
TROON MANAGEMENT, L.L.C.
By: ▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
Managing Member
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
INDIVIDUAL GENERAL PARTNERS:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LIMITED PARTNERS:
Each person who shall sign a Limited Partner
Signature Page and who shall be accepted by
the Manager to the Partnership as a Limited
Partner.
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SCHEDULE I
TROON PARTNERS, L.P.
MANAGER
Name and Address Capital Contribution
---------------- --------------------
Troon Management, L.L.C. $1,000,000
Oppenheimer Tower
One World Financial Center, 33rd Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
INDIVIDUAL GENERAL PARTNERS
Name and Address
----------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ Office of the ▇▇▇▇
▇▇▇▇▇ University ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Columbia University
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
One World Financial ▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
Center One World Financial Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Centro de Investigation
Para el Desarrollo, A.C.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇, ▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ D.F. 11510