DATE 2007 ---------------------
EX-10.39
5
file5.htm
FORM OF LIMITED PARTNERSHIP AGREEMENT
DATE 2007
---------------------
GCP EUROPE GENERAL PARTNER LIMITED
▇▇▇▇▇▇▇▇▇ & CO. EUROPE LIMITED
THE EXECUTIVES
FORM OF AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
FOR
GCP EUROPE GENERAL PARTNERSHIP L.P.
Macfarlanes
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
CONTENTS
CLAUSE PAGE
1 Definitions
2 Establishment
3 Further Partners
3 Financial provisions as General Partner
4 Financial provisions as Carried Interest Partner
5 Financial provisions as an Investor in ▇▇▇▇▇▇▇▇▇ Capital Partners Europe, L.P.
6 Distributions in Specie and Restrictions on Distributions
7 Partnership Changes
8 Accounts
9 Rights and Duties of the General Partner
10 Assignation of Interests
11 Meetings
12 Termination and Liquidation
13 Miscellaneous
The Schedule
Part 1: Capital Contributions
Part 2: The Executives
LIMITED PARTNERSHIP AGREEMENT
PARTIES
1 GCP EUROPE GENERAL PARTNER LIMITED (Company No. SC319391) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the "General Partner")
2 ▇▇▇▇▇▇▇▇▇ & CO. EUROPE LIMITED (Company No 03688817) whose registered
office is at Eversheds House, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ("Greenhill Europe")
3 THE PERSONS, whose names and addresses are set out in Part 2 of the
Schedule
RECITALS
A The General Partner and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Initial Partners") executed
a limited partnership agreement on 5 April 2007 (the "Original
Partnership Agreement") by virtue of which they established a limited
partnership under the name "GCP Europe General Partnership L.P." for the
purpose of acting as the general partner of, and carried interest
partner in, two English limited partnerships to be known as ▇▇▇▇▇▇▇▇▇
Capital Partners Europe, L.P. and ▇▇▇▇▇▇▇▇▇ Capital Partners Europe
(Employees) L.P. and with a view to producing Profits for distribution
in accordance with this Agreement.
B The Initial Partners have agreed to restate the original Partnership
Agreement, admit new Limited Partners and increase the capital of the
Partnership.
C The Partners shall subscribe, in aggregate, the sum of (pound)1,000 to
the capital of the Partnership in the proportions set out in Part 1 of
the Schedule or as separately notified to each Partner by the General
Partner to enable the Partnership to subscribe the same amount (or a
proportion thereof), in its capacity as the carried interest partner, to
▇▇▇▇▇▇▇▇▇ Capital Partners Europe, L.P. and ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe (Employees) L.P. as a contribution to their respective
partnership capital. Such capital contribution to the Partnership shall
be subject to adjustment as provided in Clause 5.1.
D The Limited Partners in addition agree to advance to the Partnership
their Investment Contributions in the proportions set out in Part 1 of
the Schedule (as adjusted pursuant to the provisions of this Agreement)
and Investment Commitments in the Investment Funding Percentages to
enable the Partnership, as an investor, to subscribe for aggregate
commitments in ▇▇▇▇▇▇▇▇▇ Capital Partners Europe, L.P. and ▇▇▇▇▇▇▇▇▇
Capital Partners Europe (Employees) L.P. of, in aggregate, not less than
(pound)25 million (and the General Partner shall determine in its sole
discretion whether such commitment is made to ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe, L.P. or ▇▇▇▇▇▇▇▇▇ Capital Partners Europe (Employees) L.P. or
whether such commitment shall be split between the two in such
proportions as the General Partner may determine). Such sums will be
drawn down by the Partnership in accordance with the provisions of this
Agreement.
E The intention of the parties is to ensure that the Partners shall
together be entitled to all income and capital accruing to the
Partnership in its capacity as a partner of ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe, L.P. and ▇▇▇▇▇▇▇▇▇ Capital Partners Europe (Employees) L.P.,
such income and capital to be shared as provided in this Agreement.
F The Initial Limited Partners wish to amend and restate the terms of the
Original Agreement by executing this Agreement.
G Greenhill Europe and the persons named in Part 2 of the Schedule who are
not Initial Partners will, upon the execution of this Agreement, be
admitted as Limited Partners.
H The Partnership has been registered as a limited partnership in Scotland
under the Limited Partnerships ▇▇▇ ▇▇▇▇ with registered number SL006034.
IT IS HEREBY AGREED by the General Partner and by the Limited Partners
consenting to the execution of this Amended and Restated Limited Partnership
Agreement that the Original Partnership Agreement be replaced in its entirety
and be superseded by this Amended and Restated Partnership Agreement
1 DEFINITIONS
1.1 In this Agreement (including the Recitals and the Schedules), unless
defined herein or the context otherwise requires, words and expressions
defined in the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe Agreements shall have
the same meaning herein and the following words and expressions have the
following meanings:-
ACCOUNTING DATE: 31 December 2007 and 31 December in each year
thereafter or such other date as the General Partner may determine and
notify to the Limited Partners or (in the case of the final Accounting
Period) the date when the Partnership is terminated;
ACCOUNTING PERIOD: a period ending on and including an Accounting Date
and beginning on the commencement of the Partnership or on the date
following the preceding Accounting Date (as the case may require);
ACT: the Limited Partnerships ▇▇▇ ▇▇▇▇, as amended and/or restated from
time to time;
ADMISSION DATE: in respect of each Limited Partner, the date of
admission of such Limited Partner to the Partnership;
THIS AGREEMENT: this limited partnership agreement (including, for the
avoidance of doubt, the Schedules hereto), as amended from time to time;
ANNUAL POOL: shall have the meaning ascribed thereto in Clause 5.2.3;
ANNUAL POOL PERCENTAGE: the percentage of the Carried Interest arising
in respect of any Investment within an Annual Pool which is allocated to
participants in the Annual Pool (being those Partners allocated Carry
Profit Points in respect of the Annual Pool), such percentage being 100%
minus the Introducers Percentage (if any);
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ASSOCIATE:
(a) if the person concerned is a body corporate:-
(i) the holding company of such person or a subsidiary of such
person or a subsidiary of any such holding company; or
(ii) any other body corporate in which the person holds directly
or indirectly 50 per cent. or more of any class of equity
share capital; or
(iii) any director of such person.
(b) if the person concerned is a limited liability partnership:-
(i) any subsidiary of such person;
(ii) any other body corporate in which the person holds directly
or indirectly 50 per cent. or more of any class of equity
share capital; or
(iii) any member of such person.
(c) if the person concerned is a limited partnership:-
(i) the general partner of such person; or
(ii) if the general partner of such person is a body corporate,
any person who is an Associate of the general partner within
the meaning of (a) above.
(d) if the person concerned is an individual or a firm or other
unincorporated body:-
(i) any body corporate in which the person holds directly or
indirectly 50 per cent. or more of any class of equity share
capital; or
(ii) the spouse or any business partner of such person.
PROVIDED THAT, for the purposes of this Agreement, the Partnership shall
not be construed as an Associate of either the General Partner or the
Manager;
AUDITORS: means such firm of internationally recognised chartered
accountants appointed by the General Partner as auditors of the
Partnership from time to time;
AUTHORISED PERSON: a person who is an authorised person under Part IV of
the Financial Services and Markets ▇▇▇ ▇▇▇▇;
BAD LEAVER: a Limited Partner who is a Leaver in any circumstances
constituting an Elimination Event (or where the Related Executive of
such
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Limited Partner ceases to be an Executive in circumstances constituting
an Elimination Event) and provided that, for the avoidance of doubt, if
a Leaver is categorised as a Good Leaver on the applicable Departure
Date of such Leaver, the General Partner may re-categorise such Leaver
as a Bad Leaver following such Departure Date in the event that any
circumstances arise that would otherwise have caused such Limited
Partner to be categorised as a Bad Leaver on the applicable Departure
Date;
BOARD: means the board of directors of Greenhill;
BUSINESS DAY: any day other than a Saturday, Sunday or any other day on
which the clearing banks in the City of London and/or Edinburgh are open
for the conduct of ordinary non-automated business;
CAPITAL CONTRIBUTION: in respect of each Partner, his contribution to
the capital of the Partnership as is calculated pursuant to the
provisions of this Agreement, which shall, for the avoidance of doubt,
be the sum of his Carried Interest Contribution and his Investment
Contribution;
CARRIED INTEREST: all such sums as are from time to time received by the
Partnership in respect of carried interest (being those sums paid to the
Partnership pursuant to the relevant provisions of the ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe Partnership Agreements (other than amounts distributed
to the Partnership pursuant to such provisions by reason of it being an
Investor in ▇▇▇▇▇▇▇▇▇ Capital Partners Europe));
CARRIED INTEREST CONTRIBUTION: in respect of each Partner, the amount
shown in Part 1 of the Schedule as contributed to the capital of the
Partnership by such partner or as separately notified to each Partner by
the General Partner (in order that the Partnership can subscribe capital
to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe to become the Carried Interest
Partner), as adjusted from time to time by the provisions of Clause 5.1
and transfers of Carried Interest Contribution pursuant to the
provisions of Clause 10;
CARRIED INTEREST REVENUE ACCOUNT: the accounts established in respect of
each Annual Pool pursuant to Clause 5.4;
CARRY MEMORANDUM ACCOUNTS: the accounts established in the name of each
Partner participating in Carry Profits in respect of an Annual Pool
pursuant to Clause 5.5;
CARRY PROFITS: all income and capital sums received by the Partnership
in respect of the Carried Interest;
CAUSE: means:
(i) any act or omission which constitutes a breach by the Limited
Partner of the Limited Partner's obligations to the Partnership or
Greenhill or any of its Associates or the failure or refusal of
the Limited Partner to perform satisfactorily any duties
reasonably required of the Limited Partner which breach, failure
or refusal is not corrected (other than failure to correct by
reason of the incapacity of the Limited Partner due to physical or
mental illness) within 10 Business Days after written
4
notification thereof to the Limited Partner by the Partnership or
Greenhill or any of its Associates; or
(ii) the commission by the Limited Partner of any dishonest or
fraudulent act injurious to the interests or business reputation
of any of the Partnership or Greenhill, or any of its Associates;
or
(iii) any other act or omission which is materially injurious to the
interests or business reputation of any of the Partnership or
Greenhill, or any Associates; or
(iv) a material violation of any applicable securities laws (including,
for the avoidance of doubt, the UK Financial Services and Markets
Act 2000), any rules or regulations of any regulatory authority or
exchange of which the Partnership or Greenhill or any of its
Associates is a member or of any policy of the Partnership or
Greenhill or any of its Associates relating to compliance with any
of the foregoing
(and in determining whether Cause has occurred in relation to any
Limited Partner, if such Limited Partner is a Related Limited
Partner, Cause occurring in relation to the Related Executive of
such Limited Partner shall constitute Cause of the Limited
Partner);
CHANGE IN CONTROL: means the consummation of a merger,
consolidation, statutory share exchange or similar form of
corporate transaction involving Greenhill or the sale or other
disposition of all or substantially all of the assets of Greenhill
to an entity which is not an Associate or that, in each case,
requires shareholder approval under the laws of ▇▇▇▇▇▇▇▇▇'▇
jurisdiction of organisation, unless immediately following such
transaction, either: (i) at least 50% of the total voting power of
the surviving entity or its parent entity, if applicable, is
represented by securities of Greenhill which were outstanding
immediately prior to the transaction (or securities into which
▇▇▇▇▇▇▇▇▇'▇ securities were converted or exchanged in such
transaction); or (ii) at least 50% of the members of the board of
directors (including directors whose election or nomination was
approved by the incumbent directors of the Board) of the company
resulting from the transaction were members of the Board at the
time of the Board's approval of the execution of the initial
agreement providing for the transaction;
CONFIDENTIAL INFORMATION: means any information (which may be in
any medium or form, including, without limitation, physical
documents, computer files or disks, video tapes, audio tapes, CDs
and oral communications) that may have intrinsic value to the
Partnership or ▇▇▇▇▇▇▇▇▇ Capital Partners Europe or Greenhill, or
its Associates, clients or other parties with which the
Partnership or ▇▇▇▇▇▇▇▇▇ Capital Partners Europe or Greenhill or
any of its Associates has a relationship, or that may provide the
Partnership or ▇▇▇▇▇▇▇▇▇ Capital Partners Europe or Greenhill or
its Associates with a competitive advantage, including, without
limitation: any trade secrets; formulas; flow charts; computer
programmes; access codes or other systems information; algorithms;
business, product or marketing plans; sales and other forecasts;
financial information; client lists; and information relating to
compensation and benefits, PROVIDED THAT such Confidential
Information does not include any information which is available to
the general public or is generally available within the relevant
business or industry other than as a result of the Limited
Partner's action;
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CONSTRUCTIVE DISCHARGE: means, with respect to any Limited Partner
(or Related Executive), within two years following a Change in
Control there occurs both (i) a reduction in the number of Carry
Profit Points allocated to such Limited Partner with respect to an
Annual Pool to 90% or less of the Carry Profit Points allocated to
such Limited Partner with respect to the prior Annual Pool; and
such Limited Partner (or the Related Executive of such Limited
Partner) resigns as an Executive;
DEPARTURE DATE: the date on which a Limited Partner becomes a
Leaver;
DIRECTORS: the director(s) of the General Partner as may be
appointed from time to time (or in the event that the director is
a limited liability partnership, any designated member of such
director (or their appointed representative) or the chief
executive of such director);
ELIMINATION EVENT: means, with respect to any Limited Partner:
(i) the termination of such Limited Partners' employment with
the Manager or any Employing Company for Cause (or the
termination of such Limited Partner's employment with the
Manager or any Employing Company for any reason and,
following such termination, the General Partner or the
Manager determines that circumstances existed during the
Limited Partner's employment with the Manager or an
Employing Company which would have entitled the Manager or
the Employing Company to terminate such Limited Partner's
employment for Cause);
(ii) the termination of such Limited Partner's employment with
the Manager or an Employing Company with less than 30 days'
notice;
(iii) the termination of such Limited Partner's employment with
the Manager or an Employing Company for any reason and,
within 180 days of such termination (or during the 180 days
preceding such termination), such Limited Partner attempts
or attempted to hire a person who is or was an employee of
the Greenhill Group;
(iv) the termination of such Limited Partner's employment with
the Manager or an Employing Company for any reason and,
within 180 days of such termination, the Limited Partner
solicits business of a customer or client of the Greenhill
Group; or
(v) the termination of such Limited Partner due to disclosure by
such Limited Partner (or in the event of the death of a
Limited Partner who is an Executive, by such Limited
Partner's heirs, executors administrators or other
representatives or assignees) of any Confidential
Information without the consent of the Manager or Greenhill
in contravention of the terms of this Agreement or the use
of Confidential Information by such Limited Partner (or in
the event of the death of a Limited Partner who is an
Executive, by such Limited Partner's heirs, executors
administrators or other representatives or assignees) other
than in connection with the business of the Partnership
where such disclosure or use may be adverse to the financial
interests of the Partnership, the General Partner, the
6
Manager, ▇▇▇▇▇▇▇▇▇ Capital Partners Europe, Greenhill or any
of its Associates;
EMPLOYING COMPANY: a body corporate which is, or which provides
the services of some or all of its employees or members to a
company or other body which is, involved in the management and/or
operation of ▇▇▇▇▇▇▇▇▇ Capital Partners Europe or any other entity
within the Greenhill Group which the General Partner designates as
such;
EXECUTIVE: a member or employee of the Manager or a director or
employee of, or consultant to, an Employing Company and, as at the
date of this Agreement, being those persons listed in Part 2 of
the Schedule;
FAMILY TRUST: any trust (whether arising under a settlement,
declaration of trust or other instrument by whomsoever or
wheresoever made) under which any Executive and/or his Privileged
Relation(s) has the beneficial interest in any of the Capital
Contribution. For these purposes a person shall be deemed to be
beneficially interested in any Capital Contribution if that
Capital Contribution or the income or capital derived from it is
or may be transferred or paid or applied or appointed to or for
the benefit of that person;
FSA: the Financial Services Authority of ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or any successor regulatory
organisation;
FSA RULES: the rules and guidance issued by the FSA from time to
time and for the time being in force (as varied by any waivers or
dispensations granted by the FSA and applicable to the Manager);
FSMA: the Financial Services and Markets ▇▇▇ ▇▇▇▇ as amended from
time to time and any successor legislation thereto;
THE GENERAL PARTNER: GCP General Partner Limited or any
replacement general partner for the time being of the Partnership;
GPS MEMORANDUM ACCOUNTS: the accounts established in respect of
each Partner participating in GPS Profits pursuant to Clause 4.7;
GPS PROFITS: the profits of the Partnership received in respect of
GCPE General Partner's Share;
GPS PROFIT POINTS: shall have the meaning ascribed thereto in
Clause 4.3;
GPS RELEVANT PERIOD: shall have the meaning ascribed thereto in
Clause 4.2.1;
GPS REVENUE ACCOUNT: the account established by the Partnership
pursuant to Clause 4.6;
GOOD LEAVER: a Limited Partner who is a Leaver in any
circumstances other than where he is a Bad Leaver (or whose
Related Executive ceases to be an Executive in circumstances which
would constitute him as a Bad Leaver, were he a Leaver);
GREENHILL: means ▇▇▇▇▇▇▇▇▇ & Co. Inc;
7
▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS EUROPE: ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe, L.P., ▇▇▇▇▇▇▇▇▇ Capital Partners Europe (Employees) L.P.
and any other parallel funds established pursuant to the
provisions of the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe Partnership
Agreements;
▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS EUROPE PARTNERSHIP AGREEMENTS: the
limited partnership agreements constituting each of ▇▇▇▇▇▇▇▇▇
Capital Partners Europe, L.P., ▇▇▇▇▇▇▇▇▇ Capital Partners Europe
(Employees) L.P. and any other parallel funds established pursuant
to the provisions of such agreements;
GREENHILL GROUP: Greenhill and its Associates;
INDEMNIFIED PARTY: means each Limited Partner and each director,
officer, shareholder, employee agent or representative of the
General Partner, the Manager or of Greenhill or any of its
Associates;
INTEREST: any part or all of the interest of a Partner in the
Partnership;
INTRODUCERS PERCENTAGE: the percentage (if any) of the Carried
Interest arising in respect of any Investment within an Annual
Pool which is allocated, at the sole discretion of the General
Partner, to the individual or individuals which the General
Partner determines have introduced the investment opportunity to
▇▇▇▇▇▇▇▇▇ Capital Partners Europe or have otherwise provided a
valuable service in connection with an Investment (such
individuals to be referred to herein as "Introducers");
INVESTEE COMPANY: a company in which ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe invests;
INVESTMENT: an investment in an Investee Company acquired by
▇▇▇▇▇▇▇▇▇ Capital Partners Europe (whether for consideration in
cash or the securities or assets of any existing Investment or
otherwise) including but not limited to shares, debentures, loan
stock, or other securities of, and loans (whether secured or
unsecured) made to, any body corporate or other entity,
INVESTMENT COMMITMENT: in respect of each Partner, the amount of
loan shown in Part 1 of the Schedule or as separately notified to
each Partner by the General Partner, being the amount agreed to be
advanced to the Partnership by such Partner by way of loan
(whether or not advanced), and as subsequently altered by
transfers of Investment Commitment pursuant to the provisions of
Clauses 6 and 10;
INVESTMENT COMMITMENT ACCOUNTS: shall mean the accounts opened in
the name of each Partner making Investment Commitments pursuant to
Clause 6.2.1;
INVESTMENT CONTRIBUTION: in respect of each Partner making an
Investment Commitment, the amount shown in Part 1 of the Schedule
as contributed to the capital of the Partnership at the date of
this Agreement (being its pro rata share of the amount required to
be contributed to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe as capital
contribution in respect of the Partnership's interest as an
Investor) as adjusted pursuant to the provisions of this
Agreement;
8
INVESTMENT CONTRIBUTION ACCOUNTS: shall mean the accounts opened
pursuant to Clause 6.1.2 to which Investment Contributions of each
Partner shall be credited;
INVESTMENT FUNDING PERCENTAGE: the proportions in which the
Partners agree to advance their Investment Commitments (determined
in accordance with Clause 6.3);
INVESTMENT MEMORANDUM ACCOUNTS: shall mean the accounts opened
pursuant to Clause 6.7 in respect of each Partner making an
Investment Commitment;
INVESTMENT PERIOD: the investment period of ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe;
INVESTMENT PROFIT: all income and capital sums received by
Partnership in respect of its investment in ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe but excluding any amounts in respect of repayment
of Investment Commitment and any Carry Profit and General
Partner's Profit;
INVESTMENT SHARING PERCENTAGE: the percentage entitlement
(determined in accordance with Clause 6.4) of the Partners from
time to time to share the income and capital of the Partnership as
a result of it holding a Commitment in ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe;
LEAVER: means in the case of any Limited Partner, where the
Limited Partnr or Related Executive of such Limited Partner was,
but ceases to be, an Executive;
LIMITED PARTNERS: the partners of the Partnership other than the
General Partner (and "Limited Partner" shall mean any of the
Limited Partners);
LIMITED PARTNERS' CONSENT: the written consent (which may consist
of one or more documents in like form each signed by one or more
of the Limited Partners) of Limited Partners whose aggregate share
of the total amount of Capital Contributions made by all the
Limited Partners represents 50 per cent. or more of the aggregate
of that amount;
MANAGER: ▇▇▇▇▇▇▇▇▇ Capital Partners Europe LLP (a limited
liability partnership registered under the Limited Partnerships
Act 2000) whose registered office is at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇;
NOTIONAL CARRIED INTEREST: the Carried Interest which would be
payable on an Investment (according to the methodology set out in
the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe Partnership Agreements) if
such Investment was the sole Investment held by ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe;
PARTNERS: the General Partner and the Limited Partners (and
"Partner" shall mean any one of them);
PARTNERSHIP: GCP Europe General Partnership L.P., being the
limited partnership established by the Original Partnership
Agreement, the activities and operation of which shall be governed
by the terms and conditions of this Agreement;
9
PRIVILEGED RELATION: the spouse (but not, for the avoidance of
doubt, a former spouse), parents, widow, widower and every child,
stepchild or adopted child of an Executive and any spouse of any
such person;
RELATED LIMITED PARTNER: a Limited Partner who is connected to an
Executive by virtue of being:
(i) that Executive;
(ii) a Privileged Relation thereof; or
(iii) a trustee of a Family Trust whose beneficiaries are the
Executive and/or one or more Privileged Relations;
RELATED EXECUTIVE: the Executive who is connected to a Related
Limited Partner;
RELEVANT PROPORTION: shall have the meaning ascribed thereto in
Clause 5.7;
RETIREMENT: means termination of employment on or after the date
the Executive has: (i) attained age 65 and completed at least two
years of service following ▇▇▇▇▇▇▇▇▇'▇ initial public offering;
(ii) completed at least twelve years of service as a managing
director of Greenhill or its predecessors; or (iii) has completed
at least twenty years of service with Greenhill or its
predecessors and for the purposes of this definition, references
to Greenhill shall, where the context permits, include references
to any applicable Associate;
1.2 References to either gender shall include the other gender and the
neuter and vice versa.
1.3 In this Agreement references to Clauses, parties and the Recitals
and Schedule are to the Clauses of and parties and Recitals and
Schedule to this Agreement;
1.4 In this Agreement, a company is a "subsidiary" of another company,
its "holding company", if that other company:
(a) holds a simple majority of the voting rights in it; or
(b) is a member of it and has the right to appoint or remove a
majority of its board of directors; or
(c) is a member of it and controls alone or pursuant to an
agreement with other shareholders or members a majority of
the voting rights in it; or
(d) if it is a subsidiary of a company which is itself a
subsidiary of that other company
and "subsidiaries" and holding companies" in this Agreement are to
be construed accordingly and "group" means all subsidiaries and
holding companies of a company and all subsidiaries of any holding
company.
1.5 In this Agreement, any reference to "persons" includes natural
persons, partnerships, companies, bodies corporate, associations,
organisations,
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governments, states, foundations, and trusts (in each case whether
or not having separate legal personality).
2 ESTABLISHMENT
2.1 The Partnership is a limited partnership and has been registered
in Scotland under the Limited Partnerships ▇▇▇ ▇▇▇▇. Accordingly,
Section 6(5)(c) of the Limited Partnerships ▇▇▇ ▇▇▇▇ and Section
33(2) of the Partnership Act 1890 shall not apply to the
Partnership and are hereby expressly excluded.
2.2 The purpose of the Partnership is to act, in Scotland and
elsewhere, as the general partner and carried interest partner of,
and Investor in, ▇▇▇▇▇▇▇▇▇ Capital Partners Europe with a view to
producing profits for distribution in accordance with this
Agreement. The Partnership may execute, deliver and perform all
contracts and other undertakings and engage in all activities and
transactions as may in the opinion of the General Partner be
necessary or advisable in order to carry out the foregoing
purpose.
2.3 The Partnership shall carry on business under the name and style
or firm name "GCP Europe General Partnership L.P." or such other
name as shall from time to time be agreed between the Partners.
2.4 The principal place of business of the Partnership, for the
purpose of Section 8(c) of the Limited Partnerships ▇▇▇ ▇▇▇▇,
shall be at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
or such other place in Scotland as the General Partner may from
time to time notify in writing to the Limited Partners.
2.5 The liability of the Limited Partners shall be limited to the
amount of their respective contributions to the capital of the
Partnership and, save as provided by law, they shall have no
further liability whatsoever for any debts, liabilities or
obligations of the Partnership.
2.6 The Partnership shall continue until its termination pursuant to
Clause 12.1. The Partnership shall continue in existence
notwithstanding any change in its composition.
3 FURTHER PARTNERS
Additional Executives (or Related Limited Partners of a Additional
Executives) or Introducers may be admitted as Limited Partners by
the General Partner at any time provided that they each sign,
deliver and have accepted a form of adherence (in such form as the
General Partner may reasonably require) agreeing to become a
Limited Partner and to be bound by the terms of this Agreement.
Such Executive or Related Limited Partner or Introducer shall be a
Limited Partner from his Admission Date. Upon the admission of a
new Limited Partner, Part 2 of the Schedule shall be updated to
include the name and address of the relevant Limited Partner (and,
if applicable, his Related Executive) or Introducer.
4 FINANCIAL PROVISIONS AS GENERAL PARTNER
4.1 Pursuant to the provisions of the ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe Partnership Agreements, the Partnership shall receive, for
such time as it is the general
11
partner of each of the partnerships within ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe, priority profit shares (the "GCPE General
Partner's Share") from each of the partnerships within ▇▇▇▇▇▇▇▇▇
Capital Partners Europe.
4.2 On or before the date of this Agreement, and subsequently on or
before each Accounting Date, the Partnership shall open and
maintain an account in relation to the period to the next
following Accounting Date (the "GPS Relevant Period"), in which it
shall record its receipts of GCPE General Partner's Share from
▇▇▇▇▇▇▇▇▇ Capital Partners Europe.
4.3 In order to determine the allocation of GCPE General Partner's
Share among the Partners and the distribution of available funds
in respect of GCPE General Partner's Share in each GPS Relevant
Period, the General Partner shall, on or before the Accounting
Date at the commencement of each GPS Relevant Period, allocate a
number of points in relation to the GCPE General Partner's Share
("GPS Profit Points") to each of the Partners, including for the
avoidance of doubt the General Partner, (with an aggregate of
1,000 GPS Profit Points being allocated in respect of each GPS
Relevant Period). For the avoidance of doubt, all of the GPS
Profit Points in respect of any GPS Relevant Period shall be
allocated at the sole discretion of the General Partner and may be
allocated entirely to the General Partner. Unless the General
Partner otherwise determines (and accordingly allocates GPS Profit
Points), no Limited Partner shall be entitled to participate in
the GPS Profits of the Partnership by reason of being a Limited
Partner. The GPS Sharing Percentage of each of the Partners in
respect of each GPS Relevant Period shall be determined by
calculating the number of GPS Profit Points (if any) allocated to
such Partner as a percentage of the aggregate number of GPS Profit
Points (being 1,000) allocated in such GPS Relevant Period. The
General Partner may elect which items comprised within the GCPE
General Partner's Share shall form the whole or part of the GPS
Profits allocated to a particular Partner.
4.4 All GPS Profits arising in any GPS Relevant Period shall be
allocated as soon as reasonably practicable following receipt on
the basis of the number GPS Profit Points (if any) held by the
relevant Partner.
4.5 All available GPS Profits shall be distributed as soon as
reasonably practicable following receipt.
4.6 The Partnership shall open and maintain a revenue account (the
"GPS Revenue Account") showing all its receipts (including income
and capital) of GPS Profits from ▇▇▇▇▇▇▇▇▇ Capital Partners Europe
and any expenses or losses it incurs in respect of such interest
as the general partner of ▇▇▇▇▇▇▇▇▇ Capital Partners Europe.
4.7 In addition, each Partner from time to time entitled to
participate in GPS Profts shall have an account (a "GPS Memorandum
Account") to which GPS Profits allocated to such Partner shall be
credited. Amounts credited to the GPS Memorandum Account of any
Partner shall be debited to the GPS Revenue Account of the
Partnership. All entries on the GPS Memorandum Account of any
Partner shall be made in order of allocation of GPS Profits and a
cumulative total shall be kept following each entry of the balance
on each GPS Memorandum Account. Distributions made to Partners in
respect of GPS Profits shall be debited to the GPS Memorandum
Account of the relevant Partner.
12
5 FINANCIAL PROVISIONS AS CARRIED INTEREST PARTNER
5.1 CARRY CONTRIBUTIONS
5.1.1 Pursuant to the provisions of the ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe Partnership Agreements, the Partnership shall be required
to commit and maintain an amount of capital contribution in
▇▇▇▇▇▇▇▇▇ Capital Partners Europe, L.P. equal to 20% of the total
capital contributions subscribed in ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe, L.P. and 14% of the total capital contributions subscribed
in Greenhill Capital Partners (Employees) L.P.
5.1.2 At the date of this Agreement, the Partners have advanced (pound)
[ ] in aggregate by way of Carried Interest Contribution in the
proportions set out in Part 1 of the Schedule or as separately
notified by the General Partner (the proportion being equal to the
proportion of the Carry Profit Points allocated to each Partner in
respect of the First Accounting Period against the aggregate Carry
Profit Points allocated to all Partners in respect of the First
Accounting Period).
5.1.3 On or before each Accounting Date, the Partners shall contribute
an additional aggregate amount of (pound)1,000 (or such greater
amount as the General Partner may determine) of Carried Interest
Contribution to the Partnership in the proportions equal to the
proportion of the Carry Profit Points allocated to each Partner in
respect of the following Accounting Period against the aggregate
of all Carry Profit Points allocated to all Partners in respect of
the following Accounting Period. Alternatively, such Carried
Interest Contribution may be made by the Partners in such amounts
as the General Partner may determine at the same time as loans are
drawn down under the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe Partnership
Agreements.
5.1.4 In circumstances where the General Partner determines that an
individual or individuals should be allocated an Introducer
Percentage in respect of any Investment within an Annual Pool,
such individual or individuals shall make a Capital Contribution
to the Partnership of such amount as the General Partner may
determine. The Capital Contribution of the Introducer determined
by the General Partner shall be in excess of the amount which
would result if the Capital Contribution was calculated on the
basis that the relevant Investment in respect of which the
Introducer Percentage is to be awarded is the only Investment in
the relevant Annual Pool and that the participants in the Annual
Pool are making a capital contribution of (pound)1,000 (or such
greater amount as the participants are required to commit in
respect of the relevant Annual Pool pursuant to Clause 5.1.3) in
respect of the Annual Pool Percentage. Accordingly the aggregate
Capital Contribution payable by the Individuals awarded an
Introducer Percentage (with each individual paying their pro rata
share according to the proportion of the Introducer Percentage
awarded to them) shall be calculated so as not to be less than the
result obtained according to the following formula:
{1,000 }
{-----x100}-1,000=z
{ y }
where:
13
y is the Annual Pool Percentage; and
z is the aggregate Capital Contribution, expressed in pounds
sterling, of the individuals being awarded an Introducer
percentage,
PROVIDED THAT if the amount of the Capital Contribution to be
advanced by the participants in an Annual Pool is in excess of
(pound)1,000 pursuant to the provisions of Clause 5.1.3, the
figure of 1,000 in the equation set out above shall be substituted
for the figure of the aggregate Capital Contribution subscribed by
participants in the Annual Pool in respect of such Annual Pool.
5.1.5 In the event that the General Partner determined to create
Reserved Carry Points pursuant to Clause 5.2.6 at the time Carry
Profit Points are allocated in respect of any Annual Pool, the
General Partner shall not be required to make a Capital
Contribution in respect of such Reserved Carry Points (under the
methodology in Clause 5.1.3 above) at the time such Reserved Carry
Points are initially allocated to it. In the event that the
Reserved Carry Points are not reallocated pursuant to Clause
5.2.6, the General Partner shall make a Capital Contribution
equivalent to that which it would have made at the time the Carry
Profit Points in respect of the relevant Annual Pool were
initially allocated. In the event that the Reserved Carry Points
are reallocated pursuant to the provisions of Clause 5.2.6, the
Partners to whom such reallocation is made shall be required to
make a new or additional Capital Contribution according to the
methodology set out in Clause 5.1.3 above in respect of the
Reserved Carry Points. In the event that the General Partner
determines that it is to make a reallocation of Reserved Carry
Points at the time the Carried Interest in respect of the Annual
Pool has value, the General Partner may require any Partner being
allocated Reserved Carry Points to make an increased Capital
Contribution in such amount as the General Partner may determine
based on its assessment of the value of the Carried Interest in
respect of the relevant Annual Pool.
5.1.6 Each of the Partners shall have an account (a "Carry Contribution
Account") to which his aggregate Carry Contribution shall be
credited.
5.1.7 The Carry Contributions shall not carry interest.
5.2 ALLOCATION OF CARRY POINTS
5.2.1 The General Partner shall allocate the total Carry Points for the
initial Annual Pool (which shall, for the avoidance of doubt,
comprise investments made from the date of this Agreement until
the first Accounting Date (or investments made prior to such date
which were warehoused with the intention that they be contributed
to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe)) as shown in Part 1 of the
Schedule.
5.2.2 On or before each Accounting Date the General Partner, acting in
its sole discretion, shall allocate a number of points ("Carry
Profit Points") to each of the Partners (with an aggregate of
1,000 Carry Profit Points being allocated in respect of each
Annual Pool). Once the allocation of Carry Profit Points in
respect of each Annual Pool has been notified to the Partners the
General Partner determines should participate in such Annual Pool,
the allocations shall not be capable of alteration at a later
date, other than as provided in this Agreement.
14
5.2.3 Each Accounting Period of the Partnership shall be deemed a
separate annual pool (each, an "Annual Pool") for the purposes of
calculating the entitlement of Partners to Carry Profits.
Investments made by ▇▇▇▇▇▇▇▇▇ Capital Partners Europe during any
Accounting Period will be allocated to and form part of the Annual
Pool established in respect of such Accounting Period. The
entitlement, as between Partners, to Carry Profits arising from
Investments allocated to any Annual Pool shall be pro rata to the
number of Carry Profit Points held by each Partner in respect of
such Annual Pool. For the avoidance of doubt, if any Partner has
not been allocated Carry Profit Points in respect of any Annual
Pool, they shall not be entitled to participate in Carry Profits
arising from the Investments allocated to such Annual Pool.
5.2.4 The General Partner may, acting in its sole discretion, determine
that an individual or individuals who have introduced an
investment opportunity to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe should
be awarded a proportion of the Carried Interest arising on an
Investment completed in respect of the introduced investment
opportunity. The General Partner shall determine the proportion of
the Carried Interest arising on such Investment which should be
awarded to the Introducer(s) at the time the Investment is made.
Such proportion of the Carried Interest in respect of such
Investment shall be reflected in the Introducers Percentage, with
the remainder falling into the Annual Pool of which the Investment
forms part through the Annual Pool Percentage. Participation in
the Carry Profits arising on such Investment shall be pro rata to,
respectively, the Introducers Percentage and the Annual Pool
Percentage (with the entitlement of participants in the Annual
Pool being determined according to their respective Carry Profit
Points allocated to them in respect of such Annual Pool and the
entitlement of the Introducers being determined according to their
pro rata share of the Introducers Percentage awarded to them). In
the event that the General Partner determines that no Introducers
Percentage will be awarded, the Annual Pool Percentage will be
100% and all Carry Profits arising in relation to that Investment
will go to the Annual Pool. In relation to any Investment in
respect of which an Introducers Percentage is awarded, this fact
and the percentage level (and the entitlement of each Introducer,
if more than one) will be recorded in Part 1 of the Schedule. For
the avoidance of doubt, Introducers shall be deemed to be
participants in the relevant Annual Pool to the extent of their
Investment Percentage.
5.2.5 In the event that the Introducers Percentage of the Carry Profits
received by the Partnership in relation to an Investment are less
than the Introducers Percentage of the Notional Carried Interest
in respect of such Investment (by reason of the methodology in the
▇▇▇▇▇▇▇▇▇ Capital Partners Europe Partnership Agreements relating
to write-offs, write-downs and realisations at a loss), the
entitlement of the Introducer shall be to the Introducers
Percentage of the Notional Carried Interest. The General Partner
may apply Carry Profits from the relevant realisation or the
subsequent realisation of Investments within the Annual Pool of
which the relevant Investment forms part in satisfaction of the
balance of the Introducers Percentage of the Notional Carried
Interest on the relevant Investment not previously met by the
application of Carry Profits (provided always that the entitlement
shall never exceed the Investors Percentage of the Notional
Carried Interest) and such application of the Carry Profits on the
subsequent realisation shall reduce the Annual Pool Percentage of
the relevant Investment being realised. In addition, if there are
no subsequent realisations
15
within the Annual Pool which, in the reasonable discretion of the
General Partner, are likely to give rise to Carry Profits, the
General Partner may apply Carry Profits previously distributed to
participants in the Annual Pool in satisfaction of the Notional
Carried Interest in relation to the relevant Investment and may
transfer amounts from the Gain Sub-Accounts of the participants in
the Annual Pool accordingly (subject to making any adjustments
which it may determine are necessary to ensure that the tax
liabilities of participants in the Annual Pool are dealt with in
an equitable manner).
5.2.6 Any Limited Partner, other than Introducers in accordance with the
provisions of Clause 5.2.4 above, admitted to the Partnership
pursuant to Clause 3 shall at the earliest (subject to the
provisions of Clause 5.2.7 below) be allocated Carry Profit Points
in respect of the Annual Pool commencing after the relevant
Limited Partner's Admission Date (and shall participate in Carry
Profits arising in respect of such Annual Pool and thereafter (in
each case assuming that the General Partner determines to allocate
Carry Profit Points in respect of the relevant Annual Pool)). On
or before the first Accounting Date on which the new Limited
Partner is awarded Carry Profit Points, the relevant Limited
Partner will be required to contribute an amount of Carry
Contribution calculated pursuant to Clause 5.1.
5.2.7 Notwithstanding anything in this Agreement to the contrary, the
General Partner may determine, in its sole discretion, to reserve
a portion of the Carry Profit Points in relation to any Annual
Pool (the "Reserved Carry Points"). The Reserve Carry Points shall
initially be allocated to the General Partner, but it may
(although it is not obliged to do so) choose to reallocate all or
part of the Reserved Carry Points at any time prior to 31 December
of the year in respect of which the Reserved Carry Points
initially fell to be allocated. The General Partner shall not be
obliged to reallocate Reserved Carry Points and in particular may
choose not to do so where it determines that there are specific
tax or other reasons why such allocation should not be made (and,
for the avoidance of doubt, this may include circumstances in
which it determines that the Carried Interest in respect of the
Annual Pool has value). In the event that the Reserved Carry
Points are re-allocated pursuant to the provisions of this Clause
5.2.7, Part 1 of the Schedule shall be updated to reflect the
reallocation. Following such reallocation, participants in the
Annual Pool will be entitled to participate in Carry Profits
arising in respect of such Annual Pool according to their revised
Carry Profit Sharing Percentages. Reserved Carry Points can be
allocated to existing participants in the Annual Pool, to
Introducers or to new Limited Partners, providing in each case
that the provisions of Clause 5.1.5 are complied with.
5.2.8 Following the allocation of Carry Profit Points to Partners
pursuant to the provisions of this Clause 5.2, Part 1 of the
Schedule shall be updated by the General Partner to record the
Carry Profit Points awarded to each Partner in relation to the
Annual Pools in which they are participating and their respective
Carry Profit Sharing Percentages in respect of such Annual Pools.
5.3 ALLOCATION OF CARRY PROFITS
5.3.1 Carry Profits relating to any Investment shall be allocated to the
Introducers of such Investment according to the relevant
Introducers Percentage and to the Annual Pool of which such
Investment forms part according to the Annual Pool
16
Percentage. Such Carry Profits shall be allocated as soon as
practicable following receipt.
5.3.2 Carry Profits arising in respect of an Annual Pool shall be
allocated between Partners participating in such Annual Pool as
soon as practicable following receipt.
5.3.3 The allocation, as between Partners, of Carry Profits arising in
respect of any Annual Pool shall be calculated according to the
Carry Profit Sharing Percentage of the Partners in respect of the
relevant Annual Pool.
5.4 MAINTENANCE OF CARRIED INTEREST REVENUE ACCOUNTS
The Partnership shall open and maintain a revenue account in
respect of each Annual Pool showing all its receipts (including
income and capital) of Carried Interest from ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe in respect of Investments forming part of such
Annual Pool and any expenses or losses it incurs in respect of
such Investments in its capacity as the carried interest partner
(each a "Carried Interest Revenue Account"). The General Partner
may determine that it will designate a separate sub-account within
each Carried Interest Revenue Account in respect of the individual
Investments forming part of the relevant Annual Pool, and will do
so in circumstances where an Introducers Percentage has been
awarded in respect of such Investment. All such receipts of
Carried Interest relating to an Annual Pool shall be credited to
the Carried Interest Revenue Account relating to such Annual Pool.
5.5 MAINTENANCE OF CARRY MEMORANDUM ACCOUNTS
In addition, each of the Partners participating in the Carry
Profits relating to any Annual Pool or Investment (as applicable)
shall have an account in respect of such Annual Pool or Investment
(as applicable) (a "Carry Memorandum Account") to which Carried
Interest allocated to such Partner (pursuant to Clause 5.3) will
be credited. Amounts credited to the Carry Memorandum Accounts of
Partners shall be debited to the relevant Carried Interest Revenue
Account of the Partnership in respect of the applicable Annual
Pool. All entries on the Carry Memorandum Accounts of the Partners
shall be made in order of allocation of Carried Interest and a
cumulative total shall be kept following each entry of the balance
on each Partner's Carry Memorandum Accounts. Distributions made to
any Partner in respect of Carried Interest arising in relation to
an Annual Pool (or any payments into the Investment Accounts of
any Partner pursuant to Clause 5.6) shall be debited to the
applicable Carry Memorandum Accounts of Partners.
5.6 DISTRIBUTIONS
5.6.1 All available funds arising in respect of Carry Profits in
relation to any Investment shall be distributed to Introducers and
to the participants in the relevant Annual Pool at such time as
the General Partner shall in its sole discretion determine,
subject to the provisions of Clause 5.6.2 below.
5.6.2 Notwithstanding the above, at least 40% of the Carry Profits to
which a Partner is entitled by reason of his participation in an
Annual Pool (subject to the provisions of Clause 5.7) shall be
distributed to such Partner and up to 60% of such Carry Profits
shall be retained by the Partnership in the Partner's Investment
17
Account, which shall be operated pursuant to the provisions of
Clause 7 (in each case as the General Partner determines in its
sole discretion).
5.7 LEAVER PROVISIONS
5.7.1 In the event that any Limited Partner becomes a Leaver (whether
such Limited Partner is classified as a Good Leaver or Bad
Leaver), such Limited Partner shall no longer receive any new
allocations of Carry Profit Points in respect of any Annual Pool
and such Limited Partner's Carry Profit Points in respect of any
Annual Pools in which the relevant Limited Partner is
participating shall be subject to reduction or forfeiture in
accordance with this Clause 5.7. Subject to Clause 5.7.2, upon the
complete liquidation of all Investments held within any Annual
Pool in which the relevant Limited Partner who is a Leaver is
participating, such Limited Partner shall cease to be a Partner in
the Partnership and shall not be entitled to further distributions
of Carry Profits.
5.7.2 In the event that a Limited Partner becomes a Leaver in
circumstances constituting him as a Bad Leaver, the relevant
Limited Partner shall immediately forfeit all Carry Profit Points
held in respect of each Annual Pool in which such Limited Partner
is participating (and, for the avoidance of doubt, such Limited
Partner shall not be entitled to any further allocation of Carry
Profits). In the event that a Leaver is, on his Departure Date (or
subsequently) classified as a Bad Leaver, and has his Carry Profit
Points forfeited:
5.7.2.1 the relevant Limited Partner shall cease to be a Limited
Partner in the Partnership and shall be paid the amount
standing to the Credit of his Carry Contribution
Account; and
5.7.2.2 the Carry Profit Points allocated to such Limited
Partner in respect of each Annual Pool in which he was
participating shall be re-allocated according to the
provisions of Clause 5.8.
5.7.3 In the event that a Limited Partner becomes a Good Leaver and any
of the following circumstances apply:
5.7.3.1 such Limited Partner (or the Related Executive of such
Limited Partner) ceases to be an Executive by reason of
permanent disability (as determined by the General
Partner and Greenhill);
5.7.3.2 subject to Clause 5.9, such Limited Partner (or the
Related Executive of such Limited Partner) ceases to be
an Executive by reason of death;
5.7.3.3 such Limited Partner (or the Related Executive of such
Limited Partner) ceases to be an Executive by reason of
Retirement;
5.7.3.4 such Limited Partner (or the Related Executive of such
Limited Partner) ceases to be an Executive by reason of
termination of employment without Cause (as determined
by the General Partner in its sole discretion) within
two years following the occurrence of a Change in
Control or upon termination of employment without Cause
(as determined by the General Partner in its sole
discretion) six months prior to the occurrence
18
of a Change in Control if the General Partner, acting
reasonably and in good faith, that such termination was
at the behest of the acquiring entity;
5.7.3.5 such Limited Partner (or the Related Executive of such
Limited Partner) ceases to be an Executive by reason of
Constructive Discharge; or
5.7.3.6 such Limited Partner becomes a Leaver in such other
circumstances as the General Partner acting in its sole
discretion deems appropriate
such Limited Partner shall be entitled to retain all Carry Profit
Points in respect of each Annual Pool in which he was
participating at his Departure Date and participate in all Carry
Profits arising in respect of such Annual Pool in the proportion
determined according to the provisions of this Agreement.
5.7.4 In the event that any Limited Partner becomes a Leaver and is
classified as a Good Leaver (other than in the circumstances set
out in Clause 5.7.3) the relevant Limited Partner shall retain his
Relevant Proportion of the Carry Profit Points of each Annual Pool
in which he is participating (and shall be entitled to receive
Carry Profits arising in relation to such retained Carry Profit
Points). The Relevant Proportion shall be calculated separately in
relation to each Annual Pool in which the relevant Limited Partner
is participating and in respect of each Annual Pool shall be as
follows:
5.7.4.1 25% of his Carry Profit Points on 1 January following
the year in which Investments comprised in the
applicable Annual Pool were made;
5.7.4.2 50% of his Carry Profit Points on 1 January of the
second year following the year in which Investments
comprised in the applicable Annual Pool were made;
5.7.4.3 75% of his Carry Profit Points on 1 January of the third
year following the year in which Investments comprised
in the applicable Annual Pool were made; and
5.7.4.4 100% of his Carry Profit Points on 1 January of the
fourth year following the year in which Investments
comprised in the applicable Annual Pool were made
PROVIDED THAT a Limited Partner will be vested with respect to
100% of any Carry Profits attributable to an Investment to the
extent realised prior to the relevant Limited Partner's Departure
Date. The Carry Profit Points of any Limited Partner which have
not vested on his Departure Date shall be reallocated as provided
in Clause 5.8.
5.8 In the event that Carry Profit Points awarded to any Limited
Partner participating in an Annual Pool become available for
reallocation, such Carry Profit Points shall, unless otherwise
determined by the General Partner in its discretion, be allocated
to the other Partners participating in such Annual Pool on a pro
rata
19
basis according to the Carry Profit Points they hold in relation
to such Annual Pool.
5.9 In the event of the death of a Limited Partner who is an
Executive, such Limited Partner shall cease to be a Limited
Partner in the Partnership and such Limited Partner's heirs,
executors, administrators or other representatives (as applicable)
shall be admitted to the Partnership as a Limited Partner in place
of the deceased Limited Partner. The General Partner shall furnish
to such Limited Partner being admitted to the Partnership pursuant
to this Clause such information relating to the Partnership's
affairs as such Limited Partner shall reasonably request in order
to enable such Limited Partner to prepare and file tax returns and
conduct audits or other proceedings relating to such tax returns.
5.10 In the event that an Introducer who is awarded an Introducers
Percentage (or part thereof) in relation to any Investment becomes
a Leaver, the provisions of this Clause 5 (in so far as they apply
to Leavers) shall apply to the Introducer in respect of his
Introducers Percentage in the same manner as if he were a
participant in an Annual Pool and his Introducers Percentage were
Carry Profit Points, provided that in the event that all or any
part of the Introducers Percentage would fall to be reallocated,
it may be reallocated to the General Partner or to the Annual Pool
in respect of which the Investment forms part (and such
re-allocation shall be determined in the sole discretion of the
General Partner).
5.11 CLAWBACK OBLIGATION
5.11.1 In the event that a return of cash to ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe is required to satisfy the provisions of the ▇▇▇▇▇▇▇▇▇
Capital Partners Europe Partnership Agreements (the "Clawback
Obligation"), the Partnership shall satisfy the Clawback
Obligation first by applying the Clawback Obligation against
participants in the Annual Pools on the following basis:
5.11.1.1 first by payment from each Partner's Investment Account
based on the relevant Partner's Pro Rata Share of the
Clawback Obligation; and
5.11.1.2 then each Partner shall be required to make a payment
pursuant to Clause 5.11.2 in an amount equal to such
Partner's Pro Rata Share of the Clawback Obligation,
less amounts paid pursuant to Clause 5.11.1.1 above.
For the purposes of this Clause 5.11.1, the "Pro Rata Share" of
each Partner shall be determined: (i) first, based on such
Partner's Loss Amount, but never to exceed the aggregate Carry
Profits distributed to such Partner (including amounts held within
the Gain Sub-Account of each Partner's Investment Account) and
(ii) thereafter, with respect to any excess Clawback Obligation
existing after the application of (i) of this definition, then
based on the aggregate Carry Profits distributed to each Partner
including amounts held in such Partner's Gain Sub-Accounts after
giving effect to (i) of this definition.
To the extent that the Clawback Obligation cannot be satisfied in
full by the Participants in the Annual Pool, then each Introducer
shall be required to make a
20
payment up to the Clawback Obligation pursuant to Clause 5.11.2
pro rata to the aggregate Carry Profits distributed to each
Introducer.
5.11.2 The obligations in Clause 5.11.1 shall be subject to the following
limitations:
5.11.2.1 the maximum amount that may be required to be returned
by any Partner or former Partner pursuant to the
provisions of Clause 5.11.1 shall be equal to the lesser
of:
(i) the aggregate amount of cash distributed to the
Partner or former Partner by way of Carried
Interest together with the aggregate value (as
determined pursuant to the ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe Partnership Agreements) of any
assets of the Partnership which have been
distributed in specie to that Partner or former
Partner, in each case net of any taxes paid or
payable in respect thereof (whether by that
Partner or former Partner or another person) and
not recoverable;
(ii) the amount determined in respect of that Partner
or former Partner pursuant to Clause 5.11.1; and
(iii) the aggregate amount of cash distributed to that
Partner or former Partner as Carried Interest
together with the aggregate value (at the date of
the termination of the Fund) of any assets which
have been distributed in specie to that Partner or
former Partner or (if any of such assets have been
sold at a higher price) the proceeds of sale of
such assets, in each case such aggregate amount
shall be net of any taxes paid or payable in
respect thereof (whether by that Partner or former
Partner or another person) and not recoverable;
5.11.2.2 the liability of each of the Partners or former Partner
pursuant to Clause 5.11.1 shall be several; and
5.11.2.3 the General Partner will use all reasonable endeavours
to procure that each Partner or former Partner repay all
monies properly repayable to the Partnership pursuant to
and in accordance with the provisions of this Agreement.
5.11.3 The several liability (referred to in Clause 5.11.2.2 and defined
in Clause 5.11.4 below) of each of the Partners or former Partners
shall continue until any repayment required by the provisions of
this Clause 5.11 have been made notwithstanding that the Partner
may at such time have ceased to be a limited partner of the
Partnership.
5.11.4 For the purposes of Clause 5.11.2.2 above, the expression
"several" shall mean that each Partner or former Partner shall be
liable only to the extent of the amount repayable by such Partner
or former Partner under the provisions of Clauses 5.11.1 and
5.11.2 above and shall not, in any circumstances, be liable for
the amounts (or any part thereof) repayable by any of the other
Partners or former Partners under the provisions of Clauses 5.11.1
and 5.11.2 above.
21
6 FINANCIAL PROVISIONS IN RELATION TO THE PARTNERSHIP AS AN INVESTOR
IN ▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS EUROPE
6.1 INVESTMENT CONTRIBUTIONS
6.1.1 The Partners have agreed to advance, in aggregate, their
Investment Contributions to the Partnership in the proportions set
out in Part 1 of the Schedule or as separately notified to each
Partner by the General Partner. The aggregate Investment
Contributions of all the Partners shall be not less than (pound)25
million. In the event that prior to the final closing of ▇▇▇▇▇▇▇▇▇
Capital Partners Europe, a Partner makes an additional commitment
to invest in ▇▇▇▇▇▇▇▇▇ Capital Partners Europe, such Partner shall
make an additional Investment Contribution (and corresponding
Investment Commitment) in respect of the additional amounts of
capital contribution (and loan commitment) which the Partnership
will be required to advance to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe.
6.1.2 Each Partner making an Investment Contribution to the Partnership
shall have an account (an "Investment Contribution Account") to
which their respective Investment Contributions shall be credited.
6.1.3 The Investment Contributions shall not carry interest.
6.1.4 In the event that a Limited Partner making an Investment
Contribution to the Partnership becomes a Leaver, and the
Investment Sharing Percentage of such Limited Partner is
accordingly reduced pursuant to Clause 6.11, the relevant Limited
Partner shall transfer to the relevant person acquiring the
interest a proportion of his Investment Contribution equal to the
proportion by which his Investment Sharing Percentage is reduced.
Such transfer shall be at par value. Each of the Limited Partners
holding an Investment Contribution hereby irrevocably appoints the
General Partner as his attorney to execute any deeds or other
documents and to perform any and all acts required in order to
give effect to such transfer.
6.1.5 Where a Limited Partner has made a direct commitment to either
▇▇▇▇▇▇▇▇▇ Capital Partners Europe, L.P. or ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe (Employees) L.P., the General Partner may, in its
sole discretion, determine that all or a portion of such
commitment should be channelled through the Partnership. In the
event that such determination is made, the relevant Limited
Partner will be deemed to have made an Investment Contribution and
Investment Commitment equal to the portion of the commitment which
is determined should be made through the Partnership and the
provisions of this Clause 6 shall apply to such Investment
Contribution and Investment Commitment.
6.2 INVESTMENT COMMITMENT
6.2.1 Each Partner shall be required to advance to the Partnership their
Investment Commitment. Such Investment Commitment shall be
advanced in such tranches as shall be determined by the Manager
(on not less than 3 Business Days' notice). The General Partner
shall draw down loans from the Partners pro rata to their
respective Investment Funding Percentages from time to time. Each
Partner holding an Investment Commitment shall be required to
re-advance such Investment Commitment if the Partnership is itself
required to advance or re-
22
advance monies to ▇▇▇▇▇▇▇▇▇ Capital Partners Europe pursuant to
the provisions of the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe
Partnership Agreements. Each Partner making an Investment
Commitment to the Partnership shall have an account (an
"Investment Commitment Account") in relation to each Investment in
respect of which a draw down of Investment Commitment is made to
which their respective Investment Commitment in respect of such
Investment shall be debited.
6.2.2 In the event that a Partner fails to advance to the Partnership
the amount which is the subject of a draw down notice issued
pursuant to Clause 6.2.1 on or before the expiry of such drawdown
notice, then such Partner shall be required to remedy such default
and to pay interest to the Partnership on the amount outstanding
for the period from the date of expiry of the drawdown notice up
to the date of payment thereof at the rate of 10% per annum, on or
before the expiry of 30 days' notice from the General Partner
requiring the Partner so to do.
6.2.3 Loans advanced to the Partnership in respect of the Investment
Commitment shall not carry interest.
6.3 INVESTMENT FUNDING PERCENTAGES
The Investment Funding Percentage of each Partner in relation to
any Investment shall be calculated by determining his Investment
Contribution as a percentage of the aggregate Investment
Contributions made by the Partners at the date the Investment was
made.
6.4 CALCULATION OF INVESTMENT SHARING PERCENTAGES
The Investment Sharing Percentage of each Partner making an
Investment Commitment in relation to any Investment shall be
calculated by determining his Investment Commitment drawn down in
respect of such Investment as a percentage of the aggregate
Investment Commitments drawn down from all Partners participating
in such Investment at the date the Investment was made.
6.5 ALLOCATION OF INVESTMENT PROFITS
6.5.1 Investment Profits arising in respect of any Investment shall be
allocated among the Partners participating in such Investment
according to their Investment Sharing Percentages in relation to
such Investment. Investment Profits in relation to an Investment
shall be allocated as soon as reasonably practicable after receipt
and shall first be credited to the applicable Investment
Commitment Accounts of the Partners and thereafter to their
applicable Investment Memorandum Accounts.
6.5.2 To the extent that any losses are allocated to the Partnership
pursuant to the provisions of the ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe Partnership Agreements, such losses shall be allocated
between Partners participating in the Investment giving rise to
the losses in accordance with their Investment Sharing
Percentages.
6.6 MAINTENANCE OF INVESTMENT REVENUE ACCOUNTS
The Partnership shall open and maintain a revenue account in
respect of each Investment (an "Investment Revenue Account")
showing all its receipts (including income and capital) from
▇▇▇▇▇▇▇▇▇ Capital Partners Europe in its
23
capacity as an Investor and any expenses and losses it incurs in
respect of such Investment.
6.7 MAINTENANCE OF INVESTMENT MEMORANDUM ACCOUNTS
In addition, each Partner having an Investment Commitment in
respect of an Investment to which Investment Profits allocated to
such Partner pursuant to this Clause 6 shall be credited. In the
event that losses are allocated to a Partner pursuant to the
provisions of Clause 6.5.2 above, appropriate debits shall be made
to the Investment Memorandum Accounts of the relevant Partners by
the General Partner. Amounts credited to the Investment Memorandum
Accounts of the Partners participating in an Investment shall be
debited to the Investment Revenue Account of the Partnership in
respect of such Investment. All entries on the Investment
Memorandum Accounts of Partners participating in an Investment
shall be made in the order of receipt of Investment Profits
relating to an Investment and a cumulative total shall be kept
following each entry of the balance on the Investment Memorandum
Accounts of the Partners.
6.8 LEAVER PROVISIONS RELATING TO INVESTMENT COMMITMENTS
6.9 If a Limited Partner becomes a Leaver for any reason then, unless
Clause 6.10 applies:
6.9.1 the Leaver's Investment Funding Percentage shall be reduced to
zero (0);
6.9.2 such Investment Funding Percentage shall be transferred to such
person or persons (and in such proportions) as is nominated by the
General Partner within 30 days of the date on which the Limited
Partner became a Leaver (and in default of such nomination such
Investment Funding Percentage shall be transferred to the General
Partner) provided that such person (if applicable) agrees, in a
form acceptable to the General Partner to be bound by the
provisions of this Agreement mutatis mutandis as if such person
were an original party to, and a Limited Partner under, this
Agreement;
6.9.3 the amount of uncalled Investment Commitment which that Leaver
would have been liable to contribute shall be transferred to the
person or persons specified in Clause 6.9.2 in the same
proportions between themselves as the transfer of such Investment
Funding Percentage;
6.9.4 the Leaver's Investment Sharing Percentage shall be reduced in
accordance with Clause 6.11; and
6.9.5 the amount by which the Leaver's Investment Sharing Percentage is
reduced shall be transferred to the person or persons to whom such
Leaver's Investment Funding Percentage was transferred pursuant to
Clause 6.9.2, in the same proportions between themselves as the
transfer of such Investment Funding Percentage.
6.10 If a Limited Partner becomes a Leaver for any reason then, if such
Limited Partner and the General Partner agree, the Limited Partner
shall transfer his entire Investment Contribution and Investment
Commitment (whether or not paid to the Partnership) to such person
(or persons) nominated by the General Partner and at such price as
the General Partner and the Leaver shall agree (or in the
24
absence of such agreement at cost). Upon such transfer the
Leaver's Investment Funding Percentage and Investment Sharing
Percentage shall be reduced to zero (0). In the event of such
agreement the provisions of Clauses 6.9.1 to 6.9.5 shall not
apply.
6.11 For the purposes of Clause 6.9.4, the amount to which the Leaver's
Investment Sharing Percentage shall be reduced shall be determined
by multiplying the Leaver's Investment Sharing Percentage by a
fraction:
x
--------
x+y , where:
x equals the amount of Investment Commitment actually advanced to
the Partnership (whether or not repaid); and
y equals the maximum amount of uncalled Investment Commitment
which that Leaver would have been liable to advance as at the date
on which he became a Leaver.
7 DISTRIBUTIONS IN SPECIE AND RESTRICTIONS ON DISTRIBUTIONS
7.1 Where the Partnership receives a distribution of assets in specie
in relation to any investment of ▇▇▇▇▇▇▇▇▇ Capital Partners
Europe, the General Partner shall be entitled to make a
distribution in specie of such assets, on the same basis as
distributions of cash from ▇▇▇▇▇▇▇▇▇ Capital Partners Europe, at
the Value attributable to such assets (as determined pursuant to
the ▇▇▇▇▇▇▇▇▇ Capital Partners Europe Partnership Agreements.)
7.2 In accordance with the provisions of Clause 5.6, all available
funds not transferred to a Partner's Investment Account shall be
distributed as soon as practicable following receipt in accordance
with the provisions set out in this Agreement.
7.3 There shall be established, for each Partner holding Carry Profit
Points in respect of an Annual Pool, an Investment Account in
respect of such Annual Pool which shall consist of a gain
sub-account (a "Gain Sub-Account") and a loss sub-account (a "Loss
Sub- Account"). At any time the aggregate balance in a Partner's
Gain Sub-Account shall be such Partner's "Gain Amount" and the
aggregate balance in a Partner's Loss Sub-Account shall be such
Partner's "Loss Amount".
7.4 Amounts in a Limited Partner's Investment Account will be invested
by the Partnership in an interest bearing bank account in the name
of the Partnership and such interest will accrue for the benefit
of the Limited Partner concerned.
7.5 The Gain Sub-Account of each Partner participating in an Annual
Pool shall initially be zero and shall thereafter be adjusted as
follows:
7.5.1 increased by an amount equal to the amount which would, but for
the operation of Clause 5.6, be distributed to the relevant
Partner; and
7.5.2 decreased by amounts distributed to the relevant Partner pursuant
to the provisions of this Clause 7.
25
7.6 The Loss Sub-Account of each Partner participating in an Annual
Pool shall initially be zero and shall thereafter be adjusted as
follows:
7.6.1 increased by an amount equal to 100% of such Partner's Notional
Loss Amount (as determined by the General Partner pursuant to
Clause 7.7) from any Investment in such Annual Pool; and
7.6.2 decreased by amounts distributed in accordance with the provisions
of this Clause 7.
7.7 Upon the write off- or write down of any Investment held by
▇▇▇▇▇▇▇▇▇ Capital Partners Europe or the realisation of any
Investment of Greenhill Capital Partners at a loss, the General
Partner shall determine for each Partner participating in the
relevant Annual Pool a "Notional Loss Amount" relating to such
Investment, using the methodology applicable to the determination
of Carried Interest set forth in the applicable ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe Partnership Agreement and the Carry Profit Points
allocated to the Partner participating in such Annual Pool. In the
event that the write off or write down of an Investment or the
realisation of an Investment at a loss in respect of which an
Introducers Percentage has been awarded, the Introducers
Percentage shall be disregarded and the calculation in this Clause
7.7 will be carried out on the basis that the Annual Pool
Percentage had been 100% in relation to such Investment.
7.8 At the time of each subsequent realisation of an Investment in an
Annual Pool that would have resulted in Carried Interest being
payable without regard to any other Investment in such Annual
Pool, the General Partner shall determine, for each Partner
participating in the Annual Pool, (i) the Gain Amount in such
Partner's Gain Sub-Account and (ii) the Loss Amount in such
Partner's Loss Sub-Account. Upon such determination, an amount
equal to the Loss Amount for each Partner participating in the
relevant Annual Pool shall be distributed to the Partners to the
extent necessary to permit such Partners to receive the Carry
Profit distributions which would have been distributed to them in
the absence of any Notional Loss Amount; provided that such
distribution will not exceed the Gain Amount for such Partner at
the relevant time.
7.9 Subject to the remaining provisions of this Clause 7.9, any
amounts remaining in any Partner's Investment Account relating to
an Annual Pool shall be paid to such Partner after the complete
liquidation of all Investments comprising the Annual Pool.
Notwithstanding that the complete liquidation of all Investments
comprising an Annual Pool may have occurred, each of the Partners
in the Partnership hereby confirms that they recognise that the
Clawback Obligation within ▇▇▇▇▇▇▇▇▇ Capital Partners Europe
operates on a "whole fund" basis and accordingly the General
Partner shall be entitled to retain amounts within the Investment
Accounts of Partners (and not to distribute such amounts) if the
General Partner determines that there is a reasonable chance that
a Clawback Obligation will arise which would need to be satisfied
in whole or in part by such Investors. However, the General
Partner may at any time, acting in its sole discretion, determine
that such amounts held within the Investment Accounts of Partners
are not required in order for the relevant Partner to meet its
payment obligations under the terms of this Agreement and may
accordingly cause such amounts to be distributed.
26
8 ACCOUNTS
8.1 The General Partner shall prepare and approve accounts of the
Partnership in respect of each Accounting Period in accordance
with generally accepted accounting practice in the United Kingdom,
as may be adjusted from time to time at the discretion of the
General Partner in consultation with the Auditors as described in
the accounting policies detailed in the Partnership's Accounts.
The Partnership's accounts shall include a balance sheet, profit
and loss account, cashflow statement, a statement of the GPS
Revenue Account, Carried Interest Revenue Accounts, Investment
Revenue Accounts (and in each case a statement of the movements in
such accounts) and GPS Memorandum Accounts, Carry Memorandum
Accounts and Investment Memorandum Accounts of each Partner (as
applicable) and a summary of movements in such accounts.
8.2 A set of the accounts and a statement of accounting policies shall
be furnished to each Partner as soon as reasonably practicable
following the end of each Accounting Period.
8.3 The General Partner shall, on reasonable notice being given by any
Partner, make available to that Partner a copy of his GPS
Memorandum Account (if applicable), Carry Memorandum Accounts,
Investment Memorandum Accounts and Investment Accounts.
8.4 The General Partner shall, upon the request of any Limited
Partner, promptly furnish to that Limited Partner, at the expense
of the Partnership, such information in the General Partner's
possession as the Limited Partner may reasonably request to enable
such Limited Partner: (i) to file tax returns and reports or
answer enquiries from tax authorities, and (ii) to meet its
reporting obligations, and (iii) to furnish information to any of
its partners for the purposes set out in (i) and (ii). In the
event that a Limited Partner requires information for these
purposes which is not in the possession of the General Partner,
the General Partner will use reasonable endeavours to obtain such
information provided that all reasonable costs properly incurred
by the General Partner in so doing shall be borne by the Limited
Partner making the request.
9 RIGHTS AND DUTIES OF THE GENERAL PARTNER
9.1 APPOINTMENT OF A MANAGER
9.1.1 The General Partner shall be responsible for ensuring that the
Partnership is always managed and operated by an appropriate
Authorised Person. The General Partner, and each succeeding
general partner of the Partnership shall procure, for so long as
it remains the general partner of the Partnership, that an
Associate, which is then an appropriate Authorised Person, shall
agree to act as the manager of the Partnership on terms to be
agreed by the General Partner from time to time (provided that the
terms upon which any manager shall be appointed to act for the
Partnership by the General Partner shall include a provision
whereby the appointment of the manager shall terminate immediately
upon the General Partner ceasing to be the general partner of the
Partnership for any reason).
9.1.2 The General Partner, acting on behalf of the Partnership, shall
have full discretion and authority to select and/or terminate the
appointment of any manager subject to Clause 9.1.1. If appointed,
the manager shall manage or
27
operate the Partnership, and shall manage the assets of the
Partnership on a discretionary basis. The appointment of the
Manager shall be without further charge to the Partnership. The
General Partner shall accordingly be responsible for procuring the
payment of the fees of the Manager and the Manager shall have no
rights against the Partnership or any of the Limited Partners in
respect of such fees.
9.1.3 Notwithstanding anything in this Agreement to the contrary, the
General Partner shall not do or be authorised to do anything
(including acting or offering or agreeing to act as Manager) which
might breach the provisions of the Limited Partnerships ▇▇▇ ▇▇▇▇
or constitute a regulated activity for the purposes of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ unless it is authorised by
the Financial Services Authority to do so.
9.1.4 The Partners hereby confirm that the General Partner ▇▇▇▇▇▇▇▇▇
Capital Partners Europe LLP (a limited liability partnership
authorised to carry on regulated activities in the UK and, in
particular, to act as a manager of limited partnerships) shall be
the first manager of the Partnership.
9.2 RESTRICTION ON THE LIMITED PARTNERS
9.2.1 The Limited Partners shall take no part in the operation of the
Partnership or the management or control of its business and
affairs, and shall have no right or authority to act for the
Partnership or to take any part in or in any way to interfere in
the conduct or management of the Partnership or to vote on matters
relating to the Partnership other than as provided in the Act or
as set forth in this Agreement but they shall have access to and
the right to inspect the books and accounts of the Partnership.
9.2.2 Save as otherwise provided in this Agreement, and for the
avoidance of doubt, each Partner hereby agrees and consents that
no Partner shall be required to account to the Partnership for any
benefit derived by it or its Associates from any transaction
concerning the Partnership.
9.3 AUTHORITY AND POWERS OF THE GENERAL PARTNER/MANAGER
The General Partner (or any Manager appointed by it) shall have the
power and authority to do all things necessary to carry out the
purposes of the Partnership and shall devote as much of its time
and attention thereto as shall reasonably be required for the
management of the business of the Partnership and shall carry on
and manage the same with the assistance from time to time of
agents, servants or other employees of the Partnership as it shall
deem necessary.
9.4 GENERAL PARTNER'S SHARE
9.4.1 Notwithstanding any allocation of GPS Profit Points pursuant to
Clause 4, the General Partner shall be entitled to receive and
there shall be allocated to the General Partner, as a first charge
on GPS Profits of the Partnership, an amount equal to (pound)1,000
per annum (the "General Partner's Share") which shall be paid
quarterly in advance. If the GPS Profits in any Accounting Period
shall be less than the General Partner's Share any deficiency may
be paid to the General Partner as an interest free loan, but such
payment shall not extinguish the amount of the General Partner's
Share outstanding which shall be carried forward to
28
subsequent Accounting Periods, and such loans will be discharged
when the Partnership has received sufficient GPS Profits so to do.
9.4.2 Amounts in respect of the General Partner's Share shall be
credited to the GPS Memorandum account of the General Partner.
9.4.3 On the incurring of any expenditure of the Partnership, such
expenditure shall be debited to the GPS Memorandum Account of the
General Partner only.
10 ASSIGNATION OF INTERESTS
10.1 No sale, assignation, agreement, transfer, exchange, pledge,
encumbrance or other disposition ("Transfer") of any Limited
Partner's Interest, whether voluntary or involuntary shall be
valid or effective save with the consent of the General Partner
(other than where a Limited Partner becomes a Leaver by reason of
his death). The General Partner shall have complete discretion as
to whether to withhold its consent in relation to any proposed
Transfer, and, for the avoidance of doubt shall withhold its
consent in circumstances which do not fall within Clause 10.5. The
General Partner may require an Introducer being admitted to the
Partnership as a Limited Partner, as a condition of his admission
to the Partnership, to acquire such part of the Interest of
▇▇▇▇▇▇▇▇▇ & Co Europe Limited (in respect of its Investment
Contribution and Investment Commitment) as it may in its sole
discretion determine.
10.2 On the Transfer of any Limited Partner's Interest, the
transferring Limited Partner shall execute an agreement, in such
form as the General Partner shall in its reasonable discretion
determine, confirming that he or it shall remain liable to the
Partnership as a Partner to the extent set out in Clause 5.10.
10.3 The General Partner shall not Transfer all or any part of its
interest as General Partner of the Partnership or voluntarily
withdraw or resign as the general partner of the Partnership
without the consent of Limited Partners by a Limited Partners'
Consent. Notwithstanding this, the General Partner shall be
entitled to transfer its Interest without the consent of the
Limited Partners to any company which is an Associate of the
Manager or Greenhill.
10.4 The Transfer of any Interest shall not cause the dissolution of
the Partnership.
10.5 The General Partner shall retain complete discretion as to whether
to consent to any proposed Transfer including in the following
circumstances:-
10.5.1 in the case of a Limited Partner who is a trustee, to the
Executive or a Privileged Relation of the Executive who has the
beneficial interest in the Interest or to the trustee of a new
Family Trust of the relevant Executive;
10.5.2 in the case of a Limited Partner who is an Executive, to a
Privileged Relation of that Executive or to the trustee of a
Family Trust of such Executive;
10.5.3 in the case of any other person to whom an Interest has been
transferred pursuant to Clauses 10.5.1 or 10.5.2 above, to a
Privileged Relation of, or the trustee of an Family Trust of, the
relevant Executive; or
29
10.5.4 in the case of a Limited Partner which is a body corporate holding
the Interest for itself beneficially to any Associate;
provided in each case that the transferring Limited Partner and
the transferee execute (and deliver to the General Partner) a
document, in such form as may be agreed by the General Partner,
confirming that the transferee will be bound by the terms of this
Agreement as if it were a party hereto.
10.6 The General Partner shall be required to notify any transfer of
Capital Contribution made pursuant to the provisions of this
Agreement to the Registrar of Limited Partnerships and to effect
the requisite entry in the Gazette.
11 MEETINGS
11.1 TIMING OF MEETINGS
11.1.1 The General Partner may (but is not obliged to) convene a general
meeting of the Partnership at the principal place of business of
the Partnership or such other place in Scotland as the General
Partner may determine as an annual general meeting in each
calendar year in addition to any other meetings held in that year,
and shall specify the meeting as such in the notice calling it.
11.1.2 All general meetings other than annual general meetings shall be
called extraordinary general meetings.
11.1.3 The General Partner may, whenever it thinks fit, convene an
extraordinary general meeting. An extraordinary general meeting
shall also be convened upon the requisition or of the Limited
Partners by a Limited Partners' Consent.
11.1.4 Only Partners as at the date on which a general meeting of the
Partnership is convened shall be entitled to receive notice of,
and vote at, such a general meeting.
11.2 NOTICE
11.2.1 Annual general meetings shall be called by 21 days notice in
writing at the least, and any other general meeting shall be
called by 14 days notice in writing at the least. The notice shall
be exclusive of the day on which it is served or deemed to be
served and of the day for which it is given and shall specify the
place, the day and the hour of the meeting, the details of the
resolutions to be proposed and the general nature of any other
business to be conducted. No business or resolutions shall be
conducted at or put to the meeting unless the business and
resolutions are set out in the notice or otherwise agreed in
writing by all of the Limited Partners. Provided that the general
meeting shall, notwithstanding that it is called by shorter notice
than that specified in this Clause, be deemed to have been duly
called if it is so agreed in writing by all the Partners.
11.2.2 The accidental omission to give notice of a meeting or the
non-receipt of a notice of a meeting by any Partner shall not
invalidate the proceedings at the meeting.
11.3 QUORUM
30
11.3.1 No business shall be transacted at any general meeting unless a
quorum of Partners is present at the time when the meeting
proceeds to business. Save as herein otherwise provided, three
Partners present in person or by proxy or by authorised corporate
representative shall be a quorum, of which one shall be the
General Partner and the others shall be Limited Partners.
11.3.2 If within half an hour from the time appointed for the meeting a
quorum is not present, it shall stand adjourned to the same day in
the next week at the same time and place or to such other day and
such other time and place as the General Partner may determine
(provided that, unless otherwise agreed in writing by all of the
Limited Partners, written notice of such other day, time and/or
place has been received by all Limited Partners within three
Business Days of the date on which the adjourned meeting is to
take place) and if at the adjourned meeting a quorum is not
present within half an hour from the time appointed for the
meeting, the Partners present shall be a quorum. For the avoidance
of doubt, only the business or resolutions set out in the notice
convening the original meeting at which a quorum was not present
shall be conducted at or put to any adjourned meeting unless
otherwise agreed in writing by all of the Limited Partners.
11.4 CHAIRMAN
11.4.1 The chairman of the General Partner shall preside as chairman of
every general meeting of the Partnership or, if he is not present
or is unwilling to act, the directors of the General Partner shall
elect one of their number to be chairman of the meeting.
11.4.2 The chairman of the meeting may, with the consent of any meeting
at which a quorum is present (and shall if so directed by the
meeting) adjourn the meeting from time to time and from place to
place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting
from which the adjournment took place.
11.5 VOTING
At any general meeting a resolution put to the vote of the meeting
shall be passed if it receives as votes in favour the votes of
such number of the Limited Partners as are present at the meeting
in person or by proxy or by duly authorised corporate
representative whose share of the aggregate amount of Carried
Interest Contributions of those other Limited Partners present and
voting at the meeting represents at least 50 per cent. of that
amount.
11.6 PROVISIONS OF THE COMPANIES ACT 1985
Save as otherwise provided in this Clause, the provisions of the
Companies ▇▇▇ ▇▇▇▇ and of Table A to the Companies (Tables A to F)
Regulations 1985 (as amended so as to have effect for companies
first registered on the date of this Agreement) shall apply to the
holding of meetings and all matters incidental thereto as if the
Partnership were a company and the General Partner were the
directors of that company.
31
12 TERMINATION AND LIQUIDATION
12.1 The death, bankruptcy, sequestration, insolvency, dissolution or
liquidation of a Limited Partner shall not operate to terminate
the Partnership and the estate or trustee in bankruptcy or
receiver or liquidator of a deceased, bankrupt, insolvent or
dissolved Limited Partner shall not have the right to withdraw the
balances on such Limited Partner's GPS Memorandum Account (if
any), Carry Memorandum Accounts, Investment Memorandum Accounts
and Investment Accounts prior to such time as the amounts would
otherwise be distributed pursuant to the terms of this Agreement.
12.2 The Partnership shall terminate 90 days after termination of all
partnerships in which the Partnership is a partner or shall
terminate prior to such date upon the happening of any of the
following events:
12.2.1 the bankruptcy, sequestration, insolvency, dissolution or
liquidation of the General Partner; or
12.2.2 the agreement of the General Partner and of the Limited Partners
by a Limited Partners' Consent.
12.3 If the Partnership is terminated pursuant to Clause 12.1.1, the
Partnership may be reconstituted as a new partnership with a new
general partner and its business continued with the sanction of a
Limited Partners' Consent, which consent must be obtained within
60 days after all Partners have been notified of the event of
termination, whereupon the existing General Partner shall cease to
be the General Partner.
12.4 In the event of a termination of the Partnership, no further
business shall be conducted except for such action as shall be
necessary for the winding-up of the affairs of the Partnership and
the distribution of the assets of the Partnership amongst the
Partners. Notwithstanding the dissolution of the Partnership, the
powers of the General Partner shall continue, insofar as may be
necessary to wind up the affairs of the Partnership, and to
complete transactions begun but unfinished at the time of the
dissolution, provided however that if the Partnership is dissolved
by reason of the insolvency, liquidation or dissolution of the
General Partner, the Limited Partners shall apply to the Court for
the appointment of a judicial factor to wind up the affairs of the
Partnership.
12.5 Upon dissolution of the Partnership, all remaining proceeds and
assets after payment of all debts, obligations and liabilities of
the Partnership and all costs of dissolution, shall be distributed
amongst the Partners and the General Partner on the basis set out
in this Agreement. In addition, all Partners shall be paid the
amount standing to the credit of their Carry Contribution Accounts
and Investment Contribution Accounts.
13 MISCELLANEOUS
13.1 NON-EXCLUSIVITY
The functions and duties which the General Partner and the Manager
(if any) undertake on behalf of the Partnership shall not be
exclusive and the General Partner and the Manager (if any) may
perform similar functions and duties for
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others and may engage in any other activity provided however that
the General Partner or the Manager (if any) continue properly to
manage the affairs of the Partnership.
13.2 LIABILITY AND INDEMNITY 13.2.1 No Indemnified Person shall be
liable to the Partnership or to the Partners for any losses,
claims, damages or liabilities arising from, or related to, or in
connection with this Agreement, the Partnership's business or
affairs (including any act or omission by any Indemnified Person
and any activity of the type covered in the ▇▇▇▇▇▇▇▇▇ Capital
Partners Europe Partnership Agreements and no such activity will
in and of itself constitute a breach of any duty owed by any
Indemnified Person to the Partnership or the Partners) except for
any losses, claims, damages or liabilities resulting from such
Indemnified Person's gross negligence or wilful misconduct or, in
the case of the Manager, arising from any material breach of any
applicable FSA Rules or any provision of FSMA binding upon it.
13.2.2 The Partnership shall, to the fullest extent permitted by
applicable law, indemnify and hold harmless each Indemnified Party
against any losses, claims, damages or liabilities arising out of
or in connection with this Agreement or the Partnership's business
and affairs, except for any such losses, claims, damages or
liabilities resulting from such Indemnified Party's gross
negligence or wilful misconduct or, in the case of the Manager,
arising from any material breach of any applicable FSA Rules or
any provision of FSMA binding upon it. The Partnership will
periodically reimburse each Indemnified Party for all expenses
(including fees and expenses of counsel) as such expenses are
incurred in connection with investigating, preparing, pursuing or
defending any proceedings related to or arising out of or in
connection with this Agreement or the Partnership's business and
affairs whether or not pending or threatened provided that such
Indemnified Party shall promptly repay to the Partnership the
amount of any such reimbursed expenses paid to it if it shall be
judicially determined by judgment or order not subject to further
appeal or discretionary review that such Indemnified Party is not
entitled to be Indemnified by the Partnership in connection with
such matter. If for any reason (other than gross negligence or
wilful misconduct of such Indemnified Party or, in the case of the
Manager, arising from any material breach of any applicable FSA
Rules or any provision of FSMA binding upon it) the foregoing
indemnification is unavailable to the Indemnified Party, or is
insufficient to hold it harmless, then the Partnership shall
contribute to the amount paid or payable by such Indemnified Party
as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative benefits
received by the Partnership on the one hand and such Indemnified
Party on the other hand, or, if such allocation is not permitted
by applicable law, to reflect not only the relative benefits
referred to above but also any other relevant equitable
considerations.
13.2.3 Each Partner covenants for itself and its successors, assignees,
heirs and personal representatives that such person will, at any
time prior to or after the dissolution of the Partnership, whether
before or after such person's withdrawal from the Partnership, pay
to the Partnership or the General Partner on demand any amount
which the Partnership or the General Partner, as the case may be,
properly pays in respect of taxes (including withholding taxes)
imposed upon income of, or distributions in respect of,
Investments made to such Partner. The General Partner or the
General Partner shall provide any Limited Partner with all
relevant information in its possession relating to such payment of
taxes.
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13.2.4 In the event that any Limited Partner initiates any proceedings
against the Partnership, the General Partner, the Manager,
Greenhill or any of its Associates and a judgment or order not
subject to further appeal or discretionary review is rendered in
respect of such proceedings for the Partnership, the General
Partner, the Manager or Greenhill or any of its Associates, as the
case may be, such Limited Partner shall be solely responsible for
all costs and expenses of the Partnership, the General Partner,
the Manager or Greenhill or such Associate, as the case may be
attributable thereto and shall pay such amounts in cash to the
persons incurring such costs and expenses within 90 days after the
entry of such judgment or order.
13.2.5 Notwithstanding anything else contained in this Agreement, the
reimbursement, indemnity and contribution obligations of the
Partnership under Clause 13.2.2 (the "Indemnification
Obligations") shall:
13.2.5.1 be in addition to any liability which the Partnership
may otherwise have;
13.2.5.2 extend upon the same terms and conditions to the
officers, directors, employees, Associates,
shareholders, agents and representatives of each
Indemnified Party;
13.2.5.3 be binding upon and inure to the benefit of any
successors, assignees, heirs and personal
representatives of each Indemnified Party.
13.2.6 The General Partner and any Manager appointed under Clause 9.1
shall not be liable to any Limited Partner or to the Partnership
for the gross negligence, wilful misconduct, dishonesty or bad
faith of any agent acting for the General Partner, such Manager or
for the Partnership provided that such agent was selected, engaged
and retained by the General Partner or such Manager applying
reasonable care.
13.2.7 For the avoidance of doubt, the provisions of this Clause 13.2
shall continue in effect notwithstanding that the Indemnified
Party shall have ceased to provide services to or in respect of
the Partnership but only as regards the services provided in the
period prior to and including such cessation (but not thereafter)
and shall continue in effect for a period of four years following
the termination of the Partnership; provided that if at the end of
such period there are any proceedings then pending or any other
liability (whether contingent or otherwise) or claim then
outstanding, any Limited Partner shall so notify the General
Partner or the Manager and Greenhill at such time (which notice
shall include a brief description of such proceedings (and of the
liabilities asserted in such proceedings) and of such liabilities
and claims) and the foregoing provisions of this Clause 13.2 shall
survive with respect to any such notice until such date that such
proceedings, liability or claim is ultimately resolved.
13.2.8 Each Indemnified Party and each other person referred to in this
Clause 13.2 will be entitled to enforce the provisions of this
Clause under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
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13.3 CONFIDENTIAL INFORMATION
The Partners shall not, and shall use all reasonable endeavours to
procure that every person connected with or associated with each
such Partner shall not, disclose to any person, firm or
corporation or use to the detriment of the Partnership or any of
the Partners any Confidential Information which may have come to
his or its knowledge concerning the affairs of the Partnership,
unless required to do so by law or by the regulations of any
relevant stock exchange or any other regulatory authority to which
any of the Partners is subject.
13.4 NOTICES
13.4.1 Notices which may or are required to be given under this Agreement
by any party to another shall be in writing and delivered or sent
by facsimile or by prepaid first class post (or, if sent from one
country to another, by airmail), to the relevant party at the
address given in this Agreement or such other address as may be
designated by any party to this Agreement by notice addressed to
the Partnership in the case of the Partners and to each Partner in
the case of the General Partner.
13.4.2 Any such notice shall be deemed to have been served as follows:
13.4.2.1 in the case of delivery, on delivery if delivered
between 9.00 am and 5.00 pm on a Business Day and, if
delivered outside such hours, at the time when such
hours re-commence on the first Business Day following
delivery;
13.4.2.2 in the case of service by prepaid first class post (or,
if applicable, airmail), on the third Business Day after
the day on which it was posted; or
13.4.2.3 in the case of facsimile transmission (subject to oral
confirmation of receipt of all transmitted pages) on the
day it is transmitted provided that if that day is not a
business day or, being a Business Day, transmission
takes place after 5.00 pm, then at 9.00 am on the first
Business Day following transmission of the notice.
13.4.3 Subject as provided in Clause 13.4.2, in proving such service
(other than service by facsimile transmission) it shall be
sufficient to prove that the notice was properly addressed and
left at or posted by prepaid first class post (or, if applicable,
airmail) to the place to which it was so addressed.
13.5 AMENDMENT
This Agreement may be amended in whole or in part by the General
Partner. In the event that a proposed change would adversely
affect the rights of a Limited Partner with regard to the
allocations of Carry Points previously made to such Limited
Partner or which would impose upon any Partner any obligation to
make any further payment to the Partnership beyond the amount of
its Capital Contribution (and, if applicable, Investment
Commitment), the written consent of each of the Limited Partners
adversely affected thereby will be required prior to such
variation coming into effect, subject always to compliance with
the Act.
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13.6 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNEES
Except as herein otherwise specified this Agreement shall enure
for the benefit of and shall be binding upon the heirs, executors,
administrators or other representatives, successors and assignees
of the respective parties.
13.7 SEVERABILITY
This Agreement shall be construed as a whole and if any provision
of this Agreement shall conflict with the overall objectives and
intention as evidenced by this Agreement such provision shall be
construed in a manner giving effect to such objectives and
intention.
13.8 ACTION QUANTI MINORIS
Notwithstanding any rule of law to the contrary the remedy of
action quanti minoris shall be available to the Partners in
respect of any breach of the terms of this Agreement.
13.9 LIABILITY OF PARTNERS
The obligations and liabilities of each of the Limited Partners
and the Partners under this Agreement shall be several. For these
purposes the expression "several" shall mean separate and
independent so that each Limited Partner and Partner is only
responsible for his own obligations and liabilities under this
Agreement.
13.10 DISTRIBUTIONS FREE OF WITHHOLDING
All distributions under this Agreement shall be made net of any
amounts required to be withheld or deducted by any applicable law
but otherwise free and clear of any deduction, withholding or set
off. For the purposes of this Agreement (in particular for the
purposes of determining how much has been paid or distributed to
any Partner) the amounts distributed or allocated to a Partner
shall be deemed to be the aggregate of the actual payment or
distribution and any amount deducted or withheld in accordance
with the provisions of this Agreement (but not otherwise).
13.11 GOVERNING LAW
This Agreement and the rights of the parties to this Agreement
shall be governed by and construed in accordance with the law of
Scotland and the parties to this Agreement hereby prorogate and
irrevocably submit to the non-exclusive jurisdiction of the Court
of Session at Edinburgh.
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IN WITNESS whereof these presents consisting of this and the preceding [] pages,
together with the Schedule attached hereto, are executed at Edinburgh on 10 May
as follows.
SIGNED by )
as attorney for and on behalf of )
GCP EUROPE GENERAL )
PARTNER LIMITED )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇▇▇▇▇ & CO. EUROPE )
LIMITED )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
SIGNED by )
as attorney for and on behalf of )
▇▇▇▇▇ ▇▇▇ )
All in the presence of this witness
Witness Signature:
Name:
Address:
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