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EXHIBIT 10.8
PIONEER POLAND GP LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership of Pioneer Poland GP Limited Partnership,
a limited partnership organized under the laws of the State of Delaware, U.S.A.
(the "Partnership"), is entered into as of the 3rd day of August, 1999, by and
among Pioneer Poland U.S. (Jersey) Limited, a corporation organized under the
laws of Jersey, Channel Islands (the "General Partner"), and each of the persons
identified as a Limited Partner on SCHEDULE A hereto (individually, a "Limited
Partner" and collectively, the "Limited Partners"). The General Partner and the
Limited Partners are sometimes hereinafter referred to collectively as the
"Partners" and individually as a "Partner."
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the agreements hereinafter set
forth, the undersigned, desiring to organize the Partnership as a Delaware
limited partnership, hereby agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.01 FORMATION OF LIMITED PARTNERSHIP. The term of the Partnership
shall commence upon the filing of a Certificate of Limited Partnership for the
Partnership in the Office of the Secretary of State of the State of Delaware
pursuant to the Delaware Revised Uniform Limited Partnership Act (the
"Partnership Act"). The General Partner shall cause such certificate to be filed
as soon as practicable following the date hereof.
1.02 NAME OF THE PARTNERSHIP. The name of the Partnership shall be
"Pioneer Poland GP Limited Partnership," or such other name as the General
Partner may from time to time determine. The General Partner shall cause to be
filed on behalf of the Partnership such business certificates or partnership or
assumed or fictitious name certificate or certificates as may from time to time
be required by law.
1.03 PURPOSE OF THE PARTNERSHIP. The Partnership's business and purpose
shall be to serve as the general partner of (i) Pioneer Poland U.S., L.P., a
Delaware limited partnership (the "US Fund") and (ii) Pioneer Poland UK, L.P.
(the "UK Fund", and collectively, with the US Fund, the "Funds").
In furtherance of the purpose of the Partnership, the Partnership shall have the
power to enter into, make and perform all such contracts, agreements and other
undertakings, and to take any and all actions and engage in any and all
activities as the General Partner may in its sole discretion determine to be
necessary, advisable, appropriate, convenient or incidental to the Partnership's
purpose, including without limitation, acquiring, holding, and disposing of any
securities or other property which may be distributed to the Partnership by the
Funds.
The Partners hereby acknowledge that the Partnership will enter into (i) an
Amendment to the Amended and Restated Agreement of Limited Partnership of the US
Fund, pursuant to which it
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will be admitted to the US Fund as a general partner and become a party to the
Amended and Restated Agreement of Limited Partnership of the US Fund (such
agreement, as amended from time to time, the "US Fund Agreement"), and (ii) an
Amendment to the Agreement of Limited Partnership of the UK Fund, pursuant to
which it will be admitted to the UK Fund as a general partner and become a party
to the Agreement of Limited Partnership of the UK Fund (such agreement, as
amended from time to time, the "UK Fund Agreement", and collectively, with the
US Fund Agreement, the "Fund Agreements").
1.04 PLACE OF BUSINESS OF THE PARTNERSHIP; REGISTERED AGENT. The
principal place of business of the Partnership shall be located at c/o Pioneer
Poland U.S. (Jersey) Limited, c/o Abacus Asset Management Limited, XxXxxxx
Xxxxxxxx, Xx. Xxxxxx XX0 0XX, Jersey, Channel Islands. The Partnership's
resident agent for service of process in Delaware shall be The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of New Castle, Delaware, and its
registered office in Delaware shall be located in care of such resident agent.
The General Partner may (a) change the location of the Partnership's principal
place of business and establish such additional place or places of business of
the Partnership as it may determine, (b) change the Partnership's registered
office in Delaware and/or (c) change the Partnership's resident agent for
service of process in Delaware, and in each case shall provide to the other
Partners written notice of any such change.
1.05 DURATION OF THE PARTNERSHIP. The term of the Partnership shall
commence upon the filing of a Certificate of Limited Partnership for the
Partnership, and shall continue until the date which is 12 months after the date
of the termination of the last to terminate of the Funds, unless terminated at
an earlier date in accordance with Article VII hereof.
1.06 PARTNERS' NAMES AND ADDRESSES.
(a) The name and business address of each of the Partners,
separately designating the General Partner and the Limited Partners, are as set
forth on SCHEDULE A hereto.
(b) Each of the Limited Partners, and any person who may be
admitted to the Partnership as a Limited Partner following the date hereof, by
execution of this Agreement, any counterpart hereof or any amendment hereto,
hereby agrees and acknowledges that, except (i) for a Limited Partner which is
also a General Partner and acting in its capacity as a General Partner, and (ii)
as specifically provided in this Agreement, he, she or it has no right to
participate in the management, operation or conduct of the business of the
Partnership.
1.07 TITLE TO PARTNERSHIP PROPERTY. All property owned by the
Partnership, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Partnership as an entity, and no Partner, individually, shall
have any ownership of such property. The Partnership may hold any of its assets
in its own name or in the name of its nominee, which nominee may be one or more
trusts. Any property held by a nominee trust for the benefit of the Partnership
shall, for purposes of this Agreement, be treated as if such property were
directly owned by the Partnership.
1.08 SPECIAL PROVISIONS RELATING TO LIMITED PARTNER INTERESTS. Each
of the Limited Partners, and any person who may be admitted to the Partnership
as a Limited Partner following
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the date hereof, by execution of this Agreement, any counterpart hereof or any
amendment hereto, hereby agrees and acknowledges that its interest as a Limited
Partner is subject to vesting and forfeiture pursuant to Section 6.04, provided,
however, if for any reason the General Partner or any of its affiliates shall
acquire or own a limited partnership interest in the Partnership, such limited
partnership interest shall not be subject to the provisions of Section 6.04.
ARTICLE II
CAPITAL CONTRIBUTIONS, PROFITS AND LOSSES
2.01 CAPITAL CONTRIBUTIONS.
(a) On or prior to the date hereof, each of the Partners has
contributed, in cash, to the capital of the Partnership, the amount set forth
opposite his or its respective name of SCHEDULE A hereto.
(b) If the Partnership is required to make any capital
contribution to any Fund pursuant to either of the Fund Agreements, each of the
Partners shall be required to contribute to the capital of the Partnership a
portion of the amount required to be so contributed to the Fund. Each Partner's
proportionate share shall equal a fraction, the numerator of which shall equal
the value of all distributions made to such Partner by the Partnership and the
denominator of which shall equal the value of all distributions made to all
Partners by the Partnership. For this purpose, the value of all Distributable
Securities distributed to the Partners shall equal their respective values on
the dates of distribution of such Distributable Securities, determined in the
manner specified in Section 3.04. The obligations of the Partners set forth in
this Section 2.01(b) shall be binding upon all persons who received
distributions from the Partnership during its term, regardless of whether such
persons have forfeited their interests or otherwise withdrawn from the
Partnership prior to the date of any call for capital pursuant to this Section
2.01(b). Notwithstanding anything to the contrary contained herein, no Partner
shall be obligated to contribute to the capital of the Partnership pursuant to
this Section 2.01(b) an aggregate amount in excess of the aggregate amount of
the value (determined as of the date of distribution) of all cash and securities
distributed by the Partnership to such Partner.
(c) Except as otherwise provided in this Section 2.01, no
Partner shall be obligated or permitted to contribute any additional capital to
the Partnership. No interest shall accrue on any contributions to the capital of
the Partnership, and no Partner shall have the right to withdraw or to be repaid
any capital contributed by it or to receive any other payment in respect of its
interest in the Partnership, including without limitation as a result of the
withdrawal of such Partner from the Partnership, except as specifically provided
in this Agreement.
(d) There may be admitted to the Partnership, at any time and
from time to time as determined by the General Partner, additional General
Partners and/or Limited Partners, for payment of such consideration, if any, and
with such Percentage Interest as shall be determined by the General Partner in
its sole and absolute discretion. In connection with any admission of an
additional Limited or General Partner, the Percentage Interests of the Partners
shall be subject to modification as follows:
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(i) If the General Partner admits to the Partnership an
additional General Partner or an additional Limited Partner which is
not a Designated Person (as defined below), the Percentage Interest of
the General Partners (but not the Limited Partners) immediately prior
to the time of such admission shall be reduced by the Percentage
Interest of such newly admitted Partner and such reduction shall be
allocated among the existing General Partners proportionately based on
their respective Percentage Interests immediately prior to any such
admission.
(ii) If the General Partner admits to the Partnership an
additional Limited Partner which is a Designated Person (as defined
below), the Percentage Interest of the Limited Partners (but not the
General Partners) immediately prior to the time of such admission shall
be reduced by the Percentage Interest of such newly admitted Limited
Partner and such reduction shall be allocated among the existing
Limited Partners proportionately based on their respective Percentage
Interests immediately prior to any such admission. A "Designated
Person" shall mean a person admitted to the Partnership by the General
Partner at the request of Limited Partners (by action of Limited
Partners owning at least two-thirds of the Percentage Interests owned
by all Limited Partners) (provided that, nothing shall obligate the
General Partner to admit to the Partnership any Designated Person).
Subject to the foregoing, each Partner, and each person who is hereinafter
admitted to the Partnership as a Partner, hereby (i) consents to the admission
of any such person on such terms as the General Partner may determine, and to
any amendment to this Agreement and/or the Partnership's Certificate of Limited
Partnership which may be necessary or appropriate to reflect the admission of
any such third party, and (ii) acknowledges that, in connection with any
admission of any such person, such Partner's interest in allocations of Net
Profits and Losses and distributions of cash, securities and/or other assets of
the Partnership, and net proceeds upon liquidation of the Partnership, may be
diluted or otherwise altered.
2.02 DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meanings
ascribed to them in this Section 2.02:
(a) "Capital Account" means a separate account maintained for
each Partner and adjusted in accordance with Regulations under Section 704 of
the Internal Revenue Code of 1986, as amended (the "Code"). Consistent with such
Regulations, the adjustments to such accounts shall include the following:
(i) There shall be credited to each Partner's Capital
Account the amount of any cash actually contributed by such Partner to
the capital of the Partnership, the fair market value of any property
contributed by such Partner to the capital of the Partnership (net of
any liabilities secured by such property that the Partnership is
considered to assume or take subject to) and such Partner's share of
the Net Profits of the Partnership and of any items in the nature of
income or gain separately allocated to the Partners; and there shall be
charged against each Partner's Capital Account the amount of all cash
distributions to such Partner, the fair market value of any property
distributed to such Partner by the Partnership (net of any liability
secured by such property that the Partner is
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considered to assume or take subject to) and such Partner's share of
the Net Losses of the Partnership and of any items in the nature of
losses or deductions separately allocated to the Partners.
(ii) If the Partnership at any time distributes any
of its assets in-kind to any Partner, the Capital Account of each
Partner shall be adjusted to account for that Partner's allocable share
(as determined under Sections 2.03 and 2.04 below) of the Net Profits
or Net Losses that would have been realized by the Partnership had it
sold the assets that were distributed at their respective fair market
values immediately prior to their distribution.
(b) "Net Profits" and "Net Losses" mean the taxable
income or loss, as the case may be, for a period (or from a transaction) as
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be separately stated pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss) computed
with the following adjustments:
(i) To the extent required by Treasury Regulations
under Section 704(b) of the Code, if the "book value" of an asset
differs from its adjusted basis for federal income tax purposes, items
of gain, loss, and deduction shall be computed based upon the book
value of the asset rather than upon the asset's adjusted bases for
federal income tax purposes;
(ii) Any tax-exempt income received by the
Partnership shall be included as an item of gross income;
(iii) The amount of any adjustments to the adjusted
basis of any assets of the Partnership pursuant to Code Section 743
shall not be taken into account; and
(iv) Any expenditure of the Partnership described in
Code Section 705(a)(2)(B) (including any expenditures treated as being
described in Section 705(a)(2)(B) pursuant to Treasury Regulations
under Code Section 704(b)) shall be treated as a deductible expense.
(c) "Partnership Capital" means the total equity account
on the Partnership's balance sheet computed by determining the sum of all of the
Partners' Capital Account balances determined immediately prior to the
allocation to the Partners of any Net Profits pursuant to Section 2.03(a)(ii) or
Net Losses pursuant to Section 2.03(b)(i) (including the amount of Net Profits
or Net Losses deemed realized pursuant to Section 2.02(a) hereof upon a
distribution of assets to the Partners) and increasing such amount by the
aggregate amount of Net Profits then to be allocated to the Partners pursuant to
Section 2.03(a)(ii) or decreasing such amount by the aggregate amount of Net
Losses then to be allocated to the Partners pursuant to Section 2.03(b)(i).
(d) "Percentage Interest" shall mean, for each Partner,
the percentage interest set forth opposite his respective name on SCHEDULE A
hereto, as the same may be modified from time to time pursuant to Section 6.04
hereof.
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2.03 GENERAL ALLOCATIONS OF NET PROFITS AND NET LOSSES.
(a) Except as provided in Section 2.04 below (which shall
be applied first), Net Profits of the Partnership shall be allocated as follows:
(i) First, to any Partners having negative Capital
Account balances, in proportion to and to the extent of such negative
balances; and
(ii) The balance, if any, to the Partners in such
proportions and in such amounts as would result in the respective
Capital Account balance of each Partner equaling, as nearly as
possible, such Partner's share of the then Partnership Capital
determined by calculating the amount the Partner would receive if an
amount equal to the Partnership Capital were distributed to the
Partners in accordance with the provisions of Section 3.02 hereof.
(b) Except as provided in Section 2.04 below (which shall
be applied first), Net Losses of the Partnership shall be allocated among the
Partners as follows:
(i) First, to each Partner with a positive Capital
Account balance, in the amount of such positive balance; provided,
however, that if the amount of Net Losses to be allocated is less than
the sum of the Capital Account balances of all Partners having positive
Capital Account balances, then the Net Losses shall be allocated to the
Partners in such proportions and in such amounts as would result in the
respective Capital Account balance of each Partner equaling, as nearly
as possible, such Partner's share of the then Partnership Capital
determined as set forth in Section 2.03(a)(ii) above; and
(ii) The balance, if any, to the Partners in
proportion to their respective Percentage Interests.
(c) If the amount of Net Profits allocable to the
Partners pursuant to Section 2.03(a)(ii) or the amount of Net Losses allocable
to them pursuant to Section 2.03(b)(i) is insufficient to allow the Capital
Account balance of each Partner to equal such Partner's share of the Partnership
Capital, such Net Profits or Net Losses shall be allocated among the Partners in
such a manner as to decrease the differences between the Partners' respective
Capital Account balances and their respective shares of the Partnership Capital
in proportion to such differences.
(d) Allocations of Net Profits and Net Losses provided
for in this Section 2.03 shall generally be made as of the end of the fiscal
year of the Partnership; provided, however, that allocations of Net Profits and
Net Losses upon liquidation of the Partnership shall be made no later than
immediately prior to the time that the distributions upon liquidation pursuant
to Section 7.02 are made to the Partners.
2.04 OVERRIDING ALLOCATIONS OF NET PROFITS AND NET LOSSES.
Notwithstanding the provisions of Section 2.03 above, the following allocations
of Net Profits and Net Losses and items thereof shall be made in the order
stated:
(a) If, during any year, a Partner receives any
adjustment, allocation, or distribution that causes such Partner to have a
negative balance in his or her Capital Account
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(computed with the adjustments described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6)) that exceeds (in absolute dollar amount)
the amount that such Partner is obligated (or deemed obligated pursuant to
Treasury Regulation Sections 1.704-1 or 1.704-2) to contribute to the
Partnership no later than upon liquidation of such Partner's interest in the
Partnership, then items of gross income (computed with the adjustments set forth
in clauses (i), (ii) and (iii) of Section 2.02(b)) for such year and, if
necessary, subsequent years shall first be allocated to such Partner in an
amount equal to such excess.
(b) In no event shall Net Losses of the Partnership be
allocated to a Partner if such allocation would cause or increase a negative
balance in such Partner's Capital Account (computed with the adjustments
described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6))
that exceeds (in absolute dollar amount) the amount that such Partner is
obligated (or is deemed obligated pursuant to Treasury Regulation Sections
1.704-1 or 1.704-2) to contribute to the Partnership no later than upon
liquidation of such Partner's interest in the Partnership.
(c) The respective interests of the Partners in the Net
Profits and Net Losses or items thereof shall remain as set forth above unless
changed by amendment to this Agreement or by an assignment of an interest in the
Partnership authorized by the terms of this Agreement. Except as otherwise
provided herein or as required by Code Section 704, for tax purposes, all items
of income, gain, loss, deduction or credit shall be allocated to the Partners in
the same manner as are Net Profits and Net Losses.
2.05 ALLOCATIONS UPON TRANSFER OR ADMISSION. In the event that a
Partner acquires an interest in the Partnership either by transfer from another
Partner or by acquisition from the Partnership, or the interests of the Partners
are adjusted as contemplated by Section 6.04, there shall be a closing of the
Partnership's books on the date of such transfer, acquisition or adjustment, and
all Net Profits and Net Losses of the Partnership arising prior to such closing
shall be allocated among the Partners without giving effect to such transfer,
acquisition or adjustment, and the Net Profits and Net Losses of the Partnership
arising from and after such closing shall be allocated among the Partners after
giving effect to such transfer, acquisition or adjustment.
ARTICLE III
CASH DISTRIBUTIONS
3.01 DEFINITIONS. For purposes of this Agreement:
(a) "Distributable Cash" means, with respect to any
fiscal period, the excess of all cash receipts of the Partnership from any
source whatsoever, including the Partnership's share of cash distributions from
the Funds and the proceeds to the Partnership from dispositions of Distributable
Securities, over the sum of the following amounts:
(i) cash disbursements for accounting and bookkeeping
services, costs of sales of assets, management fees and expenses,
salaries and compensation payments, legal expenses, and any and all
other items which are actually incurred by the Partnership and
customarily considered to be "operating expenses";
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(ii) payments of interest, principal and premium and
points and other costs of borrowing under any indebtedness of the
Partnership;
(iii) capital expenditures of any type or kind, and
costs and expenses incurred in connection with the operation (but not
of the organization) of the Partnership; and
(iv) amounts set aside as reserves for working
capital, contingent liabilities, or for any of the expenditures
described in clauses (i), (ii) and (iii), or any other anticipated
Partnership obligations which are deemed by the General Partner in its
reasonable discretion to be necessary to meet the current and
anticipated future needs of the Partnership.
The Partners agree and acknowledge that many of the expenditures of the types
described in clauses (i), (ii) and (iii) above are subject to reimbursement to
the Partnership by the Funds, and to the extent so reimbursed, will not be taken
into account in determining the amount of the Partnership's Distributable Cash.
(b) "Distributable Securities" means the debt, equity or
other securities, if any, which have been distributed to the Partnership by the
Funds.
(c) "Priority Amount" means the excess of (i) 43.5% of
the aggregate amount of the Direct Costs over (ii) the aggregate amount
distributed or deemed distributed to the General Partner pursuant to Section
3.02(a) below; provided that, if at any time, as the result of the operation of
Section 6.04, the aggregate Percentage Interests of the Limited Partners equal
40.5%, the Priority Amount shall automatically be reduced to zero.
(d) "Direct Costs" means the aggregate amount of the
direct costs and expenses incurred by The Pioneer Group, Inc. and/or any of its
affiliates including without limitation, the General Partner (collectively,
"PGI"), from and after January 1, 2000, in connection with the operation of the
Funds and/or the Partnership; provided that, all such costs and expenses which
are paid out of the Management Fees or are reimbursed by the Funds to PGI out of
the Management Fees shall not constitute direct costs. For this purpose, the
following costs and expenses shall constitute direct costs: (i) Pioneer
Investment Poland's share of PioGlobal Corporation's salary, bonus, pension
cost, health insurance, fringe benefits, telecommunications, travel and
entertainment, and equipment/supplies expenses, net of Pioneer Investment
Poland's share of PioGlobal Corporation's intercompany income exclusive of the
Management Fee; and (ii) Pioneer Investment Poland's share of Pioneer
International Corporation's computer depreciation, consulting fees, legal fees
and organizational cost amortization; but the following costs shall NOT
constitute direct costs: (x) Pioneer Investment Poland's allocable share of The
Pioneer Group's group overhead allocation (including without limitation,
salaries, benefits and space charges); or (y) amounts, if any, incurred in
connection with the formation of any new venture capital entity by PGI. The
General Partner shall determine the Direct Costs incurred by PGI in its
reasonable judgment and consistent with its customary policies.
(e) "Management Fees" means the management fees and
expense reimbursements payable by the Funds to Pioneering Management (Jersey)
Limited (the
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"Manager"), pursuant to that certain Joint Management Agreement dated as of
January 20, 1995 (as from time to time amended and in effect).
3.02 DISTRIBUTION OF DISTRIBUTABLE CASH AND DISTRIBUTABLE SECURITIES.
Except as provided in Section 7.02(b) below, Distributable Cash and
Distributable Securities shall be distributed to the Partners, at the times and
in the amounts specified in Section 3.03 below, as follows:
(a) First, to the General Partner, until the Priority Amount
has been reduced to zero; and
(b) The balance, if any, to the Partners in proportion to
their respective Percentage Interests as of the date of any such
distribution.
3.03 TIMING AND AMOUNT OF DISTRIBUTIONS. Distributions of Distributable
Cash and Distributable Securities shall generally be made within 30 days
following receipt of the distributions from the Funds which generated such
distributions; however, the General Partner, in its reasonable discretion, may
determine to delay the timing of such distributions in order to enable the
Partnership to manage its current and anticipated expenses.
3.04 VALUATION OF SECURITIES. Distributable Securities and all other
assets of the Partnership other than Distributable Cash which are distributed to
the Partners shall be distributed based upon their respective fair market
values, which shall be determined by the General Partner in its reasonable
discretion. The General Partner may, but shall not be required to, rely on the
valuation of Distributable Securities as determined by the Funds.
3.05 DISTRIBUTIONS UPON TRANSFER OR ADMISSION. Distributable Cash,
Distributable Securities, net proceeds upon liquidation and any other
distributions shall be distributed among the Partners based upon the actual
ownership of interests in the Partnership on the date of distribution.
ARTICLE IV
MANAGEMENT
4.01 MANAGEMENT OF THE PARTNERSHIP. (a) Except to the extent otherwise
specifically provided herein, the overall management and control of the business
and affairs of the Partnership shall be vested exclusively in the General
Partner, and the General Partner shall use ordinary and reasonable diligence in
the management of Partnership business.
Except as provided to the contrary in this Agreement or in the Partnership Act,
the General Partner shall have complete authority to make any and all decisions,
execute and deliver any and all agreements and take any and all actions on
behalf of the Partnership. Specifically, but not by way of limitation, and
subject to the provisions of this Agreement and the Fund Agreements, the General
Partner shall be authorized in the name of and on behalf of the Partnership, or
in its own name and on its own behalf, or on behalf of the Partnership in its
capacity as the general partner of either or both Funds, as appropriate:
(i) to invest the assets of the Funds in interests
in, or debt or equity securities of, any corporation, partnership,
joint venture or other business enterprise,
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consistent with the purpose of the Funds, in the manner and as provided
in the Fund Agreements;
(ii) to vote, give assent and otherwise exercise all
rights, powers, privileges and other incidents of ownership or
possession with respect to (A) the Partnership's interest in the Fund,
including approving or disapproving any matter, granting or withholding
any consent, and making any decision on behalf of the Partnership in
its capacity as the general partner of any Fund (including, without
limitation, proposing or consenting to amendments to any Fund
Agreement), and (B) the securities and other assets of the Partnership
or any Fund; and to execute and deliver proxies or powers of attorney
to such persons as the General Partner shall deem appropriate, granting
to such persons such power and discretion with respect to such
securities or other assets as the General Partner shall deem proper;
(iii) to exercise powers and rights which in any
manner arise out of ownership of securities, including without
limitation, subscription rights;
(iv) to hold any security or other assets in a form
which does not indicate any particular owner, whether in bearer,
unregistered or other negotiable form, or in the name of the
Partnership or any Fund, as the case may be, a custodian, subcustodian
or other depositary or a nominee or nominees;
(v) to provide advice with respect to restructurings,
acquisitions, mergers, divestitures and changes in corporate management
of any portfolio company in which any Fund has invested;
(vi) to consent to, participate in or initiate any
plan for the reorganization, consolidation or merger of any portfolio
company in which any Fund has invested, and consent to any contract,
lease, mortgage, purchase or sale of property by such portfolio
company;
(vii) to join with other security holders in acting
through a committee, depositary, voting trustee or otherwise, and, in
connection therewith, deposit any security with, or transfer any
security to, any such committee, depositary or trustee, and delegate to
any such person such power and authority with respect to any security
owned by any Fund (whether or not so deposited or transferred) as the
General Partner shall deem proper, and pay such portion of the expenses
and compensation of such committee, depositary or trustee as the
General Partner shall deem proper;
(viii) to hire or employ such agents, employees,
managers, accountants, attorneys, consultants and other persons
necessary or appropriate to carry out the business and operations of
the Partnership and/or the Funds, and to pay fees, expenses, salaries,
wages and other compensation to such persons;
(ix) to pay, extend, renew, modify, adjust, submit to
arbitration, prosecute, defend or compromise, upon such terms as the
General Partner may determine and upon such evidence as they may deem
sufficient, any obligation, suit, liability, cause of action or claim,
including taxes, either in favor of or against the Partnership and/or
any Fund;
(x) to pay all organizational expenses and general
and administrative expenses of the Partnership and/or any Fund;
(xi) to engage in any kind of activity and to perform
and carry out contracts of any kind necessary to, or in connection
with, or incidental to the accomplishment of the purposes of the
Partnership and/or the Funds;
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(xii) to pay any and all fees and to make any and all
expenditures which they, in their sole discretion, deem necessary or
appropriate in connection with the organization of the Partnership
and/or the Funds, the management of the affairs of the Partnership
and/or the Funds, and the carrying out of their obligations and
responsibilities under this Agreement and the Fund Agreements;
(xiii) to cause to be obtained and continued in force
all policies of insurance required by any agreement relating to the
Partnership's and/or the Funds' business or any part thereof, or
determined by the General Partner to be in the best interests of the
Partnership and/or the Funds;
(xiv) to cause to be paid any and all taxes, charges
and assessments that may be levied, assessed or imposed upon any of the
assets of the Partnership and/or the Funds, unless the same are
contested by the General Partner; and
(xv) to exercise all powers and authority granted by
the Partnership Act to general partners.
(b) With respect to all of its obligations, powers, and
responsibilities under this Agreement, the General Partner is authorized, in the
name and on behalf of the Partnership, to execute, deliver, and perform the
terms, covenants and obligations of, such notes and other evidences of
indebtedness, contracts, agreements, assignments, deeds, leases, loan
agreements, mortgages, and other security instruments and agreements as it deems
proper, all on such terms and conditions as it deems proper. The General Partner
may authorize any other person, by resolution or other writing, to act in the
name and on behalf of the Partnership.
(c) The General Partner shall be the tax matters partner
for the Partnership pursuant to Code Sections 6221 through 6231.
4.02 SERVICES OF PARTNERS. Subject to the provisions of this Agreement,
each of the Partners may engage in, invest in, and possess an interest in other
business ventures of any and every type and description, including, without
limitation, the ownership, operation, financing, and management of ventures of
any type or kind, including ventures which may compete with the Partnership or
the Funds, independently or with others, and neither the Partnership nor any
Partner shall by virtue of this Agreement have any right, title or interest in
or to such independent ventures.
4.03 EXCULPATION. Neither the General Partner nor any of its employees
or agents, nor any person (including any Limited Partner) who, at the request of
the General Partner or the Partnership, serves as a director, officer, employee
or agent of any company in which the Funds have invested (a "Portfolio
Company"), shall be liable to the Partnership or any Limited Partner for any act
or omission performed or omitted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Partnership or the Funds, provided that such act or omission was not in
violation of the provisions of this Agreement and did not constitute gross
negligence, willful malfeasance or fraud or, if such act or omission is alleged
to be criminal in nature, such person did not have reasonable cause to believe
his conduct was unlawful. Such person may consult with legal counsel selected by
such person and shall be fully protected, and shall incur no liability to the
Partnership or any Limited Partner, in acting or refraining to act in good faith
in reliance upon the opinion or advice of such counsel.
4.04 INDEMNIFICATION.
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(a) The Partnership shall indemnify (but only to the extent of
and out of Partnership assets) the General Partner, and each person (including
any Limited Partner) who, at the request of the General Partner or the
Partnership, serves as a director, officer, employee or agent of any Portfolio
Company, or who otherwise provides services to the Partnership and/or the Funds
at the request of the General Partner, and each of their respective employees
and agents (each Partner and each such other person being hereinafter referred
to as an "Indemnified Person") against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the Indemnified Person in connection with any claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, before or
by any court or any administrative or legislative body or authority, in which
the Indemnified Person is involved, as a party or otherwise, or with which the
Indemnified Person may be threatened, either during the Indemnified Person's
incumbency or thereafter, by reason of the Indemnified Person's direct or
indirect involvement with the Partnership and/or the Funds; provided, that the
Indemnified Person (i) acted in good faith and in a manner which the Indemnified
Person reasonably believed to be in or not opposed to the best interests of the
Partnership or the Funds, (ii) was not guilty of gross negligence, willful
malfeasance or fraud with respect to the act or omission which resulted in the
matter for which indemnification is sought, and (iii) with respect to any
criminal action or proceeding, the Indemnified Person had no reasonable cause to
believe that his conduct was unlawful. Notwithstanding the foregoing, with
respect to any claim, action, or suit by or in the right of the Partnership to
procure a judgment in its favor against an Indemnified Person by reason of the
Indemnified Person's direct or indirect involvement with the Partnership and/or
the Funds, (1) indemnification shall be limited to expenses (including
attorney's fees) actually and reasonably incurred by such Indemnified person in
connection with the defense or settlement of such claim, action, or suit, and
(2) no indemnification shall be made in respect of any claim as to which the
Indemnified Person has been finally adjudged to be liable to the Partnership
unless the court in which such action or suit was brought determines, under the
circumstances, that indemnification is warranted.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that (y) the Indemnified Person did
not act in good faith and in a manner which the Indemnified Person reasonably
believed to be in or not opposed to the best interests of the Partnership, or
(z) with respect to any criminal action or proceeding, the Indemnified Person
had reasonable cause to believe that his conduct was unlawful.
(b) Expenses, including attorneys' fees, incurred by an
Indemnified Person in defending any civil, criminal, administrative or
investigative claim, action, suit or proceeding may be paid by the Partnership
in advance of the final disposition of such claim, action, suit or proceeding
upon receipt of a written undertaking by or on behalf of the Indemnified Person
that the amounts so paid shall be repaid to the Partnership if it is ultimately
determined that indemnification on account of such expenses is not authorized
under this Section 4.04.
(c) The rights provided by this Section 4.04 shall not be
exclusive of, and shall not affect, any other indemnification or other rights to
which an Indemnified Person may be entitled; provided, that the Partnership
shall not grant to any Indemnified Person indemnification rights which are more
favorable to the Indemnified Person than those set forth in this Section 4.04.
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(d) The Partnership may grant to any person who, at the
request of the Partnership, serves as a director, officer, employee or agent of
any Portfolio Company indemnification rights on such terms as the General
Partner may determine; provided, that such rights shall not be more favorable to
such Person than those set forth in this Section 4.04 with respect to
Indemnified Persons.
(e) The rights provided by this Section 4.04 shall not be
construed to increase the liability of Limited Partners as set forth in Section
4.06.
(f) The rights provided by this Section 4.04 shall inure
to the benefit of the heirs, executors, administrators, successors and assigns
of each Indemnified Person.
4.05 LIMITATIONS ON LIMITED PARTNERS. Except for the matters
specifically enumerated in this Agreement, the Limited Partners, in their
capacities as Limited Partners, shall not: (a) be permitted to take part in the
control of the business or affairs of the Partnership; (b) have any voice in the
management or operation of the Partnership's business or property; or (c) have
the authority or power to act as an agent for or on behalf of the Funds, the
Partnership or any other Partner, to do any act which would be binding on the
Fund, the Partnership or any other Partner, or to incur any expenditures on
behalf of or with respect to the Funds or the Partnership.
4.06 LIABILITY OF LIMITED PARTNERS. So long as they comply with the
provisions of Section 4.05, the liability of the Limited Partners for the
losses, debts and obligations of the Partnership shall be limited to their
respective capital contribution obligations; provided, however, that under
applicable law, the Limited Partners may under certain circumstances be liable
to the Partnership to the extent of previous distributions made to them in the
event that the Partnership does not have sufficient assets to discharge its
liabilities.
4.07 REIMBURSEMENT.
(a) All out-of-pocket expenses incurred by the General
Partner in connection with the Partnership's business (other than overhead and
similar expenses of the General Partner) shall be paid by the Partnership or
reimbursed to the General Partner by the Partnership.
(b) None of the Partners shall, by virtue of their
ownership of an interest in the Partnership, be entitled to compensation for
services rendered to the Partnership, except for their rights to receive
distributions as provided in this Agreement.
ARTICLE V
BOOKS, RECORDS AND BANK ACCOUNTS
5.01 BOOKS AND RECORDS. The Partnership shall keep just and true books of
account with respect to the operations of the Partnership. Such books shall be
maintained at the office of the Partnership, or at such other place as the
General Partner shall determine, and all Partners, and their duly authorized
representatives, shall upon reasonable notice and during regular business hours
have access to such books as well as any information required to be made
available to the Partners under the Partnership Act.
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5.02 ACCOUNTING BASIS AND FISCAL YEAR. The Partnership's books shall be
kept on the accrual method of accounting, or on such other method of accounting
as the General Partner may from time to time determine, and shall be closed and
balanced at the end of each Partnership year. The same method of accounting
shall be used for both Partnership accounting and tax purposes. The fiscal year
of the Partnership shall be the calendar year, or such other fiscal year as the
General Partner may from time to time determine or as may be required under
applicable tax laws.
5.03 REPORTS. Each fiscal year, the General Partner shall cause to be
prepared and sent to the Partners a financial report of the Partnership,
including (x) a balance sheet and a profit and loss statement, and, if such
profit and loss statement is not prepared on a cash basis, a statement of
changes in financial position, and (y) such additional information as the
General Partner may determine. Such report shall be delivered to the Partners
within 90 days following the end of each fiscal year of the Partnership. The
financial information described in clause (x) of the preceding sentence may, but
shall not be required to be, audited by an independent certified public account,
but if any of such information is audited, any such audit shall be conducted at
Partnership expense.
After the end of each fiscal year, the Partnership shall furnish all Partners
with such information as may be needed to enable the Partners to file their
federal income tax returns and any required state income tax returns. Such tax
information shall be delivered to the Partners within 90 days following the end
of each fiscal year of the Partnership.
The cost of all such reporting, if any, shall be paid by the Partnership as a
Partnership expense. Any Partner may, at any time, at its own expense, cause an
audit of the Partnership books to be made by a certified public accountant of
its own selection. All expenses incurred by such accountant shall be borne by
such Partner.
5.04 BANK ACCOUNTS. The General Partner shall be responsible for causing
one or more accounts to be maintained in a bank (or banks) selected by the
General Partner, which accounts shall be used for the payment of the
expenditures incurred by the General Partner in connection with the business of
the Partnership (and for payment of expenditures by the Partnership on behalf
of, or in its capacity as the general partner of the Funds), and in which shall
be deposited any and all cash receipts. All deposits and funds not needed for
the operations of the Partnership may be invested in short-term investments,
including securities issued or fully guaranteed by United States government
agencies, certificates of deposit of banks, money market funds, interest-bearing
time deposits in banks and thrift institutions and such other similar
investments as the General Partner may determine. All such amounts shall be and
remain the property of the Partnership, and shall be received, held and
disbursed by the General Partner for the purposes specified in this Agreement.
There shall not be deposited in any of said accounts any funds other than funds
belonging to the Partnership, and no other funds shall in any way be commingled
with such funds.
ARTICLE VI
TRANSFERS OF INTERESTS OF PARTNERS
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6.01 SUBSTITUTION AND ASSIGNMENT OF LIMITED PARTNERS' INTEREST.
(a) No Limited Partner may sell, transfer, assign, pledge, or
otherwise dispose of all or any part of its interest in the Partnership (whether
voluntarily, involuntarily or by operation of law) unless the General Partner
shall have previously consented to such assignment in writing, the granting or
denying of which consent shall be in the General Partner's absolute discretion.
No assignment of the interest of a Limited Partner shall be made if, in the
opinion of counsel to the Partnership, such assignment (i) may not be effected
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), (ii) would result in the violation of any applicable state
securities laws, (iii) unless consented to by the General Partner, would result
in a termination of the Partnership under Section 708 of the Code or (iv) unless
consented to by the General Partner, would result in the treatment of the
Partnership as an association taxable as a corporation or as a "publicly-traded
limited partnership" for U. S. federal tax purposes. The Partnership shall not
be required to recognize any such assignment until the instrument conveying such
interest has been delivered to the General Partner for recordation on the books
of the Partnership. Unless an assignee becomes a substituted Limited Partner in
accordance with the provisions of Section 6.01(b), it shall not be entitled to
any of the rights granted to a Limited Partner hereunder, other than the right
to receive all or part of the share of the net profits, net losses, cash
distributions or returns of capital to which his assignor would otherwise be
entitled.
(b) An assignee of the interest of a Limited Partner, or
any portion thereof, shall become a substituted Limited Partner entitled to all
the rights of a Limited Partner if, and only if:
(i) the assignor gives the assignee such right;
(ii) the General Partner consents to such
substitution, the granting or denying of which consent shall be in the
General Partner's absolute discretion;
(iii) the assignee pays to the Partnership all costs
and expenses incurred in connection with such substitution, including
specifically, without limitation, costs incurred in the review and
processing of the assignment and in amending the Partnership's then
current Certificate and/or Agreement of Limited Partnership, if
required; and
(iv) the assignee executes and delivers such
instruments, in form and substance satisfactory to the General Partner,
as the General Partner may deem necessary or desirable to effect such
substitution and to confirm the agreement of the assignee to be bound
by all of the terms and provisions of this Agreement.
(c) The Partnership and the General Partner shall be
entitled to treat the record owner of any Partnership interest as the absolute
owner thereof in all respects, and shall incur no liability for distributions of
cash or other property made in good faith to such owner until such time as a
written assignment of such interest has been received and accepted by the
General Partner and recorded on the books of the Partnership. The General
Partner may refuse to accept an assignment until the end of the next successive
quarterly accounting period. In no event shall
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any partnership interest, or any portion thereof, be sold, transferred or
assigned to a minor or incompetent, and any such attempted sale, transfer or
assignment shall be void and ineffectual and shall not bind the Partnership or
any General Partner.
6.02 WITHDRAWAL OF GENERAL PARTNER. The General Partner may (i)
voluntarily withdraw or retire from the Partnership or (ii) voluntarily assign,
transfer or pledge all or any portion of its interest in the Partnership, in
each case without the prior written consent or approval of any other Partner.
6.03 ADDITIONAL OR SUBSTITUTED GENERAL PARTNERS. Additional or
substituted General Partners may be admitted to the Partnership as substituted
or additional general partners at any time with the written approval of all
persons then serving as General Partners, and without the consent or approval of
any other Partner. Each person who is or hereafter may be admitted to the
Partnership as a Limited Partner, by its execution of this Agreement or an
amendment hereto hereby consents to any such admission and substitution.
6.04 MODIFICATION OF PERCENTAGE INTERESTS OF LIMITED PARTNERS.
(a) If an Event of Forfeiture (as hereinafter defined)
occurs with respect to any Limited Partner prior to the date on which 100% of
such Limited Partner's interest in the Partnership is vested (as determined in
accordance with this Section 6.04 and SCHEDULE B hereto), such Limited Partner's
Percentage Interest in the Partnership shall be reduced to a percentage
determined in the manner specified on SCHEDULE B hereto and a proportionate
portion of its Capital Account balance shall be eliminated. A Limited Partner's
"Vested Percentage Interest" as of any particular date shall mean the percentage
to which such Limited Partner's Percentage Interest in the Partnership would be
reduced pursuant to the preceding sentence if an Event of Forfeiture were to
occur as of such date.
If and to the extent that the Percentage Interest and Capital Account balance of
any Limited Partner is forfeited as a result of the operation of this Section
6.04(a), the Percentage Interests and Capital Account balances of the other
Partners, exclusive of the Percentage Interests and Capital Account balances of
Limited Partners for whom an Event of Forfeiture has occurred, shall be adjusted
as follows:
(i) 100% of the amount of the forfeited Percentage
Interest (and the associated Capital Account balance) shall be
allocated to the General Partner until such time as its aggregate
Percentage Interest in the Partnership is increased to 59.5%; and
(ii) The balance, if any, of the forfeited Percentage
Interest (and the associated Capital Account balance) shall be
allocated among all other Limited Partners (other than Limited Partners
for whom an Event of Forfeiture has occurred). The aggregate increases
in Percentage Interests and Capital Account balances of such other
Limited Partners shall be allocated among such Limited Partners pro
rata based on their respective Percentage Interests as in effect
immediately prior to the occurrence of the Event of Forfeiture which
resulted in the adjustment contemplated by this paragraph.
(b) For purposes of this Agreement, an "Event of
Forfeiture" with respect to a Limited Partner shall mean and shall be deemed to
have occurred in the event that:
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(1) Such Limited Partner dies;
(2) Such Limited Partner becomes disabled (as
hereinafter defined), or a conservator or guardian is appointed for the
benefit of such Limited Partner or his property;
(3) Such Limited Partner voluntarily ceases to render
services to the Partnership or the Funds (whether as a consultant, an
employee or a management board member of Pioneering Management (Jersey)
Limited (the "Management Company") or to Pioneer Investments Poland Sp.
z o. o. or to any other affiliate of The Pioneer Group, Inc. which
provides services (directly or indirectly) to the Funds);
(4) Such Limited Partner is required by the General
Partner to cease to provide services to the Partnership (with or
without cause).
For purposes of clause (2) above, a Limited Partner shall be deemed to be
disabled if he is unable, as a result of mental or physical incapacity, to
render services to the Partnership on a regular ongoing basis for a period of 90
days.
Determinations as to whether an Event of Forfeiture has occurred with respect to
any Limited Partner (including any determination under clause (4) above
regarding cessation of services) shall be made by the General Partner, in its
sole and absolute discretion.
ARTICLE VII
DISSOLUTION AND TERMINATION
7.01 EVENTS OF DISSOLUTION.
(a) The Partnership shall be dissolved:
(i) upon the occurrence of any event of withdrawal
(as defined in the Partnership Act) of any person then serving as a
General Partner of the Partnership, subject to the right to continue
the Partnership described below;
(ii) upon the sale or other disposition of all of the
Partnership's assets;
(iii) upon the dissolution and termination of both of
the Funds unless either or both Funds are continued following any
dissolution in accordance with the Fund Agreements;
(iv) upon the occurrence of any other event which
causes the dissolution of the Partnership under the Partnership Act,
subject to any right to continue the Partnership provided in the
Partnership Act; or
(v) in any event, at 12:00 midnight on December 31,
2020.
(b) (i) Notwithstanding the occurrence of an event
specified in Section 7.01(a)(i), the Partnership shall not be dissolved and its
business and affairs shall not be discontinued, and the Partnership shall remain
in existence as a limited partnership under the laws of State of Delaware,
U.S.A., if the remaining General Partners, if any, or if none, the
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Limited Partners, unanimously elect within 90 days after such occurrence to
continue the Partnership hereunder. If such election to continue the Partnership
and its business is made by such persons, (i) such persons shall also choose a
new General Partner or Partners and (ii) the interest of the General Partner
shall be converted into a nonforfeitable special limited partnership interest in
the Partnership with the same economic rights as are attributable to the former
General Partner's interest.
(c) Dissolution of the Partnership shall be effective on
the day on which the event occurs giving rise to the dissolution, but the
Partnership shall not terminate until the Partnership's Certificate of Limited
Partnership shall have been cancelled and the assets of the Partnership shall
have been distributed as provided herein. Notwithstanding the dissolution of the
Partnership, prior to the termination of the Partnership, as aforesaid, the
business of the Partnership and the affairs of the Partners, as such, shall
continue to be governed by this Agreement. The General Partner (or, if there is
no remaining General Partner, a liquidator appointed by Limited Partners owning
a majority of the total Percentage Interests owned by all Limited Partners (a
"majority in interest of the Limited Partners"), the General Partner or such
liquidator being hereinafter referred to as the "Liquidator"), shall liquidate
the assets of the Partnership, apply and distribute the proceeds thereof as
contemplated by this Agreement and cause the cancellation of the Partnership's
Certificate of Limited Partnership.
7.02 DISTRIBUTIONS UPON LIQUIDATION.
(a) After payment of liabilities owing to creditors, the
Liquidator shall set up such reserves as it deems reasonably necessary for any
contingent or unforeseen liabilities or obligations of the Partnership. Said
reserves may be paid over by the Liquidator to a bank, to be held in escrow for
the purpose of paying any such contingent or unforeseen liabilities or
obligations and, at the expiration of such period as the Liquidator may deem
advisable, such reserves shall be distributed to the Partners or their assigns
in the manner set forth in subsection (b) below.
(b) After paying such liabilities and providing for such
reserves, the Liquidator shall cause the remaining net assets of the Partnership
to be distributed to all Partners with positive Capital Account balances (after
such balances have been adjusted to reflect the allocation of Net Profits or Net
Losses pursuant to Section 2.03 and Section 2.04 for the period ending on the
date of the liquidation), in proportion to and to the extent of such positive
balances. In the event that any part of such net assets consists of notes or
accounts receivable or other non-cash assets, the Liquidator shall take whatever
steps it deems appropriate to convert such assets into cash or into any other
form which would facilitate the distribution thereof. If any assets of the
Partnership are to be distributed in kind, the value of such assets shall be
determined in the manner provided in Section 3.04.
ARTICLE VIII
MISCELLANEOUS
8.01 NOTICES. Any and all notices, requests, elections, consents or
demands permitted or required to be made under this Agreement shall be in
writing, signed by the person giving such
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notice, request, election, consent or demand and shall be delivered personally,
or sent by telecopy, registered or certified mail, or by overnight mail, Federal
Express or other similar commercial overnight courier, to the Partnership, at
its principal place of business as specified in Section 1.04 hereof, and to any
Partner at its address set forth on SCHEDULE A hereto, or at such other address
as may be supplied by written notice given in conformity with the terms of this
Section 8.01. The business day following the date of the telecopy receipt
confirmation, the date of personal delivery, or the business day following the
date of mailing or delivery to an overnight courier, as the case may be, shall
be the date of such notice.
8.02 SUCCESSORS AND ASSIGNS. Subject to the restrictions on
transfer set forth herein, this Agreement, and each and every provision hereof,
shall be binding upon and shall inure to the benefit of the Partners, their
respective successors, successors-in-title, heirs and assigns, and each and
every successor-in-interest to any Partner, whether such successor acquires such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
8.03 AMENDMENTS. Amendments may be made to this Agreement:
(a) By a writing duly executed by the General Partner and
by Limited Partners owning a majority of the Percentage Interests owned by all
Limited Partners; provided that, any such amendment: (1) shall not in any manner
allow the Limited Partners to take part in the control of the Partnership's
business or otherwise modify their limited liability, (2) shall not increase the
liability or obligations of any Partner without the specific consent of such
Partner, (3) shall not reduce the Percentage Interest of any Partner without the
specific consent of such Partner, except for reductions effectuated in
accordance with the provisions of Section 2.01(d) and/or 6.04, and (4) shall not
alter the limitations set forth in clauses (1), (2) or (3) or this clause (4).
(b) By the General Partner, without the consent or
approval of any other Partner, to amend this Agreement to reflect transfers of
interests made pursuant to and in accordance with Article IV, to reflect
admission of additional Limited and/or General Partners pursuant to Sections
2.01(d) and/or 6.03, to reflect withdrawal of or transfers of the interests of
the General Partner pursuant to Section 6.02, and to reflect modifications of
the Percentage Interests of the Partners pursuant to and in accordance with
Section 2.01(d) and/or 6.04.
(c) By the General Partner, without the consent or
approval of the Limited Partners, (1) to add to its duties or obligations or
surrender any right or power granted to it herein; (2) to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with any
other provision herein or to make any other provisions with respect to matters
or questions arising under this Agreement which will not be inconsistent with
the provisions of this Agreement; and (3) to delete or add any provision of this
Agreement required to be so deleted or added by any Federal agency or by a state
"Blue Sky" commissioner or similar such official, which addition or deletion is
deemed by such agency or official to be for the benefit or protection of the
Limited Partners.
(d) By the General Partner, without the consent or
approval of any other Partner, to amend appropriate provisions of this Agreement
if the Partnership is advised at any
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time by its legal counsel that the allocations of profits and losses provided
for in Sections 2.03 and 2.04 hereof are unlikely to be respected for federal
income tax purposes, either because of the promulgation and adoption of Treasury
Regulations under Code Section 704 or other developments in applicable law. In
making any such amendment, the General Partner shall use its best efforts to
effect as little change in the economic and tax arrangements among the Partners
as it shall determine in its sole discretion to be necessary to provide for
allocations of profits and losses to the Partners which he believes will be
respected for federal income tax purposes. Any amendments made by the General
Partner pursuant to this subsection 8.03(d) shall be deemed to be made pursuant
to the fiduciary obligation of the General Partner to the Partnership, the
General Partner and the Limited Partners, and no such amendment shall give rise
to any claim or cause of action by any General Partner or any Limited Partner.
(e) By a writing duly executed by such other number or percentage of
General and/or Limited Partners as may be specifically provided for in this
Agreement.
8.04 PARTITION. The Partners hereby agree that no Partner nor any
successor-in-interest to any Partner, shall have the right while this Agreement
remains in effect to have the property of the Partnership partitioned, or to
file a complaint or institute any proceeding at law or in equity to have the
property of the Partnership partitioned, and each Partner, on behalf of himself,
his successors, representatives, heirs and assigns, hereby waives any such
right. It is the intention of the Partners that during the term of this
Agreement, the rights of the Partners and their successors-in-interest, as among
themselves, shall be governed by the terms of this Agreement, and that the right
of any Partner or successor-in-interest to assign, transfer, sell or otherwise
dispose of his interest in the Partnership shall be subject to the limitations
and restrictions of this Agreement.
8.05 NO WAIVER. The failure of any Partner to insist upon strict
performance of a covenant hereunder or of any obligation hereunder, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such Partner's right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of
any obligation hereunder, shall constitute a consent or waiver to or of any
other breach or default in the performance of the same or any other obligation
hereunder.
8.06 ENTIRE AGREEMENT. This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof.
8.07 CAPTIONS. Titles or captions of Articles or sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision hereof.
8.08 COUNTERPARTS. This Agreement may be executed in a number of
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on all the Partners notwithstanding that all Partners have
not signed the same counterpart.
8.09 APPLICABLE LAW. This Agreement and the rights and obligations of
the parties hereunder shall be governed by and interpreted, construed and
enforced in accordance with the internal laws of the State of Delaware, U.S.A.
(without regard to choice of law principles).
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8.10 GENDER, ETC. In the case of all terms used in this Agreement, the singular
shall include the plural and the masculine gender shall include the feminine and
neuter, and vice versa, as the context requires.
8.11 THIRD PARTY BENEFICIARIES; CREDITORS. None of the provisions of
this Agreement shall be for the benefit of or enforceable by any creditor of any
Partner or of the Partnership other than a Partner who is such a creditor of the
Partnership.
8.12 POWER OF ATTORNEY. Each Limited Partner, including any additional or
substituted Limited Partner, by the execution of this Agreement or any
counterpart thereof, does hereby irrevocably constitute and appoint the General
Partner, and any person or entity which becomes an additional or substituted
General Partner of the Partnership, and any of the foregoing acting alone, in
each case with full power of substitution, his true and lawful agent and
attorney-in-fact, with full power and authority in his name, place and xxxxx, to
make, execute, acknowledge, swear to, deliver, file and record such documents
and instruments as may be necessary or appropriate to carry out the provisions
of this Agreement, including, but not limited to, (i) such amendments to this
Agreement and/or the Partnership's Certificate of Limited Partnership, as
amended from time to time, as are necessary to effectuate the provisions of
Sections 2.01(d) and 6.04 of this Agreement or to admit to the Partnership a
substituted or additional Partner pursuant to Article VI hereof, (ii) all
fictitious or assumed name certificates required or permitted to be filed on
behalf of the Partnership and (iii) all other instruments which may be required
or permitted by law to be filed on behalf of the Partnership. The foregoing
power of attorney is coupled with an interest and shall be irrevocable and
survive the death or incapacity of any Limited Partner.
8.13 FIRM NAME AND GOODWILL. The Partnership name and goodwill shall, as
among the Partners, shall belong to the General Partner or any successor
thereof, and no other Partner shall have any right or claim individually to the
use thereof.
8.14 PROPRIETARY INFORMATION. This Agreement and all financial statements,
tax reports, portfolio valuations and reviews or analyses of potential or actual
investments and all other documents and information concerning the affairs of
the Partnership and the Funds and their investments, including information about
the entities in which such investments are made by the Funds (collectively, the
"Information"), that any Partner may receive pursuant to or in accordance with
this Agreement, or otherwise as a result of its ownership of an interest in the
Partnership, are confidential and the property of the Partnership and/or the
Funds. No Partner shall reproduce any of the Information or portion thereof or
make the contents thereof available to any third party other than such Partner's
legal, accounting or investment advisers and representatives (collectively,
"Advisers") without the prior written consent of the General Partner, except (i)
to the extent compelled to do so in accordance with applicable law, (ii) such
Information may be used in order to perform such Partner's duties as an employee
of or other provider of services to the Funds or the Partnership, or (iii) with
respect to Information which otherwise becomes publicly available other than
through breach of this provision by a Partner. Each Partner agrees that he or
she will cause his or her Advisers to abide by the aforesaid provisions of this
Section 8.14.
8.15 DEFINITIONS. The definitions of the terms used in this Agreement
are set forth in the Sections of this Agreement listed below:
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Capital Account 2.02(a)
Code 2.02(a)
disabled 6.04(b)
Distributable Cash 3.01(a)
Distributable Securities 3.01(b)
Event of Forfeiture 6.04
Fund(s) 1.03
Fund Agreement(s) 1.03
General Partner Recital
Information 8.14
Limited Partner(s) Recital
Liquidator 7.01
majority in interest of the
Limited Partners 7.01(c)
Management Company 6.04(b)
Net Losses 2.02(b)
Net Profits 2.02(b)
Partner(s) Recital
Partnership Recital
Partnership Act 1.01
Partnership Capital 2.02(c)
Percentage Interest 2.02(d)
Portfolio Company 4.03
Securities Act 6.01
UK Fund 1.03
UK Fund Agreement 1.03
US Fund 1.03
US Fund Agreement 1.03
Vested Percentage Interest 6.04
Vesting Termination Date SCHEDULE B
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GENERAL PARTNER:
PIONEER POLAND U.S. (JERSEY) LIMITED
By /s/ Xxxxx A.N. Xxxxxx
---------------------------
Name Xxxxx A.N. Xxxxxx
Title Director
LIMITED PARTNERS:
/s/ Xxxxxxxxx Xxxxxx
-----------------------------
Xxxxxxxxx Xxxxxx
/s/ Blazej Dymaczewski
-----------------------------
Blazej Dymaczewski
/s/ Xxxxxxx Xxxxx
-----------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxx Xxxxxxxxxx
-----------------------------
Xxxx Xxxxxxxxxx
/s/ Przemek Szczypanski
-----------------------------
Przemek Szczypanski
/s/ Xxxxxxxx Xxxxxxxxx
-----------------------------
Xxxxxxxx Xxxxxxxxx
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/s/ Xxxx Xxxxxxxx
-----------------------------
Xxxx Xxxxxxxx
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SCHEDULE A
PARTNERS NAMES, BUSINESS ADDRESSES,
CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
GENERAL PARTNER
PERCENTAGE CAPITAL
NAME AND BUSINESS ADDRESS INTEREST CONTRIBUTION
Pioneer Poland U.S. (Jersey) 59.50% $595.00
Limited
La Xxxxx Xxxxxxxx
Xx. Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxx XX0 0XX
with a copy to:
The Pioneer Group, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
LIMITED PARTNERS
PERCENTAGE CAPITAL
NAME AND BUSINESS ADDRESS INTEREST CONTRIBUTION
Xxxxxxxxx Xxxxxx 1.50% $15.00
xx. Xxxxxxxx 00X/00
00-000 Xxxxxxxx, Xxxxxx
Blazej Dymaczewski 2.00% $20.00
Osiedle Natolin Bis
Natolin 1A, dom nr 3
05-825 Grodzisk Mazowiecki, Poland
Xxxxxxx Xxxxx 8.00% $80.00
xx. Xxxxxxxxx 00
00-000 Xxxxxxxx, Xxxxxx
and
00000 000xx Xxxxxx
Xxxxxx, Xxxxx Xxxxxx 00000-0000
Xxxxxxx Xxxxxxxxxx 3.00% $30.00
xx. Xxxxxxx 00
00-000 Xxxxxxxxxxx, Xxxxxx
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and
0000 X. Xxxxxxxx Xxxxxx
#X-000
Xxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxxxx 3.00% $30.00
xx. Xxxxxxxxxxxxxx 00
00-000 Xxxxxxxx, Xxxxxx
and
0000 Xxxxxx Xxxx, #X-000
Xxxxxxxxx, XX 00000
Xxxxx Xxxxx 2.00% $20.00
xx. Xxxxxxxxx 00/00 x. 00
00-000 Xxxxxxxx, Xxxxxx
and
00 Xxxxxxx Xxxxx
Xxxxxx X0 0XX, Xxxxxxx
Xxxxx X. Xxxxxxxx 15.00% $150.00
0000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxxxxxxxxx 1.00% $10.00
xx. Xxxxxxxxx 00/00
00-000 Xxxxxxxx, Xxxxxx
Xxxxxxx Xxxxxxxxxxx 1.00% $10.00
xx. Xxxxxx 00/00
00-000 Xxxxxxxx, Xxxxxx
Xxxxxxxx Xxxxxxxxx 2.00% $20.00
xx. Xxxxxxxxxx 00 x.0
00-000 Xxxxxxxx, Xxxxxx
Xxxx Xxxxxxxx 2.00% $20.00
Xx. Xxxxxxxxxxxx 00 x.00
00-000 Xxxxxxxx, Xxxxxx
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SCHEDULE B
VESTING FORMULA FOR LIMITED PARTNERS
1. REDUCTION OF PERCENTAGE INTEREST. If an Event of Forfeiture with respect to a
Limited Partner occurs, such Limited Partner's Percentage Interest shall be
reduced to such Limited Partner's Vested Percentage Interest, determined as
hereinafter provided and a proportionate portion of such Limited Partner's
Capital Account balance shall similarly be eliminated.
2. VESTED PERCENTAGE INTEREST.
(a) XXXXX X. XXXXXXXX. The Vested Percentage Interest of Xxxxx
X. Xxxxxxxx ("Hartford") shall be determined as follows. Hartford's
Vested Percentage Interest shall equal 90% of his Percentage Interest
immediately prior to the occurrence of the Event of Forfeiture if the
Event of Forfeiture occurs on or before February 28, 2000, and 100% of
his Percentage Interest immediately prior to the occurrence of the
Event of Forfeiture if the Event of Forfeiture occurs after February
28, 2000.
(b) XXXXXXXXX XXXXXX, XXXX XXXXXXXXXX, XXXXXXXX XXXXXXXXX AND
XXXXXXX XXXXXXXXXXX. The Vested Percentage Interest of each of
Xxxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxx Xxxxxxxxx and Xxxxxxx
Xxxxxxxxxxx (the "Employees") shall be determined as follows. Each
Employee's Vested Percentage Interest shall equal (x) 100% of such
Employee's Percentage Interest (immediately prior to the occurrence of
the Event of Forfeiture) multiplied by (y) a fraction (which shall
never be greater than one) (A) the numerator of which shall equal the
number of whole calendar years which shall have elapsed from January 1,
1999 through the Vesting Termination Date (as defined below), and (B)
the denominator of which shall be five.
(c) BLAZEJ DYMACZEWSKI AND XXXX XXXXXXXX. The Vested
Percentage Interest of each of Blazej Dymaczewski and Xxxx Xxxxxxxx
(the "Employees") shall be determined as follows. Each Employee's
Vested Percentage Interest shall equal (x) 100% of such Employee's
Percentage Interest (immediately prior to the occurrence of the Event
of Forfeiture) multiplied by (y) a fraction (which shall never be
greater than one) (A) the numerator of which shall equal the number of
whole calendar years which shall have elapsed from January 1, 1997
through the Vesting Termination Date (as defined below), and (B) the
denominator of which shall be five.
(d) XXXXX XXXXXXXXX. The Vested Percentage Interest of Xxxxx
Xxxxxxxxx (the "Employee") shall be determined as follows. The
Employee's Vested Percentage Interest shall equal (x) 100% of the
Employee's Percentage Interest (immediately prior to the occurrence of
the Event of Forfeiture) multiplied by (y) a fraction (which shall
never be greater than one) (A) the numerator of which shall equal the
number of whole 12-calendar month periods which shall have elapsed from
February 1, 1996 through the Vesting Termination Date (as defined
below), and (B) the denominator of which shall be six.
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(e) XXXXXXX XXXXXXXXXX. The Vested Percentage Interest of
Xxxxxxx Xxxxxxxxxx (the "Employee") shall be determined as follows. The
Employee's Vested Percentage Interest shall equal (x) 100% of the
Employee's Percentage Interest (immediately prior to the occurrence of
the Event of Forfeiture) multiplied by (y) a fraction (which shall
never be greater than one) (A) the numerator of which shall equal the
number of whole 12-calendar month periods which shall have elapsed from
September 9, 1997 through the Vesting Termination Date (as defined
below), and (B) the denominator of which shall be six.
(f) XXXXX XXXXX. The Vested Percentage Interest of Xxxxx Xxxxx
(the "Employee") shall be 2% at all times.
(g) XXXXXXX XXXXX. The Vested Percentage Interest of Xxxxxxx
Xxxxx (the "Employee") shall be as follows: if the Vesting Termination
Date occurs on or prior to December 31, 1999, the Vested Percentage
Interest shall be 2.0%; if the Vesting Termination Date occurs on or
after January 1, 2000 and prior to January 1, 2001, the Vested
Percentage Interest shall be 3.6%; if the Vesting Termination Date
occurs on or after January 1, 2001 and prior to January 1, 2002, the
Vested Percentage Interest shall be 5.2%; if the Vesting Termination
Date occurs on or after January 1, 2002 and prior to January 1, 2003,
the Vested Percentage Interest shall be 6.8%; if the Vesting
Termination Date occurs on or after January 1, 2003 and prior to
January 1, 2004, the Vested Percentage Interest shall be 7.4%; and if
the Vesting Termination Date occurs on or after January 1, 2004, the
Vested Percentage Interest shall be 8%.
(h) OTHER LIMITED PARTNERS. The Vested Percentage Interest of
any other Limited Partner other than those named in paragraphs (a)
through (g) above shall be determined by multiplying (x) the Percentage
Interest (immediately prior to the occurrence of the Event of
Forfeiture) of the Limited Partner for whom the Event of Forfeiture
occurred, by (y) a fraction (which shall never be greater than one) (A)
the numerator of which shall equal the number of whole calendar years
which shall have elapsed from the date such Employee is admitted to the
Partnership through the Vesting Termination Date (as defined below),
and (B) the denominator of which shall be five.
3. VESTING TERMINATION DATE. The Vesting Termination Date, for purposes of
determining the Vested Percentage Interest of any Limited Partner, shall mean
the following, as applicable:
(a) With respect to the Event of Forfeiture described in clause (1) of
Section 6.04(b) [death], the Vesting Termination Date shall be the date of
death.
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(b) With respect to the Event of Forfeiture described in clause (2) of
Section 6.04(b) [disability, or appointment of guardian or conservator], the
Vesting Termination Date shall be the date on which the Event of Forfeiture
occurred (which shall, in the event of disability, be the last day of the 90-day
period based upon which the Limited Partner is determined to be disabled).
(c) With respect to the Event of Forfeiture described in clause (3) of
Section 6.04(b) [voluntary cessation of service], the Vesting Termination Date
shall be the date on which the Limited Partner ceases to provide services.
(d) With respect to the Event of Forfeiture described in clause (4) of
Section 6.04(b) [involuntary cessation of service by vote of the General
Partners], the Vesting Termination Date shall be the later of (x) the effective
date of such cessation of service and (y) the date on which notice of such
involuntary cessation is provided to the affected Limited Partner.
4. DETERMINATION OF VESTED PERCENTAGE INTEREST. All determinations hereunder
with respect to calculation of a Partner's Vested Percentage Interest and
adjustments to such Member's Capital Account balance upon the occurrence of such
Event of Forfeiture shall be made by the General Partner in its sole and
absolute discretion.
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