AGREEMENT OF LIMITED PARTNERSHIP OF STRATOS FUNDING LP
Exhibit 3(ii)
AGREEMENT OF LIMITED PARTNERSHIP
OF
STRATOS FUNDING LP
OF
STRATOS FUNDING LP
THIS AGREEMENT OF LIMITED PARTNERSHIP (this “Agreement”) is entered into and shall be
effective as of November 17, 2004, by and between Stratos Global Corporation, a corporation
incorporated under the laws of Canada (“SGC”), as a General Partner, and Stratos Wireless Inc.,
a corporation incorporated under the laws of Canada (“SWI”), as a Limited Partner, pursuant to
the provisions of the Delaware Limited Partnership Act. Unless otherwise defined elsewhere in
the Agreement, all capitalized terms shall have the meanings assigned to them in Section 1.8
below.
RECITALS
A. Whereas, Stratos Funding LP was formed as a Delaware limited partnership pursuant to a
Certificate of Limited Partnership filed with the Secretary of State of the State of Delaware
on November 17, 2004, pursuant to the Delaware Limited Partnership Act, Title 6 Delaware Code,
Chapter 17.
B. Whereas, the Partners desire to make certain capital contributions into the Partnership
and enter into this Agreement in order to govern the affairs of the Partnership and set forth
their rights, obligations and understandings with respect to the Partnership.
NOW, THEREFORE, in consideration of the mutual promises herein contained and intending to
be legally bound hereby, the Partners agree as follows:
SECTION 1. THE PARTNERSHIP
1.1 Formation. The Partners hereby agree to form the Partnership as a limited
partnership pursuant to the provisions of the Act and upon the terms and conditions set forth
in this Agreement.
1.2 Name. The name of the Partnership shall be Stratos Funding LP, a
Delaware limited partnership.
1.3 Purpose. The purpose of this Partnership is to engage in any lawful act
or activity for which partnerships may now or hereafter be organized under the Act.
1.4 Registered Office and Resident Agent. The name and address of the
Partnership’s resident agent in the State of Delaware shall be Corporation Service Company,
0000 Xxxxxx Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
1.5 Term. The term of the Partnership commenced on November 17, 2004, and shall
continue until December 31, 2049, unless the Partnership is dissolved and terminated earlier as
set forth in this Agreement.
1.6 Filings: Agent for Service of Process.
(a) The Partnership caused the Certificate to be filed in the office of the Secretary of State
of the State of Delaware in accordance with the provisions of the Act. The General Partner shall
cause amendments to the Certificate to be filed whenever required by the Act.
(b) The General Partner shall take any and all other actions as may be reasonably necessary to
perfect and maintain the status of the Partnership as a limited partnership under the laws of any
other states or jurisdictions in which the Partnership engages in business.
1.7 Independent Activities. The General Partner, each Limited Partner and their
respective Affiliates may, notwithstanding this Agreement, engage in whatever activities they
choose, whether the same are competitive with the Partnership or otherwise, without having or
incurring any obligation to offer any interest in such activities to the Partnership or any
Partner. Neither this Agreement nor any activity undertaken pursuant hereto shall prevent any
Partner or Affiliate from engaging in such activities, or require any Partner or Affiliate to
permit the Partnership or any Partner to participate in any such activities or entitle the
Partnership or any Partner to any rights to the income, gain or profits derived therefrom, and as a
material part of the consideration for the execution of this Agreement by each Partner, each
Partner hereby waives, relinquishes and renounces any such right or claim of participation.
1.8 Definitions. Capitalized words and phrases used in this Agreement have the
following meanings:
(a) “Act” means the Delaware Limited Partnership Act, as amended from time to time (or any
corresponding provisions of succeeding law).
(b) “Affiliate” means, with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person, (ii) any Person owning or
controlling ten percent (10%) (or more) of the outstanding voting securities of such Person, (iii)
any officer, director or general partner of such Person, (iv) any Person who is an officer,
director, general partner, trustee, beneficiary or holder of ten percent (10%) or more of the
voting securities of any Person described in clauses (i) through (iii) of this sentence, or (v) any
Person who is a member of the immediate family of any Person described in clauses (i) through (iv)
of this sentence. As used in Section 1.8(b)(i), “control” (in the context of the terms
“controlling,” and “controlled by,” and “under common control with”) means the possession, direct
or indirect, of the power to cause the direction of management and policies of entities or persons,
whether through the ownership of voting securities, by contract, or otherwise. As used in Section
1.8(b)(ii), the term “controlling” means the possession, direct or indirect, of the power to cause
the voting securities to be voted as the Person sees fit.
(c) “Agreement” or “Partnership Agreement” means this Agreement of Limited Partnership, as
amended from time to time.
(d) “Asset Value” means, with respect to any asset of the Partnership, the asset’s
adjusted basis for Federal income tax purposes, except as follows:
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(i) The initial Asset Value of any asset contributed by a Partner to the Partnership
shall be the gross fair market value of such asset as determined by the General Partners (the
“Gross Fair Market Value”):
(ii) Upon the distribution in kind of any Partnership asset, other than a distribution in
connection with Section 11.2, the Asset Value of such asset shall be adjusted immediately prior to
such distribution to equal its Gross Fair Market Value;
(iii) To the extent the Partners agree that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners in the Partnership, the Asset Values of all
Partnership assets shall be adjusted to equal their respective Gross Fair Market Values as of the
following times: (1) upon the acquisition of an interest in the Partnership by a new Partner or an
additional interest by an existing Partner in exchange for more than a de minimis capital
contribution; and (2) upon the distribution by the Partnership to a Partner of more than a de
minimis amount of property as consideration for an interest in the Partnership; and
(iv) If the Asset Value of an asset has been determined or adjusted in accordance with
paragraphs (i), (ii) or (iii) of this Section 1.8(d), such Asset Value shall thereafter be adjusted
by the Depreciation taken into account with respect to such asset for purposes of computing Profit
and Loss.
(e) “Capital Account” means, with respect to any Partner, the capital account maintained for
such Partner in accordance with the following provisions:
(i) The capital account of each Partner shall be credited with the amount of cash and the
Asset Value of any property contributed to the Partnership pursuant to this Agreement plus all
income, gain and Profit of the Partnership allocated to such Partner pursuant to this Agreement,
plus the amount of any Partnership liabilities assumed by such Partner or which are secured by any
Partnership property distributed to such Partner.
(ii) The capital account of each Partner shall be debited with the
amount of cash and the fair market value of any Partnership property distributed to such Partner
pursuant to this Agreement, plus all Loss and items of loss and deduction allocated to such Partner
pursuant to this Agreement, plus the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by such Partner to the Partnership.
(iii) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the capital account of
the transferor to the extent it relates to the transferred interest.
(f) “Capital Contribution” means, with respect to any Partner, the amount of money and the
initial Asset Value of any property (other than money) contributed to the Partnership, reduced by
the amount of any liabilities of such Partner assumed by the Partnership in connection with the
contribution or which are secured by any property contributed.
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(g) “Certificate” means the Certificate of Limited Partnership filed pursuant to the Act for
the formation of the Partnership.
(h) “Depreciation” means, for each fiscal year or other period, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable with respect to an asset for
such year or other period for Federal income tax purposes, except that if the Asset Value of an
asset differs from its adjusted basis for Federal income tax purposes at the beginning of such year
or other period, Depreciation shall be an amount which bears the same ratio to such beginning Asset
Value as the Federal income tax depreciation, amortization or other cost recovery deduction for
such year or other period bears to such beginning adjusted tax basis; provided, however,
that if the Federal income tax depreciation, amortization or other cost recovery deduction for such
year is zero, Depreciation shall be determined with reference to such beginning Asset Value using
any reasonable method selected by the General Partners.
(i) “General Partner” means any Person who (i) is described as such in Section 2.1 of this
Agreement or has become a General Partner pursuant to the terms of this Agreement, and (ii) has
not ceased to be a General Partner pursuant to the terms of this Agreement.
(j) “Limited Partner” means any Person which (i) is described as such in Section 2.2 of this
Agreement or who has become a Limited Partner pursuant to the terms of this Agreement, and (ii)
holds a Partnership Interest. All references in this Agreement to a majority in interest or a
specified percentage of the Limited Partners shall mean Limited Partners whose combined Percentage
Points represent more than 50% or such specified percentage, respectively, of the Partnership
Interests then held by all Limited Partners.
(k) “Net Cash Flow” means all cash received from Partnership operations not including amounts
received as Capital Contributions, reduced by all cash paid, or amounts used to establish
reasonable reserves, for all Partnership expenses, debt payments, capital improvements,
replacements or other contingencies, all as determined by the General Partners.
(l) “Partners” means the General Partners and all Limited Partners, where no distinction is
required by the context in which the term is used herein. All references in this Agreement to a
majority in interest or a specified percentage of the Partners shall mean Partners whose combined
Percentage Interests represent more than 50% of the Percentage Interests or such specified
percentage, respectively, of the Percentage Interests then held by all Partners.
(m) “Partnership” means the partnership formed pursuant to this Agreement and the partnership
continuing the business of this Partnership in the event of dissolution as herein provided.
(n) “Partnership Interest” means an ownership interest in the Partnership corresponding to a
Percentage Interest to which the interest relates and includes any and all benefits to which the
holder of such a Partnership Interest may be entitled as provided in this Agreement, together with
all obligations of such Person to comply with the terms and provisions of this Agreement.
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(o) “Percentage Interest” means with respect to any Partner, the Percentage Interest set forth
opposite such Partner’s name on Exhibit A attached hereto. In the event any Partnership Interest is
transferred in accordance with the provisions of this Agreement, the transferee of such interest
shall succeed to the Percentage Interest of its transferor to the extent it relates to the
transferred interest.
(p) “Person” means any individual, partnership, corporation, limited liability company, trust
or other entity.
(q) “Profit” or “Loss” mean for each fiscal year or other period, an amount equal to the
Partnership’s taxable income or loss for such year or period, as determined by the General
Partners.
Other capitalized terms used in this Agreement and not defined in this Section 1.8 shall have the
meanings assigned to them elsewhere in this Agreement. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. The words “hereof”, “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. References to the “date herein”
shall mean the date of this Agreement. When a reference is made in this Agreement to a Section or
Exhibit, such reference shall be to a Section of, or an Exhibit to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation”. All terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein. Any agreement, instrument or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented, including (in the
case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and instruments
incorporated therein.
SECTION 2. PARTNERS’ CAPITAL CONTRIBUTIONS
2.1 General Partners. The names, addresses, Capital Contributions and Percentage
Interests of the General Partners are set forth on Exhibit A attached hereto.
2.2 Limited Partners. The names, addresses, Capital Contributions and Percentage
Interests of the Limited Partners are set forth on Exhibit A attached hereto.
2.3 Additional Capital Contributions. The Partners shall be under no obligation to
make any additional contributions.
2.4 Other Matters.
(a) Except as otherwise provided in this Agreement, no Partner shall withdraw any
Capital Contributions without the consent of a majority of the Partners.
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(b) No Partner shall receive any interest, salary, or drawing with respect to its Capital
Contributions or its Capital Account or for services rendered on behalf of the Partnership or
otherwise in its capacity as a Partner, except as otherwise provided in this Agreement.
(c) Except as otherwise provided by this Agreement, no Limited Partner shall be liable for the
debts, liabilities, contracts or any other obligations of the Partnership. Except as otherwise
provided by this Agreement, any other agreements among the Partners, or applicable state law, a
Limited Partner shall be liable only to make its Capital Contribution and shall not be required to
lend any funds to the Partnership or, after its Capital Contribution has been paid, to make any
additional contributions to the Partnership. No General Partner shall have any personal liability
for the repayment of any Capital Contributions of any Limited Partner.
(d) No Partner shall have any obligation at any time to restore a deficit balance in its
Capital Account.
SECTION 3. ALLOCATIONS OF PROFIT, LOSS AND NONRECOURSE LIABILITIES
3.1 Allocations of Profit and Loss.
(a) Profit of the Partnership for each fiscal year shall be allocated:
(i) first, in the same proportions as the aggregate Loss (if any) for all previous
years was allocated among the Partners pursuant to Section 3.1(b)(ii), until the aggregate Profit
allocated to each Partner pursuant to this Section 3.1(a)(i) for such year and all previous years
is equal to the aggregate Loss allocated to such Partner pursuant to Section 3.1(b)(ii) for all
previous years;
(ii) thereafter, the balance, if any, to the Partners in the ratio of their Percentage
Interests.
(b) Loss of the Partnership for each fiscal year shall be allocated:
(i) first, in the same proportions as the aggregate Profit (if any) for all previous
years was allocated among the Partners pursuant to Section 3.1(a)(ii), until the aggregate Loss
allocated to each Partner pursuant to this Section 3.1(b)(i) for each year and all previous years
is equal to the aggregate Profit allocated to such Partner pursuant to Section 3.1(a)(ii) for all
previous years; and
(ii) thereafter, the balance, if any, to the Partners in the ratio of their Percentage
Interests.
SECTION 4. DISTRIBUTIONS
4.1 Distributions. Except as otherwise provided in Section 11.2 hereof, Net Cash Flow,
if any, shall be distributed to the Partners in the ratio of their Percentage Interests at such
times as the General Partners shall determine.
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SECTION 5. MANAGEMENT
5.1 Authority of the General Partners. Except to the extent otherwise provided in
Section 5.2, the General Partners shall manage the business of the Partnership and shall have the
power and authority to exercise all rights and powers, to make all decisions and to take all other
actions not expressly reserved to the Partners hereunder which by law would otherwise be exercised,
made or taken by all of the Partners or by the General Partners. Except as otherwise expressly
provided in this Agreement, if a vote is required of the General Partners, the vote of General
Partners holding a majority of the Percentage Interests held by General Partners shall control.
5.2 Restrictions on Authority of General Partners. The consent or approval of all of
the Partners shall be required for such actions as expressly provided elsewhere in this Agreement.
In addition, without the consent of all of the Partners, the General Partners shall not have the
authority to:
(a) do any act in contravention of this Agreement;
(b) do any act which would make it impossible to carry on the ordinary business of the
Partnership, except as otherwise provided in this Agreement;
(c) confess a judgment against the Partnership;
(d) knowingly perform any act that would subject any Limited Partner to liability as a
general partner in any jurisdiction; or
(e) commingle funds of the Partnership with funds of any other Person.
5.3 Right to Rely on General Partners. Any Person dealing with the Partnership may
rely upon a certificate signed by any of the General Partners as to:
(a) the identity of any General Partner or Limited Partner;
(b) the existence or nonexistence of any fact or facts which constitute a condition precedent
to acts by a General Partner or which are in any other manner germane to the affairs of the
Partnership; and
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership.
5.4 Duties and Obligations of General Partners.
(a) The General Partners shall take all actions which may be necessary or appropriate for the
continuation of the Partnership’s valid existence as a limited partnership.
(b) The General Partners shall devote to the Partnership such time as may be necessary for the
proper performance of all duties hereunder, but the General Partners shall not be required to
devote full time to the performance of such duties.
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5.5 Duties of the Partners. Subject to and in recognition of the various rights,
obligations and scope of operating and execution authority granted to the General Partners
hereunder, the General Partners shall exercise due diligence to cause the Partnership to accomplish
the Partnership’s purposes. The General Partners also shall, subject to aforesaid, exercise due
diligence to cause the Partnership to comply with all legal requirements applicable to the
Partnership and with all agreements to which the Partnership is a party, or by which the
Partnership is bound. The Partners shall act expeditiously in all Partnership matters, shall take
all such actions as may be appropriate to the business of the Partnership, and shall devote such of
their time to the affairs of the Partnership’s business as is reasonable necessary, taking into
account their status as General Partners or Limited Partners.
5.6 Indemnification by and of Partners. Each Partner shall be solely responsible for
and shall indemnity and hold harmless the Partnership and the other Partners from and against the
indemnitor Partner’s own grossly negligent or willfully wrongful acts or omissions and for its acts
and omissions which are beyond the scope of its authority hereunder or which are in breach of its
obligations hereunder. No Partner shall be liable to the Partnership or to the other Partners for
any loss or damage arising out of any activities in such Partner’s capacity as Partner within the
scope of such Partner’s authority provided such loss or damage was not caused by such Partner’s bad
faith acts, gross negligence or willful misconduct. Except to the extent that a Partner incurs loss
or damage caused by its bad faith acts, gross negligence or willful misconduct, or for its acts and
omissions which are beyond the scope of its authority hereunder, the Partnership shall, out of
Partnership assets (but not the assets of any Partners), indemnify and hold the Partners harmless
from and against any personal loss or damage incurred by them arising from any act performed by
them for and on behalf of the Partnership or arising out of any business of the Partnership.
5.7 Compensation and Loans.
(a) Compensation and Reimbursement. The General Partners shall be entitled to
reimbursement for any direct expenses incurred in connection with the Partnership’s business, but
shall not be entitled to any other compensation for their services hereunder. No Limited Partner
shall receive any salary, fee or draw for services rendered to or on behalf of the Partnership, nor
shall any Limited Partner be reimbursed for any expenses incurred by such Limited Partner on behalf
of the Partnership.
(b) Partner Loans. Any Partner may, with the consent of the General Partners, lend or
advance money to the Partnership. If any Partner shall make any loan or loans to the Partnership or
advance money on its behalf, the amount of any such loan or advance shall not be treated as a
Capital Contribution but shall be a debt due from the Partnership. The amount of any such loan or
advance by a lending Partner shall be repayable out of the Partnership’s cash and shall bear
interest at such rate as the General Partners and the lending Partner shall agree. If a General
Partner is the lending Partner; the rate of interest shall be determined in good faith by the
General Partners taking into consideration, without limitation, prevailing interest rates and the
interest rates such General Partner is required to pay in the event such General Partner has itself
borrowed funds to loan or advance to the Partnership. None of the Partners shall be obligated to
make any loan or advance to the Partnership.
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5.8 Authority of General Partners. The signature of one or more of the General
Partners shall be necessary and sufficient to execute any agreements, contracts, deeds, promissory
notes, instruments or other documents and all of the Partners agree that a copy of this Agreement
may be shown to the appropriate parties in order to confirm the same, and further agree that the
signatures of any one of the General Partners shall be sufficient to execute any “statement of
partnership” or other documents necessary to effectuate this or any other provision of this
Agreement. All of the Partners do hereby appoint each of the General Partners as their
attorney-in-fact for the execution of any or all of the documents described herein.
SECTION 6. ROLE OF LIMITED PARTNERS
6.1 Rights or Powers. Except as otherwise set forth in Section 6.2 hereof, the Limited
Partners shall have no rights or powers to take part in the management and control of the
Partnership and its business and affairs.
6.2 Voting Rights. The Limited Partners shall have the right to vote on the matters
expressly set forth in this Agreement. Except as otherwise expressly provided in this Agreement, if
the Limited Partners are entitled to vote on a matter, the vote of Limited Partners holding a
majority of the Percentage Interests held by Limited Partners that have voted on such matter shall
control.
SECTION 7. BOOKS AND RECORDS
7.1 Books and Records. The General Partners shall keep adequate books and records of
the Partnership at the Partnership’s principal place of business, setting forth a true and accurate
account of all business transactions arising out of and in connection with the conduct of the
Partnership, including, without limitation, all receipts and expenditures, assets and liabilities,
profits and losses, and all other records necessary for recording the Partnership’s business and
affairs. Any Partner or its designated representative shall have the right, at any reasonable time,
to have access to and inspect and copy the contents of such books or records.
7.2 Fiscal Year. The fiscal year of the Partnership shall be the calendar year.
7.3 Reports. The General Partners shall cause to be prepared and furnished to the
Partners a statement of partnership operations for each calendar quarter. The General Partners
shall cause to be prepared, and shall furnish to the Partners within one hundred twenty (120) days
after the end of each fiscal year, a profit and loss statement, a balance sheet and a statement of
changes in financial provision.
7.4 Tax and Accounting Decisions. All decisions as to tax matters and accounting
treatment of any items relating to the Partnership’s business shall be made by the General Partners
in consultation with the Partnership’s accountants. The General Partners shall make, or cause to be
made, such elections as they may deem appropriate.
SECTION 8. AMENDMENTS; MEETINGS
8.1 Amendments.
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(a) Amendments to this Agreement may be proposed by one or more of the General Partners or by
any Limited Partner holding ten percent (10%) or more of the Percentage Interests. If an amendment
is proposed by a Limited Partner, such Limited Partner shall promptly delivery to each of the
General Partners the text of the proposed amendment. Following receipt of the text of the proposed
amendment as the case may be, the General Partners shall cause to be submitted to each Limited
Partner a copy of the text of the proposed amendment and its recommendation with respect thereto.
The General Partners shall seek the written vote of the Partners on the proposed amendment or shall
call a meeting to vote thereon and to transact any other business that it may deem appropriate, in
accordance with Section 8.2 herein. For purposes of obtaining a written vote, the General Partners
may require a response within a reasonable specified time, but not less than fifteen (15) days, and
failure to respond in such time period shall constitute a vote which is consistent with the General
Partners’ recommendation with respect to the proposal. Except as provided in Section 8.1(b) and
9.7(b) hereof, a proposed amendment shall be adopted and be effective as an amendment hereto if it
receives the affirmative vote of Partners holding a majority of the Percentage Interests.
(b) Notwithstanding Section 8.1(a) hereof, this Agreement shall not be amended without the
consent of each Partner adversely affected if such amendment would (i) convert a Limited Partner’s
Partnership Interest into a General Partner’s Partnership Interest, (ii) modify the limited
liability of a Limited Partner, or (iii) alter the interest of a Partner in Profits, Losses, other
items of income, gain, loss and deduction, or any Partnership distributions.
8.2 Meetings and Means of Voting.
(a) Meetings of the Partners may be called by any one or more of the General Partners and
shall be called upon the written request of Limited Partners holding ten percent (10%) or more of
the Percentage Interests. Notice of any such meeting shall be given to all Partners not less than
seven (7) days nor more than thirty (30) days prior to the date of such meeting, and shall state
the nature of the business to be transacted. Whenever the vote or consent of Partners is permitted
or required under this Agreement, such vote or consent may be given at a meeting of Partners in
person or by telephone or may be given by means of a written consent signed by Partners holding the
requisite percentage of Percentage Interests. Except as otherwise expressly provided in this
Agreement, the vote of Partners holding a majority of the Percentage Interests shall control.
(b) Each Partner may authorize any Person or Persons to act for him by proxy on all matters in
which a Partner is entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Partner or its attorney-in-fact. No
proxy shall be valid after the expiration of six (6) months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the Partner executing it
unless otherwise provided in the proxy.
(c) Each meeting of Partners shall be conducted by any one or more of the General Partners
elected by the General Partners by simple majority decision or by such other Person as the General
Partners may appoint pursuant to such rules for the conduct of the meeting as the General Partners
deem appropriate. Meetings shall be held at locations selected by the General Partners.
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(d) The General Partners shall meet with the other Partners on a regular basis to report on
the operations of the Partnership. Meetings shall be held at locations selected by the General
Partners.
SECTION 9. TRANSFER OF PARTNERSHIP INTERESTS
9.1 Transfer Restrictions. Unless otherwise permitted or approved in this Section 9,
no Limited Partner may assign, transfer, sell or otherwise dispose of its Partnership Interest, or
any portion thereof, except with the consent all of the General Partners and only after complying
with the provisions of Section 9.3 hereof.
9.2 Transfers by General Partner. At any time when there is more than one General
Partner, no General Partner may, unless otherwise permitted or approved pursuant to this Section 9,
assign, transfer, sell or otherwise dispose of its Partnership Interest without the consent of the
other General Partners. At any time when there is only one General Partner, the General Partner may
assign, transfer, sell or otherwise dispose of its Partnership Interest without restriction. The
permitted assignee of a General Partner shall become a substitute general partner.
9.3 Registration. If any Partnership Interest is to be assigned, transferred or sold,
either (a) such Partnership Interest shall be registered under the Securities Act of 1933, as
amended, and any applicable state securities laws, or (b) the transferor shall provide an opinion
of counsel, satisfactory to the General Partners, that the proposed assignment, transfer or sale is
exempt from such registration requirements. The Partnership and the Partners have no obligation or
intention whatsoever to register Partnership Interests for resale under any Federal or state
securities laws or to take any action which would make available to any Person any exemption from
the registration requirements of such laws.
9.4 Hypothecation. Any hypothecation, mortgage, pledge or collateralization of a
Partnership Interest is expressly subject to the prior written consent of the General Partners and
any such purported hypothecation, mortgage, pledge or collateralization in any manner by any Person
without the prior written consent of the General Partners shall be null and void and of no legal
effect.
9.5 Prohibited Transfers. Any transfer or purported transfer, whether by operation of
law or otherwise, of a Partnership Interest shall be null and void and of no legal effect unless it
is permitted by this Section 9.
9.6 Rights of Transferee.
(a) Except as provided in this Section 9, and as required by operation of law, the Partnership
shall not be obligated for any purpose whatsoever to recognize the transfer by any partner of a
Partnership Interest unless such transfer is made in accordance with the terms of this Agreement.
(b) Any transfer of a Partnership Interest must be in writing, may not contravene any of the
provisions of this Agreement, and must be executed by the transferor and delivered to the
Partnership and recorded on the books of the Partnership. Any transfer which
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contravenes any of the provisions of this Agreement shall be of no force and effect and shall not
be recognized by the Partnership.
(c) A transferee of Partnership Interests which is not admitted as a Partner pursuant to
Section 9.8 shall have no right to require any information or account of the Partnership’s
transactions or to inspect the books of the Partnership or to vote, but shall only be entitled to
receive the allocations and distributions to which its transferor would otherwise be entitled under
this Agreement.
(d) Any transferee of a Partnership Interest which does not become a Partner and which desires
to make a further transfer of such Interest shall be subject to all of the provisions of this
Section 9 to the same extent and in the same manner as any Partner desiring to transfer its
Partnership Interest.
9.7 Admission as a Partner.
(a) Subject to the other provisions of this Section 9, a transferee of a Partnership Interest
shall be admitted as a partner only after the satisfactory compliance with items (i) through (iii)
below and, if applicable, items (iv) and (v) below:
(i) The transferee accepts and agrees to be bound by the terms and provisions of this
Agreement;
(ii) A counterpart of this Agreement and such other documents or instruments as the General
Partners may require is executed by the transferee to evidence such acceptance and agreement;
(iii) The transferee pays or reimburses the Partnership for all
reasonable legal fees and filing and publication costs incurred by the Partnership in connection
with the admission of the transferee as a Partner;
(iv) Except for a transferee who is a Partner or a transferee pursuant to Section 9.2, the
General Partners have consented to the admission of such transferee as a partner; and
(v) If the transferee is not an individual, the transferee provides the Partnership with
evidence satisfactory to counsel for the Partnership of the authority of such transferee to become
a Partner under the terms and provisions of this Agreement
(b) The transferee (other than a transferee who is an existing General Partner) of all or part
of a Partnership Interest of a General Partner, shall not have the right to become a General
Partner except upon the agreement thereto in writing in an amendment to this Agreement approved by
all Partners. In all other cases, such transferee shall become a Limited Partner upon satisfaction
of the requirements of this Section 9.
(c) The General Partners shall make all official filings and publications as promptly as
practicable after the satisfaction by the transferee of the conditions contained in this Section 9
to the admission of such transferee as a Partner.
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9.8 Distributions and Allocations with Respect to Transferred Partnership Interests.
If any Partnership Interest is sold, assigned or transferred during any accounting period in
compliance with the provisions of this Section 9, all Profits and Losses, each item thereof and all
other items of income, gain, loss and deduction attributable to the transferred Partnership
Interest for such period shall be divided and allocated between the transferor and the transferee
by taking into account their varying interests during the period using any conventions permitted by
law and selected by the General Partners. Solely for purposes of making such allocations and
distributions, the Partnership shall recognize such transfers not later than the end of the
calendar month during which it is given notice of such transfer and all distributions on or before
such date shall be made to the transferor, and all distributions after such date shall be made to
the transferee; provided, however, that if the Partnership does not receive a notice stating the
date such Partnership Interest was transferred and such other information as the General Partners
may reasonably require within thirty (30) days after the end of the accounting period during which
the transfer occurs, then all of such items shall be allocated, and all distributions shall be
made, to the Person who, according to the books and records of the Partnership, on the last day of
the accounting period during which the transfer occurs, was the owner of the Partnership Interest.
Neither the Partnership nor the General Partners shall incur any liability for making allocations
and distributions in accordance with the provisions of this Section 9.8, whether or not the General
Partners or the Partnership has knowledge of any transfer of ownership of any Partnership Interest.
SECTION 10. GENERAL PARTNER
10.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire Partnership Interest on death, adjudication of incompetence or any of the other events
set forth in the Act. Subject to Section 9.2 hereof, upon the occurrence of any such event, such
transferee shall have the right to receive distributions and allocations with respect to its
Partnership Interest, shall be treated as the transferee of a Limited Partner, and shall have the
right to become a substituted Limited Partner pursuant to Section 9.7 hereof.
10.2 Right of Remaining General Partner to Continue Partnership. In the event any
Person ceases to be a General Partner pursuant to Section 10.1 hereof, the remaining General
Partner(s), if any, shall have the rights and the power to continue the Partnership and its business
without dissolution.
10.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 10.1, and as a consequence thereof the Partnership has no General
Partner, any Limited Partner may nominate one or more Persons for election as a General Partner. No
Person shall become a General Partner unless elected by an affirmative vote of all of the Limited
Partners.
SECTION 11. DISSOLUTION AND WINDING UP
11.1 Liquidating Events. The Partnership shall dissolve and commence winding up and
liquidating upon the first to occur of any of the following (“Liquidating Events”):
(a) The sale of all or substantially all of the assets of the Partnership;
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(b) The vote by Partners holding more than fifty percent (50%) of the Percentage
Interests to dissolve, wind up, and liquidate the Partnership;
(c) The happening of any other event that makes it unlawful, impossible, or impractical to
carry on the business of the Partnership;
(d) The bankruptcy, insolvency or dissolution of a General Partner; or
(e) Any event which causes there to be no General Partner;
provided, however, that in the event of the bankruptcy, insolvency or dissolution of a
General Partner, the Partnership shall not be dissolved, (i) if at the time of such bankruptcy,
insolvency or dissolution there is at least one (1) other General Partner in which case such
remaining General Partner shall carry on the affairs of the Partnership, or (ii) in the event there
is no General Partner as a result of the bankruptcy, insolvency or dissolution of a General
Partner, the Limited Partners holding all of the Partnership Interests vote to continue the
Partnership pursuant to Section 10.2 hereof.
11.2 Winding Up.
(a) Except as otherwise provided in Section 11.1, upon the occurrence of a Liquidating Event,
the Partnership shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and Partners. No Partner
shall take any action that is inconsistent with, or not necessary to or appropriate for, the
winding up of the Partnership’s business and affairs. The General Partners (or in the event there
is no General Partner, any Partner elected by the Limited Partners holding a majority of the
Percentage Interests) (the “Liquidating Partner”) shall be responsible for overseeing the winding
up and dissolution of the Partnership and shall take full account of the Partnership’s liabilities
and assets and the assets shall be liquidated as promptly as is consistent with obtaining the fair
value thereof, and the proceeds therefrom, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) First, to the payment and discharge of all of the Partnership’s debts and liabilities
to
creditors other than the Partners;
(ii) Second, to the payment and discharge of all of the Partnership’s debts and
liabilities to the Partners; and
(iii) The balance, if any, to the Partners in accordance with their Capital Accounts, after
giving effect to all contributions, distributions, and allocations for all periods. If any Partner
has a deficit balance in its Capital Account (after giving effect to all contributions,
distributions and allocations for all taxable years, including the year during which such
liquidation occurs), such Partner shall have no obligation to make any contribution to the capital
of the Partnership with respect to such deficit, and such deficit shall not be considered a debt
owed to the Partnership or to any other Person for any purpose whatsoever.
(b) In
the discretion of the Liquidating Partner, a pro rata portion of the distributions
that would otherwise be made to the Partners pursuant to this Section 11 may be:
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(i) distributed to a trust established for the benefit of the Partners for the purpose of
liquidating Partnership assets, collecting amounts owed to the Partnership, and paying any
contingent or unforeseen liabilities or obligations of the Partnership or of the General Partner
arising out of or in connection with the Partnership. The assets of any such trust shall be
distributed to the Partners from time to time, in the reasonable discretion of the Liquidating
Partner, in the same proportions as the amount distributed to such trust by the Partnership would
otherwise have been distributed to the Partners pursuant to this Agreement; or
(ii) withheld to provide a reasonable reserve for Partnership liabilities (contingent or
otherwise) and to reflect the unrealized portion of any installment obligations owed to the
Partnership, provided that such withheld amounts shall be distributed to the Partners as soon as
practicable.
(c) In the discretion of the Liquidating Partner, the assets and liabilities of the
Partnership may be distributed to and assumed by a trust established for the purpose of
transferring such assets and liabilities in specie to the Partners pro rata in accordance with each
Partner’s Percentage Interest.
(d) The Liquidating Partner shall not receive any compensation for any services performed
pursuant to this Section 11.
11.3 Rights of Partners. Except as otherwise provided in this Agreement, each Partner
shall look solely to the assets of the Partnership for the return of its Capital Contribution and
shall have no rights or power to demand or receive property other than cash from the Partnership.
No Limited Partner shall have priority over any other Limited Partner as to the return of its
Capital Contributions, distributions or allocations.
11.4 Record of Liquidation. Each of the Partners shall be furnished with a statement
prepared by the Partnership’s accountants which shall set forth the assets and liabilities of the
Partnership as of the date of the occurrence of the Liquidating Event and the plans for compliance
with Section 11.2.
SECTION 12. MISCELLANEOUS
12.1 Further Action. Each Partner agrees to perform any further acts and to execute
and deliver any documents which may be reasonably necessary to effect the provisions of this
Agreement.
12.2 Notices. Except as otherwise specifically provided herein, any notice, payment,
demand, or communication required or permitted to be given by any provision of this Agreement shall
be in writing and shall be delivered personally, or sent by nationally recognized overnight
courier, or as of the date on which the same was deposited in a regularly maintained receptacle for
the deposit of United States mail, if sent by registered or certified mail, postage and charges
prepaid to the address specified below:
If to SWI:
Stratos Wireless Inc.
00 Xxxxxx Xxxx
- 00 -
Xx. John’s, Xxxxxxxxxxxx, X0X 0X0
Xxxxxx
Xxxxxx
If to SGC:
Stratos Global Corporation
00 Xxxxxx Xxxx
Xx. John’s, Xxxxxxxxxxxx, X0X 0X0
Xxxxxx
Stratos Global Corporation
00 Xxxxxx Xxxx
Xx. John’s, Xxxxxxxxxxxx, X0X 0X0
Xxxxxx
Any Partner may from time to time specify a different address by notice to the Partnership and the
other Partners.
12.3 Binding Effect. Subject to the restrictions on assignment herein contained and
except as otherwise provided in this Agreement, every covenant, term and provision of this
Agreement shall be binding upon and inure to the benefit of the Partners and their respective
successors and assigns.
12.4 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
12.5 Time. Time is of the essence with respect to this Agreement.
12.6 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
12.7 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is unenforceable, illegal or invalid for any reason whatsoever, such
unenforceability, illegality or invalidity shall not affect the enforceability, validity or
legality of the remainder of this Agreement.
12.8 Incorporation by Reference. Every exhibit attached to this Agreement and
referred to herein is hereby incorporated in this Agreement by reference.
12.9 Governing Law. The laws of the State of Delaware, without reference to its
conflict of laws rules, shall govern the validity of this Agreement, the construction of its terms,
and the interpretation of the rights and duties of the Partners.
12.10 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that it may have to maintain any action for partition with respect to any of the
Partnership’s
assets.
12.11 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
[Rest of page left intentionally blank.]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day first
above set forth.
GENERAL PARTNER:
STRATOS GLOBAL CORPORATION |
||||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: XXXX X. XXXXXXXX | ||||
Title: ASSISTANT CORPORATE SECRETARY | ||||
LIMITED PARTNER:
STRATOS WIRELESS INC. |
||||
By: | ||||
Name: | ||||
Title: |
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day first above set
forth.
GENERAL PARTNER:
STRATOS GLOBAL CORPORATION |
||||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: XXXX X. XXXXXXXX | ||||
Title: ASSISTANT CORPORATE SECRETARY | ||||
LIMITED PARTNER
STRATOS WIRELESS INC. |
||||
By: | /s/ XXXXX XXXX | |||
Name: XXXXX XXXX | ||||
Title: EVP (Corporate Development) |
EXHIBIT A
Capital | ||||||
Names and | Account | |||||
Address | Balance | Percentage Interests | ||||
General Partner: |
||||||
Stratos Global Corporation |
||||||
00 Xxxxxx Xxxx |
1 | % | ||||
St. John’s, Newfoundland, A1C 5X3 |
||||||
Limited Partner: |
||||||
Stratos Wireless Inc. |
||||||
00 Xxxxxx Xxxx |
99 | % | ||||
St. John’s, Xxxxxxxxxxxx, X0X 0X0 |
||||||
Total: |
100.00 | % | ||||