Exhibit H
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BENCHMARK PARTNERS L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Benchmark Partners
L.P. (the "Partnership"), dated as of July 1, 1998, by and between Benchmark
Capital Advisors, a division of The Benchmark Company, Inc., Xxxxxxxx XxXxxxx
and Xxxxxxx Xxxxxxx, as the general partners (the "General Partners") and the
persons and entities, referred to in Schedule A on file at the offices of the
Partnership, who have executed, either directly or indirectly by an
attorney-in-fact, as limited partners (the "Limited Partners").
PREMISES:
A. The Partnership was organized in accordance with the Delaware Revised Uniform
Limited Partnership Act by the filing by the General Partners of a Certificate
of Limited Partnership with the office of the Secretary of State of the State of
Delaware on March 13, 1989.
B. Prior to July 1, 1998, the agreement relating to the Partnership was set
forth in the Agreement of Limited Partnership of Benchmark Partners L.P., dated
as of March 13, 1989 (the "March 13, 1989 Agreement") and amended January 3,
1994 and June 1, 1996.
C. The General Partners, pursuant to the authority granted to them under Section
26 of the March 13, 1989 Agreement, desire to amend the March 13, 1989 Agreement
and to restate the same.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, effective as of July 1, 1998, it is hereby agreed as
follows:
1. Definitions.
The following terms shall have the following meaning when used in this
Agreement:
(a) "Act" shall mean the Delaware Revised Uniform Limited Partnership Act, Del
Code tit. 6, Section 17-101, et seq., as amended from time to time.
(b) "Affiliate" shall mean any person performing services on behalf of the
Partnership who (i) directly or indirectly controls, is controlled by, or is
under common control with a General Partner; (ii) is any company of which a
GeneralPartner is an officer, director, partner or trustee; (iii) a member of
the family of a General Partner; or (iv) an Individual Retirement Account or
similar trust for the benefit of one or more General Partners or their
Affiliates.
(c) "Agreement" shall mean this Agreement of Limited Partnership, as originally
executed and as amended, modified, supplemented or restated from time to time.
(d) "Capital Account" shall mean the account described in Section 8 of this
Agreement.
(e) "Certificate" shall mean the Partnership's Certificate of Limited
Partnership as defined in Section 2 of this Agreement.
(f) "Code" shall mean the Internal Revenue Code of 1986, or successor provision
of law, and the regulations issued thereunder.
(g) "Fiscal Period" shall mean the period beginning on the day immediately
succeeding the last day of the immediately preceding Fiscal Period and ending on
the earliest occurring of the following:
(i) The last day of the Fiscal Year;
(ii) The day immediately preceding the day on which a new Partner
is admitted to the Partnership;
(iii) The day immediately preceding the date on which a Partner
makes an additional Capital Contribution to the Partner's Capital Account;
(iv) The day on which a Partner withdraws, in whole or in part,
the amount of his or its Capital Account;
(v) The date of dissolution of the Partnership in accordance with
Section 5 of this Agreement.
(h) "Fiscal Quarter" shall mean a fiscal quarter of the Partnership.
(i) "Fiscal Year" shall mean the fiscal year of the Partnership, which shall be
the calendar year.
(j) "General Partner Percentage" shall mean a percentage established by the
General Partners for each General Partner on the Partnership's books as of the
first day of each Fiscal Period. The sum of the General Partner Percentages for
each Fiscal Period shall equal one hundred percent (100%).
(k) "Managing General Partner" shall mean Benchmark Capital Advisors, a division
of The Benchmark Company, Inc.
(l) "Net Profit" of the Partnership shall mean, with respect to any Fiscal
Period, the excess of the aggregate revenue, income and gains (realized and
unrealized) earned on an accrual basis during the Fiscal Period by the
Partnership from all sources over the expenses and losses (realized and
unrealized) incurred on an accrual basis during the Fiscal Period by the
Partnership.
(m) "Net Loss" of the Partnership shall mean, with respect to any Fiscal Period,
the excess of all expenses and losses (realized and unrealized) incurred on an
accrual basis during the Fiscal Period by the Partnership over the aggregate
revenue, income and gains (realized and unrealized) earned on the accrual basis
during the Fiscal period by the Partnership from all sources.
(n) "Partnership Percentage" shall mean a percentage established for each
partner on the Partnership's books as of the first day of each Fiscal Period.
The Partnership Percentage of a Partner for a Fiscal Period shall be determined
by dividing the amount of the Partner's Capital Account as of the beginning of
the Fiscal Period by the sum of the Capital Accounts of all of the Partners as
of the beginning of the Fiscal Period. The sum of the Partnership Percentage for
each Fiscal Period shall equal one hundred percent (100%).
2. Organization.
The General Partners have executed a Certificate of Limited Partnership pursuant
to the provisions of the Act (the "Certificate") and caused the Certificate to
be filed as required by the Act. The General Partners shall also execute and
record all amendments to the Certificate or additional certificates as may be
required by this Agreement or by law.
3. Name of Partnership.
The name of the Partnership shall be "BENCHMARK PARTNERS L.P." or such other
name as the General Partners may from time to time designate.
4. Principal Office, Resident Agent, Registered Office.
The principal office of the Partnership is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or any other place determined by the General Partners. The name and
address of the registered agent for service of process in the State of
Delaware is The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The address of the registered office of the Partnership in the
State of Delaware is c/o The Corporation Trust Company, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
5. Term of the Partnership.
(a) The term of the Partnership, having commenced on the date the Certificate
was filed, shall continue until the first of the following events occurs:
(i) December 31, 2009;
(ii) a written consent to dissolution of the Partnership by all
Partners;
(iii) upon all of the General Partners ceasing to be general
partners as a result of doing or being subject to one or more of the
following:
(A) withdrawing from the Partnership in accordance with
Section 21 of this Agreement;
(B) assigning all of his interest in the Partnership;
(C) making an assignment for the benefit of his creditors;
(D) filing a voluntary petition in bankruptcy;
(E) being adjudged bankrupt or insolvent or having entered
against him an order of relief in any bankruptcy or insolvency
proceeding;
(F) filing a petition or answer seeking for himself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation;
(G) filing an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against him in any
proceeding seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any statute, law or
regulation;
(H) seeking, consenting to, or acquiescing in the appointment
of a trustee or receiver,or liquidator of all or any substantial part of his
properties;
(I) being the subject of any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law or regulation, which
proceeding shall have continued for one hundred and twenty (120) days after the
commencement thereof; or the appointment of a trustee, receiver, or liquidator
for such General Partner or all or any substantial part of his properties
without his consent or acquiescence, which appointment is not vacated or stayed
for ninety (90) days or, if the appointment is stated, for ninety (90) days
after the expiration of the stay during which period the appointment is not
vacated;
(J) the death of a General Partner; or
(K) the entry by a court of competent jurisdiction
adjudicating such General Partner incompetent to manage his person or his
property; or
(iv) upon issuance of a decree of dissolution of the Partnership
by the Delaware Court of Chancery in accordance with Section 17-802 of the Act.
(b) In the event a General Partner does or becomes subject to any of the
provisions of subsection (a) (iii) of this Section 5, the remaining General
Partner shall be permitted to carry on the business of the Partnership upon
written notice provided to all Partners of the decision to continue the
Partnership's business. Each Limited Partner shall have the right for a period
of thirty (30) days from the date of the written notice (the "Election Period")
to elect to withdraw from the Partnership as of ten (10) days after the last day
of the Election Period. The Limited Partner will receive the proceeds of a
withdrawal made pursuant to this subsection (b) within ninety (90) days of the
date of withdrawal. The amount of such proceeds will be calculated after the
adjustments to his capital account provided for in Section 9 hereof, made as if
the withdrawal date were the end of a Fiscal Year.
(c) If any one or more of the termination events listed in this Section 5
occurs, and if the remaining General Partner chooses not to carry on the
business of the Partnership in accordance with the provisions of subsection (b)
of this Section 5, the Partnership shall be dissolved and its affairs wound up
as provided in Section22 of this Agreement.
6. Purposes.
The Partnership is organized for the following purposes:
(a) to invest and trade, on margin or otherwise, in "Securities," as that term
is defined in Section 2(1) of the Securities Act of 1933, as amended (the "1933
Act");
(b) to sell Securities short and cover short sales;
(c) to lend funds or properties of the Partnership, either with or without
security; and
(d) to execute, deliver and perform all contracts and other undertakings, and
engage in all activities and transactions, that the General Partners believe are
necessary or advisable in carrying out the purposes specified all subsections
(a),(b), and (c) of this Section 6, including without limitation:
(i) to purchase, transfer or acquire in any manner and exercise
all rights, powers, privileges and other incidents of ownership or
possession with respect to the investments described in subsection (a) of this
Section 6; and
(ii) to register or qualify the Partnership under any applicable
Federal or state laws, or to obtain exemptions under those laws, if
registration, qualification or exemption is deemed necessary by the General
Partners.
7. Contributions of the Partners; New Partners.
(a) Each Partner shall make a contribution to the Partnership's capital
("Capital Contribution") in the amount set out opposite the Limited Partner's
name in Schedule A attached to this Agreement.
(b) Any Partner may elect, with the consent of the General Partners, to make an
additional Capital Contribution, as of the first day of any Fiscal Quarter. The
General Partners may, in their sole discretion, permit additional Capital
Contributions to be made more frequently than quarterly.
(c) No Partner shall be required to make any additional Capital Contributions.
(d) Capital Contributions made by Limited Partners must be in cash.
(e) The General Partners shall have the right, but not the obligation,to admit
new Partners to the Partnership as of the first day of any Fiscal Quarter. The
General Partners may, however, in their sole discretion, admit new Partners more
frequently than quarterly.
8. Capital Accounts.
A Capital Account shall be established for each Partner. For the Fiscal Period
during which a Partner is admitted to the Partnership, his or its Capital
Account shall equal the amount of his or its initial Capital Contribution. For
each subsequent Fiscal Period, the Partner's Capital Account will equal the sum
of the amount of his or its Capital Account as finally adjusted for the
immediately preceding Fiscal Period and the amount of any additional Capital
Contribution made by the Partner as of the first day of the current Fiscal
Period.
9. Adjustments to Capital Accounts.
At the end of each Fiscal Period, the Capital Accounts of the Partners shall be
adjusted in the following manner:
(a) Subject to the provisions of subsections (c) and (d) and (f) of this Section
9, Net Profit of the Partnership for the Fiscal Year shall be credited as
follows:
(i) There shall first be made a provisional allocation of Net
Profit to the Capital Account of all Partners in proportion to the amount of
their respective Capital Accounts on the first day of each Fiscal Period.
(ii) Then, twenty percent (20%) of the Net Profit provisionally
allocated to the Capital Account of each Limited Partner (except any Limited
Partner that is an Affiliate of a General Partner and is so designated in
writing by the General Partners) shall be reallocated to the General Partners in
accordance with their General Partner Percentages for such Fiscal Year. Such
twenty percent (20%) of Net Profits is the "Incentive Allocation".
(b) Net Loss of the Partnership for the Fiscal Year shall be debited against the
Capital Account of each Partner adjusted for withdrawals in proportion to and in
accordance with the balance in the Capital Account of the Partner until the
value of any Partners' Capital Account becomes zero. Thereafter, any remaining
Net Loss for the Fiscal Year shall be debited to Partners having positive
balances in their Capital Accounts in proportion to those balances, until the
value of each
Partner's Capital Account becomes zero. Thereafter, any remaining Net Loss for
the Fiscal Year shall be debited to the General Partners in accordance with each
General Partner's General Partner Percentage for the Fiscal Period.
(c) In the event that the Capital Account of one or more General Partners has a
negative balance, one hundred percent (100%) of the Net Profit of the
Partnership for the Fiscal Period shall be credited to those General Partners
whose Capital Accounts have negative balances in accordance with their
respective General Partner Percentages until no General Partner shall have a
negative Capital Account balance.
(d) Anything in this Section 9 to the contrary notwithstanding, if any Net
Losses are allocated at the account of any Limited Partner, each such Limited
Partner shall be entitled to a "Recoupment Allocation" of subsequent Net Profits
of the Partnership, in an amount in proportion to his Partnership Percentage,
until such Net Loss shall have been eliminated. The amount of Net Profits
allocated as a Recoupment Allocation shall not exceed, but shall reduce, the
amount of Net Profits otherwise allocable to the General Partners as the
Incentive Allocation pursuant toSection 9(a) (ii) hereof. If a Limited Partner
who is entitled to a Recoupment Allocation shall withdraw any portion of his
Capital Account, the amount of Recoupment Allocation to which he is entitled
shall be reduced in proportion to the amount of capital withdrawn.
(e) The amount of any withdrawal made by the Partner pursuant to Section 21 or
Section 22 of this Agreement shall be debited against the Capital Account of
that Partner.
(f) Allocations of Net Profit or Net Loss for a Fiscal Period, if necessary,
shall be made in accordance with each Partner's Partnership Percentage, adjusted
as provided in paragraph (a) of this Section 9 at the end of the Fiscal Year,
provided that the share of the Partnership's Net Profit allocated to the General
Partners in accordance with the provisions of subsection (a)(ii) of this Section
9 for any Fiscal Year may not exceed twenty percent (20%) of the Net Profit for
the FiscalYear.
10. Hot Issues.
In the event the General Partners decide to invest in securities which are the
subject of a public distribution and which the General Partners, in their sole
discretion, believe may become a "hot issue" as that term is defined in Article
III, Section 1 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "Association"), such investment shall be made in
accordance with the following provisions:
(a) any such investment made in a particular Fiscal Period shall be made in a
special account (the "Hot Issues Account");
(b) only those Partners who do not fall within the proscription of Article III,
Section 1 of said Rules of Fair Practice ("Unrestricted Partners") shall have
any beneficial interest in the Hot Issues Account;
(c) each Unrestricted Partner shall have a beneficial interest in the Hot Issues
Account for any Fiscal Period in the proportion which (i) such Unrestricted
Partner's Capital Account as of the beginning of the Fiscal Period bore to (ii)
the sum of the Capital Accounts of all Unrestricted Partners as of the beginning
of such Fiscal Period.
(d) funds required to make a particular investment shall be transferred to the
Hot Issues Account from the regular account of the Partnership; securities
involved in the public distribution shall be purchased in the Hot Issues
Account, held in the Hot Issues Account and eventually sold from the Hot Issues
Account or transferred to the regular account at fair market value as of the day
of transfer as determined by the General Partners with such transfer being
treated as a sale; if such securities are sold from the Hot Issues Account, the
proceeds of the sale shall be transferred from the Hot Issues Account to the
regular account of the Partnership;
(e) as of the last day of each Fiscal Period in which a particular investment or
investments are held in the Hot Issues Account: (A) interest shall be debited to
the Capital Accounts of the Unrestricted Partners in accordance with their
beneficial interest in the Hot Issues Account at the interest rate being paid by
the Partnership from time to time for borrowed funds during the period in that
Fiscal period that funds from the regular account have been held in or made
available to the particular Hot Issues Account or, if no such funds are being
borrowed during such period, the interest rate that the General Partners
determine would have been paid if funds had been borrowed by the Partnership
during such period; and such interest shall be credited to the Capital Accounts
of all the Partners, both General and Limited, in the proportions which (i) each
Partner's Capital Account as of the beginning of such Fiscal Period bore to (ii)
the sum of the Capital Accounts of all Partners as of the beginning of such
Fiscal Period and (B) any Net Profits or Net Losses during such Fiscal Period
with respect to the Hot Issues Account shall be allocated to the Capital
Accounts of the Unrestricted Partners in accordance with their beneficial
interests in the Hot Issues Account during such Fiscal Period; provided,
however, that the amount of such interest shall not exceed the amount of profit
accrued in the Hot Issues Account; and
(f) the determination of the General Partners as to whether a particular Partner
falls within the proscription of Article III, Section I of said Rules of Fair
Practice shall be final.
11. Valuation.
The Partnership's assets shall be valued in accordance with the following
principles:
(a) Any Security that is listed on a national securities exchange will be valued
at its last sale price on the date of determination as recorded by the composite
tape system, or if no sales occurred on that day, at the mean between the
closing "bid" and "asked" prices on that day as recorded by the system or the
exchange, as the case may be;
(b) Any Security that is a National Market Security will be valued at its last
sale price on the date of determination as reported by the National Association
of Securities Dealers Automated Quotations system ("NASDAQ"), or if no sale
occurred on that day, at the mean between the closing "bid" and "asked" prices
on that day as reported by NASDAQ;
(c) Any Security not listed on a national securities exchange and not a National
Market Security will be valued at the mean between the closing "bid" and "asked"
prices on the date of determination as reported by NASDAQ or, if not so
reported, as reported in the over-the-counter market in the United States;
(d) An option shall be valued at the last sales price or, in the absence of a
last sales price, the last offer price; and
(e) All other Securities shall be assigned the value that the General Partners
in good faith determine.
12. Determination by General Partners of Certain Matters.
(a) All matters concerning the valuation of Securities, the allocation of
profits, gains and losses among the Partners, including the taxes on them and
accounting procedures, not specifically and expressly provided for by the terms
of thisAgreement, shall be determined in good faith by the General Partners,
whose determination shall be final, binding and conclusive upon all of the
Partners.
(b) Gains, losses, and expenses of the Partnership for each Fiscal Period shall
be allocated among the Partners for income tax purposes in a manner so as to
reflect, as nearly as possible, the amounts credited or charged to each
Partner's Capital Account pursuant to Section 9 of this Agreement.
(c) The General Partners shall have the power to make all tax elections and
determinations for the Partnership, and to take any and all action necessary
under the Code or other applicable law to effect those elections and
determinations. All such elections and determinations by the General Partners
shall be final, binding and conclusive upon all Partners.
13. Liability of Partners.
(a) The General Partners shall not be obligated to contribute cash or other
assets to the Partnership to make up deficits in their Capital Accounts or in
the Capital Accounts of the Limited Partners either during the term of the
Partnership or upon liquidation. The General Partners shall be liable for all
debts and obligations of the Partnership to the extent that the Partnership is
unable to pay such debts and obligations.
(b) The doing of any act or the failure to do any act by a General Partner, the
effect of which may cause or result in loss, liability, damage or expense to the
Partnership or any Partner shall not subject a General Partner to any liability
to the Partnership or to any Partner, except that a General Partner may be so
liable if he has not acted in good faith, or has committed misconduct or was
grossly negligent or as otherwise provided under the Employee Retirement Income
Security Act of 19764 as amended ("ERISA").
(c) Limited Partner will not be liable for any debts or bound by any obligations
of the Partnership except to the extent set forth in subsections (d), (e) and(f)
of this Section 13.
(d) A Limited Partner who has received the return of any part of his or its
Capital Contribution without violation of this Agreement or the Act shall not
therefore be liable to the Partnership or its creditors.
(e) Limited Partner receiving a return of any portion of his or its Capital
Contribution in violation of the Act or this Agreement will be Liable to the
Partnership for a period of six (6) years thereafter for the amount of the
contribution wrongfully returned.
(f) A Limited Partner may be liable to the Partnership or creditors of the
Partnership for any amounts distributed if, and to the extent that, at the time
of the distribution, he actually knew that, after giving effect to the
distribution, all liabilities of the Partnership, other than liabilities to
Partners on account of their interests in the Partnership, exceeded the fair
value of the Partnership's assets.
14. Rights and Duties of the General Partners.
(a) The General Partners shall have the exclusive right to manage and control
the affairs of the Partnership, and shall have the power and authority to do all
things necessary or proper to carry out the purposes of the Partnership. The
General Partners shall devote an amount of time and attention that the General
Partners in their sole discretion deem necessary or appropriate. Notwithstanding
the foregoing, the Managing General Partner shall have sole discretion regarding
investment decisions or other decisions with respect to the management of the
Partnership's assets.
(b) Without limiting the generality of the foregoing, the General Partners shall
have full power and authority:
(i) to engage independent agents, attorneys, accountants and
custodians as the General Partners deem necessary or advisable for the affairs
of the Partnership;
(ii) to enter, or cause the Partnership to enter, into an
agreement with Benchmark Capital Group, Inc., a corporation organized under the
laws of the State of New York (the "Administrator"), for administrative services
that the General Partners deem necessary in connection with the operation of the
Partnership's business;
(iii) to receive, buy, sell, exchange, trade, and otherwise
deal in and with Securities and other property of the Partnership;
(iv) to open, conduct and close accounts with brokers on behalf of
the Partnership and to pay the customary fees and charges applicable to
transactions in those accounts;
(v) to open, maintain and close accounts, including margin
accounts, with brokers and banks, and to draw checks and other orders for the
payment of money by the Partnership;
(vi) to file, on behalf of the Partnership, all required local,
state and Federal tax and other returns relating to the Partnership;
(vii) except to the extent prohibited by ERISA, to cause the
Partnership to purchase or bear the cost of any insurance covering the potential
liabilities of the General Partners and any associate, employee or agent of the
General Partners arising out of the General Partners' actions as General
Partners under this Agreement;
(viii) to cause the Partnership to purchase or bear the cost of
any insurance covering the potential liabilities of any person serving as a
director, officer or employee of an entity in which the Partnership has an
investment or of which the Partnership is a creditor;
(ix) to commence or defend litigation or submit to arbitration
any claim or cause of action that pertains to the Partnership or any Partnership
assets;
(x) to enter into, make and perform contracts, agreements and
other undertakings, and to do any other acts, as the General Partners deem
necessary or advisable for, or as may be incidental to, the conduct of the
business of the Partnership, including, without limiting the generality of the
foregoing, contracts, agreements, undertakings and transactions with any Partner
or with any other person, firm or corporation having any business, financial or
other relationship with any Partner or Partners;
(xi) to make or revoke elections pursuant to Section 754 of the
Code to adjust the basis of the Partnership's property as permitted by Sections
734(b) and 743(b) of the Code; and
(xii) to designate a Tax Matters Partner for all purposes under
the Code.
15. Expenses.
The Partnership shall bear all expenses relating to its organization,
whichexpenses shall be amortized through November 30, 1994. Administrative
expensesof the Partnership shall be borne by the Administrator. The Partnership
will bear theexpenses of its auditor, its legal counsel, and expenses of
investments.
16. Administrative Fee.
The Partnership shall pay the Administrator as of the end of each Fiscal Quarter
an administrative fee at an annual rate of one percent (1%) of the value of
thePartnership's assets as of the end of the Fiscal Quarter. For purposes of
this Section 16, the Partnership's assets will be valued in accordance with
Section 11 of this Agreement.
17. Limitation on Powers of Limited Partners.
No Limited Partner shall participate in the control of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for the Partnership or to bind the Partnership in any other way.
18. Other Business Ventures.
Each Partner agrees that each General Partner and his Affiliates and associates
may engage in other business activities or possess interests in other business
activities of every kind and description, independently or with others. These
activities may include, without limitation, establishing a broker-dealer and
investing in, financing, acquiring and disposing of interests in securities in
which the Partnership may from time to time invest, or in which the Partnership
is able to invest or otherwise have any interest. The Limited Partners agree
that the General Partners may act as general partners of other partnerships,
including investment partnerships.
19. Limitation on Assignability of Interests of Limited Partners.
(a) No Limited Partner may assign or otherwise transfer or encumber his or its
interest in the Partnership, in whole or in part, without the consent of
theGeneral Partners and without a written opinion of counsel to or approved by
the General Partners that the proposed transfer (i) is consistent with all
applicable provisions of the 1933 Act, and the rules and regulations thereunder,
as from time to time in effect, as well as any applicable provisions of any
state "blue sky" law; and (ii) would not result in the Partnership's having to
register as an investment company under the Investment Company Act of 1940, as
amended;
(b) Notwithstanding any other provision of this Agreement, any successor to any
Limited Partner shall be bound by the provisions of this Agreement. Prior to
recognizing any assignment of an interest in the Partnership that has been
transferred in accordance with this Section 19, the General Partners may require
the transferring Limited Partner to execute and acknowledge an instrument of
assignment in form and substance satisfactory to the General Partners, and may
require the assignee to agree in writing to be bound by all the terms and
provisions of this Agreement, to assume all of the obligations of the assigning
Limited Partner and to execute whatever other instruments or documents the
General Partners deem necessary or desirable in connection with the assignment.
(c) No Limited Partner shall have the right to have his or its assignee admitted
as a substitute Limited Partner, except upon the written consent of theGeneral
Partners, which consent may be withheld in the sole discretion of the General
Partners.
(d) Each Limited Partner hereby approves of the admission to the Partnership as
a Limited Partner of any assignee who succeeds to the interest in the
Partnership of a Limited Partner in accordance with the provisions of this
Section 19.
20. Withdrawals by a Limited Partner.
(a)(i) A Limited Partner who shall have been a Limited Partner for at least four
full Fiscal Quarters (or such lesser period of time as may be required to
satisfy Section 408(b)(2) of ERISA and Section 4975(d)(2) of the Code) shall
have the right, as of the end of any Fiscal Year, or at other times at the
discretion of the General Partners, to withdraw all or a portion of the amount
of his or its Capital Account, so long as the General Partners receive written
notice of the intended withdrawal not less than thirty (30) days prior to the
withdrawal, stating the amount to be withdrawn. In no event, however, shall a
Limited Partner be permitted to withdraw any amounts from his or its Capital
Account in excess of the positive balance of his or its Capital Account. If the
amount of a Limited Partner's withdrawal represents less than seventy-five (75%)
of the Limited Partner's Capital Account, the Limited Partner will receive the
proceeds of the withdrawal within thirty (30) days after the date of withdrawal.
If the amount of a Limited Partner's withdrawal represents seventy-five percent
(75%) or more of the Limited Partner's Capital Account, the Limited Partner will
receive seventy-five percent (75%) of his Capital Account within thirty (30)
days after the date of withdrawal and the remainder of the amount withdrawn
within ten (10) days after the Partnership has received audited financial
statements from its independent certified public accountants pursuant to Section
23(c) of this Agreement. If a Limited Partner requests withdrawal of capital
which would reduce his Capital Account below the amount of his initial Capital
Contribution, the General Partners may treat such request as a request for
withdrawal of all of such Partner's Capital Account. The distribution of any
amount withdrawn by a Limited Partner may take the form of cash and/or
marketable securities as determined by the General Partners in their sole
discretion.
(ii) In the event of a proposed withdrawal of capital by one or more General
Partners or Affiliates pursuant to Section 21(a)(ii) of this Agreement, as a
result of which the aggregate of the Capital Accounts of the General Partners
and Affiliates will be less than $1,000,000 (one million dollars), a Limited
Partner shall have the right to withdraw all or a portion of the amount of his
or its Capital Account, so long as the General Partners receive written notice
of the intended withdrawal not more than fifteen (15) days after the date of the
notice of withdrawal by such General Partner or General Partners or Affiliate or
Affiliates pursuant to said Section 21(a)(ii), stating the amount to be
withdrawn. In such event the withdrawal by such Limited Partner shall be
effective as of the effective date of the withdrawal by the General Partner or
General Partners pursuant to said Section 21(a)(ii). The amount available for
withdrawal shall be calculated in the same manner as provided for in the last
sentence of paragraph (b) of Section 5 hereof.
(b) Any Limited Partner's interest in the Partnership may be terminated by the
Partnership as of the end of any Fiscal Year or at the discretion of the General
Partners, upon prior written notice, so long as the General Partners determine
the termination to be in the best interest of the Partnership. In the event that
a Limited Partner's interest in the Partnership is terminated pursuant to this
Section 20, the Limited Partner shall receive ninety percent (90%) of the value
of his Capital Account within thirty (30) days after written notice of
termination is given by the Partnership and the remaining ten percent (10%)
within ten (10) business days after receipt by the Partnership of audited
financial statements with respect to the Fiscal Year in which his or its
interest in the Partnership is terminated.
21. Withdrawals by the General Partners and Affiliates.
(a)(i) Each General Partner shall have the right to withdraw any amount of cash
from his Capital Account as of the end of any Fiscal Year, without prior
notification to the Limited Partners, provided that, after giving effect to such
withdrawal, the aggregate Capital Accounts of the General Partners and their
Affiliates are not less than $1,000,000 (one million dollars).
(ii) Upon forty-five (45) days' prior notice to the Limited Partners, a General
Partner or an Affiliate may withdraw any amount from his Capital Account
contributed to the Partnership as a result of which withdrawal the aggregate
Capital Accounts of the General Partners and their Affiliates would be reduced
below $1,000,000 (one million dollars).
(b) Any or all of the General Partners may voluntarily resign or withdraw from
the Partnership as of the end of any Fiscal Year upon sixty (60) days' written
notice sent to all Partners.
22. Dissolution and Winding Up of the Partnership.
On dissolution of the Partnership, the General Partners (or if there is no
General Partner, one or more persons approved by Limited Partners holding a
majority ininterest of the Capital Accounts of the Limited Partners) shall wind
up the Partnership's affairs and shall distribute the Partnership's assets in
the following manner and order:
(a) in satisfaction of the claims of all creditors of the Partnership, other
than the General Partners;
(b) in satisfaction of the claims of the General Partners as creditors of the
Partnership; and
(c) any balance to the Partners in the relative proportions that their
respective Capital Accounts bear to each other, those Capital Accounts to be
determined as if the Fiscal Year ended on the date of the dissolution.
23. Accounting and Reports.
(a) The records and books of account of the Partnership shall be audited as of
the end of each Fiscal Year by independent certified public accountants selected
by the General Partners in their discretion.
(b) As soon as practicable after the end of each Fiscal Year, the General
Partners shall cause to be delivered to each person who was a Partner at any
time during that Fiscal Year all information deemed necessary by the General
Partners in their sole discretion for the preparation of the Partner's income
tax returns, including a Form 1065/Schedule K-1 statement showing the Partner's
share of Net Profit or Net Loss, deductions and credits for the year Federal
income tax purposes,and the amount of any distributions made to or for the
account of the Partner pursuant to this Agreement.
(c) The independent certified public accountants selected by the General
Partners in accordance with subsection (a) of this Section 23 shall prepare and
mail to each Partner, within ninety (90) days after the end of each Fiscal Year,
an audited income statement for the Fiscal Year and an audited balance sheet as
of the end of the Fiscal Year.
(d) The Partnership shall cause to be prepared and mailed to each Partner a
report setting out as of the end of each Fiscal Quarter information determined
by the General Partners to be appropriate.
(e) The General Partners shall cause tax returns for the Partnership to be
prepared and timely filed with the appropriate authorities.
24. Books and Records.
The General Partners shall keep at the Partnership's principal office:
(a) books and records pertaining to the Partnership's business showing all of
its assets and liabilities, receipts and disbursements, realized profits and
losses, Partners' Capital Accounts and all transactions entered into by the
Partnership;
(b) a current list of the full name and last known home, business or mailing
address of each Partner set out in alphabetical order;
(c) a copy of the Certificate and all amendments to it, together with executed
copies of any powers of attorney pursuant to which the Certificate and any
amendments to it have been executed;
(d) copies of the Partnership's Federal, state and local income tax returns
and reports, if any, for the three (3) most recent years;
and
(e) copies of this Agreement as may be amended from time to time.
All books and records of the Partnership required to be kept under this Section
24 shall be available for inspection by a Partner of the Partnership at the
offices of the Partnership during ordinary business hours for any purpose
reasonably related to the Partner's interest as a Partner in the Partnership.
25. Indemnification.
(a) The Partnership shall indemnify each General Partner and any of his
Affiliates (each an "Indemnitee") to the fullest extent permitted by law and
will hold each harmless from and with respect to (i) all fees, costs and
expenses incurred in connection with, or resulting from, any claim, action or
demand against any Indemnitee that arises out of or in any way relates to the
Partnership, its properties,business or affairs, and (ii) any losses or damages
resulting from any such claim, action or demand, including amounts paid in
settlement or compromise of the claim, action or demand.
(b) No Indemnitee shall be indemnified by the Partnership with respect to any
action or failure to act that does not constitute good faith, or that
constitutes willful misfeasance.
(c) The Partnership may pay the expenses incurred by an Indemnitee in defending
a civil or criminal action, suit or proceeding brought by a party against the
Indemnitee that arises out of or is in any way related to the Partnership, its
properties, business or affairs, upon receipt of an undertaking by the
Indemnitee to repay the amount advanced by the Partnership if an adjudication or
determination is subsequently made by a court of competent jurisdiction that the
Indemnitee is not entitled to indemnification as provided in this Agreement.
(d) The right of indemnification provided in this Section 25 shall be in
addition to any rights to which an Indemnitee may otherwise be entitled and
shall inure to the benefit of the executors, administrators, personal
representatives, successors or assigns of each Indemnitee.
(e) The rights to indemnification and reimbursement provided for in this Section
25 may be satisfied only out of the assets of the Partnership. No Partner shall
be personally liable for any claim for indemnification or reimbursement under
this Section 25.
26. Amendment of Partnership Agreement.
This Agreement may be amended, in whole or in part, by the written consent of
(a) the General Partners, and (b) Partners the value of whose Capital Account
constitute not less than fifty percent (50%) of the total value of all Capital
Accounts of the Partnership, provided that no such amendment shall affect the
allocation of Net Profit or Net Loss to any Partner who has not consented to
such amendment. In addition, any provision of this Agreement, other than Section
9, may be amended by the General Partners in any manner that does not, in the
sole discretion of the General Partners, adversely affect any Limited Partner.
27. Notices.
Notices that may or are required to be given under this Agreement by any party
to another shall be in writing and deposited in the United States mail,
certified or registered, postage prepaid, addressed to the respective parties at
their addresses set out in Schedule A to this Agreement or to any other
addressee designated by any Partner by notice addressed to the Partnership in
the case of any Limited Partner and to the Limited Partners in the case of the
General Partners. Notices shall be deemed to have been given when deposited in
the United States mail within the continental United States.
28. Agreement Binding Upon Successors and Assigns.
This Agreement shall inure to the benefit of and shall be binding upon the
heirs, executors, administrators or other representatives, successors and
assigns of thePartners.
29. Governing Law.
This Agreement, and the rights of the Partners under it, shall be governed by
and construed in accordance with the law of the State of Delaware.
30. Consents.
Any and all consents, agreements or approvals provided for or permitted by this
Agreement shall be in writing and signed copies of them shall be filed and kept
with the books of the Partnership.
31. Miscellaneous.
(a) This Agreement, including Schedule A appended to it, constitutes the entire
understanding and agreement of the Partners as to the operation of the
Partnership.
(b) This Agreement may be executed in counterparts, each of which shall be
deemed to be an original.
(c) Each provision of this Agreement is intended to be severable. A
determination that a particular provision of this Agreement is illegal or
invalid shall not affect the validity of the remainder of the Agreement.
(d) Nothing contained in this Agreement shall be construed to constitute any
Partner the agent of another Partner, except as specifically provided in this
Agreement, or in any manner to limit the Partners in the carrying on of their
own respective business or activities.
IN WITNESS WHEREOF, the Partners have executed this Agreement as of the date
first above written.
GENERAL PARTNERS
Benchmark Capital Advisors, A Division of The Benchmark Company, Inc.
By:__________________________
Xxxxxxxx XxXxxxx
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Xxxxxxxx XxXxxxx
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Xxxxxxx Xxxxxxx
LIMITED PARTNERS:
All Limited Partners now and hereafter admitted as limited partners of the
Partnership, pursuant to Powers of Attorney now and hereafter executed in favor
of, and delivered to the General Partners.
XXXXXXXX XXXXXXX, Attorney-in-Fact
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Xxxxxxxx XxXxxxx
