LIMITED LIABILITY COMPANY AGREEMENT
of
WESTFIELD PARTNERS, L.L.C.
1. DEFINITIONS..................................................................1
1.1. "Act"..........................................................1
1.2. "Affiliate"....................................................1
1.3. "Agreement"....................................................1
1.4. "Capital Account"..............................................1
1.5. "Capital Contribution".........................................1
1.6. "Code".........................................................1
1.7. "Company Property".............................................1
1.8. "Former Member"................................................1
1.9. "Fund".........................................................2
1.10. "Investment Income (Loss)".....................................2
1.11. "Manager"......................................................2
1.12. "Member".......................................................2
1.13. "Operating Income (Loss)"......................................2
1.14. "Person".......................................................2
1.15. "Profit Sharing Income"........................................2
1.16. "Term".........................................................2
1.17. "Termination"..................................................2
2. ORGANIZATION.................................................................2
2.1. PURPOSE........................................................2
2.2. COMPANY NAME...................................................3
2.3. OPERATING NAME.................................................3
2.4. PRINCIPAL PLACE OF BUSINESS....................................3
2.5. TERM...........................................................3
3. CAPITAL ACCOUNTS.............................................................3
3.1. CAPITAL ACCOUNTS...............................................3
4. CAPITAL CONTRIBUTIONS AND STATUS OF MEMBERS..................................3
4.1. CAPITAL CONTRIBUTIONS..........................................3
4.2. STATUS OF MEMBERS..............................................4
4.2.1. LIMITED LIABILITY........................................4
4.2.2. ROLE OF MEMBER...........................................4
4.2.3. DEATH OF MEMBER..........................................4
5. CHARGES AND EXPENSES OF COMPANY..............................................4
5.1. EXPENSES RELATING TO THIS AGREEMENT............................4
5.2. EXPENSES OF OPERATION..........................................4
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6. ACCOUNTING FOR PROFITS AND LOSSES.............................................4
6.1. BOOKS AND RECORDS...............................................4
6.2. PROFIT SHARING INCOME...........................................4
6.3. INVESTMENT INCOME OR LOSS.......................................5
6.4. OPERATING INCOME OR LOSS........................................5
6.5. DISTRIBUTIONS TO NON-MEMBERS....................................5
6.6. NO RIGHT TO COMPANY'S PROFIT SHARING............................5
6.7. TAX ALLOCATIONS.................................................5
6.8. TAX MATTERS PARTNER.............................................6
7. DISTRIBUTIONS FROM CAPITAL ACCOUNTS...........................................6
7.1. MANDATORY DISTRIBUTIONS.........................................6
7.2. DISCRETIONARY REDEMPTIONS.......................................6
8. RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGER.................................6
8.1. INDEPENDENT ACTIVITIES..........................................6
8.2. DUTIES..........................................................6
8.3. LIABILITY OF THE MANAGER........................................7
8.4. REMOVAL OR WITHDRAWAL OF THE MANAGER............................7
9. ADDITIONAL MEMBERS; REMOVAL OR WITHDRAWAL OF MEMBERS; TRANSFERS...............7
9.1. ADMISSION OF ADDITIONAL MEMBERS.................................7
9.2. REMOVAL OF MEMBERS..............................................7
9.3. WITHDRAWAL......................................................7
9.4. PAYMENTS TO FORMER MEMBERS......................................7
9.5. TRANSFER OF MEMBERSHIP INTEREST.................................8
10. DISSOLUTION AND WINDING UP OF THE COMPANY....................................8
10.1. DISSOLUTION OF THE COMPANY.......................................8
10.2. ADMISSION OF A SUBSTITUTE MANAGER................................8
10.3. RIGHT TO CONTINUE................................................9
10.4. WINDING UP OF THE COMPANY........................................9
11. POWER OF ATTORNEY............................................................9
11.1. POWER OF ATTORNEY FOR THE MANAGER................................9
11.2. IRREVOCABILITY; EXERCISE; SURVIVAL..............................10
12. INDEMNIFICATION OF THE MANAGER..............................................10
12.1. EXCLUSION OF LIABILITY FOR RETURN OF CAPITAL CONTRIBUTIONS......10
12.2. LIMITATION ON LIABILITY OF MANAGER; INDEMNIFICATION..,,,,,......10
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13. MISCELLANEOUS...............................................................11
13.1. AMENDMENTS......................................................11
13.2. INTERESTED TRANSACTIONS.........................................11
13.3. VALUATION.......................................................12
13.4. ARBITRATION.....................................................12
13.5. SECTION CAPTIONS................................................12
13.6. SEVERABILITY....................................................12
13.7. MASSACHUSETTS LAW...............................................12
13.8. WAIVER OF ACTION FOR DISSOLUTION OR PARTITION...................12
13.9. COUNTERPART EXECUTION...........................................13
13.10. PARTIES IN INTEREST.............................................13
13.11. TIME............................................................13
13.12. GENDER..........................................................13
13.13. AGENT FOR SERVICE OF PROCESS....................................13
13.14. INTEGRATED AGREEMENT............................................13
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LIMITED LIABILITY COMPANY AGREEMENT
of
WESTFIELD PARTNERS, L.L.C.
THIS LIMITED LIABILITY COMPANY AGREEMENT dated as of July __, 1999 is
executed by and among WESTFIELD CAPITAL MANAGEMENT COMPANY, INC., a
Massachusetts corporation, as the Manager, and the Members set forth on Schedule
I as the initial Members. The Manager may, in its sole discretion, make changes
in the Company's books and records to reflect the admission, substitution, or
withdrawal of any Member.
1. DEFINITIONS. As used herein, the following terms shall have the following
meanings:
1.1. "Act" means the Massachusetts Limited Liability Company
Act, as such Act may be amended from time to time.
1.2. "Affiliate" means any Person (a) directly or indirectly
owning, controlling or holding with power to vote any of the
outstanding voting securities of another Person; (b) any of whose
outstanding voting securities are directly or indirectly owned,
controlled or held with power to vote by another Person; (c) directly
or indirectly controlling, controlled or under common control with
another Person or Persons; or (d) who is an officer, director, partner,
member, spouse, parent or child of another Person.
1.3. "Agreement" means this Limited Liability Company
Agreement, as amended from time to time.
1.4. "Book Capital Account" shall have the meaning assigned to
it in the agreement of limited partnership, limited liability company
agreement or similar governing agreement, as applicable, for each Fund
1.5. "Capital Account" means the account described in
Section 3.1.
1.6. "Capital Contribution" means the amount contributed from
time to time to the capital of the Company by the Manager or a Member.
1.7. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
1.8. "Company" means the limited liability company formed by
this agreement.
1.9. "Company Property" means any interest in real or
personal property, tangible or intangible, acquired by the Company.
1.10. "Former Member" shall have the meaning set forth in
Section 9.4.
1.11. "Fund" means any limited partnership, limited liability
company, business trust or other investment vehicle, whether now
existing or hereinafter formed, in which the Company has a profit
sharing interest.
1.12. "Investment Income (Loss)" shall mean, with respect to
any period, all net income or loss (including unrealized income or
loss) attributable to the Company's investments in any Fund that is
exempt from the registration requirements of the Investment Company Act
of 1940, as amended, in reliance on Sections 3(c)(1) or 3(c)(7) under
such Act, other than Profit Sharing Income and income attributable to
such the Company's Profit and Loss Accounts.
1.13. "Manager" means Westfield Capital Management Company,
Inc., and any substitute, successor or additional Manager approved as
provided by this Agreement; the business address of the aforenamed
Manager is Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
1.14. "Member" means each Person listed from time to time as a
Member in the Company's books and records.
1.15. "Operating Income (Loss)" shall mean, with respect to
any period, all net income or loss (including unrealized income or
loss) other than Profit Sharing Income, Investment Income or Loss, and
income allocated to a Profit and Loss Account.
1.16. "Person" means any individual, estate, trust,
partnership, corporation, limited liability company, association or
other legal entity.
1.17. "Profit and Loss Account" shall have the meaning
assigned to it in the agreement of limited partnership, limited
liability company agreement or similar governing agreement, as
applicable, for each Fund.
1.18. "Profit Sharing Income" shall mean, with respect to any
period, the net increase, if any, in the Company's "Performance
Account" in each of the
Funds (as such term is defined in the agreement of limited
partnership, limited liability company agreement or similar governing
agreement, as applicable, for each Fund) which is reallocated to the
Book Capital Account of the Company, or any similar amount which is
reallocated to the Book Capital Account of the Company from a similar
profit sharing account the Company may have in the future in any Fund.
1.19. "Term" shall have the meaning set forth in Section 2.5.
1.20. "Termination" shall have the meaning set forth in
Section 9.4.
2. ORGANIZATION.
2.1. PURPOSE. The purpose for which the Company is formed is
to serve as a general partner, manager or in similar capacities of such
Funds as the Manager in its discretion may determine. The Company shall
also have as additional purposes all lawful activities related to or
incidental to such purpose, and such other lawful purposes as the
Manager may from time to time determine.
2.2. COMPANY NAME. The name of the Company shall be
Westfield Partners, L.L.C.
2.3. OPERATING NAME. The activities of the Company may be
conducted under any name chosen by the Manager and the Manager may, in
its sole discretion, from time to time change the name of the Company.
2.4. PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Company shall be at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or at such other place as the Manager may from
time to time determine.
2.5. TERM. The term ("Term") of the Company commenced upon the
filing in the office of the Secretary of The Commonwealth of
Massachusetts of the Certificate of Organization of the Company, and
shall thereafter be perpetual, unless terminated sooner pursuant to
this Agreement.
3. CAPITAL ACCOUNTS.
3.1. CAPITAL ACCOUNTS. The interest of the Manager and each
Member in the Company shall be expressed in terms of a Capital Account.
The Capital Account of the Manager and each Member shall be increased
by Capital Contributions and Profit Sharing Income, if any, allocated
to the Manager or
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such Member pursuant to Section 6.2, Investment Income, if any,
allocated to the Manager or such Member pursuant to Section 6.3, and
Operating Income, if any, allocated to the Manager or such Member
pursuant to Section 6.4; and shall be decreased by Investment Loss, if
any, allocated to the Manager or such Member pursuant to Section 6.3,
Operating Loss, if any, allocated to the Manager or such Member
pursuant to Section 6.4, distributions to such Member pursuant to
Sections 7.1 and 7.2, and redemptions of such Member's interest in the
Company pursuant to Section 9.4.
3.2. PROFIT AND LOSS ACCOUNT DEFICITS. If, upon liquidation of
any Fund, the Company's Profit and Loss Account has a negative balance,
the Manager shall be obligated to make additional capital contributions
to the Company in cash equal to such negative balance.
4. CAPITAL CONTRIBUTIONS AND STATUS OF MEMBERS.
4.1. CAPITAL CONTRIBUTIONS. As of the date hereof, the Manager
and the Members have made the initial Capital Contributions (the
"Initial Capital Contribution") with respect to each Fund as set forth
on Schedule I hereto, as such schedule may be amended from time to
time. No Member shall be required to make any additional contributions
to the capital of the Company.
4.2. STATUS OF MEMBERS.
4.2.1. LIMITED LIABILITY. Except as provided in the
Act, a Member as such shall not be liable for the debts and
obligations of the Company. The creditors of the Company shall
have no recourse against any Member.
4.2.2. ROLE OF MEMBER. A Member as such shall not
take part in or interfere in any manner with the conduct or
control of the activities of the Company and shall have no
right or authority to act for or bind the Company.
4.2.3. DEATH OF MEMBER. Subject to Section 9.4
hereof, on the death of a Member, for the purpose of settling
his estate, his executor or administrator shall have all the
rights of a Member and such rights to assign or have redeemed
his interest as the Member had before his death.
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5. CHARGES AND EXPENSES OF COMPANY.
5.1. EXPENSES RELATING TO THIS AGREEMENT. The Company shall
reimburse the Manager for expenses borne, incurred or advanced by the
Manager on behalf of the Company on account of the preparation of this
Agreement, including attorneys' fees, accountants' fees, and other
expenses incident thereto. Such expenses which are not paid by the
Manager shall be paid as a debt of the Company.
5.2. EXPENSES OF OPERATION. The Company shall pay, or shall
reimburse the Manager for, such expenses incurred or advanced in the
operation or management of the Company as the Manager shall deem to be
reasonable and necessary.
6. ACCOUNTING FOR PROFITS AND LOSSES.
6.1. BOOKS AND RECORDS. Appropriate records and books of
account shall be kept according to generally accepted accounting
principles or such other basis of accounting as may be selected by the
Manager, at the principal place of business of the Company, and each
Member shall have access to all records and books of account and the
right to receive copies thereof. The Company shall use a fiscal year
ending on December 31 in reporting its income and expenses.
6.2. PROFIT SHARING INCOME.
6.2.1. As of the last business day of each fiscal
year for such fiscal year, the Manager shall allocate among
the Capital Accounts of the Members other than the Manager, in
the Manager's sole discretion, 65 percent of the Profit
Sharing Income attributable to each Fund (or such lesser
amount pursuant to Section 6.5). The amount of such
allocation, if any, to the Capital Account of any particular
Member is to be determined in the sole discretion of the
Manager.
6.2.2. As of the last business day of each fiscal
year for such fiscal year, the Manager shall allocate to the
Capital Account of the Manager 35 percent of the Profit
Sharing Income.
6.3. INVESTMENT INCOME OR LOSS. As of the last business day of
each fiscal year, Investment Income or Loss, if any, shall be allocated
to the Capital Accounts of the Manager and the Members in proportion to
each Manager and Member's Capital Account balances as of the last day
of such fiscal year (determined before any other allocations of profit
and loss) minus such Manager and Member's Initial Capital
Contributions. If new Members were
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admitted during a fiscal year, or if one or more Members withdraws
during a fiscal year, the Manager shall allocate amounts representing
Investment Income or Loss so as to take into account the varying
interests of the Manager and the Members in the Company during such
year.
6.4. OPERATING INCOME OR LOSS. As of the last business day of
each fiscal year, Operating Income or Loss, if any, shall be allocated
to the Capital Accounts of the Manager and the Members in proportion to
their Capital Account balances as of the last day of such fiscal year.
If new Members were admitted during a fiscal year, or if one or more
Members withdraws during a fiscal year, the Manager shall allocate
amounts representing Operating Income or Loss so as to take into
account the varying interests of the Manager and the Members in the
Company during such year.
6.5. DISTRIBUTIONS TO NON-MEMBERS. As of the last business
day of each fiscal year for such fiscal year, the Manager may
distribute, in the Manager's sole discretion, up to 65 percent of the
Profit Sharing Income attributable to each Fund to any Person or
Persons. The amount of Profit Sharing Income available for allocation
for such fiscal year pursuant to Section 6.2.1 hereof shall be reduced
by the amount of any distribution or distributions made pursuant to
this Section 6.5 for such fiscal year.
6.6. PROFIT AND LOSS ACCOUNT ALLOCATIONS.
6.6.1. As of the last business day of each fiscal
year, allocations of profit attributable to the Company's
Profit and Loss account in each Fund shall be made as follows:
(1) first, if there is a negative balance in such
Profit and Loss Account, 100 percent to the Manager's Capital
Account to the extent of the amount of profits necessary to
cause such Profit and Loss Account to be equal to zero;
(2) second, 35 percent to the Manager's Capital
Account and 65 percent to the Members' Capital Accounts in
proportion to their respective capital contributions credited
to such Profit and Loss Account until the amount of such
profits equals each Member's capital contribution credited to
such Profit and Loss Account; and
(3) third, 65 percent among the Capital Accounts of
the Members, allocated in the Manager's sole discretion (or
such lesser amount
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pursuant to Section 6.5), and 35 percent to the Capital
Account of the Manager.
6.6.2. As of the last business day of each fiscal
year, allocations of loss attributable to the Company's Profit
and Loss Account in each Fund shall be made as follows:
(1) first, 35 percent to the Manager's Capital
Account and 65 percent to the Members' Capital Accounts in
proportion to their respective capital contributions credited
to such Profit and Loss Account until the amount of such loss
equals each Member's capital contribution credited to such
Profit and Loss Account; and
(2) second, 100 percent to the Manager's Capital
Account.
6.7. NO RIGHT TO COMPANY'S PROFIT SHARING. No Member shall
have any right to any part of the Company's Profit Sharing Income for
any fiscal year, except by virtue of allocations pursuant to Section
6.2 hereof.
6.8. TAX ALLOCATIONS. The income, gains, losses, deductions
and credits of the Company shall be allocated for federal, state and
local income tax purposes among the Manager and the Members so as to
reflect, in the judgment of the Manager, the interests of the Members
in the Company set forth in this Agreement. The Manager, in
consultation with the Company's tax advisor, is authorized (i) to
select such tax allocation methods as may in the Manager's judgment be
appropriate to satisfy the requirements of section 704(c) of the Code;
(ii) to interpret and apply the allocation provisions hereof as
providing for a "qualified income offset", "minimum gain chargeback"
and such other allocation principles as may be required under section
704 of the Code and applicable regulations (provided that if such
principles are applied in making allocations hereunder, subsequent
allocations shall be made so as to reverse, to the extent possible in
the Manager's judgment, the effect of the application of such
principles); (iii) to make special allocations of income or loss to
the Manager and Members who redeem all or a portion of their Capital
Account balance; (iv) to determine the allocation of specific items of
income, gain, loss, deduction and credit of the Company; and (v) to
vary any and all of the foregoing allocation provisions to the extent
necessary in the judgment of the Manager to comply with section 704 of
the Code and applicable regulations. The Manager shall have the power
and authority to make all accounting, tax and financial reporting
determinations and decisions with respect to the Company.
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6.9. TAX MATTERS PARTNER. The "tax matters partner" of the
Company shall be the Manager or such other Person as the Manager may
from time to time designate in writing.
7. DISTRIBUTIONS FROM CAPITAL ACCOUNTS.
7.1. MANDATORY DISTRIBUTIONS. The Company shall, upon any
Member's request, distribute Profit Sharing Income, if any, and
Investment Income, if any, allocated to such Member's Capital Account
for a fiscal period on the day such amounts are allocated to such
Account. Capital Accounts shall be reduced by amounts so distributed.
7.2. DISCRETIONARY REDEMPTIONS. Any Member may request that
the Company redeem all or any portion of such Member's Capital Account
as of the last business day of any fiscal month. Such redemptions shall
be made by the Company in the sole discretion of the Manager.
8. RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGER.
8.1. INDEPENDENT ACTIVITIES. The Manager may, notwithstanding
the existence of this Agreement, engage in whatever activities it may
choose, whether or not such activities are competitive with the
activities of the Company, without having or incurring any obligation
to offer any interest in such activities to the Company or any party
hereto. The Manager may organize and participate as partner, manager,
shareholder and/or adviser in one or more partnerships, limited
liability companies or corporations which may engage in activities
substantially identical to the activities of the Company without any
liability therefor.
8.2. DUTIES. The Manager shall devote such time to the
activities of the Company as it determines is necessary for the
efficient carrying on thereof.
8.3. LIABILITY OF THE MANAGER. The Manager shall be generally
liable for the debts and obligations of the Company; provided, however,
that any such liability shall be satisfied first out of the assets of
the Company.
8.4. REMOVAL OR WITHDRAWAL OF THE MANAGER. A Manager shall
cease to be the Manager of the Company:
8.4.1. Upon the withdrawal by a Manager upon 30 days'
prior written notice to the Members;
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8.4.2. Immediately following the dissolution of a
Manager in corporate, partnership or limited liability company
form; or
8.4.3. If such Manager has: (i) made an assignment
for the benefit of creditors; (ii) filed a voluntary petition
in bankruptcy; (iii) been adjudicated a bankrupt or insolvent;
(iv) filed a petition or answer seeking for such Manager any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute,
law or regulation; (v) filed an answer or other pleading
admitting or failing to contest the material allegations of a
petition filed against such Manager in any proceeding of such
nature; or (vi) sought, consented to or acquiesced in the
appointment of a trustee, receiver or liquidator of such
Manager or of all or any substantial part of such Manager's
properties.
9. ADDITIONAL MEMBERS; REMOVAL OR WITHDRAWAL OF MEMBERS; TRANSFERS.
9.1. ADMISSION OF ADDITIONAL MEMBERS. The Manager shall have
the power to admit additional Members to the Company at any time in its
sole discretion.
9.2. REMOVAL OF MEMBERS. The Manager shall have the power to
remove any Member from the Company at any time in its sole discretion.
Such removed Member's interest in the Company shall be determined in
the same manner as in Section 9.4.
9.3. WITHDRAWAL. Any Member may withdraw from the Company upon
7 days' prior written notice to the Manager.
9.4. PAYMENTS TO FORMER MEMBERS. Upon the removal, withdrawal,
death or bankruptcy (each, a "Termination") of any Member (each, a
"Former Member"):
9.4.1. The Manager may, in its sole discretion,
allocate amounts to the Capital Account of the Former Member
pursuant to Section 6 hereof, the amount of such allocation,
if any, to be determined by the Manager in its sole
discretion. Such amounts, if any, shall be withdrawn by the
Former Member pursuant to Section 7.1 hereof as if such Former
Member were a Member.
9.4.2. The Former Member will be distributed an
amount equal to such Member's Capital Account balance, net of
reasonable
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reserves determined in the Manager's sole discretion, in
complete redemption of such Member's interest in the Company
on a date (following the date of Termination) to be
determined in the sole discretion of the Manager.
9.5. TRANSFER OF MEMBERSHIP INTEREST. No Member shall sell,
assign, transfer, pledge or otherwise encumber his or its interest in
the Company, in its assets or in the profits thereof, except with the
consent of the Manager, which may be withheld in the Manager's sole
discretion.
10. DISSOLUTION AND WINDING UP OF THE COMPANY.
10.1. DISSOLUTION OF THE COMPANY. The Company shall be
dissolved upon the first to occur of any of the following events:
10.1.1. The Manager ceases to be a Manager pursuant
to Section 8.4 unless within 90 days after the occurrence of
such event a majority in number of the Members agree in
writing to continue the business of the Company and to the
appointment, effective as of the date of such event, of a
substitute Manager to be admitted pursuant to Section 10.2;
10.1.2. The vote so to do of the Manager and a
majority in number of the Members; or
10.1.3. When required by the Act.
10.2. ADMISSION OF A SUBSTITUTE MANAGER. If the Manager
ceases to be the Manager and a substitute Manager is to be admitted
by the Members pursuant to Section 10.1.1 any Member may, promptly
after the agreement of the Members to continue as provided in
Section 10.1.1, nominate a Person for admission as a substitute
Manager. Such Person shall not become the Manager unless (i) such
Person is admitted by written consent of a majority in number of
the Members and (ii) such Person has consented in writing to be
bound by the terms of this Agreement and the Company's Certificate
of Organization. If such proposed Manager is not admitted, any Member
may as soon as practicable thereafter nominate another substitute
Manager until a substitute Manager is admitted or the Company has
been dissolved pursuant to Section 10.1.2 hereof.
10.3. RIGHT TO CONTINUE. The Company shall not be dissolved
upon the death, retirement, resignation, removal, expulsion, bankruptcy
or dissolution of
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any Member, or the occurrence of any other event that terminates the
continued membership of any Member in the Company.
10.4. WINDING UP OF THE COMPANY. Upon dissolution of the
Company, the books of the Company shall be closed and appropriate
debits and credits to the Capital Accounts of the Manager and the
Members shall be made to reflect the allocation of profits and loss
attributable to the liquidation of the Company's assets (including, in
the case of assets distributed in kind, the allocation of profit and
loss that would occur if such assets of the Company were sold at their
fair market value). The Manager, or if there is no Manager, a trustee
elected by a majority in number of the Members, shall take full account
of the Company's assets and liabilities and the assets shall be
liquidated as promptly as is consistent with obtaining the fair market
value thereof, and the proceeds therefrom to the extent sufficient
therefor (or any unsold assets which shall be valued at their fair
market value), shall be applied and distributed in the following order,
or as otherwise required to comply with the Act:
10.4.1. To creditors, including the Manager and
Members who are creditors, to the extent permitted by law, in
satisfaction of liabilities of the Company other than
liabilities for distributions to the Manager and Members in
their capacity as the Manager and Members, respectively;
10.4.2. To Members and Former Members in satisfaction
of liabilities for distributions provided for hereunder; and
10.4.3. To the Manager and Members in accordance with
their respective Capital Accounts at the time of the
dissolution.
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11. POWER OF ATTORNEY.
11.1. POWER OF ATTORNEY FOR THE MANAGER. Provided that the
action to be taken is in accordance with the terms of this Agreement,
each Member hereby makes, constitutes and appoints the Manager and
each Person who shall hereafter become a Manager, with full power of
substitution and resubstitution, his true and lawful attorney in his
name, place and stead and for his use and benefit to sign, execute,
certify, acknowledge, swear to, file and record this Agreement and the
Company's Certificate of Organization, and to sign, execute, certify,
acknowledge, swear to, file and record any and all instruments
amending this Agreement and the Company's Certificate of Organization,
as now or hereafter amended, that the Manager in its sole discretion
deems appropriate including, without limitation, agreements or other
instruments or documents (1) to reflect the exercise by the Manager of
any of the powers granted to it under this Agreement; (2) to reflect
any amendments made to this Agreement and the Company's Certificate of
Organization pursuant to this Agreement; (3) to reflect the withdrawal
of any Member, in the manner prescribed in this Agreement; and (4) to
reflect actions which may be required of the Company or the Members by
the laws of any jurisdiction. Each Member authorizes such
attorney-in-fact to take any further action which such
attorney-in-fact shall consider necessary or advisable in connection
with any of the foregoing, hereby giving such attorney-in-fact full
power and authority to do and perform each and every act or thing
whatsoever requisite or advisable to be done in and about the
foregoing as fully as such Member might or could do if personally
present, hereby ratifying and confirming all that such
attorney-in-fact shall lawfully do or cause to be done by virtue
hereof.
11.2. IRREVOCABILITY; EXERCISE; SURVIVAL. The power of
attorney granted pursuant to Section 11.1 hereof:
11.2.1. Is a special power of attorney coupled with
an interest and is irrevocable;
11.2.2. May be exercised by such attorney-in-fact by
listing all of the Members executing any agreement,
certificate, instrument or documents with the single signature
of such attorney-in-fact acting as attorney-in-fact for all of
them; and
11.2.3. Shall survive the delivery of an assignment
by a Member of the whole or a portion of his interest in the
Company, except that where the purchaser, transferee or
assignee thereof has the right to be, or with consent of the
Manager is admitted as, a substituted Member, the power of
attorney shall survive the delivery of such assignment for the
sole purpose of enabling such attorney-in-fact to execute,
acknowledge and file any such agreement, certificate,
instrument or document necessary to effect such substitution.
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12. INDEMNIFICATION OF THE MANAGER.
12.1. EXCLUSION OF LIABILITY FOR RETURN OF CAPITAL
CONTRIBUTIONS. Anything in this Agreement to the contrary
notwithstanding, neither the Manager nor any of its Affiliates, nor any
agent or other Person authorized to act for the Company, shall be
personally liable for the return of all or any portion of any Member's
Capital Contribution, it being expressly understood that any such
return shall be made solely from Company assets.
12.2. LIMITATION ON LIABILITY OF MANAGER; INDEMNIFICATION.
Anything in this Agreement to the contrary notwithstanding, the Manager
shall not in any event be liable, responsible or accountable in damages
or otherwise to any of the Members or to the Company for, and the
Company shall indemnify and save harmless the Manager from, any losses
or damages incurred by reason of any act or omission performed or
omitted to be performed by the Manager, if the Manager, in good faith,
determined that such act was in the best interest of the Company,
provided that the foregoing shall not relieve the Manager of liability
or indemnity and save the Manager harmless for the Manager's willful
misconduct or gross negligence. This limitation of liability, indemnity
and hold harmless is for the benefit of the Manager and its Affiliates,
and their respective directors, officers and employees. In particular,
and without limitation of the foregoing, the Manager shall be entitled
to indemnification by the Company against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred by the
Manager in connection with the defense of any suit or action to which
the Manager may be made a party by reason of having acted as a Manager,
to the fullest extent permitted by the Act. The Manager shall be
entitled to receive, upon application therefor, advances to cover the
costs of defending any claim or action against it; provided that such
advances shall be repaid to the Company, without interest, if the
Manager is found by a court of competent jurisdiction to have violated
the provisions of this Agreement in such a manner as to not entitle
such Manager to payment of such costs.
13. MISCELLANEOUS.
13.1. AMENDMENTS. The Manager may amend any provision of this
Agreement without the necessity of the consent of any of the Members;
PROVIDED, HOWEVER, that an amendment which would (i) result in the loss
of any Member's limited liability, (ii) require any Member to
contribute additional capital other
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than as specifically set forth herein, or (iii) alter the provisions
of this Section 13.1 shall not be adopted and effective unless it
receives the affirmative approval of all Members materially adversely
affected by such amendment.
13.2. INTERESTED TRANSACTIONS. Each of the parties to this
Agreement hereby (a) expressly acknowledges that certain transactions
contemplated by this Agreement and powers delegated to the Manager
hereunder, including, without limitation, the Manager's right to make
certain allocations under Section 6.2, may constitute interested or
self-dealing transactions between the Manager and one or more of its
Affiliates, (b) expressly acknowledges that the Manager may, and
specifically authorizes it (i) to allocate such amounts as it in its
sole discretion may determine, to the Capital Accounts of the Manager
and its Affiliates pursuant to Section 6.2 and (ii) to distribute such
amounts as it in its sole discretion may discretion may determine to
Persons who may be Affiliates of the Manager pursuant to Section 6.5;
and each of the parties to this Agreement hereby agrees that any such
allocations or distributions will not constitute a breach of fiduciary
duty by the Manager, and (c) waives, to the fullest extent permitted
by law, any rights or claims such party may have against the Manager
or its Affiliates arising in connection with the consummation of such
transactions or exercise of such powers and that are based on conflict
of interest, breach of fiduciary duty or any similar grounds;
PROVIDED, HOWEVER, that such waiver shall be effective only to the
extent that the Manager or its Affiliates have exercised reasonable
business judgment in the consummation of such transactions or exercise
of such powers.
13.3. VALUATION. Whenever for purposes of this Agreement it is
necessary to determine the value of the Company Property, such value
shall be determined by the Manager acting in good faith. Any such
determination by the Manager shall be conclusive and binding on all
Members.
13.4. ARBITRATION. The Members and the Manager hereby agree
to submit all controversies, claims and matters of difference to
arbitration in Boston, Massachusetts, according to the rules and
practices of the American Arbitration Association in force at the time
of submission. Such arbitration shall be before a panel of 3
arbitrators one of whom is to be selected by each party and a third
selected by the arbitrators chosen by the parties. This agreement to
arbitrate shall be specifically enforceable. Without limiting the
generality of the foregoing, all questions relating to the breach of
any obligation, warranty or condition hereunder, and all questions as
to whether the right to arbitrate exists shall be considered
controversies for the purposes of this section. The award rendered in
such proceedings shall be final and binding on all parties to the
extent permitted by Massachusetts law and may be
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entered as a judgment in any court of competent jurisdiction. This
paragraph shall not apply, however, to any cause of action which may
arise under federal or state securities laws.
13.5. SECTION CAPTIONS. Section and other captions contained
in this Agreement are for reference purposes only and are in no way
intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
13.6. SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall
not affect the validity of the remainder of this Agreement.
13.7. MASSACHUSETTS LAW. This Agreement shall be governed,
construed and enforced in accordance with the laws of The Commonwealth
of Massachusetts, without giving effect to the choice of law principles
thereof.
13.8. WAIVER OF ACTION FOR DISSOLUTION OR PARTITION. Each
party hereto irrevocably waives during the Term of the Company any
right to apply for dissolution of the Company. Each party hereto also
irrevocably waives during the Term of the Company and during the period
of its liquidation following any dissolution, any right which such
party may have to maintain any action for partition with respect to any
of the Company Property.
13.9. COUNTERPART EXECUTION. This Agreement may be executed in
any number of counterparts with the same effect as if all the parties
hereto had signed the same document, each of which counterparts shall
be an original and all of which shall constitute but one and the same
Agreement. The Subscription Agreement of each Member shall, upon
acceptance of such Subscription Agreement by the Manager and admission
of the subscriber as a Member in the Company, be deemed part of this
Agreement, is hereby incorporated herein by reference and may be
attached with the Subscription Agreements of all other subscribers to a
master copy of this Agreement, which shall constitute the entire
executed Limited Liability Company Agreement.
13.10. PARTIES IN INTEREST. Each and every covenant, term,
provision and agreement herein contained shall be binding upon and
inure to the benefit of the heirs, successors, legal representatives
and assigns of the respective parties hereto.
13.11. TIME. Time is of the essence with respect to this
Agreement.
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13.12. GENDER. All references herein to one gender also
include, where appropriate, the other gender. Where appropriate, the
singular includes the plural and the plural includes the singular.
13.13. AGENT FOR SERVICE OF PROCESS. The Manager shall be the
Company's agent for service of process.
13.14. INTEGRATED AGREEMENT. This Agreement constitutes the
entire understanding and agreement among the parties.
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IN WITNESS WHEREOF, this Limited Liability Company Agreement of
Westfield Partners, L.L.C. has been executed as of the date first written above.
MANAGER
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Westfield Capital Management Company, Inc.
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
MEMBERS
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By: Westfield Capital Management Company,
Inc., as attorney-in-fact for each such
Member
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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SCHEDULE I
INITIAL CAPITAL CONTRIBUTIONS
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Westfield Technology Fund Westfield Capital Growth
MEMBERS II Limited Partnership Fund II Limited Partnership
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Xxxxxx X. Xxxxxxxxxxx $698.75 $1,004.40
Xxxxxxx X. Xxxxxxxxx $698.75 $1,004.40
C. Xxxxxxx Xxxxxx $698.75 $1,004.40
Xxxxxxx X. Xxxxxx $698.75 $1,004.40
B. Xxxxxxx Xxxxx $698.75 $1,004.40
MANAGER $1,881.25 $2,704.15
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