HATTERAS MULTI-STRATEGY TEI INSTITUTIONAL FUND, L.P. Amended and Restated Agreement of Limited Partnership Dated as of , 2008
HATTERAS MULTI — STRATEGY TEI INSTITUTIONAL FUND, L.P.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of HATTERAS MULTI-STRATEGY TEI
INSTITUTIONAL FUND, L.P. (the “Partnership”) dated as of , 2008 by and among HATTERAS
INVESTMENT MANAGEMENT LLC, as General Partner, Xxxxx X. Xxxxxxx, as the Organizational Limited
Partner and those Persons who execute this Agreement and whose names are reflected on the books and
records of the Partnership as Limited Partners.
WHEREAS, the General Partner and organizational limited partner were parties to the Agreement
of Limited Partnership of Hatteras Multi-Strategy TEI Institutional Fund, L.P. dated as of November
29, 2006 (the “Original Partnership Agreement”); and WHEREAS, the Original Partnership Agreement is
hereby amended and restated in its entirety as set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
“1933 Act” means the Securities Act of 1933 and the rules, regulations and orders under the
1933 Act, as amended from time to time, or any successor law.
“1940 Act” means the Investment Company Act of 1940 and the rules, regulations and orders
under the 1940 Act, as amended from time to time, or any successor law.
“Advisers Act” means the Investment Advisers Act of 1940 and the rules, regulations and orders
under the Advisers Act, as amended from time to time, or any successor law.
“Advisor” means any Person designated to manage a portion of the assets of the Partnership
and/or the Master Partnership, either directly or through the investment by the Partnership in an
Advisor Fund.
“Advisor Account” means an account directly managed by an Advisor for the Partnership or the
Master Partnership.
“Advisor Fund” means an investment company, a general or limited partnership, a limited
liability company or other pooled investment vehicle in which the Partnership or the
Master Partnership has invested and that is advised by an Advisor; whether or not, in each
case, the entity is registered under the 1940 Act, and includes the Master Partnership and Advisor
Funds that may be formed by the Partnership.
“Affiliate” means affiliated person as that term is defined in the 1940 Act.
“Agreement” means this Amended and Restated Agreement of Limited Partnership, as amended
and/or restated from time to time.
“Board of Directors” means the board of the Directors who have been delegated the authority
described in this Agreement.
“Business Day” means any day when the New York Stock Exchange is open for business.
“Capital Account” means, with respect to each Partner, the capital account established and
maintained on behalf of the Partner in accordance with Section 5.3 of this Agreement.
“Capital Contribution” means the contribution, if any, made, or to be made, as the context
requires, to the capital of the Partnership, after giving effect to any applicable placement agent
fees, by a Partner or former Partner, as the case may be.
“Certificate” means the Certificate of Limited Partnership of the Partnership as filed with
the office of the Secretary of State of the State of Delaware on July 20, 2006 and any amendments
to the Certificate and/or restatements of the Certificate as filed with the office of the Secretary
of State of the State of Delaware pursuant to this Agreement.
“Closing Date” means the first date on or as of which a Limited Partner other than the
Organizational Limited Partner is admitted to the Partnership.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
law.
“Commodity Exchange Act” means the Commodity Exchange Act and the rules, regulations and
orders under the Commodity Exchange Act, as amended from time to time, or any successor law.
“Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, as amended from
time to time, or any successor law.
“Directors” means those natural Persons designated as “Directors” in accordance with this
Agreement who are delegated the authority provided for in this Agreement and includes Xxxxx X.
Xxxxxxx as the initial Director, or any other natural Persons who, from time to time after the date
of this Agreement, become Directors in accordance with the terms and conditions of this Agreement.
“Fiscal Period” means the period commencing on the Closing Date, and thereafter each period
commencing on the day immediately following the last day of the immediately preceding
- 2 -
Fiscal Period, and ending in each case at the close of business on the first to occur of the
following dates:
(1) the last day of any calendar quarter, including the last day of the calendar year;
2) the day preceding the date as of which a contribution to the capital of the
Partnership is made by any Partner in accordance with Section 5.1 of this Agreement;
(3) the day on which the Partnership repurchases Units of any Partner in accordance
with Section 4.5 of this Agreement;
(4) the day as of which the Partnership admits a substituted Partner to whom or which
Units of a Partner have been Transferred (unless the Transfer of the Units results in no
change of beneficial ownership of the Units);
(5) the day as of which any amount is credited to or debited against the Capital
Account of any Partner, other than an amount that is credited to or debited against the
Capital Accounts of all Partners in accordance with their respective Investment Percentages;
or
(6) December 31, or any other date that is the last day of the taxable year of the
Partnership.
“Fiscal Year” means the period commencing on the Closing Date and ending on March 31, 2007,
and thereafter each period commencing on April 1 of each year and ending on March 31 of that year
(or on the date of a final distribution made in accordance with Section 6.2 of this Agreement),
unless the Directors designate another fiscal year for the Partnership. The taxable year of the
Partnership will end on December 31 of each year, or on any other date designated by the General
Partner that is a permitted taxable year-end for tax purposes.
“Form N-2” means the Partnership’s Registration Statement on Form N-2 filed with the
Securities and Exchange Commission, as amended from time to time.
“General Partner” means Hatteras Investment Management LLC, a limited liability company formed
under the laws of the State of Delaware, and any other Person or Persons admitted to the
Partnership as a general partner of the Partnership, collectively, in their capacities as general
partners of the Partnership, and “General Partner” means any of the General Partners. When the
term General Partner is used in this Agreement and the Partnership has more than one General
Partner, the term “General Partner” will refer to each General Partner.
“Independent Directors” mean those Directors who are not “interested persons” of the
Partnership as that term is defined in the 1940 Act.
“Investment Percentage” means a percentage established for each Partner on the Partnership’s
books determined by dividing the number of Units owned by such Partner by the number of Units owned
by all of the Partners.
- 3 -
“Limited Partner” means any Person admitted to the Partnership as a Limited Partner of the
Partnership (including any Person who or that is a General Partner when acting in the Person’s
capacity as a Limited Partner) until the Partnership repurchases all of the Units of the Person as
a Limited Partner in accordance with Section 4.5 of this Agreement, or a substituted Limited
Partner or Partners are admitted with respect to the Person’s Units in accordance with Section 4.4
of this Agreement, in the Person’s capacity as a Limited Partner of the Partnership. For purposes
of the Delaware Act, the Limited Partners will constitute a single class or group.
“Master Partnership” means Hatteras Master Fund, L.P., a limited partnership organized under
the laws of the State of Delaware and any partnership continuing the business of the Master
Partnership after its dissolution.
“Memorandum” means the Partnership’s Confidential Memorandum, as included in the Form N-2, as
amended or supplemented from time to time.
“NAV per Unit,” as of a particular date, shall be equal to the Net Assets of the Fund as of
such date, divided by the number of Units then outstanding.
“Net Assets” means the total value of all assets of the Partnership, less an amount equal to
all accrued debts, liabilities and obligations of the Partnership, calculated before giving effect
to any repurchases of Units.
“Net Profit” or “Net Loss” means the amount by which the Net Assets as of the close of
business on the last day of a Fiscal Period exceed (in the case of Net Profit) or are less than (in
the case of Net Loss) the Net Assets as of the commencement of the same Fiscal Period (or, with
respect to the initial Fiscal Period of the Partnership, at the close of business on the Closing
Date), the amount of any Net Profit or Net Loss to be adjusted to exclude any items to be allocated
among the Capital Accounts of the Partners on a basis that is not in accordance with the Investment
Percentages of all Partners as of the commencement of the Fiscal Period in accordance with Section
5.6 of this Agreement.
“Offering Materials” means the Memorandum and subscription materials provided to prospective
Limited Partners in connection with an investment to be made in the Partnership.
“Organizational Limited Partner” means Xxxxx X. Xxxxxxx.
“Partners” means the General Partner(s) and the Limited Partners, collectively, and “Partner”
means any General Partner or Limited Partner.
“Partnership” means Hatteras Multi-Strategy TEI Institutional Fund, L.P. and any partnership
continuing the business of the Partnership after dissolution as provided in this Agreement.
“Person” means any individual, entity, corporation, partnership, limited liability company,
joint stock company, trust, estate, joint venture, or unincorporated organization.
“Securities” means securities (including, without limitation, equities, debt obligations,
options, and other “securities” as that term is defined in Section 2(a)(36) of the 0000 Xxx) and
- 4 -
any contracts for forward or future delivery of any security, debt obligation, currency or
commodity, all manner of derivative instruments and any contracts based on any index or group of
securities, debt obligations, currencies or commodities, and any options on those contracts.
“Transfer” means the assignment, transfer, sale or other disposition of Units, including any
right to receive any allocations and distributions attributable to the Units. Verbs, adverbs or
adjectives such as “Transfer,” “Transferred” and “Transferring” have correlative meanings.
“Valuation Date” means any date upon which the net asset value of the Units are valued for
purposes of a repurchase, as determined by the Board of Directors.
ARTICLE II
ORGANIZATION; ADMISSION OF PARTNERS; DIRECTORS
Section 2.1 Formation of Limited Partnership. (a) The Partnership is formed as a
limited partnership pursuant to the Certificate and this Agreement. The Partners agree that their
rights, duties and liabilities will be as provided in the Delaware Act, except as otherwise
provided in this Agreement. The General Partner will cause the Certificate to be executed and
filed in accordance with the Delaware Act and will cause to be executed and filed with applicable
governmental authorities any other instruments, documents and certificates that the General Partner
concludes may from time to time be required by the laws of the United States of America, the State
of Delaware or any other jurisdiction in which the General Partner determines that the Partnership
should do business, or any political subdivision or agency of any such jurisdiction, or that the
General Partner determines is necessary or appropriate to effectuate, implement and continue the
valid existence and business of the Partnership.
(b) The Partnership is formed for the object and purpose of (and the nature of the
business to be conducted by the Partnership is) engaging in any lawful activity for
which limited partnerships may be formed under the Delaware Act and engaging in any
and all activities necessary or incidental to the foregoing.
Section 2.2 Name. The name of the Partnership is “Hatteras Multi-Strategy TEI
Institutional Fund, L.P.” or any other name that the General Partner may adopt after the date of
this Agreement upon (a) causing an appropriate amendment to this Agreement to be executed and to
the Certificate to be filed in accordance with the Delaware Act and (b) sending notice of the
amendment to each Limited Partner.
Section 2.3 Principal and Registered Office. The Partnership will have its principal
office at the principal office of the General Partner or at any other place designated from time to
time by the General Partner. The Partnership’s registered agent in the State of Delaware shall be
The Corporation Trust Company, and the Partnership’s registered office in the State of Delaware at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 unless the General Partner
designates a different registered agent or office from time to time in accordance with the Delaware
Act.
- 5 -
Section 2.4 Duration . The term of the Partnership will commence on the filing of the
Certificate and will continue until the Partnership is dissolved and wound up and the Certificate
is canceled in accordance with Section 6.1 of this Agreement.
Section 2.5 Business of the Partnership. (a) The business of the Partnership is to
purchase, sell, invest and trade in Securities and engage in any financial or derivative
transactions relating to Securities. Portions of the Partnership’s assets (which may constitute,
in the aggregate, all of the Partnership’s assets) may be invested in Advisor Funds or Advisor
Accounts that invest and trade in Securities or in separate managed accounts through which the
Partnership may invest and trade in Securities, some or all of which may be advised by one or more
Advisors. The Partnership may invest some or all of its assets directly or indirectly in the
Master Partnership. The Partnership may execute, deliver and perform all contracts, agreements and
other undertakings and engage in all activities and transactions as the General Partner, the
Directors or the Investment Manager may deem necessary or advisable to carry out its objective or
business.
(b) The Partnership will operate as a closed-end, management investment company in
accordance with the 1940 Act and subject to any fundamental policies and investment
restrictions described in the Form N-2.
(c) The Partnership may designate from time to time persons to act as signatories
for the Partnership, including, without limitation, persons authorized to execute
and deliver any filings with the U.S. Securities and Exchange Commission (the
“SEC”) or applicable federal or state regulatory authorities or self-regulatory
organizations.
Section 2.6 General Partner. (a) Hatteras Investment Management LLC shall be
admitted to the Partnership as the General Partner upon its execution of this Agreement. The
General Partner may admit to the Partnership as an additional General Partner any Person who agrees
in writing to be bound by all of the terms of this Agreement as a General Partner. The General
Partner may admit to the Partnership as a substituted General Partner any Person to which it has
Transferred its Units held as the General Partner in accordance with Section 4.3 of this Agreement.
Any substituted General Partner will be admitted to the Partnership upon the Transferring General
Partner’s consenting to such admission and is authorized to, and will, continue the business of the
Partnership without dissolution. The name and mailing address of the General Partner and the
Capital Contribution of the General Partner will be reflected on the books and records of the
Partnership. If at any time the Partnership has more than one General Partner, unless otherwise
provided in this Agreement, any action allowed to be taken, or required to be taken, by the General
Partners may be taken only with the unanimous approval of all of the General Partners.
(b) Each General Partner will serve for the duration of the term of the Partnership,
unless the General Partner ceases to be a General Partner in accordance with Section
4.1 of this Agreement.
Section 2.7 Limited Partners. (a) The General Partner may admit one or more Limited
Partners as of the beginning of each calendar month or at such other times as the
- 6 -
General Partner may determine. A Person may be admitted to the Partnership as a Limited
Partner without having signed this Agreement. This Agreement shall not be unenforceable by reason
of it not having been signed by a person being admitted as a Limited Partner. The General Partner,
in its sole and absolute discretion, may reject requests to purchase Units in the Partnership. The
General Partner may, in its sole discretion, suspend or terminate the offering of the Units at any
time. The books and records of the Partnership shall be revised to reflect the name and Capital
Contribution of each Limited Partner that is admitted to the Partnership.
(b) Subject to Section 2.10 of this Agreement, when the entire Capital Contribution
attributable to Units for which a Partner has subscribed is paid for, those Units
will be deemed to be validly issued and fully paid and non-assessable.
Section 2.8 Organizational Limited Partner. Upon the admission to the Partnership of
any Limited Partner, the Organizational Limited Partner shall withdraw from the Partnership as the
Organizational Limited Partner and shall be entitled to the return of his Capital Contribution, if
any, without interest or deduction, and shall cease to be a Limited Partner of the Partnership.
Section 2.9 Both General and Limited Partner. A Partner may be simultaneously a
General Partner and a Limited Partner, in which event the Partner’s rights and obligations in each
capacity will be determined separately in accordance with the terms and provisions of this
Agreement and as provided in the Delaware Act.
Section 2.10 Limited Liability. Except for payment obligations under this Agreement,
including Capital Contribution obligations, and as provided under applicable law, a Limited Partner
will not be liable for the Partnership’s obligations in any amount in excess of the Limited
Partner’s Capital Account balance, plus the Limited Partner’s share of undistributed profits and
assets. Subject to applicable law, a Limited Partner may be obligated to return to the Partnership
certain amounts distributed to the Limited Partner.
Section 2.11 Directors. (a) The number of Directors at the date of this Agreement is
fixed at not more than fourteen (14) Directors and no fewer than two (2). After the Closing Date,
the number of Directors will be fixed from time to time by the Directors then in office, which
number may be greater, or lesser, than fourteen (14), but no fewer than the minimum number of
directors permitted to corporations organized under the laws of the State of Delaware, except that
no reduction in the number of Directors will serve to effect the removal of any Director. Each
Partner approves the delegation by the General Partner to the Directors, in accordance with Section
3.1 of this Agreement, of certain of the General Partner’s rights and powers.
(b) The term of office of each Director shall be from the time of such Director’s
election and qualification until his or her successor shall have been elected and
shall have qualified, or until his or her status as a Director is terminated sooner
in accordance with Section 2.11(d) of this Agreement. Except to the extent the 1940
Act requires election by Limited Partners, if any vacancy in the position of a
Director occurs, including by reason of an increase in the number of Directors as
contemplated by Section 2.11(a) of this Agreement, the remaining Directors may appoint an individual to serve in that capacity in accordance with the
provisions of the 1940 Act. Independent Directors will at all times constitute
- 7 -
at
least a majority (or more if required by the 0000 Xxx) of the Directors then
serving. An Independent Director will be replaced by another Independent Director
selected and nominated by the remaining Independent Directors, or in a manner
otherwise permissible under the 1940 Act.
(c) If no Director remains, the General Partner will promptly call a meeting of the
Partners, to be held within 60 days after the date on which the last Director ceased
to act in that capacity, for the purpose of determining whether to continue the
business of the Partnership and, if the business is to be continued, approving the
appointment of the requisite number of Directors. If the Partners determine at the
meeting not to continue the business of the Partnership, or if the approval of the
appointment of the requisite number of Directors is not approved within 60 days
after the date on which the last Director ceased to act in that capacity, then the
Partnership will be dissolved in accordance with Section 6.1 of this Agreement and
the assets of the Partnership will be liquidated and distributed in accordance with
Section 6.2 of this Agreement.
(d) The status of a Director will terminate (1) if the Director dies; (2) if the
Director resigns as a Director; or (3) if the Director is removed in accordance with
Section 2.11(e) of this Agreement.
(e) Any Director may be removed with or without cause by a vote of a majority of the
other Directors or by the vote or written consent of Limited Partners holding not
less than two-thirds of the total number of votes eligible to be cast by all Limited
Partners.
(f) The Directors may establish and maintain committees of the Board of Directors,
and the Directors may grant to such committees the authority to, among other things:
value the assets of the Partnership; select and nominate the Independent Directors
of the Partnership; recommend to the Board of Directors the compensation to be paid
to the Independent Directors; and recommend to the Board of Directors the firm of
certified public accountants that will conduct the Partnership’s audits.
(g) The Directors may establish or designate committees of the Board of Directors or
the Partnership, whose members may include the Directors and/or other Persons who
are not Directors, to provide advice and other services to the Partnership, which
committees may include (but are not limited to) a committee that will value the
assets of the Partnership.
(h) The Independent Directors will receive compensation for their services as
Independent Directors, as determined by the Board of Directors.
- 8 -
ARTICLE III
MANAGEMENT; ADVICE AND MANAGEMENT
Section 3.1 Management and Control. (a) The General Partner delegates to the
Directors those rights and powers of the General Partner necessary for the Directors to manage and
control the business affairs of the Partnership and to carry out their oversight obligations with
respect to the Partnership required under the 1940 Act, state law, and any other applicable laws or
regulations. Rights and powers delegated to the Directors include, without limitation, the
authority as Directors to oversee and to establish policies regarding the management, conduct and
operation of the Partnership’s business, and to do all things necessary and proper as Directors to
carry out the objective and business of the Partnership, including, without limitation, the power
to engage an investment manager to provide advice and management and to remove such an investment
manager, as well as to exercise any other rights and powers expressly given to the Directors under
this Agreement. The Partners intend that, to the fullest extent permitted by law, and except to
the extent otherwise expressly provided in this Agreement, (1) each Director is vested with the
same powers and authority on behalf of the Partnership as are customarily vested in each director
of a Delaware corporation and (2) each Independent Director is vested with the same powers and
authority on behalf of the Partnership as are customarily vested in each director who is not an
“interested person” (as that term is defined in the 0000 Xxx) of a closed-end, management
investment company registered under the 1940 Act that is organized as a Delaware corporation.
During any period in which the Partnership has no Directors, the General Partner will manage and
control the Partnership. Each Director will be the agent of the Partnership but will not, for any
purpose, be a General Partner. Notwithstanding the delegation described in this Section 3.1(a),
the General Partner will not cease to be the General Partner and will continue to be liable as such
and in no event will a Director be considered a General Partner by agreement, estoppel or otherwise
as a result of the performance of his or her duties under this Agreement or otherwise. The General
Partner retains those rights, powers and duties that have not been delegated under this Agreement.
Any Director may be admitted to the Partnership in accordance with Section 2.7 of this Agreement
and make Capital Contributions and own Units, in which case the Director will also become a Limited
Partner.
(b) The Partnership will file a tax return as a Partnership for U.S. federal income
tax purposes. All decisions for the Partnership relating to tax matters including,
without limitation, whether to make any tax elections (including the election under
Section 754 of the Code), the positions to be made on the Partnership’s tax returns
and the settlement or further contest or litigation of any audit matters raised by
the Internal Revenue Service or any other taxing authority, will be made by the
Directors. All actions (other than ministerial actions) taken by the tax matters
Partner, as designated in Section 3.1(c) below, will be subject to the approval of
the Directors.
(c) The General Partner will be the designated tax matters Partner for purposes of
the Code. Each Partner agrees not to treat, on his, her or its personal income tax
return or in any claim for a refund, any item of income, gain, loss, deduction or
credit in a manner inconsistent with the treatment of the item by the Partnership.
The tax matters Partner will have the exclusive authority and
- 9 -
discretion to make any elections required or permitted to be made by the Partnership
under any provisions of the Code or any other revenue laws.
(d) No Limited Partner will have any right to participate in or take any part in the
management or control of the Partnership’s business, and no Limited Partner will
have any right, power or authority to act for or bind the Partnership. Limited
Partners will have the right to vote on any matters only as provided in this
Agreement or on any matters that require the approval of the holders of voting
securities under the 1940 Act and will have no right to exercise any other vote
granted to Limited Partners under the Delaware Act, any such rights being vested in
the Directors (or the General Partner if there are no Directors) and may be
exercised without requiring the approval of the Limited Partners.
Section 3.2 Powers Reserved by the General Partner. Notwithstanding anything in this
Agreement to the contrary, the General Partner retains all rights, duties and powers to manage the
affairs of the Partnership that may not be delegated under Delaware law, and that are not otherwise
delegated by the General Partner to the Directors or assumed by any investment manager engaged
pursuant to Section 3.1(a) of this Agreement or any other Person under the terms of any agreement
between the Partnership and such investment manager or any other Person. Specifically, and without
limitation, the General Partner will retain full power and authority on behalf of and in the name
of the Partnership:
(1) to issue to any Partner an instrument certifying that the Partner is the
owner of Units;
(2) to call and conduct meetings of Partners at the Partnership’s principal
office or elsewhere as it may determine, and to assist the Directors in calling and
conducting meetings of the Directors;
(3) to engage and terminate attorneys, accountants (subject to the provisions
of the 0000 Xxx) and other professional advisers and consultants as the General
Partner deems necessary or advisable in connection with the affairs of the
Partnership or as may be directed by the Directors;
(4) to act as tax matters Partner in accordance with Section 3.1(c) of this
Agreement, and to assist in the preparation and filing of any required tax or
information returns to be made by the Partnership;
(5) as directed by the Directors, to commence, defend and conclude any action,
suit, investigation or other proceeding that pertains to the Partnership or any
assets of the Partnership;
(6) as directed by the Directors, to arrange for the purchase of any insurance
covering the potential liabilities of the Partnership or relating to the performance
of the Directors, the General Partner, any investment manager engaged pursuant to
Section 3.1(a) of this Agreement or any of their principals, Partners, directors,
officers, members, employees and agents;
- 10 -
(7) to execute, deliver and perform any contracts, agreements and other
undertakings, and to engage in activities and transactions that are necessary or
appropriate for the conduct of the business of the Partnership and to bind the
Partnership by those contracts, agreements, and other undertakings, provided that
any persons approved as officers of the Partnership pursuant to Section 3.3(c) of
this Agreement, as directed by the Directors, may execute and deliver contracts and
agreements on behalf of the Partnership and bind the Partnership to those contracts
and agreements;
(8) to make determinations regarding subscriptions for and/or the Transfer of
Units, including, without limitation, determinations regarding the suspension of
subscriptions, and to execute, deliver and perform subscription agreements, selling
agreements relating to the sale of Units, administration agreements appointing an
administrator to perform various administrative action on behalf of the Partnership,
escrow agreements and custodial agreements without the consent of or notice to any
other Person, notwithstanding any other provision of this Agreement;
(9) to make determinations regarding appropriate reserves to be created for the
contingent, conditional or unmatured liabilities of the Partnership;
(10) as provided in Section 7.2 of this Agreement, to make determinations
regarding adjustments to the computation of Net Profit or Net Loss and allocations
among the Partners under Article V of this Agreement;
(11) to manage or oversee the general administrative and operational aspects of
the Partnership; and
(12) as directed by the Directors, to establish additional classes of Limited
Partners, General Partners, or Units having separate rights, powers, or duties with
respect to specified property or obligations of the Partnership or profits or losses
associated with specified property or obligations of the Partnership, and having
separate business purposes or investment objectives as the Directors may determine,
consistent with the 1940 Act and the Delaware Act, so long as the assets and
liabilities of one class is limited to the assets and liabilities of such class.
Section 3.3 Actions by Directors. (a) Unless provided otherwise in this Agreement,
the Directors will act only: (1) by the affirmative vote of a majority of the Directors (which
majority will include any requisite number of Independent Directors required by the 1900 Xxx)
present at a meeting duly called at which a quorum of the Directors is present either in person or,
to the extent consistent with the provisions of the 1940 Act, by conference telephone or other
communications equipment by means of which all Persons participating in the meeting can hear each
other; or (2) by unanimous written consent of all of the Directors without a meeting, if
permissible under the 1940 Act. A majority of the Directors then in office will constitute a
quorum at any meeting of Directors.
- 11 -
(b) The Directors may designate from time to time a Director or any person approved
as an officer of the Partnership pursuant to Section 3.3(c) of this Agreement or the
General Partner who will preside at all meetings. Meetings of the Directors may be
called by the General Partner, the Chairman of the Board of Directors, or any two
Directors, and may be held on any date and at any time and place determined by the
Directors. Each Director will be entitled to receive written notice of the date,
time and place of a meeting within a reasonable time in advance of the meeting.
Notice need not be given to any Director who attends a meeting without objecting to
the lack of notice or who executes a written waiver of notice with respect to the
meeting.
(c) The Directors may appoint from time to time agents and employees of the
Partnership who will have the same powers and duties on behalf of the Partnership as
are customarily vested in officers of a corporation incorporated under Delaware law,
or such other powers and duties as may be designated by the Directors, in their sole
discretion, and designate them as officers or agents of the Partnership by
resolution of the Directors specifying their titles or functions.
Section 3.4 Meetings of Partners. (a) Actions requiring the vote of the Partners may
be taken at any duly constituted meeting of the Partners at which a quorum is present or by means
of a written consent. Meetings of the Partners may be called by the General Partner, by the
affirmative vote of a majority of Directors then in office, or by Partners holding at least a
majority of the total number of votes eligible to be cast by all Partners, and may be held at any
time, date and place determined by the General Partner in the case of meetings called by the
General Partner or the Partners and at any time, date and place determined by the Directors in the
case of meetings called by the Directors. In each case, the General Partner will provide notice of
the meeting, stating the date, time and place of the meeting and the record date for the meeting,
to each Partner entitled to vote at the meeting within a reasonable time prior to the meeting.
Failure to receive notice of a meeting on the part of any Partner will not affect the validity of
any act or proceeding of the meeting, so long as a quorum is present at the meeting. Except as
otherwise required by applicable law, only matters set out in the notice of a meeting may be voted
on by the Partners at the meeting. The presence in person or by proxy of Partners holding a
majority of the total number of votes eligible to be cast by all Partners as of the record date
will constitute a quorum at any meeting of Partners. In the absence of a quorum, a meeting may be
adjourned to the time or times as determined by the General Partner and communicated to the
Directors in the manner described above in this Section 3.4(a). Except as otherwise required by
any provision of this Agreement or of the 1940 Act, (1) those candidates receiving a plurality of
the votes cast at any meeting of Partners called pursuant to Section 2.11(c) of this Agreement or
elected pursuant to the requirement of Section 2.11(b) will be elected as Directors and (2) all
other actions of the Partners taken at a meeting will require the affirmative vote of Partners
holding a majority of the total number of votes eligible to be cast by those Partners who are
present in person or by proxy at the meeting.
(b) Each Partner will be entitled to cast at any meeting of Partners or pursuant to
written consent a number of votes equivalent to the Partner’s Investment Percentage
as of the record date for the meeting or the date of the written consent. The
General Partner will establish a record date not less than 10 nor more than 60
- 12 -
days prior to the date of any meeting of Partners or mailing (including by
electronic transmission) to the Partners of any written consent, to determine
eligibility to vote at the meeting and the number of votes that each Partner will be
entitled to cast at the meeting, and will maintain for each record date a list
setting out the name of each Partner and the number of votes that each Partner will
be entitled to cast at the meeting.
(c) A Partner may vote at any meeting of Partners by a properly executed proxy
transmitted to the Partnership at any time at or before the time of the meeting by
telegram, telecopier or other means of electronic communication or other readable
reproduction as contemplated by the provisions relating to proxies applicable to
corporations incorporated under the laws of Delaware now or in the future in effect.
A proxy may be suspended or revoked, as the case may be, by the Partner executing
the proxy by a later writing delivered to the Partnership at any time prior to
exercise of the proxy or if the Partner executing the proxy is present at the
meeting and votes in person. Any action of the Partners that is permitted to be
taken at a meeting of the Partners may be taken without a meeting if consents in
writing, setting out the action to be taken, are signed by Partners holding a
majority of the total number of votes eligible to be cast or any greater percentage
as may be required under this Agreement to approve the action.
Section 3.5 Custody of Assets of the Partnership. (a) Notwithstanding anything to
the contrary in this Agreement, the General Partner will not have any authority to hold or have
possession or custody of any funds, Securities or other property of the Partnership. The physical
possession of all funds, Securities or other property of the Partnership will at all times be held,
controlled and administered by one or more custodians retained by the Partnership. The General
Partner will have no responsibility, other than that associated with the oversight and supervision
of custodians retained by the Partnership, with respect to the collection of income or the physical
acquisition or safekeeping of the funds, Securities or other property of the Partnership, all
duties of collection, physical acquisition or safekeeping being the sole obligation of such
custodians.
(b) With respect to any Advisor Fund securities held by the Partnership as of the
date on which the Partnership becomes registered with the SEC as an investment
company under the 1940 Act, and during any period of time in which the Partnership
remains so registered, such securities shall be under the control of one or more of
the Partnership’s custodian(s), as may be engaged from time to time, pursuant to
Section 17(f) of the 1940 Act and the rules thereunder, and no person shall be
authorized or permitted to have access to such securities except in accordance with
Section 17(f) of the 1940 Act and the rules thereunder, and consistent with the
terms of the Partnership’s agreement with the relevant Partnership custodian.
Section 3.6 Other Activities. (a) Neither the General Partner nor its principals,
Partners, directors, officers, members, employees and beneficial owners nor the Directors will be
required to devote full time to the affairs of the Partnership, but each will devote such time as
each may reasonably be required to perform its obligations under this Agreement and under the 1940
Act.
- 13 -
(b) The Directors, any Partner, and any Affiliate of any Partner may engage in or
possess an interest in other business ventures or commercial dealings of every kind
and description, independently or with others, including, but not limited to,
acquisition and disposition of Securities, provision of investment advisory or
brokerage services, serving as directors, officers, employees, advisors or agents of
other companies, Partners of any Partnership, members of any limited liability
company, or trustees of any trust, or entering into any other commercial
arrangements. No Partner will have any rights in or to such activities of any other
Partner, the Directors or any Affiliate of any Partner or any profits derived from
these activities.
(c) The General Partner and its principals, Partners, directors, officers, members,
employees and beneficial owners and the Directors, from time to time may acquire,
possess, manage, hypothecate and dispose of Securities or other investment assets,
and engage in any other investment transaction for any account over which they
exercise discretionary authority, including their own accounts, the accounts of
their families, the account of any entity in which they have a beneficial interest
or the accounts of others for whom or which they may provide investment advisory or
other services.
(d) To the extent that at law or in equity the Directors or the General Partner have
duties (including fiduciary duties) and liabilities relating to those duties to the
Partnership or to any other Partner or other Person bound by this Agreement, any
such Person acting under this Agreement will not be liable to the Partnership or to
any other Partner or other Person bound by this Agreement for its good faith
reliance on the provisions of this Agreement. The provisions of this Agreement, to
the extent that they restrict the duties and liabilities of the General Partner or
the Directors otherwise existing at law or in equity, are agreed by the Partners to
replace the other duties and liabilities of the General Partner or the Directors.
Section 3.7 Duty of Care. (a) The Directors and the General Partner, including any
officer, director, Partner, member, principal, employee or agent of any of them, will not be liable
to the Partnership or to any of its Partners for any loss or damage occasioned by any act or
omission in the performance of the Person’s services under this Agreement, in the absence of a
final judicial decision on the merits from which no further right to appeal may be taken that the
loss is due to an act or omission of the Person constituting willful misfeasance, bad faith, gross
negligence or reckless disregard of the Person’s duties under this Agreement.
(b) No Director who has been designated an “audit committee financial expert” (for
purposes of Section 407 of the Xxxxxxxx-Xxxxx Act of 2002 or any successor provision
thereto, and any rules issued thereunder by the SEC) in the Partnership’s Form N-2
or other reports required to be filed with the SEC shall be subject to any greater
duty of care in discharging such Director’s duties and responsibilities by virtue of
such designation than is any Director who has not been so designated.
- 14 -
(c) Limited Partners not in breach of any obligation under this Agreement or under
any agreement pursuant to which the Limited Partner subscribed for Units will be
liable to the Partnership, any Partner or third parties only as required by this
Agreement or applicable law.
Section 3.8 Indemnification. (a) To the fullest extent permitted by law, the
Partnership will, subject to Section 3.8(c) of this Agreement, indemnify each General Partner
(including for this purpose each officer, director, member, Partner, principal, employee or agent
of, or any Person who controls, is controlled by or is under common control with, a General Partner
(including, without limitation, Hatteras Investment Partners, LLC) or Partner of a General Partner,
and their executors, heirs, assigns, successors or other legal representatives) and each Director
(and his executors, heirs, assigns, successors or other legal representatives) (each such Person
being referred to as an “indemnitee”) against all losses, claims, damages, liabilities, costs and
expenses arising by reason of being or having been a General Partner or Director of the
Partnership, or the past or present performance of services to the Partnership by the indemnitee,
except to the extent that the loss, claim, damage, liability, cost or expense has been finally
determined in a judicial decision on the merits from which no further right to appeal may be taken
in any such action, suit, investigation or other proceeding to have been incurred or suffered by
the indemnitee by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard
of the duties involved in the conduct of the indemnitee’s office. These losses, claims, damages,
liabilities, costs and expenses include, but are not limited to, amounts paid in satisfaction of
judgments, in compromise, or as fines or penalties, and counsel fees and expenses incurred in
connection with the defense or disposition of any action, suit, investigation or other proceeding,
whether civil or criminal, before any judicial, arbitral, administrative or legislative body, in
which the indemnitee may be or may have been involved as a party or otherwise, or with which such
indemnitee may be or may have been threatened, while in office or thereafter. The rights of
indemnification provided under this Section 3.8 are not to be construed so as to provide for
indemnification of an indemnitee for any liability (including liability under U.S. Federal
securities laws which, under certain circumstances, impose liability even on Persons that act in
good faith) to the extent (but only to the extent) that indemnification would be in violation of
applicable law, but will be construed so as to effectuate the applicable provisions of this Section
3.8.
(b) Expenses, including counsel fees and expenses, incurred by any indemnitee (but
excluding amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties) may be paid from time to time by the Partnership in advance of the final
disposition of any action, suit, investigation or other proceeding upon receipt of
an undertaking by or on behalf of the indemnitee to repay to the Partnership amounts
paid if a determination is made that indemnification of the expenses is not
authorized under Section 3.8(a) of this Agreement, so long as (1) the indemnitee
provides security for the undertaking, (2) the Partnership is insured by or on
behalf of the indemnitee against losses arising by reason of the indemnitee’s
failure to fulfill his, her or its undertaking, or (3) a majority of the Independent
Directors (excluding any Director who is either seeking advancement of expenses
under this Agreement or is or has been a party to any other action, suit,
investigation or other proceeding involving claims similar to those involved in the
action, suit, investigation or proceeding giving rise
- 15 -
to a claim for advancement of expenses under this Agreement) or independent legal
counsel in a written opinion determines, based on a review of readily available
facts (as opposed to a full trial-type inquiry), that reason exists to believe that
the indemnitee ultimately will be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation or other proceeding
(whether by a compromise payment, pursuant to a consent decree or otherwise) without
an adjudication or a decision on the merits by a court, or by any other body before
which the proceeding has been brought, that an indemnitee is liable to the
Partnership or its Partners by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of the
indemnitee’s office, indemnification will be provided in accordance with Section
3.8(a) of this Agreement if (1) approved as in the best interests of the Partnership
by a majority of the Independent Directors (excluding any Director who is either
seeking indemnification under this Agreement or is or has been a party to any other
action, suit, investigation or proceeding involving claims similar to those involved
in the action, suit, investigation or proceeding giving rise to a claim for
indemnification under this Agreement) upon a determination, based upon a review of
readily available facts (as opposed to a full trial-type inquiry), that the
indemnitee acted in good faith and in the reasonable belief that the actions were in
the best interests of the Partnership and that the indemnitee is not liable to the
Partnership or its Partners by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of the
indemnitee’s office, or (2) the Directors secure a written opinion of independent
legal counsel, based upon a review of readily available facts (as opposed to a full
trial-type inquiry), to the effect that indemnification would not protect the
indemnitee against any liability to the Partnership or its Partners to which the
indemnitee would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence, or reckless disregard of the duties involved in the conduct of the
indemnitee’s office.
(d) Any indemnification or advancement of expenses made in accordance with this
Section 3.8 will not prevent the recovery from any indemnitee of any amount if the
indemnitee subsequently is determined in a final judicial decision on the merits in
any action, suit, investigation or proceeding involving the liability or expense
that gave rise to the indemnification or advancement of expenses to be liable to the
Partnership or its Partners by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of the
indemnitee’s office. In any suit brought by an indemnitee to enforce a right to
indemnification under this Section 3.8, it will be a defense that the indemnitee has
not met the applicable standard of conduct described in this Section 3.8. In any
suit in the name of the Partnership to recover any indemnification or advancement of
expenses made in accordance with this Section 3.8, the Partnership will be entitled
to recover the expenses upon a final adjudication from which no further right of
appeal may be taken. In any suit brought to enforce a right to indemnification or
to recover any indemnification or advancement of expenses made in accordance with
this Section 3.8, the burden of proving that the
- 16 -
indemnitee is not entitled to be indemnified, or to any indemnification or
advancement of expenses, under this Section 3.8 will be on the Partnership (or any
Partner acting derivatively or otherwise on behalf of the Partnership or its
Partners).
(e) An indemnitee may not satisfy any right of indemnification or advancement of
expenses granted in this Section 3.8 or to which he, she or it may otherwise be
entitled except out of the assets of the Partnership, and no Partner will be
personally liable with respect to any such claim for indemnification or advancement
of expenses.
(f) The rights of indemnification provided in this Section 3.8 will not be exclusive
of or affect any other rights to which any Person may be entitled by contract or
otherwise under law. Nothing contained in this Section 3.8 will affect the power of
the Partnership to purchase and maintain liability insurance on behalf of any
General Partner, any Director, the Investment Manager or other Person.
(g) The General Partner may enter into agreements indemnifying Persons
providing services to the Partnership to the same, lesser or greater extent as set
out in this Section 3.8.
Section 3.9 Fees, Expenses and Reimbursement.(a) The Partnership will compensate
each Independent Director for his or her services rendered in connection with the Partnership as
may be agreed to by the Independent Directors and the General Partner, and as described in the
Memorandum. In addition, the Partnership will reimburse the Directors for reasonable out-of-pocket
expenses incurred by them in performing their duties with respect to the Partnership.
(b) The Partnership will bear all expenses incurred in connection with its
business. Expenses to be borne by the Partnership include, but are not limited to,
the following:
(1) The Partnership’s pro rata share of the management fee, performance
allocation and other fees and expenses, of the Master Partnership;
(2) all investment-related expenses, including, but not limited to, fees paid
and expenses reimbursed, directly or indirectly, to Advisors (including management
fees, performance or incentive fees or allocations and redemption or withdrawal
fees, however titled or structured), all costs and expenses directly related to
portfolio transactions and positions for the Partnership’s account, such as direct
and indirect expenses associated with the Partnership’s investments, including its
investments in Advisor Funds (whether or not consummated), and enforcing the
Partnership’s rights in respect of such investments, transfer taxes and premiums,
taxes withheld on non-U.S. dividends, costs and fees for data and software
(including software providers and dedicated software employed by the Partnership and
designed to assist an investment
manager to keep track of the investments in the Advisor
Funds and Advisor
- 17 -
Accounts), research expenses, professional fees (including, without limitation, the
fees and expenses of consultants, attorneys and experts) and, if applicable, in
connection with the Partnership’s temporary or cash management investments,
brokerage commissions, interest and commitment fees on loans and debit balances,
borrowing charges on Securities sold short, dividends on Securities sold but not yet
purchased and margin fees;
(3) costs associated with the registration of the Partnership, including the
costs of compliance with any applicable U.S. federal and state laws;
(4) a servicing fee to be paid to the servicing agent;
(5) any non-investment-related interest expense;
(6) attorneys’ fees and disbursements associated with preparing and updating
any Offering Materials and with reviewing subscription materials in connection with
qualifying prospective investors or prospective holders of Transferred Units;
(7) fees and disbursements of any accountants engaged by the Partnership, and
expenses related to the annual audit of the Partnership and compliance with any
applicable U.S. Federal or state laws;
(8) fees paid and out-of-pocket expenses reimbursed to the Partnership’s
administrator;
(9) recordkeeping, accounting, escrow, and custody fees and expenses;
(10) the costs of an errors and omissions/directors’ and officers’ liability
insurance policy and a fidelity bond;
(11) the costs of preparing and mailing reports and other communications,
including proxy, tender offer correspondence or similar materials, to Limited
Partners;
(12) fees of Independent Directors and travel expenses of Directors relating to
meetings of the Board of Directors and committees thereof, and costs and expenses of
holding meetings of the Board of Directors and meetings of the Partners;
(13) all costs and charges for equipment or services used in preparing or
communicating information regarding the Partnership’s transactions or the valuation
of its assets between the General Partner and any custodian, administrator or other
agent engaged by the Partnership;
(14) any extraordinary expenses, including indemnification expenses as provided
for in Section 3.8 of this Agreement;
- 18 -
(15) the Fund’s proportionate share of the fees and expenses of the Master
Partnership and the fees and expenses of the Advisor Funds and Advisor Accounts
(borne indirectly by the Fund through its investment in the Master Partnership);
(16) any other expenses as may be approved from time to time by the Directors,
other than those required to be borne by an investment manager or the General
Partner; and
(17) the organizational and offering expenses of the Partnership which will
initially be borne by Hatteras Investment Partners, LLC or an affiliate thereof and
will be expensed by the Partnership upon commencement of operations. The
Partnership will account for these expenditures, through monthly expense allocations
(or at such other frequency or times as the Board of Directors may direct) to
Limited Partners’ Capital Accounts, for a period not to exceed the first sixty
months after the Closing Date. The amount of each such expense allocation to the
Limited Partners’ Capital Accounts will be determined by the Directors and Hatteras
Investment Partners, LLC and will equal an amount sufficient to reimburse the
Investment Manager or affiliate thereof within a sixty-month period.
(c) The General Partner will be entitled to reimbursement from the Partnership
for any of the above expenses that it pays on behalf of the Partnership, other than
as provided in Section 3.9(b)(14) above.
ARTICLE IV
TERMINATION OF STATUS OF GENERAL PARTNER;
REMOVAL OF GENERAL PARTNER; TRANSFERS AND REPURCHASES
REMOVAL OF GENERAL PARTNER; TRANSFERS AND REPURCHASES
Section 4.1 Termination of Status of General Partner. A General Partner will cease to
be a general partner of the Partnership if the General Partner (a) is dissolved or otherwise
terminates its existence; (b) voluntarily withdraws as General Partner (which it may do at any time
in its sole discretion); (c) is removed; (d) Transfers all of its Units held as General Partner as
permitted under Section 4.3 of this Agreement and the Person to which the Units are Transferred is
admitted as a substituted General Partner under Section 2.6(a) of this Agreement; or (e) otherwise
ceases to be a General Partner under the Delaware Act.
Section 4.2 Removal of General Partner. Any General Partner may be removed by the
vote or written consent of Partners holding not less than 80% of the total number of votes eligible
to be cast by all Partners.
Section 4.3 Transfer of Units of General Partner. A General Partner may not Transfer
all or any of its Units held as the General Partner except to Persons who have agreed to be bound
by all of the terms of this Agreement and applicable law. If a General Partner
Transfers all of its Units held as General Partner, it will not cease to be a General Partner
unless and until the transferee is admitted to the Partnership as a substituted General Partner
pursuant to
- 19 -
Section 2.6(a) of this Agreement. In executing this Agreement, each Partner is deemed
to have consented to any Transfer contemplated by this Section 4.3.
Section 4.4 Transfer of Units of Limited Partners.(a) Any Units or portion of any
Units held by a Limited Partner may be Transferred only (1) by operation of law pursuant to the
death, bankruptcy, insolvency, adjudicated incompetence, or dissolution of the Limited Partner; or
(2) under certain limited instances set out in this Agreement, with the written consent of the
General Partner (which may be withheld in the General Partner’s sole and absolute discretion).
Unless the Partnership consults with legal counsel to the Partnership and counsel confirms that the
Transfer will not cause the Partnership to be treated as a “publicly traded partnership” taxable as
a corporation, however, the General Partner may not consent to a Transfer unless the following
conditions are met: (i) the Transferring Limited Partner has been a Limited Partner for at least
six months; (ii) the proposed Transfer is to be made on the effective date of an offer by the
Partnership to repurchase Units; and (iii) the Transfer is (A) one in which the tax basis of the
Units in the hands of the transferee is determined, in whole or in part, by reference to its tax
basis in the hands of the Transferring Limited Partner (e.g., certain Transfers to affiliates,
gifts and contributions to family entities), (B) to members of the Transferring Limited Partner’s
immediate family (siblings, spouse, parents and children), or (C) a distribution from a qualified
retirement plan or an individual retirement account. In addition, the General Partner may not
consent to a Transfer unless the Person to whom or which Units are Transferred (or each of the
Person’s equity owners if the Person is a “private investment company” as defined in Rule
205-3(d)(3) under the Advisers Act, an investment company registered under the 1940 Act, or a
business development company as defined under the Advisers Act) is a Person whom or which the
General Partner believes meets the requirements of paragraph (d)(1) of Rule 205-3 under the
Advisers Act or successor provision of any of those rules, or is otherwise exempt from the
requirements of those rules. In the event that other investor eligibility requirements are
established by the Partnership, the Person to whom or which Units are Transferred must satisfy
these other requirements. If any transferee does not meet the investor eligibility requirements
described in this Section 4.4(a), the General Partner may not consent to the Transfer. In
addition, no Limited Partner will be permitted to Transfer his, her or its Units unless after the
Transfer the balance of the Capital Account of the transferee, and of the Limited Partner
Transferring less than all of such Partner’s Units, is at least equal to the amount of the Limited
Partner’s initial Capital Contribution. Any permitted transferee will be entitled to the
allocations and distributions allocable to the Units so acquired and to Transfer the Units in
accordance with the terms of this Agreement, but will not be entitled to the other rights of a
Limited Partner unless and until the transferee becomes a substituted Limited Partner. If a
Limited Partner Transfers Units with the approval of the General Partner, the General Partner will
promptly take all necessary actions so that each transferee or successor to whom or to which the
Units are Transferred is admitted to the Partnership as a Limited Partner. The admission of any
transferee as a substituted Limited Partner will be effective upon the execution and delivery by,
or on behalf of, the substituted Limited Partner of this Agreement or an instrument that
constitutes the execution and delivery of this Agreement. Each Limited Partner and transferee
agrees to pay all expenses, including attorneys’ and accountants’ fees, incurred by the Partnership
in connection with any Transfer. In connection with any request to Transfer Units, the Partnership
may require the Limited Partner requesting the Transfer to obtain, at the Limited
Partner’s expense, an opinion of counsel selected by the General Partner as to such matters as
the General Partner may reasonably request. If a Limited Partner Transfers all of its Units, it
will not cease to be a
- 20 -
Limited Partner unless and until the transferee is admitted to the
Partnership as a substituted Limited Partner in accordance with this Section 4.4(a).
(b) Each Limited Partner will indemnify and hold harmless the Partnership, the
General Partner, the Directors, each other Limited Partner and any Affiliate of the
Partnership, the General Partner (including, without limitation, Hatteras Investment
Partners, LLC), the Director and each of the other Limited Partners against all
losses, claims, damages, liabilities, costs and expenses (including legal or other
expenses incurred in investigating or defending against any losses, claims, damages,
liabilities, costs and expenses or any judgments, fines and amounts paid in
settlement), joint or several, to which these Persons may become subject by reason
of or arising from (1) any Transfer made by the Limited Partner in violation of this
Section 4.4(b) and (2) any misrepresentation by the Transferring Limited Partner or
substituted Limited Partner in connection with the Transfer. A Limited Partner
Transferring Units may be charged reasonable expenses, including attorneys’ and
accountants’ fees, incurred by the Partnership in connection with the Transfer.
Section 4.5 Repurchase of Units. (a) Except as otherwise provided in this Agreement,
no Partner or other Person holding Units will have the right to withdraw or tender for repurchase
any of its Units. The Directors may, from time to time, in their complete and exclusive discretion
and on terms and conditions as they may determine, cause the Partnership to repurchase Units in
accordance with written tenders. The Partnership will not offer, however, to repurchase Units on
more than four occasions during any one Fiscal Year, unless the Partnership has been advised by its
legal counsel that more frequent offers would not cause any adverse tax consequences to the
Partnership or the Partners. In determining whether to cause the Partnership to repurchase Units,
pursuant to written tenders, the Directors will consider the following factors, among others:
(1) whether any Partners have requested to tender Units;
(2) the liquidity of the Partnership’s assets (including fees and costs
associated with withdrawing from Advisor Funds);
(3) the investment plans and working capital and reserve requirements of the
Partnership;
(4) the relative economies of scale with respect to the size of the
Partnership;
(5) the history of the Partnership in repurchasing Units;
(6) the availability of information as to the value of the Partnership’s
interests in the Advisor Funds and Advisor Accounts;
(7) existing conditions of the securities markets and the economy generally, as
well as political, national or international developments or current affairs;
- 21 -
(8) the anticipated tax consequences to the Partnership of any proposed
repurchases of Units;
(9) and the recommendations of the General Partner.
The Directors will cause the Partnership to repurchase Units in accordance with written
tenders only on terms fair to the Partnership and to all Partners and Persons holding Units
acquired from Partners.
(b) Upon the commencement of an offer to repurchase Units, the Partnership will
send an advance notification of the offer (the “Notice”) to the Partners via their
financial intermediaries. The Notice will specify, among other things:
(1) the number of Units that the Partnership is offering to repurchase;
(2) the date on which a Partner’s repurchase request is due;
(3) the Valuation Date (as defined in Section 4.5(d) below) applicable to the
repurchase offer;
(4) the date the proceeds from their Unit sales shall be due to the Partners;
and
(5) the NAV per Unit as of the date of the Notice.
(c) Each repurchase offer will be limited to the repurchase of approximately 5%
of the Units (but in no event to exceed the repurchase of more than 20% of the Units
per quarter). A Partner who has been a Partner for less than 12 consecutive months
prior to the Valuation Date of such repurchase offer, may participate in such offer
subject to a penalty of up to 5% of the amount requested to be repurchased (to be
netted against withdrawal proceeds). The minimum value of a repurchase is $50,000,
subject to the discretion of the General Partner to allow otherwise. A Partner
whose Units are repurchased by the Partnership will not be entitled to a return of
any placement fee that was charged in connection with the Partner’s purchase of the
Units.
(d) Units are expected to be repurchased at their net asset value determined as
of approximately June 30, September 30, December 31 and March 31, as applicable
(each such date, a “Valuation Date”). Partners tendering Units for repurchase shall
provide written notice of their intent to so tender by the date specified in the
Notice, which date shall be approximately 65 days prior to the date of repurchase by
the Partnership. Partners tendering their Units may not
have all such Units accepted for repurchase by the Partnership. The
Partnership may elect to repurchase less than the full amount a Partner requests to
be repurchased. If a repurchase offer is oversubscribed, the Partnership may
repurchase only a pro rata portion of the amount tendered by each Partner.
- 22 -
(e) The Directors may under certain circumstances elect to postpone, suspend or
terminate an offer to repurchase Units.
(f) A Limited Partner tendering only some of its Units for repurchase will be
required to maintain a minimum capital account balance of $100,000. The Partnership
may reduce the number of Units to be purchased from a Limited Partner to maintain
the required minimum balance. Such minimum balance requirement may be waived by the
General Partner in its sole discretion, subject to applicable federal securities
laws. Additionally, the General Partner may, in its discretion, cause the
Partnership to repurchase all of a Limited Partner’s Units if the Limited Partner’s
Capital Account balance in the Partnership, as a result of repurchase or Transfer
requests by the Limited Partner, is less than $100,000 or such other minimum amount
established by the General Partner from time to time in its sole discretion.
(g) Except as provided in Section 4.5(h) of this Agreement, a General Partner
may tender its Units under Section 4.5(a) of this Agreement only if and to the
extent that (1) the repurchase would not cause the value of the Capital Account of
the General Partner to be less than the value required to be maintained under
Section 5.1(b) of this Agreement and (2) in the view of legal counsel to the
Partnership, the repurchase would not jeopardize the classification of the
Partnership as a partnership for U.S. federal income tax purposes.
(h) If a General Partner ceases to serve in that capacity under Section 4.1 of
this Agreement (other than pursuant to Section 4.1(i)) and the business of the
Partnership is continued in accordance with Section 6.1(a)(2)(B) of this Agreement,
the former General Partner (or its trustee or other legal representative) may, by
written notice to the Directors within 60 days of the action resulting in the
continuation of the Partnership under Section 6.1(a)(2)(B), tender to the
Partnership all or any of its Units. Within 30 days after the receipt of notice,
the Directors will cause the Units to be repurchased by the Partnership for cash in
an amount equal to the balance of the former General Partner’s Capital Account or
applicable portion of the Capital Account. If the former General Partner does not
tender to the Partnership all of its Units as permitted by this Section 4.5(h), the
Units will automatically convert to and will be treated in all respects as the Units
of a Limited Partner. If the General Partner ceases to serve in this capacity under
Section 4.1 of this Agreement (other than pursuant to Section 4.1(i)) and the
Partnership is not continued under Section 6.1(a)(2)(B) of this Agreement, the
liquidation and distribution provisions of Article VI of this Agreement will apply
to the General Partner’s Units.
(i) The General Partner may cause the Partnership to repurchase Units of a
Limited Partner or any Person acquiring Units from or through a Limited Partner, on
terms fair to the Partnership and to the Limited Partner or Person acquiring Units
from or through such Limited Partner, in the event that the General Partner, in its
sole discretion, determines or has reason to believe that:
- 23 -
(1) the Units have been Transferred in violation of Section 4.4 of this
Agreement, or the Units have vested in any Person other than by operation of law as
the result of the death, dissolution, bankruptcy, insolvency or adjudicated
incompetence of the Limited Partner;
(2) ownership of Units by a Partner or other Person is likely to (A) cause the
Partnership to be in violation of, or (B) (x) require registration of any Units
under, or (y) subject the Partnership to additional registration or regulation
under, the securities, commodities or other laws of the United States or any other
relevant jurisdiction;
(3) continued ownership of the Units may be harmful or injurious to the
business or reputation of the Partnership, the Directors, the General Partner or any
of their Affiliates, or may subject the Partnership or any of the Partners to an
undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Partner or other Person
in connection with the acquisition of the Units was not true when made or has ceased
to be true;
(5) with respect to a Limited Partner subject to special regulatory or
compliance requirements, such as those imposed by ERISA, the Bank Holding Company
Act or certain Federal Communication Commission regulations (collectively, “Special
Laws or Regulations”), such Limited Partner will likely be subject to additional
regulatory or compliance requirements under these Special Laws or Regulations by
virtue of continuing to hold Units;
(6) or it would be in the best interests of the Partnership, as determined by
the General Partner or the Directors, for the Partnership to repurchase the Units.
(j) Payments for accepted repurchases of Units of less than 95% of a Partner’s
Units generally will be paid approximately 90 days after the Valuation Date (after
adjusting for fees, expenses, reserves or other allocations or repurchase) and will
be subject to adjustment within 45 days after completion of the annual audit of the
Partnership for the applicable Fiscal Year. Such annual audit may be delayed in the
event that information necessary to complete the annual audit is not received on a
timely basis from the Master Partnership or the Advisors. Payments for accepted
repurchases of Units for 95% or more of a Partner’s Units may be paid in two
installments. Payment of an amount equal to
at least 95% of the Units repurchased (after adjusting for fees, expenses,
reserves or other allocations or repurchase) generally will be made approximately 90
days after the Valuation Date. Final settlement of payments in connection with the
repurchased Units generally will be made within 45 days after completion of the
annual audit of the Partnership for the applicable Fiscal Year. Payments in
connection with repurchased Units may be delayed if such information is delayed.
- 24 -
Notwithstanding anything to the contrary in this Section 4.5(j), the Directors, in
their discretion, may cause the Partnership to pay all or any portion of the
repurchase price in Securities (or any combination of Securities and cash) having a
value, determined as of the date of repurchase, equal to the amount to be
repurchased. All repurchases of Units will be subject to any and all conditions as
the Directors may impose in their sole discretion. The General Partner may, in its
discretion, cause the Partnership to repurchase all of a Limited Partner’s Units, if
the Limited Partner’s Capital Account balance in the Partnership, as a result of
repurchase or Transfer requests by the Limited Partner, is less than a minimum
amount that may be established by the General Partner from time to time in its sole
discretion. Subject to the procedures of this Section 4.5(j), the amount due to any
Partner whose Units are repurchased will be equal to the value of the Partner’s
Capital Account or portion of such Capital Account, as of the applicable Valuation
Date, after giving effect to all allocations to be made to the Partner’s Capital
Account as of that date. If all of a Limited Partner’s Units are repurchased, that
Limited Partner will cease to be a Limited Partner.
ARTICLE V
CAPITAL
Section 5.1 Contributions to Capital. (a) The minimum initial Capital Contribution
of each Limited Partner will be $100,000 or such other amount as the General Partner determines
from time to time. The amount of the initial Capital Contribution of each Partner will be recorded
by the Partnership upon acceptance as a contribution to the capital of the Partnership. Each
Limited Partner’s entire initial Capital Contribution will be paid to the Partnership immediately
prior to the Partnership’s acceptance of the Limited Partner’s subscription for Units, unless
otherwise agreed by the Partnership and such Limited Partner.
(b) The Limited Partners may make additional Capital Contributions effective as
of those times and in amounts as the General Partner may permit, but no Limited
Partner will be obligated to make any additional Capital Contribution except to the
extent provided in Sections 5.4 and 5.5 of this Agreement. Each additional Capital
Contribution made by a Limited Partner (other than a contribution made pursuant to
Section 5.3 or Section 5.5 of this Agreement) will be in the minimum amount of
$25,000 or such other amount as the General Partner determines from time to time.
(c) A General Partner may make additional Capital Contributions effective as of
those times and in such amounts as it determines, and will be required to make
additional Capital Contributions from time to time to the extent
necessary to maintain the balance of its Capital Account at an amount, if any,
necessary to ensure that the Partnership will be treated as a Partnership for U.S.
federal income tax purposes. Except as provided in this Section 5.1 or in the
Delaware Act, no General Partner will be required or obligated to make any
additional contributions to the capital of the Partnership.
- 25 -
(d) Subject to the provisions of the 1940 Act, and except as otherwise
permitted by the General Partner, (1) initial and any additional Capital
Contributions by any Partner will be payable in cash or in Securities that the
General Partner, in its absolute discretion, causes the Partnership to accept, and
(2) initial and any additional Capital Contributions in cash will be payable in
readily available funds at the date of the proposed acceptance of the contribution.
The Partnership will charge each Partner making a Capital Contribution in Securities
to the capital of the Partnership an amount as may be determined by the General
Partner to reimburse the Partnership for any costs incurred by the Partnership by
reason of accepting the Securities, and any charge will be due and payable by the
contributing Partner in full at the time the Capital Contribution to which the
charges relate is due. The value of contributed Securities will be determined in
accordance with Section 7.3 of this Agreement as of the date of contribution.
(e) An Advisor may make Capital Contributions and own Units in the Partnership
and, in so doing, will become a Limited Partner with respect to the contributions.
(f) The minimum initial and additional contributions set out in paragraphs (a)
and (b) of this Section 5.1 may be increased or reduced by the General Partner from
time to time. Reductions may be applied to all investors, individual investors or
to classes of investors, in each case in the sole discretion of the General Partner.
Section 5.2 Rights of Partners to Capital. No Partner will be entitled to interest on
the Partner’s Capital Contribution, nor will any Partner be entitled to the return of any capital
of the Partnership except (a) upon the repurchase by the Partnership of the Partner’s Units in
accordance with Section 4.5 of this Agreement, (b) in accordance with the provisions of Section
5.5(b) of this Agreement or (c) upon the liquidation of the Partnership’s assets in accordance with
Section 6.2 of this Agreement. Except as specified in the Delaware Act, or with respect to
distributions or similar disbursements made in error, no Partner will be liable for the return of
any such amounts. To the fullest extent permitted by applicable law, no Partner will have the
right to require partition of the Partnership’s property or to compel any sale or appraisal of the
Partnership’s assets.
Section 5.3 Capital Accounts. The Partnership shall maintain a separate Capital
Account on its books for each Partner. As of any date, the Capital Account of a Partner shall be
equal to the NAV per Unit as of such date, multiplied by the number of Units then held by such
Partner. Any amounts charged or debited against a Partner’s Capital Account under Sections 5.4
and 5.5, other than among all Partners in accordance with the number of Units
held by each such Partner, shall be treated as a partial redemption of such Partner’s Units
for no additional consideration as of the date on which the Board of Directors determines such
charge or debit is required to be made, and such Partner’s Units shall be reduced thereby as
appropriately determined by the Partnership. Any amounts credited to a Partner’s Capital Account
under Sections 5.4 and 5.5, other than among all Partners in accordance with the number of Units
held by each such Partner, shall be treated as an issuance of additional Units to
- 26 -
such Partner for
no additional consideration as of the date on which the Board of Directors determines such credit
is required to be made, and such Partner’s Units shall be increased thereby as appropriately
determined by the Partnership.
Section 5.4 Allocation of Certain Withholding Taxes and Other Expenditures. (a) If
the Partnership incurs a withholding tax or other tax obligation with respect to the share of
Partnership income allocable to any Partner, then the General Partner, without limitation of any
other rights of the Partnership or the General Partner, will cause the amount of the obligation to
be debited against the Capital Account of the Partner when the Partnership pays the obligation, and
any amounts then or in the future distributable to the Partner will be reduced by the amount of the
taxes. If the amount of the taxes is greater than any distributable amounts, then the Partner and
any successor to the Partner’s Units will pay to the Partnership as a Capital Contribution, upon
demand by the General Partner, the amount of the excess. A General Partner will not be obligated
to apply for or obtain a reduction of or exemption from withholding tax on behalf of any Partner
that may be eligible for the reduction or exemption, except that, in the event that the General
Partner determines that a Partner is eligible for a refund of any withholding tax, the General
Partner may, at the request and expense of the Partner, assist the Partner in applying for such
refund.
(b) Except as otherwise provided for in this Agreement and unless prohibited by
the 1940 Act, any expenditures payable by the Partnership, to the extent determined
by the General Partner to have been paid or withheld on behalf of, or by reason of
particular circumstances applicable to, one or more but fewer than all of the
Partners, will be charged to only those Partners on whose behalf the payments are
made or whose particular circumstances gave rise to such payments. The charges will
be debited from the Capital Accounts of the Partners as of the close of the Fiscal
Period during which the items were paid or accrued by the Partnership.
Section 5.5 Reserves. (a) The General Partner may cause appropriate reserves to be
created, accrued and charged by the Partnership against Net Assets and proportionately against the
Capital Accounts of the Partners for contingent liabilities, if any, as of the date any contingent
liability becomes known to the General Partner, the reserves to be in the amounts that the General
Partner in its sole discretion deems necessary or appropriate. The General Partner may increase or
reduce any reserves from time to time by amounts as it in its sole discretion deems necessary or
appropriate. The amount of any reserve, or any increase or decrease in a reserve, will be
proportionately charged or credited to the Capital Accounts of those Persons who or that are
Partners at the time the reserve is created, or increased or decreased, except that if any
individual reserve item, adjusted by any increase in the item, exceeds the lesser of $500,000 or 1%
of the aggregate value of the Units of all of those Partners, then the amount of the reserve,
increase or decrease may instead, at the discretion of the General
Partner, be charged or credited to the Capital Accounts of those Persons who or that were
Partners at the time, as determined by the General Partner in its sole discretion, of the act or
omission giving rise to the contingent liability for which the reserve was established, increased
or decreased in proportion to their Capital Accounts.
- 27 -
(b) If any amount is required by Section 5.5(a) of this Agreement to be charged
or credited to a Person who or that is no longer a Partner, the amount will be paid
by or to the party, in cash, with interest from the date on which the General
Partner determines that the charge or credit is required. In the case of a charge,
the former Partner will be obligated to pay as a Capital Contribution the amount of
the charge, plus interest as provided in this Section 5.5(b), to the Partnership on
demand, except that (1) in no event will a former Partner be obligated to make a
payment exceeding the amount of the Partner’s Capital Account at the time to which
the charge relates and (2) no demand will be made after the expiration of three
years from the date on which the Person ceased to be a Partner. To the extent that
a former Partner fails to pay to the Partnership, in full, any amount required to be
charged to the former Partner under Section 5.5(a) of this Agreement, the deficiency
will be charged proportionately to the Capital Accounts of the Partners at the time
of the act or omission giving rise to the charge to the extent feasible, and
otherwise proportionately to the Capital Accounts of the current Partners.
Section 5.6 Allocation to Avoid Capital Account Deficits. To the extent that any
debits under Sections 5.4 through 5.5 of this Agreement would reduce the balance of the Capital
Account of any Limited Partner below zero, that portion of any such debits will be allocated
instead to the Capital Account of the General Partner. Any credits in any subsequent Fiscal Period
that otherwise would be allocable under Sections 5.4 through 5.5 of this Agreement to the Capital
Account of any Limited Partner previously affected by the application of this Section 5.6 will
instead be allocated to the Capital Account of the General Partner in amounts necessary to offset
all previous debits attributable to the Limited Partner, made in accordance with this Section 5.6,
that have not been recovered.
Section 5.7 Allocations Prior to Closing Date. Any net cash profits or any net cash
losses realized by the Partnership from the purchase or sale of Securities during the period ending
on the day prior to the Closing Date will be allocated to the Capital Account of the General
Partner. No unrealized item of profit or loss will be allocated under this Section 5.7 to the
Capital Account of any Partner.
Section 5.8 Tax Allocations. For each taxable year of the Partnership, items of
income, deduction, gain, loss or credit will be allocated for income tax purposes among the
Partners in a manner so as to reflect equitably amounts credited or debited to each Partner’s
Capital Account for the current and prior taxable years (or relevant portions of those years).
Allocations under this Section 5.8 will be made in accordance with the principles of Sections
704(b) and 704(c) of the Code, and in conformity with Treasury Regulations promulgated under these
Sections, or the successor provisions to such Sections and Regulations. Notwithstanding anything
to the contrary in this Agreement, the Partnership will allocate to the Partners those gains or
income necessary to satisfy the “qualified income offset” requirement of Treasury
Regulations Section 1.704-1(b)(2)(ii)(d). If the Partnership realizes net capital gains for
U.S. federal income tax purposes for any taxable year during or as of the end of which one or more
Positive
- 28 -
Basis Partners (as defined in this Section 5.8) withdraw from the Partnership under
Article IV or VI of this Agreement, the General Partner may elect to allocate net gains as follows:
(a) to allocate net gains among Positive Basis Partners, in proportion to the Positive Basis (as
defined in this Section 5.8) of each Positive Basis Partner, until either the full amount of the
net gains has been so allocated or the Positive Basis of each Positive Basis Partner has been
eliminated, and (b) to allocate any net gains not so allocated to Positive Basis Partners to the
other Partners in a manner that reflects equitably the amounts credited to the Partners’ Capital
Accounts. If the Partnership realizes capital losses for U.S. federal income tax purposes for any
Fiscal Year during or as of the end of which one or more Negative Basis Partners (as defined in
this Section 5.8) withdraw from the Partnership under Article IV or VI of this Agreement, the
General Partner may elect to allocate net losses as follows: (i) to allocate net losses among
Negative Basis Partners, in proportion to the Negative Basis (as defined in this Section 5.8) of
each Negative Basis Partner, until either the full amount of net losses will have been so allocated
or the Negative Basis of each Negative Basis Partner has been eliminated, and (ii) to allocate any
net losses not so allocated to Negative Basis Partners, to the other Partners in a manner that
reflects equitably the amounts credited to the Partners’ Capital Accounts. As used in this Section
5.8, the term “Positive Basis” means, with respect to any Partner and as of any time of
calculation, the amount by which the total of the Partners’ Capital Accounts as of that time
exceeds the Partner’s “adjusted tax basis,” for U.S. federal income tax purposes, in the Partner’s
Units in the Partnership as of that time (determined without regard to any adjustments made to the
“adjusted tax basis” by reason of any Transfer or assignment of Units, including by reason of
death). As used in this Section 5.8, the term “Positive Basis Partner” means any Partner who or
that withdraws from the Partnership and who or that has a Positive Basis as of the effective date
of the Partner’s withdrawal. As used in this Section 5.8, the term “Negative Basis” means, with
respect to any Partner and as of any time of calculation, the amount by which the Partner’s
“adjusted tax basis,” for U.S. federal income tax purposes, in the Partner’s Units in the
Partnership as of that time (determined without regard to any adjustments made to the “adjusted tax
basis” by reason of any Transfer or assignment of Units , including by reason of death, and without
regard to such Partner’s share of the liabilities of the Partnership under section 752 of the Code)
exceeds the Partner’s Capital Account as of such time. As used in this Section 5.8, the term
“Negative Basis Partner” means any Partner who or that withdraws from the Partnership and who or
that has a Negative Basis as of the effective date of the Partner’s withdrawal.
Section 5.9 Distributions. (a) The General Partner may cause the Partnership to make
distributions in cash or in kind at any time to all of the Partners on a proportionate basis in
accordance with the Partners’ Investment Percentages.
(b) The General Partner may withhold taxes from any distribution to any Partner
to the extent required by the Code or any other applicable law. For purposes of
this Agreement, any taxes so withheld by the Partnership with respect to any amount
distributed by the Partnership to any Partner will be deemed to be a distribution or
payment to the Partner, reducing the amount otherwise distributable to the Partner
under this Agreement and reducing the Capital Account of the Partner. Neither the
General Partner nor the Directors will be obligated to apply for or obtain a
reduction of or exemption from withholding tax
on behalf of any Partner that may be eligible for reduction or exemption. To
the extent that a Partner claims to be entitled to a reduced rate of, or exemption
from, a withholding tax pursuant to an applicable income tax treaty, or otherwise,
the Partner will furnish the Partnership with any information and forms that the
Partner may be required to complete if necessary to comply with any and all laws
- 29 -
and
regulations governing the obligations of withholding tax agents. Each Partner
represents and warrants that any information and forms furnished by the Partner will
be true and accurate and agrees to indemnify the Partnership and each of the
Partners from any and all losses, claims, damages, liabilities costs and expenses
resulting from the filing of inaccurate or incomplete information or forms relating
to the withholding taxes (including legal or other expenses incurred in
investigating or defending against any such losses, claims, damages, liabilities,
costs and expenses).
(c) Notwithstanding any provision to the contrary contained in this Agreement,
the Partnership and the General Partner on behalf of the Partnership will not
repurchase any Units or make a distribution to any Partner on account of the
Partner’s Units, if such repurchase or distribution would violate the Delaware Act
or other applicable law.
ARTICLE VI
DISSOLUTION AND LIQUIDATION
Section 6.1 Dissolution. (a) The Partnership will be dissolved if at any time it has
no Limited Partners or upon the occurrence of any of the following events:
(1) upon the affirmative vote to dissolve the Partnership by both (A) a
majority of the Directors (including the vote of a majority of the Independent
Directors) and (B) Partners holding at least two-thirds of the total number of votes
eligible to be cast by all Partners;
(2) upon either of: (A) an election by the General Partner to dissolve the
Partnership or (B) a General Partner’s ceasing to be a General Partner in accordance
with Section 4.1 of this Agreement (other than in conjunction with a Transfer of the
Units of a General Partner in accordance with Section 4.3 of this Agreement to a
Person who or that is admitted as a substituted General Partner under Section 2.6(a)
of this Agreement), unless, as to the event described in clause (B) of this Section
6.1(a)(2), (i) the Partnership has at least one other General Partner who or that is
authorized to and does carry on the business of the Partnership, or (ii) both the
Directors and Partners holding not less than two-thirds of the total number of votes
eligible to be cast by all Partners elect within 60 days after the event to continue
the business of the Partnership and a Person to be admitted to the Partnership,
effective as of the date of the event, as an additional General Partner who has
agreed to make the contributions to the capital of the Partnership required to be
made under Section 5.1(c) of this Agreement;
(3) upon the failure of Partners to approve successor Directors at a meeting
called by the General Partner in accordance with Section 2.11(c) of this Agreement
when no Director remains to continue the business of the Partnership; or
- 30 -
(4) as otherwise required by operation of law.
Dissolution of the Partnership will be effective on the later of the day on which the event giving
rise to the dissolution occurs or, to the extent permitted by the Delaware Act, the conclusion of
any applicable 60-day period during which the Directors and Partners elect to continue the business
of the Partnership as provided in Section 6.1(a)(2), but the Partnership will not terminate until
the assets of the Partnership have been liquidated in accordance with Section 6.2 of this Agreement
and the Certificate has been canceled.
(b) Except as provided in Section 6.1(a) of this Agreement or in the Delaware
Act, the death, adjudicated incompetence, dissolution, termination, liquidation,
bankruptcy, reorganization, merger, sale of substantially all of the stock or assets
of, or other change in the ownership or nature of a Partner, the admission to the
Partnership of a new Partner, the withdrawal of a Partner from the Partnership, or
the Transfer by a Partner of the Partner’s Units to a third party will not cause the
Partnership to dissolve.
Section 6.2 Liquidation of Assets. (a) Upon the dissolution of the Partnership as
provided in Section 6.1 of this Agreement, the General Partner will promptly liquidate the business
and administrative affairs of the Partnership, except that if the General Partner is unable to
perform this function, a liquidator elected by Partners holding a majority of the total number of
votes eligible to be cast by all Partners and whose fees and expenses will be paid by the
Partnership will promptly liquidate the business and administrative affairs of the Partnership.
Subject to the Delaware Act, the proceeds from liquidation (after establishment of appropriate
reserves for all claims and obligations, including all contingent, conditional or unmatured claims
and obligations in an amount that the General Partner or liquidator deems appropriate in its sole
discretion as applicable) will be distributed in the following manner:
(1) the debts of the Partnership, other than debts, liabilities or obligations
to Limited Partners, and the expenses of liquidation (including legal and accounting
fees and expenses incurred in connection with the liquidation), up to and including
the date on which distribution of the Partnership’s assets to the Partners has been
completed, will first be paid on a proportionate basis;
(2) any debts, liabilities or obligations owing to the Limited Partners will be
paid next in their order of seniority and on a proportionate basis; and
(3) the Partners are paid next on a proportionate basis the positive balances
of their Capital Accounts after giving effect to all allocations to be made to the
Partners’ Capital Accounts for the Fiscal Period ending on the date of the
distributions under this
Section 6.2(a)(3).
Section 6.2(a)(3).
(b) Notwithstanding the provisions of this Section 6.2, upon dissolution of the
Partnership, subject to the Delaware Act and the priorities set out in Section
6.2(a) of this Agreement, the General Partner or liquidator may distribute ratably
in kind any assets of the Partnership. If any in-kind distribution
- 31 -
is to be made
under this Section 6.2(b), (1) the assets distributed in kind will be valued in
accordance with Section 7.3 of this Agreement as of the actual date of their
distribution and charged as so valued and distributed against amounts to be paid
under Section 6.2(a) of this Agreement, and (2) any profit or loss attributable to
property distributed in kind will be included in the Net Profit or Net Loss for the
Fiscal Period ending on the date of the distribution. Notwithstanding any provision
of this Agreement to the contrary, the General Partner may compel a Partner to
accept a distribution of any asset in kind from the Partnership even if the
percentage of the asset distributed to the Partner exceeds a percentage of the asset
that is equal to the percentage in which the Partner shares in distributions from
the Partnership.
ARTICLE VII
ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS
ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS
Section 7.1 Accounting and Reports. (a) The Partnership will adopt for tax
accounting purposes any accounting method that the General Partner decides in its sole discretion
is in the best interests of the Partnership. The Partnership’s accounts will be maintained in U.S.
currency.
(b) As soon as practicable after the end of each taxable year of the
Partnership, the Partnership will furnish to Partners information regarding the
operation of the Partnership and the Partners’ Units as is necessary for Partners to
complete U.S. Federal and state income tax or information returns and any other tax
information required by U.S. Federal or state law. To the extent such information
may be delayed due to delayed reporting by Advisors with whom the Partnership
invests (through the Master Partnership), the Partners may be required to file
extensions of the filing dates for their income tax returns at the Federal, state
and local levels.
(c) Except as otherwise required by the 1940 Act, or as may otherwise be
permissible under other applicable law, the Partnership will furnish to each Limited
Partner a semiannual report and an annual report containing the information required
by the 1940 Act as soon as practicable. The Partnership will cause financial
statements contained in each annual report furnished under this Section 7.1 to be
accompanied by a certificate of independent public accountants based upon an audit
performed in accordance with generally accepted accounting principles. The
Partnership may furnish to each Partner any other periodic reports the General
Partner deems necessary or appropriate in its discretion.
(d) The General Partner will notify the Directors of any change in the holders
of interests of the General Partner within a reasonable time after the change.
Section 7.2 Determinations by General Partner. (a) All matters concerning the
determination and allocation among the Partners of the amounts to be determined and allocated
pursuant to Article V of this Agreement, including any taxes on those amounts and
- 32 -
accounting
procedures applicable with respect to those amounts, will be determined by the General Partner
unless specifically and expressly otherwise provided for by the provisions of this Agreement or as
required by law. Any such determinations and allocations will be final and binding on all of the
Partners.
(b) The General Partner may make any adjustments to the computation of Net
Profit and/or Net Loss, or any components (withholding any items of income, gain,
loss or deduction) constituting Net Profit and/or Net Loss as the General Partner
deems appropriate to reflect fairly and accurately the financial results of the
Partnership and the intended allocation of Net Profit and/or Net Loss among the
Partners.
Section 7.3 Valuation of Assets. (a) Except as may be required by the 1940 Act, the
Directors will value or cause to have valued any Securities or other assets and liabilities of the
Partnership as of the close of business on the last day of each Fiscal Period and at such other
times as the Directors may determine, in their discretion, in accordance with valuation procedures
as established from time to time by the Directors. Assets of the Partnership invested in an
Advisor Fund or Advisor Account will be valued in accordance with the terms and conditions of the
agreement or other document governing the operation of the Advisor Fund or Advisor Account. In
determining the value of the assets of the Partnership, no value will be placed on the goodwill or
name of the Partnership, or the office records, files, statistical data or any similar intangible
assets of the Partnership not normally reflected in the Partnership’s accounting records. Any
items of income earned but not received, expenses incurred but not yet paid, liabilities fixed or
contingent, and any other prepaid expenses to the extent not otherwise reflected in the books of
account, and the value of options or commitments to purchase or sell Securities or commodities
pursuant to agreements entered into prior to the valuation date will, however, be taken into
account in determining the value of the Partnership’s assets.
(b) Subject to the provisions of the 1940 Act, the value of Securities and
other assets of the Partnership and the net asset value of the Partnership as a
whole determined pursuant to this Section 7.3 will be conclusive and binding on all
of the Partners and all Persons claiming through or under them.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment of Partnership Agreement. (a) Except as otherwise provided in
this Section 8.1, this Agreement may be amended, in whole or in part, with the approval of a
majority of the Directors (including the vote of a majority of the Independent Directors, but only
if such vote is required by the 1940 Act), except that any amendment also must be approved by a
majority (as defined in the 0000 Xxx) of the outstanding voting securities of the Partnership if
such vote is required by the 0000 Xxx.
(b) Any amendment that would:
- 33 -
(1) increase the obligation of a Partner to make any Capital Contribution,
(2) reduce the Capital Account of a Partner other than in accordance with
Article V of this Agreement, or
(3) modify the events causing the dissolution of the Partnership,
may be made only if (A) the written consent of each Partner adversely affected by the proposed
action is obtained prior to the effectiveness of the action or (B) the amendment does not become
effective until (i) each Limited Partner has received written notice of the amendment and (ii) any
Limited Partner objecting to the amendment has been afforded a reasonable opportunity (under
procedures prescribed by the General Partner in its sole discretion) to tender the all of the
Partner’s Units for repurchase by the Partnership. Notwithstanding the preceding sentence or the
provisions of Subsection 8.1(c), any amendment that would alter the provisions of Section 8.1
relating to the material amendment of this Agreement or the provisions of Section 3.8 of this
Agreement relating to indemnification may be made only with the unanimous consent of the Partners
and, to the extent required by the 1940 Act, approval of a majority of the Directors (and, if so
required, a majority of the Independent Directors).
(c) Notwithstanding the provisions of Sections 8.1(a) and 8.1(b) of this Agreement,
the General Partner, at any time without the consent of any other Partner, may:
(1) restate this Agreement, together with any amendments to this Agreement
that have been duly adopted in accordance with the provisions of this
Agreement to incorporate the amendments in a single, integrated document;
(2) amend this Agreement (other than with respect to the matters described
in Section 8.1(b) of this Agreement) to change the name of the Partnership
in accordance with Section 2.2 hereof or to effect compliance with any
applicable law or regulation, including, but not limited to, to satisfy the
requirements of applicable U.S. banking law or regulation, or to cure any
ambiguity or to correct or supplement any provision of this Agreement, so
long as the action does not adversely affect the rights of any Partner in
any material respect; and
(3) amend this Agreement to make any changes necessary or desirable, based
on advice of legal counsel to the Partnership, to assure the Partnership’s
continuing eligibility to be classified for U.S. federal income tax purposes
as a Partnership that is not treated as a corporation for tax purposes under
the Code; subject, however, to the limitation that any material amendment to
this Agreement under Section 8.1(c)(2) or
(3) of this Agreement will be valid only if approved by a majority of the
Directors (including the vote of a majority of the Independent Directors, if
required by the 1940 Act).
- 34 -
(d) The General Partner will give prior written notice of any proposed amendment to
this Agreement (other than any amendment of the type contemplated by Section 8.1(c)
of this Agreement) to each Partner, which notice sets out (1) the text of the
proposed amendment or (2) a summary of the amendment and a statement that the text
of the amendment will be furnished to any Partner upon request.
Section 8.2 Special Power of Attorney. (a) Each Partner irrevocably makes,
constitutes and appoints the General Partner and each of the Directors, acting severally, and any
liquidator of the Partnership’s assets appointed pursuant to Section 6.2 of this Agreement with
full power of substitution, the true and lawful representatives and attorneys-in-fact of, and in
the name, place and stead of, the Partner, with the power from time to time to make, execute, sign,
acknowledge, swear to, verify, deliver, record, file and/or publish:
(1) any amendment to this Agreement;
(2) any amendment to the Certificate, including, without limitation, any
such amendment required to reflect any amendments to this Agreement, and
including, without limitation, an amendment to effectuate any change in the
membership of the Partnership; and
(3) all other such instruments, documents and certificates that, in the view
of legal counsel to the Partnership, from time to time may be required by
the laws of the United States of America, the State of Delaware or any other
jurisdiction in which the General Partner determines that the Partnership
should do business, or any political subdivision or agency of any such
jurisdiction, or that legal counsel may deem necessary or appropriate to
effectuate, implement and continue the valid existence and business of the
Partnership as a limited partnership under the Delaware Act.
(b) Each Partner is aware that the terms of this Agreement permit certain amendments
to this Agreement to be effected and certain other actions to be taken or omitted by
or with respect to the Partnership without the Partner’s consent. Each Partner
agrees that if an amendment to the Certificate or this Agreement or any action by or
with respect to the Partnership is taken in the manner contemplated by this
Agreement, notwithstanding any objection that the Partner may assert with respect to
the action, the attorneys-in-fact appointed under this Agreement are authorized and
empowered, with full power of substitution, to exercise the authority granted in
this Section 8.2 in any manner that may be necessary or appropriate to permit the
amendment to be made or action lawfully taken or omitted. Each Partner is fully
aware that each Partner will rely on the
effectiveness of this special power of attorney with a view to the orderly
administration of the affairs of the Partnership.
(c) The power of attorney contemplated by this Section 8.2 is a special power of
attorney and is coupled with an interest in favor of the General Partner and
- 35 -
each of
the Directors, acting severally, and any liquidator of the Partnership’s assets
appointed under Section 6.2 of this Agreement, and as such the power of attorney:
(1) will be irrevocable and continue in full force and effect
notwithstanding the subsequent death or incapacity of any Person granting
the power of attorney, regardless of whether the Partnership, the General
Partner, the Directors or any liquidator has had notice of the death or
incapacity; and
(2) will survive the delivery of a Transfer by a Partner of the Partner’s
Units, except that, when the transferee of Units has been approved by the
General Partner for admission to the Partnership as a substituted Partner,
the power of attorney given by the transferor will survive the delivery of
the assignment for the sole purpose of enabling the General Partner, the
Directors or any liquidator to execute, acknowledge and file any instrument
necessary to effect the substitution.
Section 8.3 Notices. Notices that may or are required to be provided under this
Agreement will be made to a Partner by hand delivery, regular mail (registered or certified mail
return receipt requested in the case of notice to the General Partner), commercial courier service,
telecopier, or electronic mail (with a confirmation copy by registered or certified mail in the
case of notices to the General Partner by telecopier or electronic mail), and will be addressed to
the Partner at his, her or its address as set out in the books and records of the Partnership (or
to any other address as may be designated by any Partner by notice addressed to the General Partner
in the case of notice given to any Partner, and to each of the Partners in the case of notice given
to the General Partner). Notices will be deemed to have been provided when delivered by hand, on
the date indicated as the date of receipt on a return receipt or when received if sent by regular
mail, commercial courier service, telecopier or by electronic mail. A document that is not a
notice and that is required to be provided under this Agreement by any party to another party may
be delivered by any reasonable means.
Section 8.4 Agreement Binding Upon Successors and Assigns. This Agreement will be
binding upon and inure to the benefit of the Partners and their respective heirs, successors,
assigns, executors, trustees or other legal representatives, but the rights and obligations of the
Partners may not be Transferred or delegated except as provided in this Agreement, and any
attempted Transfer or delegation of those rights and obligations that is not made in accordance
with the terms of this Agreement will be void.
Section 8.5 Choice of Law; Arbitration. (a) Notwithstanding the location at which
this Agreement is executed by any of the Partners, the Partners expressly agree that all the terms
and provisions of this Agreement are governed by and will be construed under the laws of
the State of Delaware, including the Delaware Act, without regard to the conflict of law
principles of the State of Delaware.
(b) To the extent such action is consistent with the provisions of the 1940 Act and
any other applicable law, except as provided in Section 8.10(b) of this
- 36 -
Agreement,
each Partner agrees to submit all controversies arising between or among Partners or
one or more Partners and the Partnership in connection with the Partnership or its
businesses or concerning any transaction, dispute or the construction, performance
or breach of this Agreement or any other agreement relating to the Partnership,
whether entered into prior to, on or subsequent to the date of this Agreement, to
arbitration in accordance with the provisions set out in this Section 8.5. EACH
PARTNER UNDERSTANDS THAT ARBITRATION IS FINAL AND BINDING ON THE PARTNERS AND THAT
THE PARTNERS IN EXECUTING THIS AGREEMENT ARE WAIVING THEIR RIGHTS TO SEEK REMEDIES
IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
(c) Controversies will be finally settled by, and only by, arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association (the
“AAA”) to the fullest extent permitted by law. The place of arbitration will be
Raleigh, North Carolina. Any arbitration under this Section 8.5 will be conducted
before a panel of three arbitrators. The Partner or Partners initiating arbitration
under this Section 8.5 will appoint one arbitrator in the demand for arbitration.
The Partner or Partners against whom or which arbitration is sought will jointly
appoint one arbitrator within 30 Business Days after notice from the AAA of the
filing of the demand for arbitration. The two arbitrators nominated by the Partners
will attempt to agree on a third arbitrator within 30 Business Days of the
appointment of the second arbitrator. If the two arbitrators fail to agree on the
third arbitrator within the 30-day period, then the AAA will appoint the third
arbitrator within 30 Business Days following the expiration of the 30-day period.
Any award rendered by the arbitrators will be final and binding on the Partners, and
judgment upon the award may be entered in the supreme court of the state of New York
and/or the U.S. District Court for the Southern District of New York, or any other
court having jurisdiction over the award or having jurisdiction over the Partners or
their assets. The arbitration agreement contained in this Section 8.5 will not be
construed to deprive any court of its jurisdiction to grant provisional relief
(including by injunction or order of attachment) in aid of arbitration proceedings
or enforcement of an award. In the event of arbitration as provided in this Section
8.5, the arbitrators will be governed by and will apply the substantive (but not
procedural) law of Delaware, to the exclusion of the principles of the conflicts of
law of Delaware. The arbitration will be conducted in accordance with the
procedures set out in the commercial arbitration rules of the AAA. If those rules
are silent with respect to a particular matter, the procedure will be as agreed by
the Partners, or in the absence of agreement among or between the Partners, as
established by the arbitrators. Notwithstanding any other provision of this
Agreement, this Section 8.5(c) will be construed to the maximum extent possible to
comply with the laws
of the State of Delaware, including the Uniform Arbitration Act (10 Del. C Section
5701 et seq.) (the “Delaware Arbitration Act”). If, nevertheless, it is determined
by a court of competent jurisdiction that any provision or wording of this Section
8.5(c), including any rules of the AAA, are invalid or unenforceable under the
Delaware Arbitration Act or other applicable law, such invalidity will
- 37 -
not
invalidate all of this Section 8.5(c). In that case, this Section 8.5(c) will be
construed so as to limit any term or provision so as to make it valid or enforceable
within the requirements of the Delaware Arbitration Act or other applicable law,
and, in the event such term or provision cannot be so limited, this Section 8.5(c)
will be construed to omit such invalid or unenforceable provision.
Section 8.6 Not for Benefit of Creditors. The provisions of this Agreement are
intended only for the regulation of relations among past, existing and future Partners, their
assignees and the Partnership. This Agreement is not intended for the benefit of non-Partner
creditors and, except to the extent provided in Section 3.8 of this Agreement, no rights are
granted to non-Partner creditors under this Agreement.
Section 8.7 Consents. Any and all consents, agreements or approvals provided for or
permitted by this Agreement (including minutes of any meeting) must be in writing and a signed copy
of any such consent, agreement or approval will be filed and kept with the books of the
Partnership.
Section 8.8 Merger and Consolidation . (a) The Partnership may merge or consolidate
with or into one or more limited partnerships formed under the Delaware Act or other business
entities under an agreement of merger or consolidation that has been approved in the manner
contemplated by the Delaware Act.
(b) Notwithstanding anything to the contrary in this Agreement, an agreement of
merger or consolidation approved in accordance with the Delaware Act may, to the
extent permitted by the Delaware Act, (1) effect any amendment to this Agreement,
(2) effect the adoption of a new Partnership agreement for the Partnership if it is
the surviving or resulting limited partnership in the merger or consolidation, or
(3) provide that the Partnership agreement of any other constituent Partnership to
the merger or consolidation (including a limited partnership formed for the purpose
of consummating the merger or consolidation) will be the Partnership agreement of
the surviving or resulting limited partnership.
(c) The Partnership may convert to another Delaware business entity in accordance
with the Delaware Act upon the approval of the Partners representing a majority (as
defined in the 0000 Xxx) of the outstanding voting securities of the Partnership.
Section 8.9 Pronouns. All pronouns used in this Agreement will be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the Person or Persons, firm
or entity may require in the context in which they are used.
Section 8.10 Confidentiality. (a) A Limited Partner may obtain from the General
Partner, upon reasonable demand for any purpose reasonably related to the Limited Partner’s
interest in the Partnership, information regarding the affairs of the Partnership as is just and
reasonable under the Delaware Act, subject to reasonable standards (including standards governing
the information and documents to be furnished, at what time and location and at whose expense)
established by the General Partner in its sole discretion.
- 38 -
(b) Each Limited Partner agrees in executing this Agreement that, except as required
by applicable law or any regulatory body, the Limited Partner will not divulge,
furnish or make accessible to any other Person the name or address (whether
business, residence or mailing) of any Limited Partner (collectively, “Confidential
Information”) without the prior written consent of the General Partner, which
consent may be withheld in its sole discretion.
(c) Each Partner recognizes that in the event that this Section 8.10 is breached by
any Partner or any of its principals, Partners, members, directors, officers,
employees or agents or any of the Partner’s Affiliates, including any of the
Affiliate’s principals, Partners, members, directors, officers, employees or agents,
irreparable injury may result to the non-breaching Partners and the Partnership. In
recognition of that irreparable injury, any non-breaching Partner may have, in
addition to any and all other remedies at law or in equity to which the
non-breaching Partner and the Partnership may be entitled, the right to obtain
equitable relief, including, without limitation, injunctive relief, to prevent any
disclosure of Confidential Information, plus reasonable attorneys’ fees and other
litigation expenses incurred in connection with obtaining the equitable relief. If
any non-breaching Partner or the Partnership (“Initiating Non-Breaching Party”)
determines that any other Partner or any of that Partner’s principals, Partners,
members, directors, officers, employees or agents or any of the Partner’s
Affiliates, including any of the Affiliates’ principals, Partners, members,
directors, officers, employees or agents, should be enjoined from or required to
take any action to prevent the disclosure of Confidential Information, each of the
other non-breaching Partners agrees to join the non-breaching Initiating
Non-Breaching Party in pursuing injunctive relief in a court of appropriate
jurisdiction.
(d) The General Partner will have the right to keep confidential from the Limited
Partners, for any period of time as the General Partner deems reasonable in its sole
discretion, any information that the General Partner reasonably believes to be in
the nature of trade secrets or other information the disclosure of which the General
Partner in good faith believes is not in the best interest of the Partnership or
could damage the Partnership or its business or that the Partnership is required by
law or by agreement with a third party to keep confidential.
Section 8.11 Certification of Non-Foreign Status. Each Limited Partner or transferee
of an Units from a Limited Partner who or that is admitted to the Partnership in accordance with
this Agreement will certify, upon admission to the Partnership and at any other time as the General
Partner may request, whether the Limited Partner or transferee is a “United States Person” within
the meaning of the Code on forms to be provided by the Partnership, and
will notify the Partnership within 30 days of any change in the status of the Limited Partner
or transferee. Any Limited Partner or transferee who or that fails to provide certification when
requested to do so by the General Partner may be treated as a non-United States Person for purposes
of U.S. Federal tax withholding.
Section 8.12 Severability. Each Partner agrees that the Partner intends that, if any
provision of this Agreement is determined by a court of competent jurisdiction or regulatory
- 39 -
authority with jurisdiction over the Partnership or the General Partner not to be enforceable in
the manner set out in this Agreement, then the provision should be enforceable to the maximum
extent possible under applicable law. If any provision of this Agreement is held to be invalid or
unenforceable, the invalidation or unenforceability will not affect the validity or enforceability
of any other provision of this Agreement (or portion of the provision).
Section 8.13 Entire Agreement. This Agreement constitutes the entire agreement among
the Partners pertaining to the subject matter of this Agreement and supersedes all prior agreements
and understandings pertaining to that subject matter. Notwithstanding any other provision of this
Agreement, including Section 8.1, each Partner, in executing this Agreement, acknowledges and
agrees that the General Partner, on its own behalf or on behalf of the Partnership, without the
approval of the Limited Partners or any other Person, may enter into a written agreement or
agreements with any other Partner, executed contemporaneously with the admission of the other
Partner to the Partnership, affecting or modifying the terms of, or establishing rights under, this
Agreement or any subscription agreement. Each Partner agrees that any terms contained in any such
other agreement with another Partner will govern with respect to the other Partner notwithstanding
the provisions of this Agreement or any subscription agreement, and that the Partner will have no
rights in respect of those granted in favor of such other Partner.
Section 8.14 Discretion. To the fullest extent permitted by law, whenever in this
Agreement a Person is permitted or required to make a decision (a) in its “sole discretion” or
“discretion” or under a grant of similar authority or latitude, the Person will be entitled to
consider only those interests and factors as he, she or it desires, including his, her or its own
interests, and, to the fullest extent permitted by law, will have no duty or obligation to give any
consideration to any interest of or factors affecting the Partnership or the Limited Partners, or
(b) in its “good faith” or under another express standard, then the Person will act under the
express standard and will not be subject to any other or different standards imposed by this
Agreement or any other agreement contemplated by this Agreement or by relevant provisions of law or
in equity or otherwise.
Section 8.15 Conflicts. The Partners acknowledge and agree that the General Partner
and its Affiliates may engage in activities in which their respective interests or the interests of
their clients may conflict with the interests of the Partnership or the Limited Partners, and that
the resolution of such conflicts may not always be resolved by the General Partner or its
Affiliates in favor of the Partnership or the Limited Partners.
Section 8.16 Counterparts. This Agreement may be executed in several counterparts,
all of which together will constitute one agreement binding on all Partners, notwithstanding that
all the Partners have not signed the same counterpart.
Section 8.17 Headings. The headings in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions of this Agreement or otherwise
affect their construction or effect.
[Remainder of Page Intentionally Left Blank]
- 40 -
IN EXECUTING THIS AGREEMENT, EACH PARTNER ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS
ENTIRETY BEFORE SIGNING, INCLUDING THE PRE-DISPUTE ARBITRATION CLAUSES SET OUT IN SECTION 8.5 AND
THE CONFIDENTIALITY CLAUSES SET OUT IN SECTION 8.10.
The Partners have executed this Agreement as of the day and year first above written.
| GENERAL PARTNER: HATTERAS INVESTMENT MANAGEMENT LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Managing Member | |||
| ORGANIZATIONAL LIMITED PARTNER |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| LIMITED PARTNERS: Each Person who or that has signed, or has had signed on the Person’s behalf, a Limited Partner Signature Page, which will constitute a counterpart of this Agreement. |
||||
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINITIONS |
1 | |||
ARTICLE II ORGANIZATION; ADMISSION OF PARTNERS; DIRECTORS |
5 | |||
Section 2.1 Formation of Limited Partnership |
5 | |||
Section 2.2 Name |
5 | |||
Section 2.3 Principal and Registered Office |
5 | |||
Section 2.4 Duration |
5 | |||
Section 2.5 Business of the Partnership |
5 | |||
Section 2.6 General Partner |
6 | |||
Section 2.7 Limited Partners |
6 | |||
Section 2.8 Organizational Limited Partner |
7 | |||
Section 2.9 Both General and Limited Partner |
7 | |||
Section 2.10 Limited Liability |
7 | |||
Section 2.11 Directors |
7 | |||
ARTICLE III MANAGEMENT; ADVICE AND MANAGEMENT |
8 | |||
Section 3.1 Management and Control |
8 | |||
Section 3.2 Powers Reserved by the General Partner |
10 | |||
Section 3.3 Actions by Directors |
11 | |||
Section 3.4 Meetings of Partners |
12 | |||
Section 3.5 Custody of Assets of the Partnership |
13 | |||
Section 3.6 Other Activities |
13 | |||
Section 3.7 Duty of Care |
14 | |||
Section 3.8 Indemnification |
14 | |||
Section 3.9 Fees, Expenses and Reimbursement |
17 | |||
ARTICLE IV TERMINATION OF STATUS OF GENERAL PARTNER; REMOVAL OF GENERAL PARTNER; TRANSFERS AND REPURCHASES |
19 | |||
Section 4.1 Termination of Status of General Partner |
19 | |||
Section 4.2 Removal of General Partner |
19 | |||
Section 4.3 Transfer of Units of General Partner |
19 | |||
Section 4.4 Transfer of Units of Limited Partners |
19 | |||
Section 4.5 Repurchase of Units |
21 | |||
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
ARTICLE V CAPITAL |
25 | |||
Section 5.1 Contributions to Capital |
25 | |||
Section 5.2 Rights of Partners to Capital |
26 | |||
Section 5.3 Capital Accounts |
26 | |||
Section 5.4 Allocation of Certain Withholding Taxes and Other Expenditures |
27 | |||
Section 5.5 Reserves |
27 | |||
Section 5.6 Allocation to Avoid Capital Account Deficits |
28 | |||
Section 5.7 Allocations Prior to Closing Date |
28 | |||
Section 5.8 Tax Allocations |
28 | |||
Section 5.9 Distributions |
29 | |||
ARTICLE VI DISSOLUTION AND LIQUIDATION |
30 | |||
Section 6.1 Dissolution |
30 | |||
Section 6.2 Liquidation of Assets |
31 | |||
ARTICLE VII ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS |
32 | |||
Section 7.1 Accounting and Reports |
32 | |||
Section 7.2 Determinations by General Partner |
32 | |||
Section 7.3 Valuation of Assets |
33 | |||
ARTICLE VIII MISCELLANEOUS PROVISIONS |
33 | |||
Section 8.1 Amendment of Partnership Agreement |
33 | |||
Section 8.2 Special Power of Attorney |
35 | |||
Section 8.3 Notices |
36 | |||
Section 8.4 Agreement Binding Upon Successors and Assigns |
36 | |||
Section 8.5 Choice of Law; Arbitration |
36 | |||
Section 8.6 Not for Benefit of Creditors |
38 | |||
Section 8.7 Consents |
38 | |||
Section 8.8 Merger and Consolidation |
38 | |||
Section 8.9 Pronouns |
38 | |||
Section 8.10 Confidentiality |
38 | |||
Section 8.11 Certification of Non-Foreign Status |
39 | |||
-ii-
TABLE OF CONTENTS
(continued)
(continued)
| Page | ||||
Section 8.12 Severability |
39 | |||
Section 8.13 Entire Agreement |
40 | |||
Section 8.14 Discretion |
40 | |||
Section 8.15 Conflicts |
40 | |||
Section 8.16 Counterparts |
40 | |||
Section 8.17 Headings |
40 | |||
-iii-
