EXHIBIT 10.64
__________________________________________________
AGREEMENT OF
LIMITED PARTNERSHIP OF
@VENTURES EXPANSION FUND, L.P.
__________________________________________________
February 25, 2000
AGREEMENT OF
LIMITED PARTNERSHIP OF
@VENTURES EXPANSION FUND, L.P.
TABLE OF CONTENTS
Page
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I. DEFINITIONS....................................................... 1
II. FORMATION......................................................... 13
Section 2.1 Purpose............................................ 13
Section 2.2 Name............................................... 13
Section 2.3 Principal Place of Business........................ 13
Section 2.4 Registered Agent................................... 13
Section 2.5 Term............................................... 13
III. CAPITAL CONTRIBUTIONS; PARTNERS' ACCOUNTS......................... 14
Section 3.1 Capital Commitments and Contributions.............. 14
Section 3.2 Capital Accounts................................... 14
Section 3.3 Review or Modification of Capital Commitments...... 15
Section 3.4 Default in Capital Commitment...................... 17
IV. BRIDGE FINANCING.................................................. 18
Section 4.1 Extension of Bridge Financing...................... 18
Section 4.2 Funding of Bridge Financing........................ 18
Section 4.3 Permanent Bridge Financing......................... 19
V. DISTRIBUTIONS; WITHHOLDING; VALUATION; ALLOCATIONS................ 19
Section 5.1 Withdrawal of Capital.............................. 19
Section 5.2 Distributions Prior to Liquidation................. 19
Section 5.3 Distributions Upon Liquidation..................... 21
Section 5.4 Distributions of Securities in Kind................ 22
Section 5.5 Withholding........................................ 23
Section 5.6 Valuation.......................................... 24
Section 5.7 Allocations of Operating Income and Loss and
Investment Gain and Loss........................... 25
Section 5.8 Special Provisions................................. 27
Section 5.9 Special Provisions in the Event of Borrowings or a
Section 754 Election............................... 28
VI. MANAGEMENT; PAYMENT OF EXPENSES................................... 29
Section 6.1 Description of General Partner..................... 29
Section 6.2 Management by the General Partner.................. 29
Section 6.3 Powers of Limited Partners......................... 32
Section 6.4 Continuity Mode.................................... 32
Section 6.5 Payment of Fees and Expenses....................... 32
VII. OTHER ACTIVITIES OF PARTNERS; CO-INVESTMENT
OBLIGATION........................................................ 35
Section 7.1 Commitment of General Partner...................... 35
Section 7.2 Dealings with Limited Partners..................... 35
Section 7.3 Investments by the Partnership, the Foreign Fund,
CMG @Ventures Expansion LLC and @Ventures
Expansion Investors LLC............................ 35
Section 7.4 Co-investments by the Other Participating Funds.... 37
VIII. ADMISSIONS; ASSIGNMENTS; REMOVAL AND WITHDRAWALS.................. 38
Section 8.1 Admission of Additional General Partner............ 38
Section 8.2 Admission of Additional Limited Partners........... 38
Section 8.3 Assignment of Partnership Interest................. 39
Section 8.4 Restrictions on Transfer........................... 40
Section 8.5 Removal of General Partner......................... 40
Section 8.6 Withdrawals........................................ 41
Section 8.7 ERISA Matters...................................... 42
IX. LIABILITY OF PARTNERS; INDEMNIFICATION............................ 45
Section 9.1 Liability of General Partner....................... 45
Section 9.2 Liability of Limited Partners...................... 46
Section 9.3 Indemnification of the General Partner and Limited
Partners........................................... 46
Section 9.4 Payment of Expenses................................ 47
X. ACCOUNTING FOR THE PARTNERSHIP; REPORTS........................... 47
Section 10.1 Accounting for the Partnership..................... 47
Section 10.2 Books and Records.................................. 48
Section 10.3 Reports to Partners................................ 48
Section 10.4 Annual Meeting..................................... 48
XI. DISSOLUTION AND WINDING UP........................................ 49
Section 11.1 Termination........................................ 49
Section 11.2 Winding Up......................................... 49
Section 11.3 Liquidating Trust.................................. 50
XII. MISCELLANEOUS..................................................... 50
Section 12.1 Registration of Securities......................... 50
Section 12.2 Entire Agreement................................... 50
Section 12.3 Voting; Amendments................................. 51
Section 12.4 Severability....................................... 51
Section 12.5 Notices............................................ 52
Section 12.6 Heirs and Assigns; Execution....................... 52
Section 12.7 Waiver of Partition................................ 52
Section 12.8 Power of Attorney.................................. 52
Section 12.9 Headings........................................... 52
Section 12.10 Further Actions.................................... 53
Section 12.11 Gender, Etc........................................ 53
Section 12.12 Tax Matters Partner................................ 53
Section 12.13 Applicable Law..................................... 53
AGREEMENT OF
LIMITED PARTNERSHIP OF
@VENTURES EXPANSION FUND, L.P.
AGREEMENT OF LIMITED PARTNERSHIP dated as of February 25, 2000 (the
"Agreement"), by and among @Ventures Expansion Partners, LLC (referred to as the
"General Partner") and the undersigned limited partners (together with any other
limited partner which may hereafter be admitted referred to as the "Limited
Partners"). The General Partner and the Limited Partners are sometimes
collectively referred to herein as the "Partners" and individually as a
"Partner". Definitions of certain terms used in this Agreement are contained in
Article I.
AGREEMENT
---------
In consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
I.
DEFINITIONS
-----------
As used herein, the following terms have the following meanings:
@Ventures Expansion:
-------------------
@Ventures Expansion Partners, LLC, a Delaware limited liability company.
Accredited Investor:
-------------------
An investor which qualifies as an "accredited investor" as defined in Rule
501 of Regulation D promulgated under the Securities Act.
Act:
---
The Delaware Revised Uniform Limited Partnership Act, as amended from time
to time.
Adjusted Capital Account Deficit:
--------------------------------
With respect to any Partner, the deficit balance, if any, in such Partner's
Capital Account as of the end of the relevant fiscal year or other
accounting period determined after (i) crediting to such Capital Account
any amounts which such Partner is obligated to restore thereto hereunder or
is deemed to be obligated to restore thereto pursuant to the penultimate
sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury
Regulations and (ii) debiting to such Capital Account the items described
in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations. The
foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury
Regulations and shall be interpreted consistently therewith.
Affiliates:
----------
With respect to any person, any officer, director, employee or general
partner of, or any person that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with,
such person. The General Partner and its individual members shall all be
deemed Affiliates of one another.
Assignee:
--------
As defined in Section 8.3.
Break-up Fee:
------------
Any fee, reimbursement or other form of compensation payable by a third
party as a result of the failure to consummate an investment.
Bridge Financing:
----------------
As defined in Section 4.1.
Business Day:
------------
Any day, excluding Saturday, Sunday and any other day on which commercial
banks in Boston, Massachusetts are authorized or required by law not to be
open for business.
Capital Account:
---------------
As defined in Section 3.2.
Capital Commitment:
------------------
As defined in Section 3.1.
Capital Contribution:
--------------------
As defined in Section 3.1.
Capital Contribution Allocable to Liquidated Portfolio Securities:
-----------------------------------------------------------------
-2-
With respect to any Partner or class of Partners as of any time of
determination, that portion of the Capital Contributions of such Partner or
Partners equal to the cost basis of Portfolio Securities that have been
liquidated or otherwise disposed of. Capital Contributions Allocable to
Liquidated Portfolio Securities shall include (i) the unreimbursed cost to
the Partnership of acquiring, holding and selling Portfolio Securities,
(ii) any Deemed Portfolio Loss and (iii) that portion of the expenses of
the Partnership described in Section 6.5.A(1) that is equal to the ratio of
the cost basis of such liquidated Portfolio Security to the total Capital
Commitments of the Partnership (provided, however, that in the case of the
last investment by the Partnership in a Portfolio Security, any such
expenses that have not previously been allocated shall be allocated in
their entirety to such last investment for purposes of determining the
Capital Contribution of the Partners allocable to such Portfolio Security).
For the purposes of Section 5.2.B(1), Capital Contributions Allocable to
Liquidated Portfolio Securities shall be reduced by any Deemed Portfolio
Loss previously distributed with respect to that security pursuant to
Section 5.2.B(1).
Capital Contribution Allocable to Portfolio Securities:
------------------------------------------------------
With respect to any Partner or class of Partners as of any time of
determination, (i) that portion of the Capital Contributions of such
Partner or Partners that have been invested in Portfolio Securities,
including the unreimbursed cost to the Partnership of acquiring, holding
and selling Portfolio Securities (to the extent not paid by break-up and
other fees as provided in Sections 6.5.E and 6.5.F), and (ii) that portion
of the expenses of the Partnership described in Section 6.5.A(1) that is
equal to the ratio of the cost basis of Portfolio Securities to the total
Capital Commitments of the Partnership (provided, however, that in the case
of the last investment by the Partnership in a Portfolio Security, any such
expenses that have not previously been allocated shall be allocated in
their entirety to such last investment for purposes of determining the
Capital Contribution of the Partners allocable to such Portfolio Security).
CMGI:
----
CMGI, Inc., a Delaware corporation.
CMGI Funds:
----------
CMG @Ventures I, LLC, CMG @Ventures II, LLC, CMG @Ventures III, LLC,
@Ventures III, L.P., @Ventures Foreign Fund III, L.P., Expansion LLC, and
any other corporation, partnership or limited liability company organized
by CMGI in order to facilitate its co-investment obligation under Section
7.3 hereof.
-3-
Code:
----
The Internal Revenue Code of 1986, as amended.
Co-investment Obligation:
------------------------
As defined in Section 7.3.
Committed Investment:
--------------------
An investment in Portfolio Securities in which the Partnership had an
obligation to invest as of the last day of the Commitment Period pursuant
to either (i) a commitment to make an initial investment in a Portfolio
Company or (ii) a commitment made at the time of the initial investment in
a Portfolio Company.
Commitment Period:
-----------------
The period from the Initial Closing Date to four years from such date.
Continuity Mode:
---------------
Status which the Limited Partners can impose upon the Partnership in the
event of a Triggering Event as described in Section 6.4.
Deemed Portfolio Loss:
---------------------
As defined in Section 5.2.D.
Defaulting Partner:
------------------
As defined in Section 3.4.
Dissolution Sale:
----------------
Sales and liquidations by or on behalf of the Partnership of all or
substantially all of its assets in connection with or in contemplation of
the winding up of the Partnership.
DOL Regulations:
---------------
The United States Department of Labor Regulations as in effect from time to
time.
-4-
Eighty Percent (80%) in Interest of the Limited Partners:
--------------------------------------------------------
At any time, those Limited Partners whose aggregate Percentage of
Contributed Capital equals or exceeds eighty percent (80%).
ERISA:
-----
The Employee Retirement Income Security Act of 1974 as amended.
ERISA Affiliate:
---------------
Any "plan sponsor" (within the meaning of Section 3(16)(B) of ERISA) with
respect to an ERISA Partner, and any other persons that would be aggregated
with any plan sponsor and treated as a single employer for purposes of
Section 414 of the Code or Title I of ERISA.
ERISA Partner:
-------------
A Limited Partner that is either (a) an employee benefit plan as defined in
Section 3(3) of ERISA which is subject to Title I of ERISA (after taking
into account Section 4 of ERISA), or (b) a plan described in Section
4975(e)(1) of the Code (after taking into account Section 4975(g) of the
Code).
Escrow Account:
--------------
As defined in Section 5.2.F.
Expansion Investors LLC:
-----------------------
@Ventures Expansion Investors LLC or any other entity or group of persons
organized for the purpose of satisfying the Co-investment Obligation of the
principals of CMGI and/or the Management Company or other persons rendering
services to or for the benefit of the Partnership, as described in Section
7.3.
Expansion LLC:
-------------
CMG @Ventures Expansion LLC or any other entity organized by CMGI in order
to satisfy its co-investment obligation described in Section 7.3.
-5-
Financial Institution:
---------------------
A bank, savings institution, trust company, insurance company, pension or
profit sharing trust, or similar entity which is a member of any group of
such persons having assets of at least $100 million, or other entity (other
than an individual) a substantial part of whose business consists of
investing in, purchasing or selling the securities of others.
Follow-on Investment:
--------------------
An investment, other than a Committed Investment, in Portfolio Securities
of a Portfolio Company in which the Partnership holds, immediately prior
thereto, Portfolio Securities.
Foreign Fund:
------------
@Ventures Foreign Expansion Fund, L.P., a Delaware limited partnership,
which will co-invest with the Partnership in the acquisition of certain
Portfolio Securities.
General Partner:
---------------
@Ventures Expansion Partners, LLC or any successor general partner of the
Partnership.
Incentive Distributions:
-----------------------
As defined in the last paragraph of Section 5.2.B.
Indemnitees:
-----------
As defined in Section 9.3.
Initial Closing Date:
--------------------
The first date on which any Limited Partner, other than the Initial Limited
Partner, is admitted to the Partnership.
Investment Company Act:
----------------------
The Investment Company Act of 1940, as amended.
-6-
Investment Gain:
---------------
For any fiscal year or other accounting period of the Partnership, the
amount, if any, by which the Partnership's gross taxable income and gains
with respect to interests in Portfolio Companies exceed the Partnership's
gross taxable deductions and losses with respect to such interests in
Portfolio Companies. The following amounts shall be included in determining
Investment Gain: (i) any interest, dividend or similar distribution with
respect to Portfolio Securities, and (ii) any and all payments arising out
of the disposition of Portfolio Securities, including without limitation
any option payment, lump sum payment, principal or interest paid or imputed
under any promissory note, and any payment made pursuant to a royalty or
earn-out arrangement or similar form of contingent payment. Calculations of
Investment Gain shall be consistent with calculations made for federal
income tax purposes, except that Investment Gain shall be determined (w) by
taking into account unrealized gains and losses with respect to Portfolio
Securities that are revalued pursuant to the penultimate sentence of
Section 3.2 or distributed in kind hereunder, (x) with reference to the
book value rather than the adjusted tax basis of any Portfolio Security
that has been revalued pursuant to the penultimate sentence of Section 3.2,
(y) without regard to any amounts that are specially allocated pursuant to
Sections 5.8. and 5.9, and (z) without giving effect to any adjustments
made pursuant to Sections 743 or 734 of the Code. Notwithstanding the
foregoing, Investment Gain shall not include (i) interest or dividends
received from, or gain received upon the disposition of, Temporary Bridge
Financing or Permanent Bridge Financing, (ii) the amount of any fees paid
to the Partnership pursuant to Section 6.5.E, and (iii) the amount of any
fees paid to the Partnership pursuant to Section 6.5.F.
Investment Loss:
---------------
For any fiscal year or other accounting period of the Partnership, the
amount, if any, by which the Partnership's gross taxable deductions and
losses with respect to interests in Portfolio Companies exceed the
Partnership's gross taxable income and gains with respect to interests in
Portfolio Companies. Calculations of Investment Loss shall be consistent
with calculations made for federal income tax purposes and with the
calculation of Investment Gain.
Investment Receipts:
-------------------
Amounts received by the Partnership with respect to (including payments and
distributions on and proceeds of dispositions of) interests in and assets
of Portfolio Companies, net of amounts necessary to pay all expenses, debts
and obligations of the Partnership or to establish reserves therefor.
Investment Receipts shall exclude (i) interest or dividends received from,
or gain received upon the disposition of, Temporary or Permanent Bridge
Financing, (ii) the amount of any fees paid to the Partnership pursuant to
Section 6.5.E, and (iii) the amount of any fees paid to the Partnership
pursuant to Section 6.5.F.
-7-
Liabilities:
-----------
As defined in Section 9.3.
Liquidated Portfolio Securities:
-------------------------------
Portfolio Securities that have been liquidated or otherwise disposed of.
Limited Partners:
----------------
As defined in the recitals.
Majority in Interest of Limited Partners:
----------------------------------------
At any time, those Limited Partners whose aggregate Percentage of
Contributed Capital exceeds fifty percent (50%).
Management Company:
------------------
@Ventures Expansion Management, LLC, a Delaware limited liability company.
Management Contract:
-------------------
The management contract with the Management Company in the form attached
hereto as Exhibit A.
---------
Management Fee:
--------------
The management fee payable by the Partnership to the Management Company
pursuant to the Management Contract.
Marketable Securities:
---------------------
Securities (i) that are freely tradeable pursuant to a registration under
the Securities Act of 1933, as amended, or an exemption therefrom, (ii)
that immediately after giving effect to their distribution will not be
subject to any contractual restriction on transfer, (iii) that will be
traded on a national securities exchange or reported through the National
Association of Securities Dealers Automated Quotation System, and (iv) that
may be sold without regard to volume limitations.
-8-
Net Investment Gain:
-------------------
As of any time of determination, the amount, if any, by which the sum of
the Investment Gains for all fiscal years and other accounting periods of
the Partnership exceeds the sum of the Investment Losses for all fiscal
years and other accounting periods of the Partnership.
Net Operating Income:
--------------------
As of any time of determination, the amount, if any, by which the sum of
the Operating Income for all fiscal years and other accounting periods of
the Partnership exceeds the sum of the Operating Losses for all fiscal
years and other accounting periods of the Partnership.
Operating Income (Loss):
-----------------------
For any fiscal year or other accounting period of the Partnership the
excess (deficiency) of all income and gains of the Partnership, from
whatever source derived, over the losses and expenses borne by the
Partnership (including the Management Fee), including any income, gain,
losses or expenses relating to Temporary Bridge Financing or Permanent
Bridge Financing but excluding Investment Gain (Loss) all as calculated for
federal income tax purposes, except that Operating Income (Loss) shall be
computed with the following adjustments: (i) income of the Partnership that
is exempt from federal income tax and that is not otherwise taken into
account in computing income or loss shall be added to Operating Income
(Loss); (ii) expenditures of the Partnership that are neither deductible
for Federal income tax purposes nor allowable as additions to the basis of
Partnership property (or that are so treated pursuant to Section 1.704-
1(b)(2)(iv)(i) of the Treasury Regulations) shall be subtracted from such
taxable income or loss; and (iii) there shall not be taken into account any
items that are specially allocated pursuant to Sections 5.8.A, 5.8.C, 5.8.D
and 5.9.
Operating Receipts:
------------------
All amounts received by the Partnership other than Investment Receipts, net
of amounts necessary to pay all expenses, debts and obligations of the
Partnership or to establish reserves therefor.
Partners:
--------
As defined in the recitals hereof.
Partnership:
-----------
-9-
@Ventures Expansion Fund, L.P., a Delaware limited partnership.
Percentage of Contributed Capital:
---------------------------------
In the case of each Partner, except as provided in Sections 3.3 and 3.4,
the Capital Contributions of such Partner divided by the sum of the Capital
Contributions of all Partners.
Permanent Bridge Financing:
--------------------------
As defined in Section 4.3.
Portfolio Companies:
-------------------
Companies in which the Partnership makes investments in accordance with the
provisions of this Agreement.
Portfolio Securities:
--------------------
Equity and equity-related securities of Portfolio Companies in which the
Partnership invests in accordance with the provisions of this Agreement.
Temporary Bridge Financing and Permanent Bridge Financing shall not be
considered to be Portfolio Securities except for the purpose of calculating
the amount of Investment Receipts to be distributed and allocated pursuant
to Sections 5.2.B(2) and 5.7.B(4).
Prohibited Transaction:
----------------------
A non-exempt prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code).
Removal Date Securities:
-----------------------
As defined in Section 8.5.
Securities Act:
--------------
The Securities Act of 1933, as amended.
Special Limited Partner:
-----------------------
As defined in Section 8.5.
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Substitute Limited Partner:
--------------------------
As defined in Section 8.3.
Subscription Agreement:
----------------------
Each of the several Subscription Agreements between the Partnership and the
Limited Partners.
Target Allocation:
-----------------
With respect to any Partner as of the close of any fiscal year or other
accounting period of the Partnership for which an allocation of Investment
Loss is to be made pursuant to Section 5.7.C(1), the amount of Net
Investment Gain that would then be allocated to such Partner if (i) the Net
Investment Gain for all periods through the close of such fiscal year or
other period were equal to the Net Investment Gain as of the close of the
immediately preceding fiscal year or other accounting period of the
Partnership less the amount of Investment Loss to be then allocated
pursuant to Section 5.7.C(1) and (ii) the Net Investment Gain as then
calculated pursuant to clause (i) were then allocated to the Partners
pursuant to Sections 5.7.B(3), 5.7.B(4) and 5.7.B(5) as if there had been
no prior allocations of Investment Gain or Investment Loss.
Tax Exempt Partner:
------------------
Any individual retirement account or trust formed as part of a Xxxxx or
corporate pension or profit-sharing plan qualified under Section 401(a) of
the Code, any organization described in Section 501(c) of the Code and any
governmental entity tax-exempt under Section 115 of the Code, or any entity
which has ninety percent (90%) or more of its equity interests owned by one
or more entities of the type referred to above.
Temporary Bridge Financing:
--------------------------
Bridge Financing that has not been converted into Permanent Bridge
Financing pursuant to Section 4.3.
Temporary Investments:
---------------------
(i) Investments in direct obligations of the United States of
America, or obligations of any instrumentality or agency thereof
payment of principal and interest of which is unconditionally
guaranteed by the United States of America, all of such
obligations having a final maturity not more than one year from
the date of issue thereof;
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(ii) Investments in certificates of deposit or repurchase agreements
having a final maturity not more than one year from the date of
acquisition thereof issued by any bank or trust company
organized under the laws of the United States of America or any
state thereof having capital and surplus of at least $100
million;
(iii) Investments in money market funds, provided that such funds
invest primarily in government securities described in
subparagraph (i) or in municipal obligations that receive a
rating of AAA or AA, or Aaa or Aa from a nationally recognized
financial rating service such as Standard & Poor's Corporation
or Xxxxx'x Investors Service, Inc., respectively;
(iv) Investments in interest-bearing accounts of Financial
Institutions; and
(v) Commercial paper payable on demand or having a final maturity
not more than one year from the date of acquisition thereof
which has the highest credit rating by either Standard & Poor's
Corporation or Xxxxx'x Investors Service, Inc.
Treasury Rate:
-------------
An interest rate calculated quarterly at the average of the ninety (90) day
United States Treasury Xxxx weekly auction rates for the preceding quarter.
Treasury Regulations:
--------------------
Income Tax Regulations promulgated from time to time under the Code.
References to specific sections of the Treasury Regulations shall be to
such sections as amended, supplemented or superseded by Treasury
Regulations currently in effect.
Triggering Event:
----------------
As defined in Section 6.4.
Two-Thirds in Interest of the Limited Partners:
----------------------------------------------
Those Limited Partners whose aggregate Percentage of Contributed Capital
equals or exceeds sixty-six and two-thirds percent (66_%).
UBTI:
----
Unrelated business taxable income as defined in Section 512 of the Code and
including unrelated debt-financed income as defined in Section 514 of the
Code.
-12-
Venture Capital Operating Company:
---------------------------------
A venture capital operating company as defined in the United States
Department of Labor regulation published at Section 2510.3-101 of Title 29
of the Code of Federal Regulations or corresponding provisions of
subsequent laws or regulations.
II.
FORMATION
---------
Section 2.1 Purpose.
-------
Pursuant to the Act, the Partners hereby agree to form the Partnership as a
limited partnership for the principal purpose of making equity and equity-
related investments in Portfolio Companies, managing, supervising and disposing
of such investments, receiving the profits and losses therefrom, and engaging in
activities necessarily incidental or ancillary thereto. The Partnership will
invest solely in companies in which @Ventures III, L.P., @Ventures Foreign Fund
III, L.P., CMG @Ventures III LLC and Expansion Investors LLC have previously
invested.
Section 2.2 Name.
----
The name of the Partnership will be "@VENTURES EXPANSION FUND, L.P." or
such other name or names as the General Partner may from time to time designate.
Section 2.3 Principal Place of Business.
---------------------------
The principal office of the Partnership will be located at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, or such other location in the United
States as the General Partner may from time to time determine. The General
Partner shall give prompt notice of any change in the principal office of the
Partnership to each Limited Partner.
Section 2.4 Registered Agent.
----------------
The initial address of the Partnership's registered office in Delaware is
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of New Castle, and its initial registered
agent at such address for service of process is CT Corporation.
Section 2.5 Term.
----
The Partnership shall continue in full force and effect until July 31,
2006, unless extended or until earlier terminated pursuant to Section 11.1.
-13-
III.
CAPITAL CONTRIBUTIONS; PARTNERS' ACCOUNTS
-----------------------------------------
Section 3.1 Capital Commitments and Contributions.
-------------------------------------
Subject to the provisions of Sections 3.3 and 3.4, each Partner hereby
commits and agrees to make cash contributions to the capital of the Partnership
in the amount set forth opposite its name on Schedule 1 attached hereto. The
----------
amount of such commitment, reduced by any portion of the commitment which is
released pursuant to Section 3.3 and increased or decreased by any amount
pursuant to Section 3.4, is referred to herein as a "Capital Commitment". With
respect to each Partner, the amount of capital contributed pursuant to such
Capital Commitment and, after the end of the Commitment Period, amounts
proportional to the Partner's Percentage of Contributed Capital that are
reserved from Operating Receipts or Investment Receipts and invested in Follow-
on Investments or Committed Investments, are referred to as "Capital
Contributions". On any date when a Limited Partner makes a Capital Contribution
to the Partnership, the General Partner shall contribute to the capital of the
Partnership cash in such amount as is sufficient to cause the General Partner's
Capital Contribution to equal one percent (1%) of the aggregate Capital
Contributions of all Partners. Except as set forth in the Subscription
Agreement, five percent (5%) of each Partner's Capital Commitment shall be paid
in upon admission to the Partnership. The General Partner shall call for payment
of the balance of each Partner's Capital Commitment as needed to fund the
Partnership's investments in Portfolio Companies and other permitted uses under
this Agreement; provided, however, that no call may be made at any time
subsequent to the Commitment Period except to the extent necessary to (i)
provide for the expenses of the Partnership including the Management Fee, (ii)
make Committed Investments pursuant to Section 6.2.M or (iii) make Follow-on
Investments pursuant to Section 6.2.L. All such calls shall be made in writing
to all Partners pro rata in proportion to their respective Capital Commitments
and shall specify the intended use of such called capital, including in the case
of a capital call to invest in a Portfolio Company the name of the Portfolio
Company. Such calls shall be made at least ten (10) Business Days before the
date on which the installment payable in response to that call is due. The
Capital Contributions of a Partner shall not in any case exceed the Capital
Commitment of such Partner. No Capital Contribution returned to a Partner, other
than a Capital Contribution that is allocable to a Temporary Bridge Financing
which has been sold, refinanced or otherwise disposed of, shall be callable by
the General Partner pursuant to this Section 3.1 again.
Section 3.2 Capital Accounts.
----------------
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The Partnership shall establish and maintain a Capital Account for each
Partner. A Partner's Capital Account shall be (i) increased by (a) the amount of
such Partner's Capital Contributions, (b) such Partner's allocations of
Operating Income and Investment Gain pursuant to Sections 5.7.A and 5.7.B, and
(c) items of income or gain specially allocated to such Partner pursuant to
Section 5.8 or 5.9, (ii) decreased by (x) the amount of money and the fair
market value of any property distributed to such Partner by the Partnership, (y)
such Partner's allocations of Operating Loss and Investment Loss pursuant to
Sections 5.7.A and 5.7.C and (z) items of loss, deduction or expenditure
specially allocated to such Partner pursuant to Section 5.8 or 5.9, and (iii)
adjusted to reflect any liabilities that are assumed by such Partner or the
Partnership or that are secured by property contributed by or distributed to
such Partner, all in accordance with Sections 1.704-1(b)(2)(iv) and 1.704-2 of
the Treasury Regulations. Except as otherwise provided in the Treasury
Regulations, a transferee of an interest in the Partnership shall succeed to the
Capital Account of its transferor to the extent allocable to the transferred
interest. Notwithstanding any provision of this Agreement other than Section
5.4, the General Partner shall revalue Partnership properties, and make
corresponding adjustments to the Partners' Capital Accounts, as prescribed by
Section 1.704-1(b)(2)(iv)(f) of the Treasury Regulations in connection with any
contribution to or distribution by the Partnership of more than a de minimis
-- -------
amount of money or other property in exchange for an interest in the Partnership
unless the General Partner reasonably determines that such revaluations and
adjustments are not necessary to reflect the economic interests of the Partners
in the Partnership. In addition, the book values of Partnership properties shall
be increased or decreased, as the case may be, to reflect any adjustments to the
adjusted tax bases of such properties pursuant to Section 734(b) or Section
743(b) of the Code to the extent that such basis adjustments are taken into
account in determining Capital Account balances pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m) and have not been reflected in adjustments to the
book values of such properties pursuant to the preceding sentence of this
Section 3.2.
Section 3.3 Review or Modification of Capital Commitments.
---------------------------------------------
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Each Partner acknowledges that it is currently lawful for it to invest in
the Partnership. Notwithstanding this acknowledgment and the provisions of
Sections 3.1 and 3.4, no Partner shall be obligated to make any contribution of
its Capital Commitment if at the time such contribution is due (i) such Partner
is substantially likely to be prohibited from making investments in the
Partnership under any applicable federal or state law or regulations thereunder
then in effect, including ERISA, or is substantially likely to subject itself or
an ERISA Affiliate to a tax for a Prohibited Transaction, (ii) if such Partner
is a Tax Exempt Partner, the proposed investment in a Portfolio Company would
result in such Partner having UBTI, or (iii) if such Partner is a bank holding
company, it has a significant, pre-existing and continuing relationship with a
Portfolio Company in which the Partnership has proposed to invest (in each case,
a "Modification Event"). Prior to making an investment in a Portfolio Company
which would result in a Partner having UBTI, the General Partner will advise the
Partners in writing as to the investment and the circumstances giving rise to
UBTI. In the case of a Modification Event, the affected Partner shall advise the
General Partner of the specific terms of the Modification Event within five (5)
Business Days of receiving the call notice pursuant to Section 3.1. The General
Partner shall promptly notify all other Partners of the alleged Modification
Event. Unless (x) in the case of a Modification Event set forth in clauses (i)
or (ii) above, the Partner asserting such Modification Event shall, at the
request of the General Partner, have delivered to the General Partner an opinion
from counsel reasonably satisfactory to the General Partner confirming the
existence of such Modification Event or (y) in the case of a Modification Event
set forth in clause (iii) above, the affected Partner shall have provided the
General Partner with such information and material, including, at the request of
the General Partner an opinion of counsel reasonably satisfactory to the General
Partner confirming, in the sole discretion of the General Partner, the existence
of such Modification Event, the General Partner may, as of the date on which the
contribution at issue was due and upon fifteen (15) days notice to the affected
Partner, reduce the Capital Account and percentage of Contributed Capital of
such Partner by one fourth and correspondingly increase the Capital Account and
Percentage of Contributed Capital of each other Partner in a manner similar to
that provided in Section 3.4.B; provided, that the Partner asserting the
prohibition shall not be deemed a Defaulting Partner, as defined in Section 3.4,
for purposes of the provisions thereof. Such reduction shall be the exclusive
remedy against a Limited Partner which fails to make a contribution of its
Capital Commitment because of such an alleged prohibition or Prohibited
Transaction. The Partner who asserted the prohibition or Prohibited Transaction
may xxx the Partnership to recover the amount of reduction to its Capital
Account and Percentage of Contributed Capital made in accordance with this
Section 3.3; provided, that the amount of its recovery shall be limited to the
amount of such reduction and the reasonable costs and expenses (including
reasonable fees of attorneys) incurred in bringing such suit. However, if a
Partner loses such a suit brought against the Partnership, and the applicable
period in which the decision in such suit can be appealed has passed, such
Partner shall reimburse the Partnership for the reasonable costs and expenses
(including reasonable fees of attorneys) incurred by the Partnership in
defending such suit or any prior unsuccessful suit brought against the
Partnership alleging the same cause of action; provided, however, that such
Partner shall not be required to reimburse the Partnership for expenses of any
prior unsuccessful suit with respect to which the Partnership has previously
been reimbursed by a Partner pursuant to this Section 3.3.
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Notwithstanding the provisions of this Agreement, the General Partner may
refuse to permit a Limited Partner to participate in an investment in a
Portfolio Company if, in the sole discretion of the General Partner, such
Limited Partner's participation would impair the ability of the Partnership or
the General Partner or make it impractical or inadvisable as a result of
regulatory or competitive considerations or otherwise to consummate or to
maintain the investment in the Portfolio Company. In this event, at the time of
providing call notices to the Limited Partners, the General Partner shall notify
the affected Limited Partner of its non-participation in the proposed investment
and give such Partner such information and material as the General Partner
determines is sufficient to warrant the non-participation of such Partner in the
investment. The decision of the General Partner to refuse a Limited Partner the
opportunity to participate in an investment shall be in the sole discretion of
the General Partner.
Section 3.4 Default in Capital Commitment.
-----------------------------
Except as provided in Section 3.3, in the event a Partner fails to fund
its Capital Commitment as required under Section 3.1 in a timely manner, and
such failure continues for ten (10) Business Days after written notice of such
failure from the General Partner (or for such longer period (not to exceed
twenty (20) business days) as the General Partner may in its sole discretion
permit under extraordinary circumstances), then such Partner which failed to
make payment shall be a Defaulting Partner, and the following provisions of this
Section 3.4 shall apply:
A. Whenever the vote, consent or decision of the Partners is required
or permitted pursuant to this Agreement, any Defaulting Partner shall not be
entitled to participate in such vote or consent, or to make such decision, and
such vote, consent or decision shall be made as if such Defaulting Partner were
not a Partner. Notwithstanding this prohibition, any such vote, consent or
decision shall be binding upon such Defaulting Partner.
B. The Defaulting Partner shall not be required to make any further
Capital Contributions to the Partnership and shall be released from that portion
of a Defaulting Partner's unfunded Capital Commitment (provided that such
Defaulting Partner shall remain fully liable to the creditors of the Partnership
to the extent of the installment of the Capital Commitment with respect to which
the default occurred). Thereafter, the Defaulting Partner's Percentage of
Contributed Capital in all investments made by the Partnership in Portfolio
Companies after the date of default shall be zero, and the Percentages of
Contributed Capital of the remaining Partners shall be adjusted accordingly.
C. Except as set forth in this Section 3.4.C, the Defaulting Partner
shall not be entitled to receive any distribution of Operating Receipts or
Investment Receipts until the termination of the Partnership. The General
Partner shall establish a separate escrow account with a Financial Institution
into which will be deposited all of the distributions of Operating Receipts and
Investment Receipts that the Defaulting Partner would otherwise be entitled to
receive. Upon the liquidation of the Partnership, the Defaulting Partner will
be entitled to receive
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from the separate escrow account an amount equal to the lesser of (i) seventy-
five percent (75%) of the distributions it was otherwise entitled to receive
with respect to investments in Portfolio Companies that were consummated prior
to the date of the Defaulting Partner's default (without the addition of
interest that accrued on the amounts held in the separate escrow account), and
(ii) its aggregate Capital Contributions to the Partnership reduced by all
distributions made to the Defaulting Partner prior to the date of default. Any
amounts remaining in the separate escrow account, including all interest earned
on such amounts, shall thereafter be distributed to the General Partner to
compensate the General Partner for any damages incurred as a result of the
default and then to the non-defaulting Limited Partners in proportion to their
respective Percentages of Contributed Capital recalculated as if the Defaulting
Partner were not a Partner of the Partnership. The Defaulting Partner shall be
allocated Operating Income and Loss and Investment Gain and Loss only with
respect to investments in Portfolio Companies that were consummated prior to the
date of the Defaulting Partner's default.
D. The provisions of Sections 3.4.B and C shall not apply more than once
to any Defaulting Partner.
E. No Defaulting Partner shall be entitled to assign its interest in the
Partnership in accordance with Section 8.3 without the consent of the General
Partner, which it may withhold in its sole discretion.
F. No right, power or remedy available to the General Partner in this
Section 3.4 shall be exclusive, and each such right, power or remedy shall be
cumulative and in addition to any other right, power or remedy available at law
or in equity. No course of dealing between the General Partner and any
Defaulting Partner, and no delay in exercising any right, power or remedy shall
operate as a waiver or otherwise prejudice the exercise of such right, power or
remedy.
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IV.
BRIDGE FINANCING
----------------
Section 4.1 Extension of Bridge Financing.
-----------------------------
Solely in order to facilitate the making of investments in Portfolio
Securities as expeditiously as practicable with the most favorable pricing
reasonably available, the Partnership may from time to time provide interim
financing ("Bridge Financing") to one or more Portfolio Companies until
permanent financing is arranged. All such Bridge Financing shall be designated
as such by the General Partner at the time it is first provided. All Bridge
Financing will be senior to the permanent investment of the Partnership in such
Portfolio Company, and bear interest or carry other compensation at rates not
less favorable to the Partnership than those available from an unaffiliated
Financial Institution. The General Partner will use its best efforts to cause
Bridge Financing to be converted into Portfolio Securities, and if not so
converted, to be sold or refinanced as promptly as practicable, and in any event
will use its best efforts to cause such conversion, sale or refinancing to occur
within one year after such Bridge Financing is first provided by the
Partnership. Bridge Financing may be provided to any single Portfolio Company
only to the extent that the sum of the Partnership's investment in such
Portfolio Company, including Portfolio Securities, Bridge Financings and the
amount of any guarantees, shall not exceed the lesser of (i) thirty-five percent
(35%) of the Partnership's aggregate Capital Commitments, or (ii) the remaining
unfunded Commitments as of the date of such Bridge Financing.
Section 4.2 Funding of Bridge Financing.
---------------------------
The Partnership may fund Bridge Financing by borrowing pursuant to
Section 6.2.Q from one or more Financial Institutions, by calling upon the
Partners' Capital Commitments, or by guarantying indebtedness incurred by the
Portfolio Company, in each case solely in order to facilitate the making of
investments in Portfolio Securities as expeditiously as practicable with the
most favorable pricing reasonably available. The proceeds of the sale,
refinancing or other disposition of Temporary Bridge Financing which has been
funded by the call of Capital Commitments shall, to the extent of the Partners'
Capital Contributions allocable thereto, be returned to the Partners in
proportion to such Partners' Capital Contributions allocable to such investment
within five (5) days after the receipt thereof by the Partnership. The Partners'
Capital Commitments remaining to be called shall thereafter include that portion
of such allocable Capital Contributions returned.
Section 4.3 Permanent Bridge Financing.
--------------------------
If and to the extent that Temporary Bridge Financing is not converted
into Portfolio Securities or sold or refinanced within one year after it is
provided, it promptly shall be converted as of the end of such one year period
into financing ("Permanent Bridge Financing") on terms and
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in proportions not less favorable to the Partnership, than those most recently
offered by the Partnership to prospective investors during the period that the
financing remained outstanding pursuant to Temporary Bridge Financing. If the
Temporary Bridge Financing was funded through borrowings by a Portfolio Company
guaranteed by the Partnership, the Partnership shall purchase its portion of the
Permanent Bridge Financing as if it were a permanent investment in a Portfolio
Company.
V.
DISTRIBUTIONS; WITHHOLDING; VALUATION; ALLOCATIONS
--------------------------------------------------
Section 5.1 Withdrawal of Capital.
---------------------
No Partner shall have the right to withdraw capital from the Partnership
or, except as otherwise set forth in this Agreement, to receive any distribution
or return of its Capital Contribution.
Section 5.2 Distributions Prior to Liquidation.
----------------------------------
A. Subject to Sections 5.3 and 5.4, and except to the extent deemed
necessary by the General Partner to reserve for Follow-on Investments pursuant
to Section 6.2.L and for Committed Investments pursuant to 6.2.M, Operating
Receipts for each fiscal year (or fractional portion thereof) shall be
distributed to the Partners in proportion to their respective Percentages of
Contributed Capital. Such distributions shall be made by the General Partner
within ninety (90) days after the close of each fiscal year and at such other
time or times as the General Partner shall determine.
B. Subject to Sections 5.3 and 5.4, and except to the extent deemed
necessary by the General Partner to reserve for Follow-on Investments pursuant
to Section 6.2.L and for Committed Investments pursuant to 6.2.M, the General
Partner shall determine from time to time (but not less often than annually) the
amount of Investment Receipts that are available for distribution, and shall
distribute such Investment Receipts as follows:
(1) First, to the Partners in proportion to their Percentages of
-----
Contributed Capital, until such Partners have received from all
distributions then or theretofore made pursuant to this Section
5.2.B(1), on a cumulative basis, an amount of distributions equal to
the sum of (i) their Capital Contributions Allocable to Liquidated
Portfolio Securities and (ii) all Management Fees that have been paid
out of the Capital Contributions of the Limited Partners to the
Management Company as of any date on which a distributions pursuant
to this Section 5.2 will be made;
-20-
(2) Second, twenty percent (20%) to the Partners in proportion to
------
their Percentages of Contributed Capital and eighty percent (80%) to
the General Partner until the General Partner has received pursuant
to this Section 5.2.B(2) an amount of distributions equal to twenty
percent (20%) of the sum of (x) amounts distributed to the Partners
in proportion to their Percentages of Contributed Capital pursuant to
(A) clause (i) of Section 5.2.B(1), but only to the extent of the
amount of Capital Contributions Allocable to Portfolio Securities
attributable to expenses set forth in Sections 6.5.A(1) and (4) that
have been allocated to a particular Portfolio Security and (B) clause
(ii) of Section 5.2.B(1), and (y) amounts distributed pursuant to
this Section 5.2.B(2); and
(3) Third, thereafter, eighty percent (80%) to the Partners in
-----
proportion to their Percentages of Contributed Capital and twenty
percent (20%) to the General Partner.
For purposes of this Agreement, all amounts distributed to the General Partner
pursuant to Sections 5.2.B(2) and 5.2.B(3) (other than in proportion to its
Percentage of Contributed Capital) shall be referred to herein as "Incentive
Distributions."
C. In addition to any other obligations hereunder, the General Partner
shall endeavor (if practical and reasonable to do so in light of the
circumstances of the Partnership) to distribute, if available, sufficient
amounts of Operating Receipts and/or Investment Receipts to the Partners in
accordance with this Article V to enable them to make timely payment of any
Federal, state, local and foreign income tax liabilities incurred by them or
their principals as a result of their participation in the Partnership.
D. As of any date on which the General Partner determines to make a
distribution of Investment Receipts, the General Partner shall determine,
pursuant to Section 5.6, the fair market value of each investment in a Portfolio
Company which has not been sold or disposed of. The extent to which the
aggregate fair market values of all such investments are less than the aggregate
cost bases of all such investments for book purposes shall constitute a "Deemed
Portfolio Loss". That portion of each Liquidated Portfolio Security equal to
the amount of Deemed Portfolio Loss allocated with respect thereto shall, upon
the deemed or actual sale of that Liquidated Portfolio Security, be deemed to
have been sold for an amount equal to the amount of Deemed Portfolio Loss and
shall be deemed to have a tax basis of zero, and the tax basis of the remaining
portion of the Liquidated Portfolio Security shall include the amount of such
Deemed Portfolio Loss.
E. If upon the liquidation of the Partnership the General Partner shall
have received as Incentive Distributions under Section 5.2B(3) (that have not
been recontributed to the Partnership pursuant to Section 5.3) an aggregate
amount in excess of the amount the General Partner would have received as
Incentive Distributions pursuant to Section 5.2B(3), including
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liquidating distributions, had the entire amount of Investment Receipts actually
received by the Partnership been received by the Partnership on the date of
liquidation of the Partnership, then the General Partner shall, to the extent of
all distributions received as Incentive Distributions pursuant to Section
5.2B(3) (that have not been recontributed to the Partnership pursuant to Section
5.3), pay to the Partners in proportion to their Percentages of Contributed
Capital such excess.
F. The General Partner shall establish in its name, but for the benefit
of the Partners, a separate bank account at a Financial Institution (the "Escrow
Account"), in which it will maintain an amount equal to the lesser of (i)
twenty-five percent (25%) of all Incentive Distributions paid to the General
Partner, and (ii) the amount required to be added to the fair market value of
the existing Portfolio Securities of the Partnership, determined pursuant to
Section 5.6, so that the resulting total exceeds the total amount of Capital
Contributions allocable to such investments by twenty-five percent (25%). Upon
the liquidation of the Partnership, the General Partner shall distribute to the
Partners from the Escrow Account, in proportion to their Percentages of
Contributed Capital, that portion of the escrowed funds equal to the General
Partner's required payment under Section 5.2.E, or if such required payment is
in excess of such escrowed funds, the total amount held in such Escrow Account
plus an amount, paid directly by the General Partner, that when added to the
escrowed funds equals the General Partner's required payment pursuant to Section
5.2.E. Any funds held in the Escrow Account upon liquidation of the Partnership
and after the required payment pursuant to this Section and Section 5.2.E shall
be distributed immediately to the General Partner. The General Partner will
direct the investment of amounts held in the Escrow Account, which shall in any
event be made solely in investments qualifying as Temporary Investments. All
income earned on the amounts retained in the Escrow Account shall be distributed
at the end of each calendar quarter immediately to the General Partner.
Section 5.3 Distributions Upon Liquidation.
------------------------------
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Upon the liquidation of the Partnership, the assets of the Partnership
shall first be applied to the payment of, or the establishment of adequate
reserves or other provision for the payment of, the debts and obligations of the
Partnership. Thereafter, there shall be made a final allocation of Operating
Income or Loss and Investment Gain or Loss, as the case may be, and other items
to the Partners' Capital Accounts in accordance with Section 5.7. If the General
Partner has a negative balance in its Capital Account after such final
allocation, it shall contribute to the Partnership an amount of cash equal to
the excess of such negative balance over the amount that it is required to pay
to the Partners pursuant to Section 5.2.E. Notwithstanding the foregoing, the
General Partner's obligation to pay such excess pursuant to this Section 5.3
shall not inure to the benefit of, or be invoked or enforced by or for the
benefit of, any creditor who has otherwise contractually obligated itself to
look solely to all or a part of the assets of the Partnership and not to the
assets of any Partner for satisfaction of any debt owed or owing to that
creditor by the Partnership. The assets of the Partnership, including any
Portfolio Securities, whether or not such securities are Marketable Securities
(or the proceeds of sales or other dispositions in liquidation of assets of the
Partnership) remaining after the payment or other provision for the
Partnership's debts and obligations shall then be distributed to the Partners in
proportion to the positive balances in their Capital Accounts, determined after
the final allocation of Operating Income or Loss and Investment Gain or Loss,
and of other items to Capital Accounts has been made; provided that the name of
the Partnership shall be transferred with a value of $1.00 ascribed thereto, to
the General Partner. For purposes of making this distribution, such assets shall
be valued pursuant to Section 5.6. Amounts reserved or set aside, in connection
with the Partnership's liquidation, for the payment of Partnership debts and
obligations, which are not utilized for such payment, shall be distributed to
the Partners in the same proportions that such amounts would have been
distributed hereunder if distributed upon the Partnership's liquidation, as soon
as practicable.
Section 5.4 Distributions of Securities in Kind.
-----------------------------------
A. The General Partner shall distribute to the Partners as an Investment
Receipt any Portfolio Securities that become Marketable Securities promptly upon
their becoming Marketable Securities, unless the General Partner determines that
a distribution of such securities would not serve the best interests of the
Partnership. Factors to be considered by the General Partner in making such a
determination shall include (i) the fiduciary obligations owed to the
stockholders of the issuer of such Marketable Securities by any Affiliate of the
General Partner who may serve as a director of such issuer, and (ii) whether
retention of such Marketable Securities shall serve the best interests of the
Partnership by maintaining control of or influence over the issuer of the
securities, stabilizing the market for such securities until such time as the
securities are either distributed to the Partners pursuant to this Section 5.4
or are sold or otherwise disposed of or facilitating subsequent offerings by the
issuer which shall include such Marketable Securities. The General Partner shall
notify the Limited Partners each time a Portfolio Security becomes a Marketable
Security. The General Partner shall not distribute Portfolio Securities that are
not Marketable Securities at any time other than upon the liquidation of the
Partnership.
-23-
B. With respect to securities distributed in kind to the Partners in
liquidation or otherwise, (i) any unrealized appreciation or unrealized
depreciation in the values of such securities shall be deemed to be realized by
the Partnership immediately prior to the liquidation or other distribution
event; and (ii) such appreciation or depreciation shall be allocated to the
Partners as part of the allocation of Investment Gain or Loss, as the case may
be, for the year of the distribution in accordance with Section 5.7 hereof, and
treating any property so distributed as a distribution of an amount in cash
equal to the fair market value of the property determined pursuant to Section
5.6. For the purposes of this Section 5.4.B, "unrealized appreciation" or
"unrealized depreciation" shall mean the difference between the fair market
value of such assets and the adjusted basis of such assets for federal income
tax purposes (or, in the case of any asset that is reflected on the books of the
Partnership at a value that is different from the Partnership's federal tax
basis in such asset in compliance with the Treasury Regulations, the value of
such asset as shown on the Partnership's books). This Section 5.4.B is merely
intended to provide a rule for allocating unrealized gains and losses upon
liquidation or other distribution event, and nothing contained in this Section
5.4.B or elsewhere in this Agreement is intended to treat or cause such
distributions to be treated as sales for value.
C. If any Partner would otherwise receive a distribution of an amount of
any securities that would cause such Partner to own or control in excess of the
amount of such securities that it may lawfully own or control or which, by
reason of any legal or contractual restriction, the General Partner may not
distribute to such Partner, the Partner shall, solely for purposes of this
Agreement, be treated as if it had received such securities as a distribution in
kind pursuant to Section 5.4.B. The General Partner shall, at the written
request of such Partner and to the extent it is practicable to do so, dispose of
all or any portion of such securities on behalf of and as the agent for such
Partner and distribute the proceeds of such disposition to such Partner;
provided that such Partner shall bear all of the reasonable expenses (including,
without limitation, underwriting costs) of such disposition. In the alternative,
at the request of such Partner, the General Partner shall use reasonable efforts
to recapitalize the Portfolio Company so as to distribute to such Partner non-
voting securities. In either event, any discrepancy between the actual gain or
loss recognized upon the sale or other disposition of Portfolio Securities
(including Marketable Securities) and the unrealized appreciation or unrealized
depreciation in the values thereof as determined under Section 5.4.B, shall
constitute gain or loss of the Partner to whom the securities were
constructively distributed, and shall in no event constitute gain or loss to the
Partnership.
D. The General Partner may cause certificates evidencing any securities
to be distributed to be imprinted with legends as to such restrictions on
transfers that it may deem necessary, including legends as to applicable federal
or state securities laws or other legal or contractual restrictions, and may
require any Partner to which securities are to be distributed to agree in
writing that such securities will not be transferred except in compliance with
such restrictions and applicable law.
-24-
Section 5.5 Withholding.
-----------
Each Partner hereby authorizes the Partnership to withhold and to pay
over any withholding taxes payable by the Partnership, to the extent required by
applicable law, as a result of such Partner's status as a Partner hereunder. If
and to the extent that the Partnership shall be required under applicable law to
withhold any such taxes, such Partner shall be deemed for all purposes of this
Agreement to have received a payment from the Partnership as of the time such
withholding is required to be paid, which payment shall be deemed to be a
distribution to the extent that the Partner is then entitled to receive a
distribution. The amount of any distribution to which such Partner would
otherwise be entitled shall be reduced by the amount of such deemed
distribution. To the extent that the aggregate of such payments to a Partner for
any period exceeds the distributions to which such Partner is entitled for such
period, the amount of such excess shall be considered a loan from the
Partnership to such Partner, with interest at the Treasury Rate, until
discharged by such Partner by repayment, which may be made out of distributions
to which such Partner would otherwise be subsequently entitled. The withholdings
referred to in this Section 5.5 shall be made at the maximum statutory rate
applicable to such Partner under the applicable tax law unless the General
Partner shall have received either (i) an opinion of counsel, satisfactory to
the General Partner, to the effect that a lower rate is applicable, or that no
withholding is applicable, or (ii) any form authorized by the relevant taxing
authority signed by a Partner that establishes that no withholding is required
for such Partner.
Section 5.6 Valuation.
---------
For purposes of this Agreement, except as specifically provided in
Sections 3.4.C, and 8.5, securities and other property of the Partnership shall
be valued as follows:
A. The Portfolio Securities of the Partnership shall be valued by the
General Partner pursuant to subparagraphs B, C, D and E hereof (i) at the time
of any distribution pursuant to Section 5.2 in order to determine the amount of
any Deemed Portfolio Loss, (ii) at the time of any distribution pursuant to
Section 5.4, (iii) upon the distribution of Partnership assets in liquidation
pursuant to Section 5.3 and (iv) annually pursuant to Section 10.3.
B. Marketable Securities shall (i) if traded on a national securities
exchange, be valued at the average of their last sales prices on such exchange
on which such Marketable Securities shall have traded on the last ten (10)
trading days on which such Marketable Securities were traded immediately
preceding the date of determination, or (ii) if the trading of such Marketable
Securities is reported through the National Association of Securities Dealers
Automated Quotation System, such Marketable Securities shall be valued at the
average of the last closing "bid" prices as shown by the National Association of
Securities Dealers Automated Quotation System on the last ten (10) trading days
on which such Marketable Securities were traded immediately preceding the date
of determination.
-25-
C. Except as provided in subparagraph E below, all property other than
Marketable Securities shall be valued by the General Partner in such manner as
it may determine in good faith. Factors considered in valuing individual
securities will include purchase price, prices received in recent significant
private placements of securities of the same issuer, prices of securities of
comparable public and private companies engaged in similar businesses and
changes in the financial condition and prospects of the issuer.
D. If within thirty (30) days after receipt of notice of any valuation
made pursuant to subparagraph C above Two-Thirds in Interest of the Limited
Partners shall so request, the General Partner shall obtain at the expense of
the Partnership a valuation of any securities or other property from an
independent firm of investment bankers of nationally recognized standing
selected by the General Partner and approved by Two-Thirds in Interest of the
Limited Partners, such approval not to be unreasonably withheld. The decision of
such firm shall be binding on all Partners. Each distribution in kind of
securities other than Marketable Securities subject to valuation under
subparagraph B shall be accompanied by a notice from the General Partner
reminding the Limited Partners of their right to require an independent
valuation under this subparagraph D.
E. Upon liquidation of the Partnership, all assets which will be
distributed to the Partners in liquidation, other than Marketable Securities
subject to valuation under subparagraph B above, shall, upon request by Two-
Thirds in Interest of the Limited Partners, be valued by an independent firm of
investment bankers of nationally recognized standing selected by the General
Partner. The decision of such firm as to the liquidation value of all such
assets shall be binding on all Partners.
Section 5.7 Allocations of Operating Income and Loss and Investment Gain
------------------------------------------------------------
and Loss.
--------
A. Subject to Sections 5.8 and 5.9, all Operating Income and Operating
Loss of the Partnership shall be allocated to the Partners in proportion to
their Percentages of Contributed Capital.
B. Subject to Sections 5.8 and 5.9, an Investment Gain for any fiscal
year or other accounting period of the Partnership shall be allocated as follows
and in the following order of priority as of the close of such fiscal year or
other accounting period:
(1) First, to the General Partner until there has been allocated on
-----
a cumulative basis pursuant to this Section 5.7.B(1) for all fiscal
years and other accounting periods of the Partnership an amount of
Investment Gain equal to the amount of Investment Loss that has been
allocated pursuant to Section 5.7.C(3) for all fiscal years and other
accounting periods of the Partnership;
-26-
(2) Second, to the Partners, in proportion to their Percentages of
------
Contributed Capital, until there has been allocated on a cumulative
basis pursuant to this Section 5.7.B(2) for all fiscal years and
other accounting periods of the Partnership an amount of Investment
Gain equal to the amount of Investment Loss that has been allocated
pursuant to Section 5.7.C(2) for all fiscal years and other
accounting periods of the Partnership;
(3) Third, to the Partners, in proportion to their Percentages of
-----
Contributed Capital, until there has been allocated on a cumulative
basis for all fiscal years and other accounting periods of the
Partnership pursuant to this Section 5.7.B(3), an amount of Net
Investment Gain equal to the sum of (i) the amount of Deemed
Portfolio Loss that has been included in the determination of Capital
Contributions Allocable to Liquidated Portfolio Securities for
purposes of making distributions pursuant to Section 5.2.B, and (ii)
the amount of distributions made with respect to Management Fees
pursuant to clause (ii) of Section 5.2.B(1);
(4) Fourth, eighty percent (80%) to the General Partner and twenty
------
percent (20%) to the Partners in proportion to their Percentages of
Contributed Capital until the General Partner has been allocated on a
cumulative basis for all fiscal years and other accounting periods of
the Partnership pursuant to this Section 5.7.B(4), in addition to
allocations made to the General Partner pursuant to this Section 5.7
in proportion to its Percentage of Contributed Capital, an amount of
Net Investment Gain of the Partnership equal to the amount
distributed to the General Partner pursuant to Section 5.2.B(2);
(5) Fifth, thereafter with respect to the remaining Net Investment
-----
Gain, eighty percent (80%) to the Partners, in proportion to their
Percentages of Contributed Capital, and twenty percent (20%) to the
General Partner.
C. Subject to Sections 5.8 and 5.9, an Investment Loss for any fiscal
year or other accounting period of the Partnership shall be allocated as follows
and in the following order of priority as of the close of such fiscal year or
other accounting period:
(1) First, to the extent of the Net Investment Gain, if any, that has
-----
been allocated hereunder for all prior fiscal years and other
accounting periods, to the Partners in proportion to the respective
amounts, if any, by which (i) their allocations of Net Investment
Gain for all such prior years and other periods exceed (ii) their
Target Allocations as of the close of the fiscal year or other period
for which an Investment Loss is then being allocated;
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(2) Second, to the Partners, in proportion to their Percentages of
------
Contributed Capital, until the Limited Partners' Capital Accounts
have been reduced to zero; and
(3) Third, thereafter, to the General Partner.
-----
Section 5.8 Special Provisions.
------------------
The following provisions shall be complied with notwithstanding any
provision of this Agreement other than Section 5.9:
A. If any Partner unexpectedly receives any adjustment, allocation or
distribution described in Sections 1.704-1(b)(2) (ii)(d)(4), 1.704-
1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations which
causes it to have an, or increases the amount of its, Adjusted Capital Account
Deficit, items of Partnership income and gain shall be specially allocated to
such Partner in an amount and manner sufficient to eliminate, to the extent
required by the Treasury Regulations, such Partner's Adjusted Capital Account
Deficit as quickly as possible, provided that an allocation pursuant to this
Section 5.8.A shall be made to a Partner only if and to the extent that such
Partner would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article V have been tentatively made as if this
Section 5.8.A were not in this Agreement. This Section 5.8.A is intended to
constitute a "qualified income offset" as defined in Section 1.704-
1(b)(2)(ii)(d) of the Treasury Regulations.
B. Notwithstanding Section 5.7.C, an allocation of Operating Loss or
Investment Loss shall not be made to a Partner to the extent that such
allocation would cause such Partner to have an Adjusted Capital Account Deficit.
An allocation that would be made to a Partner but for this Section 5.8.B shall
instead be made to the other Partners to the extent, and in the proportions,
that they could then be made such allocation without causing them to have
Adjusted Capital Account Deficits. Any excess allocation of Operating Loss or
Investment Loss shall be made to the General Partner.
C. The allocations set forth in Sections 5.8.A, 5.8.B, and 5.9 hereof
(the "Regulatory Allocations") are intended to comply with certain provisions of
the Treasury Regulations. Notwithstanding any other provision of this Article V,
the Regulatory Allocations shall be taken into account in making allocations of
other items of income, gain, loss, deduction and expenditure among the Partners
so that, to the extent possible consistent with the Code and the Treasury
Regulations, and on a cumulative basis, the respective net amounts of such
allocations of other items and the Regulatory Allocations to the Partners are
equal to the respective net amounts that would have been allocated to the
Partners had no Regulatory Allocations been made. The General Partner shall
apply this Section 5.8.C at such times, in such order and in such manner as it
determines, in its sole discretion, is likely to minimize any economic
distortions caused by the Regulatory Allocations.
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D. If contributions that would otherwise be required pursuant to Section
3.1 with respect to the interest in the Partnership of a particular Limited
Partner are excused hereunder or by law, such interest shall be treated for
purposes of this Article V as an interest in a separate portfolio of assets in
which, subject to all other provisions of this Agreement, only such Limited
Partner (or his assignees or legatees) and the General Partner shall be entitled
to participate (as provided in this Article V). Such separate portfolio shall
consist of such Limited Partner's pro rata share (by allocable Capital
Contribution) of each Portfolio Security the Partnership's interest in which
was, or the assets of which were, acquired in part with capital contributions of
such Limited Partner. Such Limited Partner (and his assignees and legatees)
shall have no interest in the Partnership or its assets to the extent not
included in, and shall have no right to participate in the results of the
Partnership to the extent not attributable to, such separate portfolio. A
separate portfolio shall be charged with portions of the Partnership's expenses,
liabilities, costs and reserves in such manner as the General Partner reasonably
determines to be fair and equitable.
E. Income, gain, loss and deduction with respect to property contributed
to the Partnership by a Partner shall be shared among the Partners so as to take
account of the variation between the basis of the property to the Partnership
and its fair market value at the time of contribution in accordance with the
principles of Section 704(c) of the Code.
Section 5.9 Special Provisions in the Event of Borrowings or a Section
----------------------------------------------------------
754 Election.
------------
A. If the Partnership incurs any borrowings, the Partnership (i) shall
allocate any "non-recourse deductions," computed and determined in accordance
with Sections 1.704-2(b)(1), 1.704-2(c) and 1.704-2(j) of the Treasury
Regulations, it may have twenty percent (20%) to the General Partner and eighty
percent (80%) to the Partners in proportion to their Percentages of Contributed
Capital, (ii) shall allocate any "partner non-recourse deductions," computed and
determined in accordance with Sections 1.704-2(i)(1), 1.704-2(i)(2) and 1.704-
2(j) of the Treasury Regulations, it may have so as to comply with Section
1.704-2(i) of the Treasury Regulations and (iii) shall make such allocations as
are necessary to comply with the "minimum gain chargeback" provisions of
Sections 1.704-2(f), 1.704-2(i) and 1.704-2(j) of the Treasury Regulations,
taking into account all exceptions provided by such provisions to the
applicability of this clause (iii).
B. To the extent an adjustment to the adjusted tax basis of any asset of
the Partnership pursuant to Section 734(b) or Section 743(b) of the Code is
required, pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations,
to be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset), and such gain or loss shall be specially
allocated to the Partners in a manner that is consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to Section
1.704-1(b)(2)(iv)(m) of the Treasury Regulations.
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VI.
MANAGEMENT; PAYMENT OF EXPENSES
-------------------------------
Section 6.1 Description of General Partner.
------------------------------
@Ventures Expansion Partners, LLC is the General Partner of the
Partnership.
Section 6.2 Management by the General Partner.
---------------------------------
The management, policy and operation of the Partnership shall be vested
exclusively in the General Partner who shall perform all acts and enter into and
perform all contracts and other undertakings which it deems necessary or
advisable to carry out any and all of the purposes of the Partnership. Without
limiting the foregoing general powers and duties, and except as is otherwise
expressly set forth herein, the General Partner is hereby authorized and
empowered on behalf of the Partnership and, as relevant herein, is required:
A. To enter into a Management Contract with the Management Company on
the terms, including those pertaining to payment of the Management Fee, set
forth in Exhibit A attached hereto; provided that such Contract may not be
---------
amended without the written consent of Two-Thirds in Interest of the Limited
Partners unless such Contract is amended to increase the Management Fee, in
which case unanimous consent of the Limited Partners shall be required in
accordance with Section 12.3.
B. To identify investment opportunities for the Partnership, negotiate
and structure the terms of such investments, arrange additional financing needed
to consummate such investments and monitor such investments.
C. To invest the assets of the Partnership in the securities of any
organization, domestic or foreign, without other limitation as to kind and
without other limitation as to marketability of the securities, and pending such
investment, to invest the assets of the Partnership in Temporary Investments.
D. To exercise all rights, powers, privileges and other incidents of
ownership with respect to the Portfolio Securities, including, without
limitation the voting of such Portfolio Securities, the approval of a
restructuring of an investment, participation in arrangements with creditors,
the institution and settlement or compromise of suits and administrative
proceedings, and other similar matters.
E. To sell, transfer, liquidate or otherwise terminate investments made
by the Partnership.
F. To employ or consult brokers, accountants, attorneys, or specialists
in any field of endeavor whatsoever, including such persons or firms who may be
Partners, provided,
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however, that no Affiliate of the General Partner may be hired or employed
without the approval of Two-Thirds in Interest of the Limited Partners.
G. To deposit any funds of the Partnership in any bank or trust company
or money market fund provided that, in the case of any bank or trust company
such bank or trust company qualifies as a Financial Institution and in the case
of any money market fund such fund would qualify as a money market fund in which
the Partnership may make a Temporary Investment, and to entrust to such bank or
trust company any of the securities, monies, documents and papers belonging to
or relating to the Partnership; provided, however, that from time to time, in
order to facilitate any transaction, any of the said securities, monies,
documents and papers belonging to or relating to the Partnership may be
deposited in and entrusted to any brokerage firm that is a member of the New
York Stock Exchange and which has minimum net capital of $10 million as
calculated in accordance with the Securities Exchange Act of 1934.
H. To determine, settle and pay all expenses, debts and obligations of
and claims against the Partnership and, in general, to make all accounting and
financial determinations and decisions.
I. To enter into, make and perform all contracts, agreements and other
undertakings as may be determined to be necessary or advisable or incident to
the carrying out of the foregoing objectives and purposes, the execution thereof
by the General Partner to be conclusive evidence of such determination.
J. To execute all other instruments of any kind or character which the
General Partner determines to be necessary or appropriate in connection with the
business of the Partnership, the execution thereof by the General Partner to be
conclusive evidence of such determination.
K. To provide Bridge Financing on the terms and subject to the
conditions set forth in Section 4.1 to Portfolio Companies and to borrow funds
and provide guarantees in the name and on behalf of the Partnership in
connection therewith solely in order to facilitate or expedite the closing of
investments in Portfolio Securities.
L. To make Follow-on Investments in Portfolio Companies from Capital
Contributions called from the Partners pursuant to Section 3.1 and, after the
end of the Commitment Period, from amounts reserved from Operating Receipts and
Investment Receipts. The aggregate amount of Follow-on Investments made after
the end of the Commitment Period shall not exceed the lesser of (x) the uncalled
Capital Commitments as of the last day of the Commitment Period reduced by
Capital Contributions used to make Committed Investments or (y) ten percent
(10%) of the Capital Commitments of the Partnership. Except upon the approval
of Two-Thirds in Interest of the Limited Partners, no Follow-on Investment may
be made by the Partnership after the third anniversary of the last day of the
Commitment Period.
-31-
M. To make Committed Investments in Portfolio Companies after the end of
the Commitment Period from Capital Contributions called from the Partners
pursuant to Section 3.1 and from amounts reserved from Operating Receipts and
Investment Receipts. The General Partner shall notify the Limited Partners at
the end of the Commitment Period of any Committed Investments of the Partnership
described in clause (i) of the definition thereof. In addition, any Committed
Investment of the Partnership described in clause (i) of the definition thereof,
shall be consummated within six months of the end of the Commitment Period. The
aggregate amount of Committed Investments shall not exceed the lesser of (x) the
uncalled Capital Commitments as of the last day of the Commitment Period reduced
by Capital Contributions used to make Follow-on Investments after the end of the
Commitment Period or (y) fifteen percent (15%) of the Capital Commitments of the
Partnership. Except upon the approval of Two-Thirds in Interest of the Limited
Partners, no Committed Investment may be made by the Partnership after the third
anniversary of the last day of the Commitment Period.
N. Subject to Section 6.2.O, to guarantee obligations of Portfolio
Companies, provided that the sum of any such guarantee, the Partnership's
investment in Portfolio Securities of such Portfolio Company and the amount of
Bridge Financing provided that total guarantees made by the Partnership at any
one time shall not exceed twenty percent (20%) of the aggregate Capital
Commitments of the Partnership, exclusive of guarantees made in connection with
Temporary Bridge Financing.
O. To use best efforts to avoid the generation of UBTI to Tax-Exempt
Partners understanding that it is the intention of the General Partner not to
make or structure investments by the Partnership or operate the Partnership in
such a manner so that UBTI is generated to such Partners.
P. To take such steps as the General Partner shall consider necessary or
appropriate in its sole discretion to cause the Partnership to qualify as a
Venture Capital Operating Company as of the date of the Partnership's first
acquisition of Portfolio Securities and at all relevant times thereafter.
Q. To cause the Partnership or one or more corporate subsidiaries of the
Partnership to borrow funds (i) to purchase Portfolio Securities pending the
receipt of Capital Contributions called from the Partners pursuant to Section
3.1, or (ii) to provide Bridge Financing to a Portfolio Company pursuant to
Section 4.2; provided, however, that the Partnership shall not borrow funds as
provided in this Section 6.2.Q, if as a result of such borrowing UBTI would be
generated to Tax-Exempt Partners; and provided, further, that any borrowing
shall be on terms that are no less favorable to such corporate subsidiary than
those applicable to loans extended by the lender to borrowers comparable to such
corporate subsidiary, and that the General Partner shall cause the corporate
subsidiary to retire this indebtedness with such Capital Contributions
immediately upon receipt thereof.
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Section 6.3 Powers of Limited Partners.
--------------------------
The Limited Partners shall not participate in the control of the
Partnership and shall have no authority to act for or bind the Partnership.
Section 6.4 Continuity Mode.
---------------
If during the Commitment Period, or during the eighteen month period
after the end of the Commitment Period, three or more of Xxxxx X. Xxxxx,
Xxxxxxxx Xxxxxxxxx, Xxx X. Xxxxxxx, Xxxx X. Xxxxxxx, Xxxx Xxxxxxxxxxxx and Xxxxx
X. Xxxxxx, Xx. cease to be members of either the General Partner or the
Management Company or otherwise cease to be actively involved in the business
thereof (such event hereinafter referred to as a "Triggering Event"), prompt
notice of such Triggering Event shall be given to all Limited Partners. At any
time within ninety (90) days after receipt of notice of a Triggering Event, Two-
Thirds in Interest of the Limited Partners may by an election in writing
determine to put the Partnership in a Continuity Mode. While in a Continuity
Mode (i) the General Partner shall only be permitted to retain the investments
of the Partnership and to make further investments solely in (x) Temporary
Investments, (y) securities of companies as to which the Partnership had an
existing legal commitment to make an investment on the date the Partnership was
put in the Continuity Mode and (z) investments in current Portfolio Companies
being considered on the date the Partnership was placed in a Continuity Mode,
and (ii) the General Partner shall not be permitted to call for payment of any
remaining installments of Capital Commitments except for the purpose of funding
investment commitments pursuant to (y) and (z) above and to pay current expenses
of the Partnership pursuant to Section 6.5 of this Agreement. Except as
hereinabove expressly provided, from and after the date the Partnership enters
the Continuity Mode, the General Partner shall continue to act on behalf of the
Partnership to perform the functions of the General Partner and to have all the
rights and privileges of the General Partner hereunder. If within sixty (60)
days after commencement of the Continuity Mode (or such shorter period of time
as may be agreed to by Two-Thirds in Interest of the Limited Partners) Two-
Thirds in Interest of the Limited Partners do not by an election in writing
remove the General Partner or dissolve the Partnership, the Continuity Mode
shall automatically terminate and all decisions with respect to the management
and operation of the Partnership will again be made by the General Partner in
accordance with the terms of this Agreement. As provided in the Management
Contract, the Management Fee shall be reduced by one half while the Partnership
is in the Continuity Mode.
Section 6.5 Payment of Fees and Expenses.
----------------------------
Fees and expenses incurred with respect to the business of the
Partnership shall be payable as follows:
A. Subject to the provisions of Section 6.5.D, the Partnership shall be
responsible for and shall pay all fees and reasonable expenses not specified in
subparagraph B as being the responsibility of the Management Company, including
without limitation:
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(1) out-of-pocket expenses incurred and fees paid by the Partnership
or the General Partner in connection with the formation of the
Partnership and the offering and distribution of interests therein
to the Limited Partners in an amount not in excess of $200,000 (when
aggregated with amounts paid by the Foreign Fund in connection with
the formation of the Foreign Fund and the offering and distribution
of interests therein);
(2) any government or regulatory filings, returns or reports,
including without limitation fees and expenses for annual reports
and foreign qualification certificates;
(3) expenses incurred in connection with the administration of the
Partnership including without limitation, the Management Fee and
fees paid to consultants, custodians, outside counsel, accountants,
agents, investment bankers and other similar outside advisors;
(4) unreimbursed fees and out-of-pocket costs of acquiring, holding
or selling, Temporary Investments, Portfolio Securities or Bridge
Financing, whether or not such transactions close, including fees
and expenses of consultants, outside counsel and accountants and
similar outside advisors in connection with identifying, evaluating,
structuring and consummating potential investments by the
Partnership and recordkeeping expenses and finders', placement,
brokerage and other similar fees; provided that with respect to
consummated investments, it is expected, and the Management Company
will use its reasonable best efforts to ensure, that such fees and
expenses paid by the Partnership will be reimbursed by the Portfolio
Company in which the investment is made;
(5) out-of-pocket costs of reporting to the Limited Partners;
(6) any taxes, fees or other governmental charges levied against the
Partnership or on its income or assets or in connection with its
business or operations;
(7) costs of litigation or other matters that are the subject of
indemnification pursuant to Section 9.3; and
(8) costs of winding-up and liquidating the Partnership.
B. The Management Company, so long as the Management Contract is in
effect, shall be responsible for and shall pay all of its out-of-pocket expenses
and those of the General Partner, including expenses which relate to salaries,
office space, supplies and other facilities of their businesses except as set
forth in Section 6.5.A(4).
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C. The Management Company shall serve as the management company of the
Partnership in accordance with the terms of the Management Contract, and shall
be entitled to receive a Management Fee in the amount and payable in the manner
provided in such Contract.
D. The amount of any unreimbursed fees and expenses incurred directly in
connection with a proposed or consummated investment in a Portfolio Company and
payable by the Partnership under subparagraph A shall be allocated among the
Partnership, the Foreign Fund and Expansion LLC in proportion to the amount
which would have been or which was invested by each.
E. Subject to Section 6.2.O, any Break-Up Fee payable to the
Partnership, the General Partner, the Management Company or their respective
Affiliates shall be paid as follows. An amount equal to the aggregate
unreimbursed fees and expenses paid by the Partnership, the General Partner, the
Management Company or their Affiliates which were specific to the transaction
giving rise to such fee shall be paid to each such entity in proportion to the
fees and expenses incurred by it. The balance of any such Break-Up Fee shall be
paid to the Management Company; provided that one-half of the remaining Break-Up
Fee shall be credited against the Management Fee payable by the Partnership, the
Foreign Fund and Expansion LLC in subsequent periods as follows: 19.9% of such
amount shall be credited against the Management Fee payable by Expansion LLC and
the balance shall be credited against the Management Fee payable by the
Partnership and the Foreign Fund in proportion to their respective aggregate
capital commitments.
F. The General Partner, the Management Company and their respective
Affiliates shall be entitled to receive management, directors', consulting and
other similar fees and compensation from Portfolio Companies; provided that the
amount of such fees and other compensation is reasonable in relation to the work
involved and bears a reasonable relation to fees and compensation charged for
similar work by third parties. One half of such fees shall be credited against
the Management Fee payable by the Partnership, the Foreign Fund and Expansion
LLC as follows: 19.9% of such amount shall be credited against the Management
Fee payable by Expansion LLC and the balance shall be credited against the
Management Fee payable by the Partnership and the Foreign Fund in proportion to
their respective aggregate capital commitments and if such portion of such fees
exceeds the Management Fee, such excess shall be credited against the Management
Fee payable by the Partnership, the Foreign Fund and CMGI in subsequent periods
(in the same proportions). To the extent such amounts exceed total future
installments of the Management Fee, they shall be paid to the Partnership, the
Foreign Fund and CMGI in the same proportions and included in their respective
Operating Receipts.
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VII.
OTHER ACTIVITIES OF PARTNERS; CO-INVESTMENT OBLIGATION
------------------------------------------------------
Section 7.1 Commitment of General Partner.
-----------------------------
The General Partner hereby agrees to use its best efforts in furtherance
of the purposes and objectives of the Partnership and to devote to such purposes
and objectives such of its time as shall be necessary for the management of the
affairs of the Partnership. Each of the members of the General Partner shall
devote to the Partnership such time as may be reasonably necessary to manage the
assets of the Partnership for the benefit of the investors therein.
Subject to the other provisions of this Agreement, the General Partner
and any of its Affiliates (i) may act as a director, officer, employee or
advisor of any corporation, a trustee of any trust, or a partner of any
partnership; (ii) may receive compensation for his services as an advisor with
respect to, or participation in profits derived from, the investments of any
such corporation, trust or partnership; and (iii) may, subject to the time
commitments as set forth above, acquire, invest in, hold and sell securities of
any entity. Neither the Partnership nor any other Partner shall have by virtue
of this Agreement, any right, title or interest in or to such other corporation,
trust, partnership or investment.
Section 7.2 Dealings with Limited Partners.
------------------------------
The General Partner shall not enter into any agreement, contract,
modification or undertaking of any kind with any Limited Partner that would
grant rights in the Partnership as a Limited Partner by the acquisition of a
Capital Commitment that are more favorable than those offered to any other
Limited Partner. Notwithstanding the foregoing, the General Partner may permit
certain Limited Partners to co-invest with it and the Partnership in Portfolio
Securities and may enter into agreements with any Limited Partner for the
provision to the Partnership or the General Partners of any services thereunder,
provided that any such agreement will be on terms equivalent to those entered
into with independent third parties.
Section 7.3 Investments by the Partnership, the Foreign Fund, CMG
-----------------------------------------------------
@Ventures Expansion LLC and @Ventures Expansion Investors LLC.
-------------------------------------------------------------
A. Except to the extent prohibited by applicable law, the General
Partner shall cause the Partnership to co-invest with the Foreign Fund in all
securities in which the Foreign Fund invests, and on the same terms and at the
same times as the Foreign Fund; however, the Limited Partners agree and
acknowledge that the Foreign Fund has the right and option to elect not to
participate in any investment in which the Partnership has determined to invest.
If the Foreign Fund and the Partnership both participate in any particular
investment, such investment shall be made at the same time and on the same
terms. The respective amounts to be invested by
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the Partnership, the Foreign Fund, Expansion Investors LLC and Expansion LLC in
any investment in a Portfolio Company shall be as described in Section 7.3.D
below.
B. Except to the extent prohibited by applicable law, Expansion LLC will
co-invest with the Partnership (and the Foreign Fund, if applicable) in all
investments in Portfolio Companies made by the Partnership on the terms
described and to the extent provided in Section 7.3.C and D below. Expansion LLC
may assign all or any portion of such co-investment obligation to any of its
Affiliates, including, without limitation, any CMGI Fund; however, for purposes
of this Section 7.3, the co-investment obligation shall remain an obligation of
Expansion LLC.
Except to the extent prohibited by applicable law, Expansion Investors
LLC or another entity consisting of principals of CMGI and/or the Management
Company or other persons who perform services to or for the benefit of the
Partnership will co-invest with the Partnership (and the Foreign Fund, if
applicable) in all investments in Portfolio Companies made by the Partnership on
the terms described and to the extent provided in Section 7.3.C and D below.
The respective amounts to be invested by the Partnership, the Foreign
Fund, Expansion LLC and Expansion Investors LLC in any investment in a Portfolio
Company shall be as described in Section 7.3.D below. The obligations of
Expansion LLC and Expansion Investors LLC to co-invest with the Partnership are
hereinafter referred to as their respective "Co-investment Obligations."
C. The co-investment obligation of Expansion LLC and Expansion Investors
LLC shall arise with respect to all investments made by the Partnership in
Portfolio Companies (including Follow-on Investments, Committed Investments,
Bridge Financing and through the funding of guarantees), shall be satisfied in
cash and shall be made on the same terms, at the same price and in securities
identical to the Portfolio Securities purchased by the Partnership.
D. In the case of each investment in a Portfolio Company in which the
Partnership invests:
(i) Expansion LLC shall invest an amount equal to the 19.9% of the
aggregate amount invested by the Partnership, the Foreign Fund (if any),
Expansion LLC and Expansion Investors LLC.
(ii) Expansion Investors LLC shall invest an amount equal to the 2%
of the aggregate amount invested by the Partnership, the Foreign Fund (if
any), Expansion LLC and Expansion Investors LLC.
(iii) If the Foreign Fund elects not to participate in any
investment, the Partnership shall purchase the balance of such
investment. If the Foreign Fund elects to participate in any investment,
the balance of such investment shall be acquired by
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the Partnership and the Foreign Fund, and the ratio of the amount
invested by the Partnership and the Foreign Fund in each investment in a
Portfolio Company in which the Foreign Fund elects to invest shall be the
ratio that the respective Capital Commitments to the Partnership and the
Foreign Fund bear to each other.
Section 7.4 Co-investments by the Other Participating Funds.
-----------------------------------------------
(a) None of the Foreign Fund, Expansion LLC or Expansion Investors
LLC (each an "Other Participating Fund") shall at any time sell, exchange,
transfer or otherwise dispose of any securities that were acquired as a co-
investment with the Partnership in the same investment opportunity as
contemplated by Section 7.3 unless (i) the Partnership also sells, exchanges,
transfers or otherwise disposes of, at substantially the same time, securities
that were acquired by the Partnership in such investment opportunity, and the
aggregate amount of such securities sold, exchanged, transferred or otherwise
disposed of by the Partnership and such Other Participating Fund is pro rata in
proportion to the aggregate amount respectively invested by the Partnership and
such Other Participating Fund and (ii) the terms of such sale, exchange,
transfer or other disposition, except to the extent necessary to address
regulatory or other legal considerations, are substantially the same as those
applicable to such sale, exchange, transfer or other disposition by the
Partnership at such time. In connection with any sale, exchange, transfer or
other disposition by the Partnership at any time of any securities comprising
all or part of an investment acquired pursuant to any investment opportunity,
each of the Other Participating Funds shall, at substantially the same time,
sell, exchange, transfer or otherwise dispose of securities in respect of its
related co-investment in an aggregate amount equal to the amount determined
pursuant to clause (i) of the immediately preceding sentence and on terms
described in clause (ii) of the immediately preceding sentence.
(b) The General Partner undertakes, represents and warrants that the
partnership agreement or other operative agreement for each of the Other
Participating Funds will contain provisions substantially to the effect set
forth in Section 7.4(a) and that no such provision of such limited partnership
agreements shall be amended or waived unless Section 7.4(a) shall have been
amended or waived in substantially the same manner; provided that, the Partners
agree and acknowledge that the Foreign Fund is not required to participate in
any investment, as described in Section 7.3.A above.
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VIII.
ADMISSIONS; ASSIGNMENTS; REMOVAL AND WITHDRAWALS
------------------------------------------------
Section 8.1 Admission of Additional General Partner.
---------------------------------------
It is not contemplated that any additional general partners will be
admitted to the Partnership. A person may be admitted to the Partnership as a
general partner only with the written consent of the General Partner and Two-
Thirds in Interest of the Limited Partners. Any such person so admitted as a
general partner shall be liable for all the obligations of the Partnership
arising before its admission as though it had been a general partner when such
obligations were incurred. In the event of the addition of a general partner,
the participation of such person in the management of the Partnership and the
interest of such person in the Partnership's Operating Income and Loss and
Investment Gain and Loss must be approved by the General Partner and Two-Thirds
in Interest of the Limited Partners at the time of such person's admission.
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Section 8.2 Admission of Additional Limited Partners.
----------------------------------------
After the expiration of the 270 day period commencing on the Initial
Closing Date of the Partnership, additional Limited Partners (other than
Substitute Limited Partners admitted pursuant to Section 8.3) shall be admitted
to the Partnership only with the written consent of, and on the terms approved
by, all Partners. Until such time, the General Partner may admit one or more
additional Limited Partners, subject only to satisfaction of the following
conditions: (i) each such additional Limited Partner shall execute and deliver a
Subscription Agreement and an appropriate amendment to this Agreement pursuant
to which such additional Limited Partner agrees to be bound by the terms and
provisions hereof, (ii) such admission would not result in a violation of any
applicable law, including the federal or state securities laws, or any term or
condition of this Agreement and, as a result of such admission, the Partnership
would not be required to register as an investment company under the Investment
Company Act, and (iii) such additional Limited Partner shall pay to the
Partnership, on the date of its admission to the Partnership, an amount equal to
the sum of (x) the percentage of its Capital Commitment which is equal to the
percentage of the other Limited Partners' Capital Commitments that shall have
been payable at or prior to the admission of the additional Limited Partner, and
(y) an amount equal to interest on that portion of the Capital Commitment
payable upon admission at the Treasury Rate from the date such portion would
have been payable if such additional Limited Partner had been admitted on the
date of formation of the Partnership to the date of actual payment, which amount
shall be treated as Operating Receipts. The Partnership shall pay, from such
initial Capital Contribution of such additional Limited Partner, its allocable
portion of the Management Fee computed as if such additional Limited Partner had
been a Partner of the Partnership since the Initial Closing Date. The name and
business address of each Limited Partner admitted to the Partnership under this
Section 8.2 and the amount of its Capital Commitment shall be added to Schedule
--------
1 hereto. Each additional Limited Partner admitted pursuant to this Section 8.2
-
during the 270 day period commencing with the formation of the Partnership shall
be deemed for purposes of all allocations of Operating Income or Loss and
Investment Gain or Loss to have been admitted on the date of formation of the
Partnership. Admission of an additional Limited Partner shall not be a cause of
dissolution of the Partnership.
Section 8.3 Assignment of Partnership Interest.
----------------------------------
The General Partner shall not assign or otherwise transfer its interest
as the general partner of the Partnership. A Limited Partner may assign or
otherwise transfer all or any part of its interest in the Partnership (provided
that such part shall include a Capital Commitment, whether funded or unfunded,
of at least $1 million), subject to the limitations set forth in Section 8.4.
The assignee or transferee of a Limited Partner's interest in the Partnership
(an "Assignee") shall have the right to become a Substitute Limited Partner only
if the following conditions are satisfied:
A. A duly executed and acknowledged written instrument of assignment
shall have been filed with the Partnership.
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B. The Limited Partner and the Assignee shall have executed and
acknowledged such other instruments and taken such other action as the General
Partner shall reasonably deem necessary or desirable to effect such
substitution, including, without limitation, the execution by the Assignee of a
Subscription Agreement, an appropriate amendment to this Agreement and a Power
of Attorney substantially similar to that referred to in Section 12.8 hereof.
C. The restrictions on transfer contained in Section 8.4 shall be
inapplicable, and, if requested by the General Partner, the Limited Partner or
the Assignee shall have obtained an opinion of counsel reasonably satisfactory
to the General Partner as to the legal matters set forth in that Section. The
Limited Partner may request that the General Partner seek to obtain the required
opinion from counsel recommended by such Limited Partner which is reasonably
satisfactory to the General Partner, provided that the expense of such counsel
shall be an expense of the Partnership that is paid out of the Capital
Commitment of such Partner.
D. The Limited Partner or the Assignee shall have paid to the
Partnership such amount of money as is sufficient to cover all expenses incurred
by or on behalf of the Partnership in connection with such substitution.
E. The General Partner shall have consented, in its sole and absolute
discretion, to such substitution.
The pledge or hypothecation of a Partner's interest in the Partnership shall not
be deemed an assignment or transfer; provided, that such pledge or hypothecation
shall nonetheless be subject to the restrictions set forth in Section 8.4. An
Assignee who is not admitted to the Partnership as a Substitute Limited Partner
shall have none of the rights of a Partner and the assignor in such case shall
remain fully liable for the unpaid portion of its Capital Commitment.
Section 8.4 Restrictions on Transfer.
------------------------
Notwithstanding any other provision of this Agreement, no Limited Partner
may assign or otherwise transfer all or any part of its interest in the
Partnership, and no attempted or purported assignment or transfer of such
interest shall be effective, unless (i) after giving effect thereto, the
aggregate of all the assignments or transfers by the Partners of interests in
the Partnership within the 12 month period ending on the proposed date of such
assignment or transfer would not equal or exceed 50% of the total interests of
the Partners in the capital or profits of the Partnership, and such assignment
or transfer would not otherwise terminate the Partnership for the purposes of
Section 708 of the Code, (ii) such assignment or transfer would not result in a
violation of applicable law, including the federal and state securities laws, or
any term or condition of this Agreement and, as a result of such assignment or
transfer, the Partnership would not be required to register as an investment
company under the Investment Company Act, (iii) if requested by the General
Partner, such Limited Partner shall deliver a favorable opinion of counsel
satisfactory to the General Partner that such transfer would not
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result in (x) a violation of the Securities Act or any blue sky laws or other
securities laws of any state of the United States applicable to the Partnership
or the interest to be transferred, (y) the Partnership being required to
register, or seek an exemption from registration, under the Investment Company
Act, and (z) the Partnership being deemed to be a "publicly traded partnership"
within the meaning of Section 7704 of the Code, (iv) the General Partner shall
have consented thereto, which consent may be granted or withheld in its sole
discretion, and (v) such assignment or transfer is to an entity which is an
Accredited Investor.
Section 8.5 Removal of General Partner.
--------------------------
A. The General Partner may be removed by the Limited Partners only upon
the approval of at least Two-Thirds in Interest of the Limited Partners, (i) if
any act or omission of the General Partner in connection with the Partnership
constitutes bad faith, willful misconduct or fraud, (ii) if the General Partner
is in material violation of its obligations hereunder or (iii) if a Triggering
Event occurs; provided, however, that the Limited Partners may remove the
General Partner pursuant to clauses (i) and (ii) above only if a court of
competent jurisdiction or, at the election of Two-Thirds in Interest of the
Limited Partners, an arbitration committee (which shall conduct its proceedings
in accordance with the commercial rules of the American Arbitration Committee
and shall consist of three individuals, of whom one shall be selected by the
General Partner, one shall be selected by Two-Thirds in Interest of the Limited
Partners and one shall be selected by written agreement of the other two) has
previously determined that any act or omission of the General Partner in
connection with the Partnership constitutes bad faith, willful misconduct or
fraud or that the General Partner is in material violation of its obligations
hereunder.
B. In the event of any such removal of the General Partner, the
Partnership shall, within sixty (60) days of the date of such removal, obtain an
appraisal of the Portfolio Securities of the Partnership, including Portfolio
Securities the purchase of which the Partnership has committed to as of such
removal date (together "Removal Date Securities") from an independent firm of
investment bankers of nationally recognized standing selected by the removed
General Partner and approved by Two-Thirds in Interest of the Limited Partners,
which approval shall not unreasonably be withheld. As of the removal date, the
removed General Partner shall become a Special Limited Partner. The Special
Limited Partner shall be entitled to receive as distributions pursuant to
Section 5.2 that portion of all distributions made with reference to its
Percentage of Contributed Capital, and that portion of all Incentive
Distributions it would have received pursuant to Section 5.2 with respect to the
Removal Date Securities, provided that all such distributions received in
connection with such Removal Date Securities do not in the aggregate exceed the
aggregate fair market value determinations for such securities made pursuant to
this Section 8.5.C. Notwithstanding the foregoing, if after the removal of the
General Partner the Partnership then terminates under Article XI without there
having been elected a successor General Partner, the General Partner shall be
entitled to the same allocations and distributions arising out of the
Dissolution Sale as if it had not been removed. The Special Limited Partner
shall not have the limited approval rights accorded to Limited Partners in this
Agreement, and as a
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Special Limited Partner, the General Partner and its Affiliates shall be
released from all commitments and obligations under Article VII effective upon
the date of such removal.
Section 8.6 Withdrawals.
-----------
Except as provided in this Section 8.6 or in Section 8.7 below, no
Partner shall have the right to withdraw from the Partnership. Any Limited
Partner may withdraw from the Partnership in the event that (a) continuation of
the Partner as a Limited Partner of the Partnership is substantially likely to
be prohibited under any applicable federal or state law or regulations
thereunder then in effect, including ERISA, or (b) the continuation of any Tax-
Exempt Partner as a Limited Partner of the Partnership is substantially likely
to result in the loss of tax-exempt status by such Partner. In such event, such
Partner shall advise the General Partner of the specific legal prohibition or
other reason against continuing as a Partner of the Partnership. The General
Partner may, in its sole discretion, require the Limited Partner to provide an
opinion to the General Partner from counsel reasonably satisfactory to the
General Partner to the effect that such Partner is so prohibited from continuing
as a Limited Partner of the Partnership as provided in clauses (a) or (b) of
this Section 8.6. Only after reviewing such legal opinion and approval by the
General Partner, or otherwise upon approval by the General Partner may the
Limited Partner withdraw from the Partnership. As of the date of such
withdrawal, such Limited Partner shall be entitled to receive, but subject to
the prior satisfaction in full of all liabilities of the Partnership and its
corporate subsidiaries, direct and contingent, an amount determined as provided
in Section 8.7(d) below, payable in the manner determined by the General Partner
under Section 8.7(d). Such Limited Partner shall in all other respects have no
rights of any Partner under this Agreement. The General Partner will provide to
the remaining Partners of the Partnership the opportunity to acquire the
remaining Capital Commitment of such Limited Partner pro rata in proportion to
their Percentages of Contributed Capital, and if not all Partners so choose to
acquire, to any Partner who desires to acquire an additional Capital Commitment
in such amount as such Partner may request.
Section 8.7 ERISA Matters.
-------------
(a) The General Partner, on behalf of the Partnership, shall use its
best efforts to ensure that the Partnership qualifies as a Venture Capital
Operating Company and that none of the assets of the Partnership shall be deemed
to be "plan assets" (within the meaning of the DOL Regulations) of any ERISA
Partner. As used in the remainder of this Section 8.7 all terms in quotation
marks have the meanings assigned to them in the DOL Regulations.
(b) If the General Partner shall so elect, the General Partner and
the Partnership shall no longer be required to comply with Section 8.7(a) at any
time after the General Partner determines (i) that the equity participation in
the Partnership by "benefit plan investors" is not "significant" as such term is
defined in the DOL Regulations, and (ii) not to permit a transfer of an interest
in the Partnership or an Interest in the Partnership's capital assets or
property pursuant to Sections 8.2, 8.3 or 8.4 if such admission or transfer
would result in the equity
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participation in the Partnership by "benefit plan investors" being
"significant". If the General Partner so elects to discontinue compliance of its
obligations under Section 8.7(a), then, thereafter, notwithstanding any other
provision of this Agreement, no transfer of Limited Partner interests to, or
admission of, a "benefit plan investor" shall be permitted if the General
Partner shall determine that such transfer shall cause the equity participation
of "benefit plan investors" to be "significant".
(c) In the event that either (i) the General Partner shall determine
that it has become necessary for any ERISA Partner to withdraw from the
Partnership or (ii) any ERISA Partner shall determine that it is necessary for
it to withdraw from the Partnership, in either case (i) because there is a
material risk of a material violation of, or breach of the fiduciary duties of
any person (other than a breach of the fiduciary duties of any such person based
upon the investment strategy or performance of the Partnership) under ERISA or
the related provisions of the Code if such ERISA Partner continues as a Limited
Partner of the Partnership, or (ii) because there is a material likelihood that
the assets of the Partnership are or may be deemed to be "plan assets" of such
ERISA Partner within the meaning of the DOL Regulations; then the General
Partner or such ERISA Partner, as the case may be, shall deliver to the other a
notice to that effect, accompanied by an opinion of counsel (which may be
counsel retained or employed by the General Partner or such ERISA Partner, as
the case may be, so long as such counsel shall be reasonably acceptable to such
ERISA Partner and the General Partner) to that effect, which opinion shall be
reasonably acceptable to such ERISA Partner and the General Partner and shall
explain in reasonable detail the reasons therefor. In the case of such notice
from the ERISA Partner, unless within 90 days after the date on which such
notice was given, the General Partner, using reasonably practicable efforts, is
able to eliminate the necessity for such withdrawal to the reasonable
satisfaction of such ERISA Partner and its counsel, whether by correction of the
condition giving rise thereto or amendment of this Agreement or otherwise, such
ERISA Partner shall be entitled, at its election, upon written notice to the
General Partner, to withdraw from the Partnership on the terms set forth in
Section 8.7(d) below. In the case of such notice from the General Partner, such
ERISA Partner shall be required to withdraw from the Partnership pursuant to
Section 8.7(d) below unless, within 90 days after the date on which notice was
given, the General Partner, using reasonably practicable efforts, or the ERISA
Partner, using reasonably practicable efforts, as appropriate, shall eliminate
the necessity for such withdrawal to the reasonable satisfaction of the General
Partner and its counsel, whether by correction of the condition giving rise
thereto or an amendment to this Agreement or otherwise. The obligation of the
ERISA Partner to make additional Capital Contributions pursuant to Section 3.1
shall be suspended during the above referenced ninety (90) day period and shall
be terminated if such ERISA Partner withdraws pursuant to Section 8.7(d).
(d) The withdrawing Limited Partner shall be entitled to receive
within ninety (90) days after the effective date of such withdrawal an amount
equal to the excess, if any, of the positive closing Capital Account balance the
Limited Partner would have had (computed as provided in Section 3.2) if such
effective date had constituted the date of the liquidation of the Partnership
over the aggregate amount of distributions (with such distributions valued at
fair
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market value pursuant to Section 5.4 as of the date of such distribution) made
to such Limited Partner from and after such effective date. The General Partner
shall provide the withdrawing Limited Partner with a written explanation of its
determination of the Capital Account of such withdrawing Limited Partner as
computed pursuant to the preceding sentence within sixty (60) days of the
effective date of such withdrawal. The withdrawing Limited Partner shall
thereafter have ten (10) business days from the date of receipt of such notice
to make known any objections to such determination. Any such objection made
shall indicate briefly the reasons for such objection. If within ten (10)
business days of the date of receipt of such determination, the withdrawing
Limited Partner fails to notify the General Partner of any objection to such
determination, such determination shall be final and conclusive. If within the
ten (10) day period the withdrawing Limited Partner notifies the General Partner
of its objection to such determination, the General Partner and the withdrawing
Limited Partner shall attempt to agree upon a mutually acceptable determination.
If within ten (10) days of the first-mentioned ten (10) day period a
determination satisfactory to the General Partner and the withdrawing Limited
Partner shall not have been agreed to, the General Partner shall submit the
dispute between the General Partner and the withdrawing Limited Partner to
arbitration in accordance with the Rules of the American Arbitration
Association. The parties agree to hold such arbitration in Boston,
Massachusetts. The fees and expenses of any arbitrators retained in accordance
with the provisions hereof shall be borne equally by the Partnership and the
withdrawing Limited Partner.
Any distribution or payment to a withdrawing Limited Partner pursuant
to this subparagraph (d) may, in the sole discretion of the General Partner, be
made in cash, in Portfolio Securities (in which event the withdrawing Limited
Partner shall not, without its express written consent, be distributed more than
its pro rata interest in any type, class or portion of the Partnership's
Portfolio Securities), in the form of a promissory note, the terms of which
shall be mutually agreed upon by the General Partner and the withdrawing Limited
Partner, or any combination thereof. Notwithstanding anything in the foregoing
sentence, if the distribution of any Portfolio Security to the withdrawing
Limited Partner would result in a violation of a law or regulation applicable to
the Limited Partner or a tax penalty to the Limited Partner and the Limited
Partner delivers a notice to such effect to the General Partner, such Limited
Partner may designate a different entity to receive the distribution or
designate, subject to the approval of the General Partner, an alternative
distribution procedure. In the event that an ERISA Partner shall provide an
opinion reasonably acceptable to the General Partner by counsel reasonably
acceptable to the General Partner (which counsel may be employed by the ERISA
Partner so long as such counsel is reasonably acceptable to the General Partner)
that the acceptance or retention of a promissory note by such ERISA Partner
pursuant to this Section 8.7(d) would result in a violation of ERISA or the
related provision of the Code, then the General Partner shall use its best
efforts to use an alternative means of making such payment or distribution.
(e) In the event that either (i) the General Partner shall determine
that it has become necessary for any ERISA Partner to discontinue making
additional Capital Contributions pursuant to Section 3.1 or (ii) any ERISA
Partner shall determine that it is necessary for it to discontinue making such
additional Capital Contributions, in either case
-45-
(i) because there is a material risk of violation of, or breach of the fiduciary
duties of any person (other than a breach of the fiduciary duties of any such
person based upon the investment strategy or performance of the Partnership,
unless such investment strategy is inconsistent with the primary purpose of the
Partnership as set forth in Section 2.1) under ERISA or the related provisions
of the Code if the ERISA Partner were to make additional Capital Contributions
to the Partnership, or (ii) because there is a material risk that the assets of
the Partnership are or will be deemed to be "plan assets" of such ERISA Partner
within the meaning of the DOL Regulations; then the General Partner or such
ERISA Partner, as the case may be, shall deliver to the other a notice to that
effect, accompanied by an opinion of counsel (which may be counsel retained or
employed by the General Partner or such ERISA Partner, as the case may be, so
long as such counsel shall be reasonably acceptable to such ERISA Partner and
General Partner) to that effect which opinion shall be reasonably acceptable to
such ERISA Partner and the General Partner and shall explain in reasonable
detail the reason therefor. In the case of such notice from the ERISA Partner,
unless within ninety (90) days after the date on which such notice was given,
the General Partner, using reasonably practicable efforts, is able to eliminate
the necessity for such discontinuance to the reasonable satisfaction of such
ERISA Partner and its counsel, whether by correction of the condition giving
rise thereto or amendment of this Agreement or otherwise, such ERISA Partner
shall be entitled, at its election, upon written notice to the General Partner,
to be released from its obligation to make additional Capital Contributions
pursuant to Section 3.1. In the case of such notice from the General Partner,
such ERISA Partner shall be required to discontinue making additional Capital
Contributions pursuant to Section 3.1 unless, within ninety (90) days after the
date on which the notice was given, the General Partner, using reasonably
practicable efforts, or the ERISA Partner, using reasonably practicable efforts,
as appropriate, shall eliminate the necessity for such discontinuance of its
obligation to make additional capital contributions to the reasonable
satisfaction of the General Partner and its counsel, whether by correction of
the condition giving rise thereto or an amendment to this Agreement or
otherwise. The obligation of the ERISA Partner to make additional capital
contributions pursuant to Section 3.1 shall be suspended during the above
referenced ninety (90) day period. An ERISA Partner who has been released of its
obligation to make additional contributions shall not be treated as in default
of its obligation to make such Contributions, in which case such ERISA Partner's
Capital Contribution obligation set forth in Section 3.1 shall be reduced to the
amount of capital actually contributed by such ERISA Partner to the Partnership.
The General Partner will provide to the remaining Partners of the Partnership
the opportunity to acquire the remaining Capital Commitment of such Limited
Partner pro rata in proportion to their Percentages of Contributed Capital, and
if not all Partners so choose to acquire, to any Partner who desires to acquire
an additional Capital Commitment in such amount as such Partner may request.
(f) In lieu of the procedures for redemption of an interest set forth
in this Section 8.7, the General Partner may cause some or all of the interest
of the withdrawing Limited Partner to be sold for cash to the remaining Partners
pro rata in proportion to their Percentage of Contributed Capital, and if not
all Partners so choose to acquire such interest, such interest shall be
allocated pro rata among those Partners who elect to purchase such interest in
proportion to their Percentage of Contributed Capital, and the proceeds thereof
to be remitted to the
-46-
withdrawing Limited Partner; provided, however, that (i) the price at which such
interest or any portion thereof may be sold shall be based on the amount due to
the withdrawing Limited Partner with respect to such portion as set forth in
Section 8.7(d), and (ii) the entire interest of the withdrawing Limited Partner
must be sold and/or redeemed prior to or upon the effective date of the
withdrawal as provided in this Section 8.7.
IX.
LIABILITY OF PARTNERS; INDEMNIFICATION
--------------------------------------
Section 9.1 Liability of General Partner.
----------------------------
A. The General Partner shall be subject to the liabilities of a partner
in a partnership without limited partners, and nothing herein shall be deemed to
relieve the General Partner of liabilities to third parties which it otherwise
has under applicable law. The General Partner shall not be liable to the
Partnership or any other Partner for any act or omission taken or suffered by
the General Partner in good faith and in the belief that such act or omission is
in the best interests of the Partnership; provided that such act or omission is
not in violation of this Agreement and does not constitute willful misconduct,
fraud or a willful violation of law by the General Partner. The General Partner
shall not be liable to the Partnership or any other Partner for any action taken
by any other Partner, nor shall the General Partner (in the absence of willful
misconduct, fraud or a willful violation of law by the General Partner) be
liable to the Partnership or any other Partner for any action of any employee or
agent of the Partnership provided that the General Partner shall have exercised
appropriate care in the selection and supervision of such employee or agent.
B. Whenever in this Agreement the General Partner is permitted or
required to make a decision (i) in its "discretion" or "sole discretion" or
under a grant of similar authority or latitude, the General Partner shall be
entitled to consider only such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to give any
consideration to any interests of or factors affecting the Partnership or any
other Person, or (ii) in its "good faith" or under another express standard, the
General Partner shall act under such express standard and shall not be subject
to any other or different standard imposed by this Agreement or other applicable
law; provided that all judgments and determinations shall comply with the
fiduciary duty of the General Partner to the Limited Partners.
C. Notwithstanding Section 9.3 below, the General Partner shall not be
indemnified for any losses, liabilities or expenses arising from or out of an
alleged violation of federal or state securities laws unless (i) there has been
a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee, or (ii) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee, or (iii) a court of competent
jurisdiction approves a settlement of the claims against a particular
indemnitee. In any claim for indemnification for federal or state
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securities law violations, the party seeking indemnification shall place before
the court the position of the Securities and Exchange Commission and the
Massachusetts Securities Division with respect to the issue of indemnification
for securities law violations. The Partnership shall not incur the cost of that
portion of any insurance, other than public liability insurance, which insures
any party against any liability the indemnification of which is herein
prohibited.
Section 9.2 Liability of Limited Partners.
-----------------------------
The liability of any Limited Partner shall be limited to its uncalled
Capital Commitment (as such may be reduced under Section 3.3 or 3.4); provided,
that a Limited Partner shall be liable for the return of any part of a
distribution in respect of its Capital Contribution to the extent required by
law.
Section 9.3 Indemnification of the General Partner and Limited Partners.
-----------------------------------------------------------
The General Partner and its partners, agents, employees and Affiliates
and the Limited Partners (the "Indemnitees") shall be and hereby are (i)
indemnified and held harmless by the Partnership and (ii) released by the other
Partners from and against any and all claims, demands, liabilities, costs,
expenses, damages, losses, suits, proceedings and actions for which such
Indemnitee has not otherwise been reimbursed (collectively, "Liabilities"),
whether judicial, administrative, investigative or otherwise, of any nature
whatsoever, known or unknown, liquidated or unliquidated, that may accrue to the
Partnership or any other Partner or in which any of the Indemnitees may become
involved, as a party or otherwise, arising out of the conduct of the business or
affairs of the Partnership by the respective Indemnitee or otherwise relating to
this Agreement, provided that an Indemnitee shall not be entitled to
indemnification or release hereunder if it shall have been determined by a court
of competent jurisdiction that (x) such person did not act in good faith and in
a manner such person reasonably believed to be in the best interests of the
Partnership and, in the case of a criminal proceeding, did not have reasonable
cause to believe that his conduct was lawful, or (y) such Liabilities shall have
arisen from a violation of this Agreement or the gross negligence, willful
misconduct, fraud or willful violation of law by such Indemnitee, or actions of
such Indemnitee outside the scope of and unauthorized by this Agreement. The
termination of any proceeding by settlement shall not, of itself, create a
presumption that the Indemnitee did not act in good faith and in a manner that
such person reasonably believed to be in the best interests of the Partnership
or that the Indemnitee did not have reasonable cause to believe that its conduct
was lawful. Any indemnification right provided for in this Section 9.3 shall be
retained by any removed General Partner and its partners, agents, employees and
Affiliates. The indemnification rights provided for in this Section 9.3 shall
survive the termination of the Partnership or this Agreement.
Section 9.4 Payment of Expenses.
-------------------
Expenses incurred by an Indemnitee in defense or settlement of any claim
that may be subject to a right of indemnification hereunder may be advanced by
the Partnership prior to the
-48-
final disposition thereof provided that the following conditions are satisfied:
(i) the claim relates to the performance of duties or services by the Indemnitee
on behalf of the Partnership, and (ii) the Indemnitee undertakes to repay the
advanced funds to the Partnership if it is ultimately determined that the
Indemnitee is not entitled to be indemnified hereunder or under applicable law.
The right of any Indemnitee to the indemnification provided herein shall be
cumulative of, and in addition to, any and all rights to which such Indemnitee
may otherwise be entitled by contract or as a matter of law or equity and shall
extend to such Indemnitee's successors, assigns and legal representatives. All
judgments against the Partnership and the General Partner, in respect of which
such General Partner is entitled to indemnification, must first be satisfied
from Partnership assets before the General Partner is responsible therefor. The
obligations of the Partnership under this Article IX shall be satisfied only
after any applicable insurance proceeds have been exhausted and then only out of
Partnership assets and, to the extent required by law, distributions made by the
Partnership to its Partners, and Limited Partners shall have no personal
liability to fund indemnification payments hereunder.
X.
ACCOUNTING FOR THE PARTNERSHIP; REPORTS
---------------------------------------
Section 10.1 Accounting for the Partnership.
------------------------------
The Partnership shall use the accrual method of accounting and its
financial statements shall be prepared in accordance with generally accepted
accounting principles. The Partnership's tax return shall be prepared on an
accrual basis. The fiscal year of the Partnership shall end on December 31.
Section 10.2 Books and Records.
-----------------
The General Partner shall keep or cause to be kept complete and
appropriate records and books of account. Except as otherwise expressly
provided herein, such books and records shall be maintained on the basis used in
preparing the Partnership's federal income tax returns. Such information as is
necessary to reconcile such books and records with generally accepted accounting
principles shall also be maintained. The books and records shall be maintained
at the principal office of the Partnership, and shall be available for
inspection and copying by any Partner at its expense during ordinary business
hours following reasonable notice.
Section 10.3 Reports to Partners.
-------------------
Within forty-five (45) days after the end of each calendar quarter, the
General Partner will prepare and deliver to each Partner (i) an unaudited
balance sheet and income statement of the Partnership for such quarter,
accompanied by a report on any material developments in existing investments
which occurred during such quarter and a newsletter relating to the
Partnership's activities, (ii) a statement showing the balance in such Partner's
Capital Account and
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a reconciliation of such balance, and (iii) a statement showing the amount of
UBTI, if any, generated by the Partnership during such quarter. After the end of
each fiscal year commencing with the fiscal year ending on December 31, 2000,
the General Partner shall cause an audit of the Partnership to be made by an
independent public accountant of nationally recognized status of the financial
statements of the Partnership for that year. Such audit shall be certified and a
copy thereof shall be delivered to each Partner within ninety (90) days after
the end of each of the Partnership's fiscal years. Such certified financial
statements shall also be accompanied by a report on the Partnership's activities
during the year prepared by the General Partner. Within ninety (90) days after
the end of each fiscal year, the Partnership will deliver to each Partner the
General Partner's good faith estimate of the fair value of the Partnership's
investments as of the end of such year, a statement showing the balances in each
Partner's Capital Account as of the end of such year, and such other
information, reports and forms as are necessary to assist each Partner in the
preparation of his federal, state and local tax returns. The General Partner
shall give prompt notice to the Limited Partners if at any time the
Partnership's general counsel or accountants withdraw or are replaced, or if in
the opinion of counsel to the Partnership the Partnership ceases to qualify as a
Venture Capital Operating Company.
Section 10.4 Annual Meeting.
--------------
Beginning with the Partnership's 2000 fiscal year, the General Partner
will convene an annual meeting of all Partners, at such time and on such date as
it deems appropriate, at which the General Partner will report on the activities
of the Partnership during the year and respond to questions pertaining to the
Partnership's affairs. The General Partner shall call a special meeting of all
Partners upon request of a Majority in Interest of the Limited Partners. The
General Partner will give all Partners at least thirty (30) days notice of each
annual or special meeting; provided that such notice may be waived by a Majority
in Interest of the Limited Partners in the case of any special meeting.
XI.
DISSOLUTION AND WINDING UP
--------------------------
Section 11.1 Termination.
-----------
The existence of the Partnership shall terminate upon the first to occur
of the following events:
(1) July 31, 2006; provided that the duration of the Partnership may
be extended by the General Partner for not more than two additional
one year periods;
(2) the sale or other disposition at any one time of all or
substantially all of the assets of the Partnership;
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(3) the happening of any event which causes the cessation of the
General Partner's status as a general partner under the Act unless,
in any such case (i) at the time of such event there is at least one
other general partner of the Partnership who agrees to and does
continue the business of the Partnership, or (ii) all of the
remaining Partners agree in writing to continue the business of the
Partnership and to the appointment of one or more additional general
partners in accordance with the Act;
(4) the entry of a decree of judicial dissolution under the Act; and
(5) the written agreement of Two-Thirds in Interest of the Limited
Partners to terminate the Partnership.
Section 11.2 Winding Up.
----------
Upon the occurrence of an event specified in Section 11.1, the
Partnership shall be wound up, liquidated and dissolved. At any time during the
wind up, liquidation and dissolution of the Partnership as provided in this
Section 11.2, Eighty Percent (80%) in Interest of the Limited Partners may
remove the General Partner and replace it with a liquidator. In addition, if
there is no General Partner, Two-Thirds in Interest of the Limited Partners may
appoint a liquidator. The General Partner shall proceed with the Dissolution
Sale or a liquidating distribution of the securities and other property of the
Partnership pursuant to the required valuation in Section 5.6, all within the
sole discretion of the General Partner or liquidator as promptly as practicable;
provided that in the event of a Dissolution Sale the General Partner or such
liquidator shall continue such sale only as long as it feels is reasonably
necessary to obtain fair value for the investments in Portfolio Companies and
other assets of the Partnership. In the Dissolution Sale, the General Partner
or such liquidator shall use its best efforts to reduce the Partnership's
investments in Portfolio Companies to cash and cash equivalents, subject to
obtaining fair value therefor and other legal and tax considerations.
Section 11.3 Liquidating Trust.
-----------------
In the sole discretion of the General Partner or the liquidator at the
termination of the Partnership pursuant to Section 11.1, all or a portion of the
non-cash assets of the Partnership (other than Marketable Securities) may be
distributed to a trust established for the benefit of the Partners for the sole
purposes of liquidating Partnership assets, collecting amounts owed to the
Partnership and paying any contingent or unforeseen liabilities or obligations
of the Partnership. The distribution to the trust will constitute a final,
liquidating distribution of assets pursuant to Section 5.3. The Partners'
beneficial interests in the trust will be equal to their respective interests in
the assets of the Partnership upon liquidation. The trustee of the trust shall
be the General Partner or the liquidator.
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XII.
MISCELLANEOUS
-------------
Section 12.1 Registration of Securities.
--------------------------
Stocks, bonds, securities and other property owned by the Partnership
shall be registered in the Partnership name or a "street name". Any corporation
or transfer agent called upon to transfer any stocks, bonds and securities to or
from the name of the Partnership shall be entitled to rely on instructions or
assignments signed or purporting to be signed by the General Partner without
inquiry as to the authority of the person signing or purporting to sign such
instructions or assignments or as to the validity of any transfer to or from the
name of the Partnership. At the time of transfer, the corporation or transfer
agent is entitled to assume (i) that the Partnership is still in existence and
(ii) that this Agreement is in full force and effect and has not been amended
unless the corporation or transfer agent has received written notice to the
contrary.
Section 12.2 Entire Agreement.
----------------
This Agreement and the Exhibits and Schedules attached hereto set forth
the full and complete agreement of the Partners with respect to the subject
matter hereof and supersede any prior agreement or undertaking among the
parties; provided that the representations of the General Partner, the
Partnership and the Limited Partners contained in the Subscription Agreement
will survive the execution of this Agreement.
Section 12.3 Voting; Amendments.
------------------
On any occasion on which the General Partner submits to the Limited
Partners for their approval a proposed amendment, waiver or other action (a
"Vote") with respect to a provision of this Agreement, and the General Partner
also submits to the Limited Partners of the Foreign Fund for their approval a
proposed Vote with respect to a provision with a substantially similar impact of
the partnership agreement for the Foreign Fund, then for purposes of determining
whether such Vote was approved by the Limited Partners, (x) the Partnership will
be deemed to have Capital Commitments equal to the Capital Commitments of the
Foreign Fund and the Capital Commitments of the Partnership ("Deemed Total
Capital Commitments"); (y) the portion of the Deemed Total Capital Commitments
attributable to the Foreign Fund shall be deemed voted as actually voted by the
Limited Partners of the Foreign Fund and (z) the portion of the Deemed Total
Capital Commitments attributable to the Partnership shall be deemed voted as the
Limited Partners actually vote. Subject to the foregoing, this Agreement may be
modified from time to time by the General Partner and a Majority in Interest of
the Limited Partners; provided that the written consent of all Partners shall be
required for any amendment which would do any of the following: (i) increase
the Capital Commitment of any Partner; (ii) modify the distributions of
Operating Receipts or Investment Receipts in Section 5.2 or the allocations of
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Operating Income or Loss or Investment Gain or Loss in Section 5.7; (iii) extend
the period in which additional Limited Partners may be admitted to the
Partnership beyond 270 days as specified in Section 8.2; (iv) amend the
Management Contract so as to increase the Management Fee or other compensation
of the General Partner; (v) increase the percentage in interest of the Limited
Partners needed to remove the General Partner under Section 8.5 or to terminate
the Partnership under Section 11.1; or (vii) amend this Section 12.3. In
addition, the written consent of all Tax-Exempt Partners shall be required to
amend Section 6.2.O (requiring the General Partner to use best efforts to avoid
the generation of UBTI), that portion of Section 6.2.Q that relates to the
generation of UBTI, Section 3.3 or Section 8.6, and the written consent of all
ERISA Partners shall be required to amend those portions of Section 3.3, Section
6.2.P or Section 8.6 that apply to ERISA Partners. No amendment may be made to
any provision of this Agreement which contemplates action by a vote or consent
of greater than a Majority in Interest of the Limited Partners without a vote or
consent of such greater majority as therein specified.
Section 12.4 Severability.
------------
If any provision of this Agreement, or the application of such provision
to any person or circumstance, shall be held invalid, the remainder of this
Agreement or the application of such provision to other persons or circumstances
shall not be affected thereby. Any default hereunder by a Limited Partner shall
not excuse a default by any other Limited Partner.
Section 12.5 Notices.
-------
All notices, requests, demands and other communications shall be in
writing and shall be deemed to have been duly given if personally delivered or
sent by United States mails, or private or postal express mail service or by
facsimile transmission confirmed by letter, if to the Partners, at the addresses
set forth on Schedule 1 attached hereto, and if to the Partnership, to the
----------
General Partner at its address set forth in said Schedule, or to such other
address as any Partner shall have last designated by notice to the Partnership
and the other Partners, or as the General Partner shall have last designated by
notice to the Limited Partners, as the case may be. Any notice shall be deemed
received, unless earlier received, (i) if sent by first-class mail, postage
prepaid, when actually received, (ii) if sent by private or postal express mail
service, when actually received, (iii) if sent by facsimile transmission, on the
date sent provided confirmatory notice is sent by first-class mail, postage
prepaid, and (iv) if delivered by hand, on the date of receipt.
Section 12.6 Heirs and Assigns; Execution.
----------------------------
This Agreement (i) shall be binding on the executors, administrators,
estates, heirs, legal representatives, successors, and assigns of the Partners;
and (ii) may be executed in more than one counterpart with the same effect as if
the parties executing the several counterparts had all executed one counterpart;
provided, however, that the several counterparts, in the aggregate, shall have
been signed by all of the Partners.
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Section 12.7 Waiver of Partition.
-------------------
Except as may be otherwise provided by law in connection with the
winding-up, liquidation and dissolution of the Partnership, each Partner hereby
irrevocably waives any and all rights that it may have to maintain an action for
partition of any of the Partnership's property.
Section 12.8 Power of Attorney.
-----------------
Concurrently with the execution of this Agreement, each Limited Partner
shall execute a Power of Attorney in the form attached to the Subscription
Agreement.
Section 12.9 Headings.
--------
The section headings in this Agreement are for convenience of reference
only, and shall not be deemed to alter or affect the meaning or interpretation
of any provisions hereof.
Section 12.10 Further Actions.
---------------
Each Partner shall execute and deliver such other certificates,
agreements and documents, and take such other actions, as may reasonably be
requested by the General Partner in connection with the formation of the
Partnership and the achievement of its purposes, including, without limitation,
(i) any documents that the General Partner deems necessary or appropriate to
form, qualify, or continue the Partnership as a limited partnership in all
jurisdictions in which the Partnership conducts or plans to conduct business and
(ii) all such agreements, certificates, tax statements and other documents as
may be required to be filed in respect of the Partnership.
Section 12.11 Gender, Etc.
-----------
Whenever the context permits, the use of a particular gender shall
include the masculine, feminine and neuter genders, and any reference to the
singular or the plural shall be interchangeable with the other.
Section 12.12 Tax Matters Partner.
-------------------
The General Partner shall be designated as the Tax Matters Partner in
accordance with Section 6231 of the Code and shall promptly notify the other
partners if any tax return or report of the Partnership is audited or if any
adjustments are proposed. In addition, the General Partner shall promptly
furnish to the Partners all notices concerning administrative or judicial
proceedings relating to federal income tax matters as required under the Code
and shall supply such information to the Internal Revenue Service as may be
necessary to identify the Partners as Notice Partners under Section 6231 of the
Code. During the pendency of any administrative or judicial proceeding, the
General Partner shall furnish to the Partners periodic reports concerning the
status of any such proceeding. Without the consent of a Majority in Interest of
the Partners, the General
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Partner shall not extend the statute of limitations, file a request for
administrative adjustment or enter into any settlement agreement relating to any
Partnership item of income, gain, loss, deduction or credit for any fiscal year
of the Partnership.
Section 12.13 Applicable Law.
--------------
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties to this Agreement have executed the same
as of the date first above set forth.
GENERAL PARTNER:
@VENTURES EXPANSION PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
LIMITED PARTNERS:
By: @VENTURES EXPANSION PARTNERS, LLC,
Their Attorney in Fact
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
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