Exhibit 10.22
Limited Partnership Agreement
of
000xxx.xxx LP
(A Delaware Limited Partnership)
Effective as of November 18, 1999
TABLE OF CONTENTS
Page
BACKGROUND 1
SECTION 1 - DEFINITIONS 1
SECTION 2 - FORMATION OF THE PARTNERSHIP 11
2.1 Formation 11
2.2 Name of the Partnership 11
2.3 Purpose 11
2.4 Term 11
2.5 Principal Office 12
2.6 Partners 12
2.7 Authority of the Partnership 12
2.8 Partnership Property; Payment of Individual Obligations 12
2.9 Transactions With Affiliates 13
2.10 Classification for Tax Purposes 13
SECTION 3 - MEMBERS; CAPITAL; CAPITAL ACCOUNTS 13
3.1 Initial Capital Contributions and Commitments of Initial Partners 13
3.2 Partner Advances 14
3.3 Capital Accounts 15
3.4 Additional Partners 16
3.5 Limitations on Return of Capital 16
3.6 Preemptive Rights 17
SECTION 4 - PROFIT, LOSS AND DISTRIBUTIONS 18
4.1 Distributions of Distributable Cash Flow 18
4.2 In-Kind Distributions 18
4.3 Allocation of Net Income and Net Loss 19
4.4 Special Allocations 19
4.5 Tax Allocations 21
4.6 General 22
SECTION 5 - MANAGEMENT: RIGHTS, POWERS, AND DUTIES 22
5.1 Board 22
5.2 Authority of the Board 24
5.3 Subcommittees 28
5.4 Meetings and Voting 29
5.5 Officers 31
5.6 Personal Services 33
5.7 Annual Budget; Strategic Plan 34
i
5.8 Duties of Parties 34
SECTION 6 - LIABILITY AND INDEMNIFICATION 36
6.1 Liability of Covered Persons 36
6.2 Indemnification of Covered Persons 36
6.3 Indemnification Procedure 36
SECTION 7 - TRANSFER OF INTERESTS 38
7.1 Transfers of Interests 38
7.2 Right of First Refusal 38
7.3 Co-Sale 40
7.4 Drag-Along Right 41
7.5 Purchases and Sales of Interests pursuant to Section 7 42
7.6 Compliance with Securities Laws 43
7.7 Transfers are Void 44
SECTION 8 - BUY-SELL PROCEDURES 44
8.1 Buy-Sell Notice 44
8.2 Rights Following Buy-Sell Notice 44
SECTION 9 - DISSOLUTION, LIQUIDATION, TERMINATION AND CONVERSION OF THE PARTNERSHIP 46
9.1 Events of Dissolution 46
9.2 Winding up of Affairs 46
9.3 Filing of Certificate of Cancellation 47
9.4 Distributions in Liquidation 47
9.5 Claims of the Partners 47
9.6 Conversion of the Partnership 47
SECTION 10 - BOOKS, RECORDS, ACCOUNTING AND CERTAIN OTHER TAX MATTERS 47
10.1 Bank Accounts 47
10.2 Books and Records 48
10.3 Fiscal Year 49
10.4 Reports 49
10.5 Tax Matters 50
SECTION 11 - MISCELLANEOUS TERMS AND CONDITIONS 51
11.1 Dispute Resolution 51
11.2 Power of Attorney 52
11.3 Survival of Power of Attorney 52
11.4 General Partner 52
11.5 Appraisal 53
11.6 Confidentiality 53
ii
11.7 Public Announcements 53
11.8 Governing Law 53
11.9 Entire Agreement 53
11.10 Notices 53
11.11 Successors and Assigns 54
11.12 Expenses 54
11.13 Further Assurances 54
11.14 No Third Party Beneficiaries 54
11.15 Amendments 54
11.16 Certificates 55
11.17 Variation of Pronouns 55
11.18 Construction 55
11.19 Headings 55
11.20 No Waiver 55
11.21 Counterparts 56
11.22 Severability 56
11.23 Waiver of Jury Trial 56
iii
LIMITED PARTNERSHIP AGREEMENT
THIS LIMITED PARTNERSHIP AGREEMENT is made as of the 18th day of November
1999, by the Initial Partners.
BACKGROUND
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A. The Initial Partners desire to form a limited partnership under the
Act for the purpose and upon the terms and conditions set forth herein; and
B. To effectuate the intentions of the parties, the parties now desire to
set forth their agreements with respect to the limited partnership pursuant to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the premises set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. SECTION 1 - DEFINITIONS. For the purposes of this Agreement:
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1.1 "Act" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time, except that it shall not include any provision
thereof adopted after the date hereof that would only be applicable to the
Partnership absent a provision in this Agreement to the contrary unless such
provision is approved by a majority vote of the number of Interests entitled to
vote at a duly convened meeting, or by written consent, of the Partners of the
Partnership.
1.2
1.3 "Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
any relevant fiscal year or other period and after giving effect to the
following adjustments:
1.4
1.5 (a) credit to such Capital Account any amounts which such
Partner is obligated or treated as obligated to restore with respect to any
deficit balance in such Capital Account pursuant to Section 1.704-1(b)(2) (ii)
(c) of the Regulations or is deemed to be obligated to restore with respect to
-
any deficit balance pursuant to the penultimate sentences of Sections 1.704-2(g)
(1) and 1.704-2 (i) (5) of the Regulations; and
1.6
1.7 (b) debit to such Capital Account the items described in
Sections 1.704-1(b)(2) (ii)(d)(4), 1.704-1(b)(2) (ii)(d)(5) and 1.704-1(b)(2)
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(ii)(d)(6) of the Regulations.
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1.8
1.9 "Advanta Limited Partner" means Advanta Partners LP, a Pennsylvania
limited partnership.
1.10 "Affiliate" means, as to any Person, any other Person that directly or
indirectly, through one or more intermediaries controls, is controlled by or is
under common control with such
1
Person or, if such Person is an individual, the Immediate Family of such Person,
trusts solely for the benefit of members of such Immediate Family, and any
Person which is not an individual which such individual directly or indirectly
controls through one or more intermediaries. As used in this definition, the
term "control" means the possession, directly or indirectly, or as trustee or
executor, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, as trustee
or executor, by contract or credit arrangement or otherwise.
1.11
1.12 "Agreement" means this Limited Partnership Agreement, as it may be
amended, modified, supplemented or restated from time to time.
1.13
1.14 "Bankruptcy" means an adjudication of bankruptcy or the entry of an
order for relief or the filing of a voluntary case or petition under the federal
bankruptcy law or any state or local bankruptcy law and, in addition, any other
status constituting bankruptcy within the meaning of the Act.
1.15
1.16 "Board Member" means any Person initially appointed to the Board
pursuant to Section 5.1.2 hereof or thereafter elected pursuant to Section 5.4.5
hereof.
1.17
1.18 "Business Day" means each day of the calendar year other than days on
which banks are required or authorized to close in the State of New York.
1.19
1.20 "Capital Account" means, with respect to any Partner, the capital
account established and maintained pursuant to Section 3.3.
1.21
1.22 "Capital Contribution" means, with respect to any Partner, the
aggregate amount of money, and the initial Gross Asset Value of any property or
asset contributed or deemed contributed to the Partnership, net of liabilities
assumed by the Partnership in connection with such contribution or as to which
such property or asset is subject when contributed, as set forth on Schedule 2.6
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hereto with respect to Initial Capital Contributions or hereafter determined
with respect to additional Capital Contributions. In the case of a Partner that
acquires an Interest in the Partnership by virtue of an assignment or transfer
in accordance with the terms of this Agreement, "Capital Contribution" means the
pro rata Capital Contribution of such Partner's predecessor to an extent
proportionate to the acquired Interest.
1.23
1.24 "Capital Event" means any sale or other disposition of the assets of
the Partnership other than in the ordinary course of business, a financing or
refinancing by the Partnership or any other event which is not in the ordinary
course of business of the Partnership.
1.25 "Confidential Information" means, with respect to the Partnership or
any subsidiary of the Partnership, all trade secrets and other confidential,
nonpublic and/or proprietary information of that Person, including information
derived from reports, investigations, research, work in progress, codes,
marketing and sales programs, customer lists, records of customer service
requirements, capital expenditure projects, cost summaries, pricing formulae,
contract analyses, financial information, projections, present and future
business plans, confidential filings with any
governmental authority and all other confidential, nonpublic concepts, methods
of doing business, ideas, materials or information prepared or performed for, by
or on behalf of that Person.
1.26
1.27 "Covered Person" means a Partner, Board Member, any Affiliate of a
Partner or Board Member, any officers, directors, shareholders, partners or
members of a Partner or Board Member or their respective Affiliates or any
Officers of the Partnership; provided, however, that for purposes of this
Section 1.13, portfolio companies of Advanta Partners LP shall be deemed not to
be Affiliates of Advanta Partners LP or any other Partner or Board Member.
1.28
1.29 "Depreciation" means, with respect to any asset of the Partnership for
any fiscal year or other period, an amount equal to the depreciation,
amortization or other cost recovery, as the case may be, allowed or allowable
for federal income tax purposes in respect of such asset for such fiscal year or
other period; provided, however, that if there is a difference between the Gross
Asset Value and the adjusted tax basis of such asset, Depreciation shall mean
"book" depreciation, cost recovery or amortization as determined under Section
1.704-1(b)(2)(iv)(g)(3) of the Regulations.
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1.30
1.31 "Distributable Cash Flow" means for any period, (a) the net increase
-
or decrease in cash and cash equivalents (treating any such decrease as a
negative number); minus (b) increases to reserves as expressly determined by the
-
Board (including, without limitation, increases to reserves for working capital,
capital expenditures, acquisitions of other assets by the Partnership and the
satisfaction of liabilities as they come due (including the repayment of all
accrued and unpaid principal and interest on any Partner Advances)); plus (c)
-
decreases to reserves as expressly determined by the Board, all as determined in
accordance with the Partnership's then current accounting policies; provided,
however, that any of the foregoing set forth in clauses (a), (b) or (c) arising
out of a Capital Event shall be excluded from (i.e., shall not effect) the
calculation of Distributable Cash Flow.
1.32
1.33 "Dollars" or "$" means the lawful currency of the United States of
America.
1.34
1.35 "Effective Date" means November 18, 1999.
1.36
1.37 "Eligible Partner" means, subject to Section 3.2.2, each Partner for
so long as such Partner and any of its Permitted Transferees acquiring Interests
in accordance with clause (a), (b) or (c) of the definition of "Permitted
Transfer" own, collectively, a Percentage Interest of no less than twenty
percent (20%).
1.38
1.39 "GAAP" means those generally accepted accounting principles and
practices that are recognized as such by the American Institute of Certified
Public Accountants acting through the Financial Accounting Standards Board or
through other appropriate boards or committees thereof and that are consistently
applied for all periods so as to properly reflect the financial condition, and
the results of operations and changes in financial position, of the Partnership,
subject to, in the case of unaudited interim financial statements, normal year-
end adjustments and, in the case of all unaudited financial statements, the
absence of footnote disclosure.
1.40
1.41 "General Partner" means a Person who is a general partner of the
Partnership and shall include 000xxx.xxx.xx, LLC, a Delaware limited liability
company, and any other Person who may hereafter be admitted to the Partnership
as a General Partner pursuant to the provisions of this Agreement.
1.42
1.43 "General Partner Securities" means any equity securities issued by the
General Partner, including, without limitation, shares of capital stock of a
General Partner which is a corporation and membership interests of a General
Partner which is a limited liability company.
1.44
1.45 "Gross Asset Value" means, with respect to any asset of the
Partnership, such asset's adjusted basis for federal income tax purposes, except
as follows:
1.46
1.47 (a) the initial Gross Asset Value of any asset (other than cash)
contributed or deemed contributed by a Partner to the Partnership shall be (i)
in the case of any asset described on Schedule 2.6 hereto, the gross fair market
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value ascribed thereto on such Schedule and (ii) in the case of any other asset
hereafter contributed by a Partner, the gross fair market value of such asset at
the time of its contribution as reasonably determined by the Board;
1.48
1.49 (b) if the Board reasonably determines that an adjustment is
necessary or appropriate to reflect the relative economic interests of the
Partners, the Gross Asset Values of all Partnership assets shall be adjusted to
equal their respective gross fair market values, as reasonably determined by the
Board, as of the following times:
1.50
1.51 (i) immediately prior to a Capital Contribution (other than
a de minimis Capital Contribution) to the Partnership by a new or existing
Partner as consideration for an Interest;
1.52
1.53 (ii) immediately prior to the distribution by the
Partnership to a Partner of more than a de minimis amount of Partnership
property as consideration for the redemption of an Interest; and
1.54
1.55 (iii) immediately prior to the liquidation of the Partnership
within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations;
1.56
1.57 (c) the Gross Asset Values of Partnership assets distributed to
any Partner shall be the gross fair market values of such assets as reasonably
determined by the Board as of the date of distribution; and
1.58 (d) the Gross Asset Value of any Partnership asset shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such asset pursuant to Sections 734(b) or 743(b) of the Code, but only to the
extent that such adjustment is taken into account in determining Capital
Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations;
-
provided, however, that the Gross Asset Value shall not be adjusted pursuant to
this paragraph (d) to the extent that the Board reasonably determines that an
adjustment pursuant to paragraph (b) above is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this paragraph (d).
1.59
1.60 At all times, the Gross Asset Value of an asset shall be adjusted
by any Depreciation taken into account with respect to such asset for purposes
of computing Net Income and Net Loss. Any adjustment to the Gross Asset Values
of Partnership property shall require an adjustment to the Partners' Capital
Accounts in accordance with Section 1.32(e).
1.61
1.62 "Immediate Family" means , with respect to any individual, such
individual's spouse, children, grandchildren, parents or siblings, or any spouse
of any children, grandchildren or siblings of such individual, or any children
or grandchildren of any siblings of such individual, or heirs or devisees and
any trust for the benefit of any of the foregoing.
1.63
1.64 "Initial Capital Contribution" means (i) as to each Partner executing
this Agreement as of the Effective Date, the amount specified for that Partner
as its Initial Capital Contribution on column 2 of Schedule 2.6, and (ii) in the
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case of new Partners admitted pursuant to Section 3.4, the Initial Capital
Contribution established pursuant thereto.
1.65
1.66 "Initial Partners" mean the parties hereto on the Effective Date.
1.67
1.68 "Interest" means a Partner's share of the capital, Net Income and Net
Loss of, and the right to receive distributions from, the Partnership.
1.69
1.70 "Internal Revenue Code" or "Code" means the Internal Revenue Code of
1986, as amended, or any successor statute. All references to specific sections
of the Internal Revenue Code shall be deemed to include any provisions of the
Internal Revenue Code which replace or supersede the sections in effect at the
time of execution of this Agreement.
1.71
1.72 "Involuntary Transfer" means any Transfer pursuant to judicial
proceedings, attachment, xxxx, xxxx upon, assignment for the benefit of
creditors or Transfer by operation of law and any assumption of possession
whether in fact or in law by any receiver, trustee, conservator or other
fiduciary appointed by any court or government agency, if such attachment, xxxx,
xxxx or assumption of possession shall not be absolutely removed or dissolved
within one hundred and twenty (120) days after the same occurred.
1.1 "Involuntary Withdrawal" means the Bankruptcy of a Partner or the
death of a Partner who is an individual or the dissolution of a Partner which is
an entity.
1.2
1.3 "Limited Partner" means a Person who is a limited partner of the
Partnership and shall include the Advanta Limited Partner, the RMH Limited
Partner and any other Person who may hereafter be admitted to the Partnership as
a limited partner pursuant to the provisions of this Agreement.
1.4
1.5 "Minimum Gain Attributable to Partner Nonrecourse Debt" means "partner
nonrecourse debt minimum gain" as determined in accordance with Section 1.704-
2(i)(2) of the Regulations.
1.6
1.7 "Net Income" or "Net Loss" means, for each fiscal year or other
applicable period, an amount equal to the Partnership's net income or loss for
such year or period as determined for federal income tax purposes by the
Partnership's accountants, determined in accordance with Section 703(a) of the
Code (for this purpose, all items of income, gain, loss or deduction required to
be stated separately pursuant to Section 703(a)(1) of the Code shall be included
in taxable income or loss), with the following adjustments: (a) by including as
an item of income any tax-exempt income received by the Partnership; (b) by
treating as a deductible expense any expenditure of the Partnership described in
Section 705(a)(2)(B) of the Code (including amounts paid or incurred to organize
the Partnership (unless an election is made pursuant to Section 709(b) of the
Code) or to promote the sale of Interests and by treating deductions for any
losses incurred in connection with the sale or exchange of Partnership property
disallowed pursuant to Section 267(a)(1) or Section 707(b) of the Code as
expenditures described in Section 705(a)(2)(B) of the Code); (c) in lieu of
depreciation, depletion, amortization, and other cost recovery deductions taken
into account in computing total income or loss, there shall be taken into
account Depreciation; (d) gain or loss resulting from any disposition of
Partnership property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross Asset
Value of such property rather than its adjusted tax basis; and (e) in the event
of an adjustment of the Gross Asset Value of any Partnership asset which
requires that the Capital Accounts of the Partnership be adjusted pursuant to
Regulation Section 1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such
- - -
adjustment is to be taken into account as additional Net Income or Net Loss
pursuant to Section 4.3. If an item of income, gain, loss or deduction has been
allocated pursuant to the special allocation rules in Section 4.4, Net Income or
Net Loss shall be computed without regard to such item.
1.8
1.9 "New Security" means Interests or other equity securities of the
Partnership or its subsidiaries (including any Rights) which the Partnership or
any of its subsidiaries proposes to offer, issue or sell following the Effective
Date; provided, however, that the following shall be excluded from the
definition of "New Security": (i) securities (including any Rights) issued
pursuant to any incentive stock option plan, arrangement or other compensation
agreement which has been approved by the Board pursuant to Section 5.2 hereof
for the benefit of its employees or managers, including any securities issuable
pursuant to the exercise of any Rights issued pursuant to such plans,
arrangements or agreements; (ii) securities issued by the Partnership in
connection with an acquisition (including, without limitation, by way of merger,
consolidation or binding share exchange) by the Partnership of the capital
stock, other equity interests, or assets of another Person (which Person is not
a Related Party and not affiliated with the Partnership) in a transaction
approved by the Board pursuant to Section 5.2 hereof pursuant to which all or
part of the consideration payable in connection with such acquisition consists
of securities of the Partnership or Rights to acquire securities of the
Partnership; (iii) securities issued in exchange for equity interests in another
entity not affiliated with the Partnership and not a Related Party in connection
with a joint venture or other business combination approved by
the Board pursuant to Section 5.2 hereof; (iv) securities issued upon any
exercise or conversion of Rights the issuance of which was not subject to the
preemptive rights set forth in Section 3.6 (including to the extent such Rights
did not constitute New Securities); or (v) securities issued by the Partnership
in connection with any recapitalization or the like occurring after the
Effective Date.
1.10
1.11 "Nonrecourse Deductions" shall have the meaning set forth in Sections
1.704-2(b)(1) and (c) of the Regulations.
1.12
1.13 "Nonrecourse Liabilities" shall have the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
1.14
1.15 "Office of the Secretary" means the office of the Secretary of State
of the State of Delaware.
1.16
1.17 "Officer" means any individual appointed by the Board in accordance
with Section 5.5 hereof to serve as an Officer of the Partnership and the
General Partner with such powers and responsibilities as set forth in this
Agreement and as the Board shall from time to time determine.
1.18
1.19 "Partner" means any Person who is a General Partner and/or a Limited
Partner, but does not include any Person who has ceased to be a Partner of the
Partnership.
1.20
1.21 "Partner Nonrecourse Deductions" means "partner nonrecourse
deductions" as defined in Section 1.704-2(i)(2) of the Regulations.
1.22
1.23 "Partnership" means 000xxx.xxx LP, a Delaware limited partnership.
1.24
1.25 "Partnership Minimum Gain" means "partnership minimum gain" as defined
in Section 1.704-2(b)(2) of the Regulations.
1.26
1.27 "Partnership Rights" means all of the rights of a Partner of the
Partnership, including, without limitation, a Partner's (i) Interest; (ii) right
to inspect the Partnership's books and records; and (iii) right, if any, to
participate in the management of and vote on matters coming before the
Partnership in accordance with this Agreement.
1.28
1.29 "Percentage Interest" means, as to each Partner, its percentage
interest set forth after the Partner's name on Schedule 2.6, or as modified from
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time to time pursuant to the terms of this Agreement or by agreement of the
Partners.
1.30
1.31 "Permitted Transfer" means
1.32
(a) in the case of a Partner that is not a natural person, a Transfer of
all or any portion of the Interests beneficially owned by such Partner to an
Affiliate of such Partner;
(b)
(c) in the case of a Partner that is a partnership, a Transfer of
Interests beneficially owned by such Partner to its partners;
(d)
(e) in the case of a Partner that is an individual, a Transfer of any or
all of the Interests beneficially owned by such Partner to the Immediate Family
of such Partner;
(f)
(g) a Transfer from a Partner or a Permitted Transferee to another Partner
or Permitted Transferee; or
(h)
(i) a Transfer made in accordance with Section 7;
(j)
(k)provided, however, that any such Transferee shall, as a condition to such
Permitted Transfer, execute an instrument in form and substance satisfactory to
the Partnership and the non-transferring Partners, pursuant to which such
Transferee shall become a party to this Agreement and the Interests so
Transferred shall remain subject to this Agreement; provided, further, however,
that for purposes of clause (a) or (b) above, portfolio companies of Advanta
Partners LP shall be deemed not to be Permitted Transferees of the Advanta
Limited Partner or any other Partner.
(l)
1.33 "Permitted Transferee" means any Transferee acquiring Interests pursuant to
a Permitted Transfer.
1.34
1.35 "Person" means and includes an individual and any other legal entity
including, but not limited to, a corporation, partnership, association, limited
liability company, joint stock company, trust or estate.
1.36
1.37 "Regulations" or "Treasury Regulations" means the income tax regulations,
including temporary regulations, promulgated under the Code, as such regulations
may be amended from time to time. All references to specific sections of the
Regulations shall be deemed to include any provisions of the Regulations which
replace or supersede the sections in effect at the Effective Date.
1.38
1.39 "Rights" means, with respect to any Person, any subscription, option,
warrant, right, convertible security or other agreement, instrument or
commitment of any character obligating (contingently or absolutely) such Person
to issue or sell any membership interests, equity or other securities.
1.40
1.41 "RMH Limited Partner" means RMH Interactive Technologies, LLC, a Delaware
limited liability company.
1.42
1.43 "Tax" or "Taxes" means any and all federal, state, county, provincial,
local, foreign and other taxes, charges, fees, levies or other assessments,
including, without limitation, all net income, gross income, gross receipts,
premium, estimated, capital, sales, use, ad valorem, property, transfer,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, customs, duties or guaranty fund assessments,
together with any interest, additions to tax or interest, and penalties with
respect thereto imposed by any taxing or governmental authority.
1.44
1.45 "Transfer" means a sale, gift, pledge, assignment, mortgage, alienation,
hypothecation or other encumbrance or disposition in any manner of a like or
unlike nature and shall include an Involuntary Transfer. The terms "Transferee"
and "Transferor" when used in this Agreement shall mean the Person to whom or by
whom respectively, a Transfer is made or purported to be made.
1.46
1.47 In addition to the foregoing, the following terms are defined in the
Section of this Agreement noted below:
1.48
1.49 Term Section
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Accepting ROFR Offeree 7.2.2
Affected Gain 4.5.2
Annual Budget 5.7
Annual Meeting 5.4.5
Board 5.1.1
Board Members 5.1.2
Buy-Sell Notice 8.1
Chairman 5.5.1
Chief Executive Officer 5.5.1
Claim 6.3.1
Commitments 3.1.2
Contributing Partner 3.1.3
Co-Sale Notice 7.3.1
Co-Sale Offer 7.3.1
Co-Sale Offeror 7.3.1
Co-Sale Offer Period 7.3.2
Co-Sale Subject Securities 7.3.1
Damages 6.2
Declining Partner 3.2.2
Delinquent Partner 3.1.3
Dispute 11.1
Drag-Along Buyer 7.4
Drag-Along Buyer Terms 7.4
Drag-Along Notice 7.4
Drag-Along Rights 7.4
Drag-Along Sellers 7.4
Executive Officer 5.5.1
Indemnified Party 6.3.1
Independent Firm 8.2
Initiating Partner 8.1
Loan 3.1.3
Notice 6.3.1
Offer Notice 7.2.1
Offeror 7.2.1
Offer Period 7.2.1
Original Offer 3.6.1
Other Partners 7.4
Partner Advances 3.2.1
Partner Offeree 7.2.1
Partnership Offeree 7.2.1
Participating Partner 7.3.2
Permitted Partner 4.3.2(iii)
President 5.5.1
qualified income offset 4.4.3
Qualifying Offer 7.2.1
Receiving Partner 8.1
Regulatory Allocations 4.4.6
Related Party 2.9
ROFR Offer 7.2.1
ROFR Offerees 7.2.1
Section 704(c) Tax Items 4.5.3
Securities Act 7.2.1
Selling Partner 7.2.1
Special Meeting 5.4.6
Strategic Plan 5.7
Subject Securities 7.2.1
Tax Items 4.5.1
Tax Matters Partner 10.5.1
In addition, the following general provisions shall be applicable:
This Agreement uses the words "herein," "hereof," "hereto" and
"hereunder" and words of similar import to refer to this Agreement as a whole
and not to any provision of this Agreement.
Whenever the context so requires, the singular number includes the
plural and vice versa, and a reference to one gender includes the other genders.
The word "including" (and, with correlative meaning, the word
"include") means including without limiting the generality of any description
preceding that word, and the verbs "shall" and "will" are used interchangeably
and have the same meaning.
1. SECTION 2 - FORMATION OF THE PARTNERSHIP
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1.1 Formation. The General Partner shall, if not previously filed, promptly
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after the execution hereof execute and file in the appropriate places a
Certificate of Limited Partnership to reflect certain of the terms of this
Agreement pursuant to the requirements of the Act and all instruments and
documents which shall be necessary for the purpose of complying with any
applicable fictitious name act or assumed name act. In no event shall the
Partnership or the General Partner have any obligation to send to any Limited
Partner a filed copy of the Certificate of Limited Partnership or certificate of
amendment or cancellation thereof or any other certificate or statement required
or permitted to be filed under the Act unless such copies are requested by such
Limited Partner in writing to the General Partner.
1.1 Name of the Partnership. The name of the Partnership is 000xxx.xxx LP. The
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Partnership shall do business under that name and under any other name or names
which the Board shall determine, but in any case, only to the extent permitted
by applicable law.
1.2
1.3 Purpose. The Partnership may engage in and carry on any lawful business,
-------
purpose or activity for which limited partnerships may be formed under the Act
and shall possess and exercise all the powers and privileges granted to it by
the Act, by any other law or by this Agreement, together with any powers
necessary to, convenient or incidental to the conduct, promotion and attainment
of the business, purpose or activities of the Partnership, so far as such powers
are necessary or convenient.
1.1 Term. The term of the Partnership shall begin on the date of acceptance of
----
the Certificate of Limited Partnership by the Office of the Secretary and shall
continue in perpetuity unless its existence is terminated pursuant to Section 9
of this Agreement. The existence of the Partnership as a separate legal entity
shall continue until dissolution of the Partnership in the manner required by
the Act and this Agreement.
1.2
1.3 Principal Office. The principal office of the Partnership shall be located
----------------
at 0000 Xxx Xxxx Xxxxx, Xxxxx, Xxxxx 00000, or at such other place within or
without the State of Delaware, as may be determined by the Board. The
Partnership may also have such other offices as the Board may determine.
1.1 Partners. The name, present mailing address, Initial Capital Contribution
--------
and Percentage Interest of each Partner are set forth on Schedule 2.6.
------------
1.2
1.3 2.7 Authority of the Partnership. In order to carry out its purpose, and
----------------------------
not in limitation thereof, the Partnership is empowered and authorized to do any
and all acts and things necessary, appropriate, proper, advisable, incidental to
or convenient for the furtherance and accomplishment of its purposes, including,
but not limited to, the following:
1.4
(a) construct, operate, maintain, improve, buy, own, sell, convey,
assign, mortgage, refinance, rent or lease any real estate and any personal
property;
(b) engage in any kind of activity, and perform and carry out
contracts of any kind necessary to, or in connection with, or incidental
to, the accomplishment of the purposes of the Partnership;
(c) borrow money and issue evidences of indebtedness in furtherance of
the Partnership business and secure any such indebtedness by mortgage,
security interest or other lien, any or all of which debt instruments may
contain confessions of judgment against the Partnership if the General
Partner consents thereto;
(d) maintain and operate the Partnership's assets;
(e) negotiate for and conclude agreements for the sale, exchange or
other disposition of all or any part of the property of the Partnership;
and
(f) hire and compensate employees, agents, representatives,
independent contractors, attorneys, accountants and advisors.
2.8 Partnership Property; Payment of Individual Obligations. All
-------------------------------------------------------
property of the Partnership, whether real, personal or mixed, tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no
Partner, individually, shall have any direct ownership interest in such
property. The Partnership's credit and assets shall be used solely for the
benefit of the Partnership, and no asset of the Partnership shall be transferred
or encumbered for or in payment of any individual obligation of any Partner.
2.9 Transactions With Affiliates. The Partnership is hereby authorized
----------------------------
to purchase property from, sell property to, or otherwise deal with any Person,
including any Related Party; provided, that the Partnership shall not enter into
any transaction with a Related Party unless, (i) the Board shall have been
apprised of the material terms of the transaction and the interest (direct or
indirect) of any Related Party in such transaction, (ii) such transaction shall
have been approved by a majority of the Board Members who are not affiliated
with the Related Person (other than, with respect to the General Partner, in
their capacity as a Board Member) or a designee of any Partner affiliated with
the Related Person and shall have been approved as required by Section 5.2
hereof, and (iii) if the transaction involves the provision of goods or
services, the compensation paid or provided for such goods or services is
reasonable and is paid only for goods or services actually furnished to the
Partnership. The term "Related Party" means any Partner, Board Member or
-------------
Officer acting on his, her or its own behalf, or any Affiliate of any Partner,
Board Member or Officer.
2.10 Classification for Tax Purposes. Unless the Board unanimously
-------------------------------
determines otherwise, the Partnership shall maintain its classification as a
partnership for tax purposes, rather than as an association taxable as a
corporation, and no Partner or Board Member shall take any action or make any
election inconsistent with the foregoing.
1. SECTION 3 - MEMBERS; CAPITAL; CAPITAL ACCOUNTS
----------------------------------------------
3.1 Initial Capital Contributions and Commitments of Initial Partners.
-----------------------------------------------------------------
3.1.1 Concurrently with the execution of this Agreement, the Initial
Partners shall have made the initial cash contributions to the capital of the
Partnership set forth in column 2 next to their respective names on Schedule
--------
2.6. In addition, concurrently with the execution of this Agreement, RMH
---
Teleservices, Inc. shall have agreed to advance the trade credit set forth in
paragraph 1 of Schedule 3.1.
------------
3.1.2 Each of the Initial Partners hereby commits to make additional
cash contributions (the "Commitments") not to exceed, in the aggregate, the
-----------
amounts set forth in column 3 of Schedule 2.6. All, or any portion, of the
------------
remaining additional cash Capital Contributions constituting the Commitments may
be called at any time upon the request of either of the Initial Partners and
shall be paid to the Partnership promptly after such call pro rata (based on the
relative Commitments of the Initial Partners). At the time the additional
Capital Contributions constituting the Commitments are made to the Partnership,
RMH Teleservices, Inc. shall have agreed to advance the additional trade credit
set forth in paragraph 2 of Schedule 3.1.
------------
3.1.3 In the event any one or more Partners (a "Delinquent Partner")
------------------
do not make an additional Capital Contribution required by their Commitments
within three (3) Business Days after request pursuant to Section 3.1.2, then the
other Partners shall be given the opportunity to make a loan (a "Loan") in lieu
----
of the Delinquent Partner's additional Capital Contribution upon receipt of a
written Notice from the Partnership indicating that a Delinquent Partner has
failed to meet his Commitment. The other Partners shall be entitled, but shall
not be required, to loan their proportionate shares (based on the relative
Percentage Interests of those who elect to make such a Loan (each such Partner,
a "Contributing Partner")) of such Delinquent Partner's Commitment which has not
--------------------
been made until each such other Partner has either made all Loans it is entitled
to make, or shall have declined to do so. The amounts loaned pursuant to this
Section 3.1.3 shall be treated as a loan from the Contributing Partners to the
Delinquent Partner bearing interest at the lesser of twenty four percent (24%)
per annum or the maximum rate of interest permitted by applicable law, secured
by the Delinquent Partner's Interest in the Partnership. Until the Loans and
interest thereon are fully repaid, the Contributing Partners shall be entitled
to all distributions to which the Delinquent Partner would have been entitled,
which shall be applied pro rata first to interest and then to principal on all
outstanding Loans. All amounts paid to the Contributing Partners pursuant to
this Section 3.1.3 shall be treated as having been first distributed to the
Delinquent Partner for all other purposes of this Agreement, and shall be
credited first to accrued and unpaid interest on the Loans and thereafter to
principal on the Loans. If the Loans and interest thereon are not fully repaid
within sixty (60) days after request for the additional Capital Contribution
pursuant to Section 3.1.2, each Contributing Partner shall have the right, but
not the obligation, in such Contributing Partner's sole discretion, to convert
the then outstanding amount of the Loan, plus accrued and unpaid interest
thereon, into an Interest in the Partnership. Such option may be exercised by a
Contributing Partner at
any time after the expiration of such sixty (60) day period by a written Notice
to the Partnership and the Delinquent Partner. Upon receipt of such Notice the
Partnership shall cause the Contributing Partner's Percentage Interest to be
increased, and the Delinquent Partner's Percentage Interest to be decreased, by
an amount equal to the product of (x) the Percentage Interest of the Delinquent
-
Partner before such additional Capital Contributions and any such adjustment and
(y) the quotient obtained by dividing the then outstanding amount of the Loan by
-
the sum of the Delinquent Partner's initial Capital Contribution as set forth in
column 2 of Schedule 2.6 plus the amount of the Delinquent Partner's Commitment
------------
which is required, or has previously been required, as an Additional Capital
Contribution up to the amount as set forth in column 3 of Schedule 2.6.
------------
Notwithstanding the foregoing, no Commitment or other obligation to make an
additional Capital Contribution may be enforced by a creditor of the Partnership
unless the Partner expressly consents in writing to such enforcement or to the
assignment of the obligation to such creditor.
3.2 Partner Advances.
----------------
3.2.1 No Partner shall be required to lend any funds to the
Partnership or to make any additional Capital Contributions in excess of the
Initial Capital Contributions and the Commitments. However, to the extent that
the Board determines that additional funds are required, each Partner shall be
entitled to advance such funds on a pro rata basis (based on relative Percentage
Interests), or such other basis as the Board shall determine (provided that any
basis other than pro rata (based on relative Percentage Interests) shall require
the agreement of each of the Board Members designated pursuant to clauses (i)
and (ii) of Section 5.1.2), within the time period specified by the Board.
Interest shall accrue on such advances ("Partner Advances") at two hundred (200)
----------------
basis points over the Thirty Year Treasury Xxxx rate of interest as published
from time to time by The Wall Street Journal, compounded quarterly or such other
rate of interest as shall be approved by the Board.
3.2.2 Notwithstanding the provisions of Section 3.2.1, if the Board
approves the raising of additional capital pursuant to Section 5.2.20, and the
RMH Limited Partner and/or the Advanta Limited Partner refuses to contribute its
proportionate share of such additional capital on a pro rata basis (based on
relative Percentage Interests of the Limited Partners), then the Partnership
shall seek an investor (which may be an existing Partner) to contribute all or a
portion of the required additional funds which the RMH Limited Partner and/or
the Advanta Limited Partner has refused to contribute. In connection with such
financing, the Partnership shall use its reasonable commercial efforts to
negotiate the best terms reasonably available from third party investors, and
each of RMH Teleservices, Inc. and Advanta Partners LP and their respective
designees on the Board shall be deemed to have approved such financing for all
purposes of this Agreement, including, without limitation, Sections 5.2.20 and
5.2.26. If either the RMH Limited Partner or the Advanta Limited Partner
participates in any such financing and the other (the "Declining Partner")
-----------------
refuses to contribute its proportionate share of such additional capital (based
on relative Percentage Interests of the Limited Partners), at all times
subsequent to the refusal of the Declining Partner to so contribute its
proportionate share, the Declining Partner shall be
deemed to no longer be an Eligible Partner for all purposes of this Agreement,
including, without limitation, Sections 5.1.2, 5.2 and 7.4.
3.2.3 Except as otherwise specifically provided in this Agreement,
the General Partner shall have no obligation to the Partnership or the Partners
to make any Capital Contributions or advances to the Partnership, or otherwise
supply or make available any funds to the Partnership, even if the failure to do
so would result in a default in any of the Partnership's obligations, a
foreclosure on the Partnership's property or other adverse consequences to the
Partnership. Notwithstanding the foregoing, the General Partner may, in its
sole discretion, make loans and advances to the Partnership on such reasonable
terms (including interest rate) as the General Partner deems appropriate.
3.3 Capital Accounts. The Partnership will maintain a capital account
----------------
(the "Capital Account") for each Partner. The initial value of the Capital
---------------
Account of each Initial Partner shall be equal to its Initial Capital
Contribution. Each Partner's Capital Account shall be (i) increased by (A) any
additional Capital Contributions made by such Partner, (B) the share of
Partnership Net Income allocated to such Partner and any income allocated
pursuant to Section 4.4 and (C) the amount of liabilities of the Partnership
assumed by such Partner or that are secured by any Partnership assets
distributed to such Partner and (ii) decreased by (A) the amount of cash and the
Gross Asset Value of any Partnership assets distributed to such Partner, (B) the
share of Partnership Net Loss allocated to such Partner or any loss or deduction
allocated to such Partner pursuant to Section 4.4 and (C) the amount of
liabilities of the Partner assumed by the Partnership or that are secured by any
assets contributed to the Partnership by such Partner. In the event that an
Interest is Transferred in accordance with this Agreement, the Capital Account
of the Transferor (at the time of such Transfer) shall carry over to the
Transferee; provided, however, that if any Partner Transfers less than its
entire Interest in the Partnership, the Transferor's Capital Account shall be
allocated pro rata between the Interest retained by the Transferor and the
Interest Transferred. In furtherance of the foregoing, the Capital Accounts
shall be maintained in compliance with Section 1.704-1(b)(2)(iv) of the
Regulations, and the provisions hereof shall be interpreted and applied in a
manner consistent therewith.
3.4 Additional Partners.
-------------------
3.4.1 Additional Persons may be admitted to the Partnership as
Partners and Partnership Rights may be created and issued to those Persons and
to existing Partners upon the approval of the Board as required by Section
5.2.26 and on such terms and conditions as they may determine at the time of
admission. The terms of admission or issuance must specify the Percentage
Interest and the amount of such Person's Initial Capital Contribution, if any.
Such Percentage Interest shall be computed on such basis as the Board shall
determine (provided that, subject to Section 3.2.2, any basis other than fair
market value shall require the agreement of each of the Board Members, if any,
designated pursuant to clauses (i) and (ii) of Section 5.1.2). At the time of
admission, each new Partner shall agree in writing to be bound by the terms of
this Agreement and shall make such representations and warranties as the Board
may require. No Person may become a Partner without the approval of a majority
of the Board Members as well as a majority of the Board Members designated
pursuant to clause (i) of Section 5.1.2 and a majority of the Board Members
designated pursuant to clause (ii) of Section 5.1.2. Any Transferee of a
Partnership Interest which is not admitted to the Partnership as a Partner is
entitled to receive, to the extent Transferred, only the distributions and
allocations of profits and losses to which the Transferor would be entitled, and
no other Partnership Rights whatsoever.
3.5 Limitations on Return of Capital.
--------------------------------
3.5.1 Except as provided in this Agreement, a Partner shall not be
entitled to a withdrawal or a return of any part of its Capital Contributions,
interest on its Capital Contributions or to receive property or assets other
than cash in return thereof.
3.5.2 Except as otherwise provided in this Agreement, no Partner
shall be entitled to priority over any other Partner with respect to a return of
its Capital Contributions, to the property and assets of the Partnership or to
allocations of income, gains, losses, deductions, expenses, obligations,
liabilities, credits or distributions.
3.5.3 No Partner with a deficit balance in its Capital Account shall
have any obligation to the Partnership, to any other Partner or to any third
party to restore the deficit balance.
3.6 Preemptive Rights.
-----------------
3.6.1 Notwithstanding any other provisions of this Agreement, subject
to Section 3.6.4, if at any time after the Effective Date, the Partnership or
any of its subsidiaries at any time or from time to time proposes to issue any
New Securities (the "Original Offer"), each Partner shall be offered the
--------------
opportunity to acquire from the Partnership or the applicable subsidiaries for
the same price and on the same terms as such securities are proposed to be
issued pursuant to such Original Offer, up to the additional amount of New
Securities as is required to enable it to maintain its proportionate Interest in
the Partnership immediately prior to such issuance. In the event that each
Partner exercises in full its preemptive rights hereunder, the Partnership and
its subsidiaries may not issue New Securities to any other Person.
3.6.2 In the event the Partnership or any of its subsidiaries offers
New Securities, it shall give each Partner written notice of its intention,
describing the type of New Security offered, and the price and other terms upon
which the Partnership (or such subsidiary) proposes to offer the same. Each
Partner shall have twenty (20) days from the date of receipt of any such notice
to notify the Partnership in writing that it intends to exercise such preemptive
rights and as to the amount of New Securities such Partner desires to purchase,
up to the maximum amount calculated pursuant to Section 3.6.1. Such notice shall
constitute an irrevocable offer of such Partner to purchase the amount of New
Securities so specified upon the price and other terms set forth in the
Partnership's notice to it. If the Partners do not subscribe for all of the New
Securities, then the Partnership shall have the right for ninety (90) days from
expiration of the twenty (20) days referred to above to offer that amount of New
Securities as to which the Partners did not subscribe to third Persons and the
price and other terms shall be no more favorable to the buyer than those set
forth in the notice to the Partners.
3.6.3 If any Partner exercises its preemptive right hereunder, the
closing of the purchase of the New Securities with respect to which such right
has been exercised shall be subject to and shall take place concurrently with,
the closing of the purchase of the New Securities pursuant to the Original Offer
(or as soon as reasonably practicable thereafter); provided that if all Partners
exercise in full their preemptive rights so that no New Securities are offered
to any Person who is not a Partner, the closing of the purchase of the New
Securities shall take place promptly after the Partnership has received notice
from all Partners of such exercise and any required governmental, regulatory and
unaffiliated third party approvals are obtained. In the event that such
Original Offer is not consummated, the Partnership shall have no obligation to
sell any New Securities to a Partner in connection with such Original Offer and
the Partner shall have no obligation to purchase any New Securities.
3.6.4 The rights granted to the Partners pursuant to Section 3.6
shall terminate as to a Partner, upon the earlier to occur of (i) such time as
such Partner ceases to be an Eligible Partner or (ii) the termination of this
Agreement.
1. SECTION 4 - PROFIT, LOSS AND DISTRIBUTIONS
------------------------------------------
4.1 Distributions of Distributable Cash Flow
----------------------------------------
4.1.1 General. Except as otherwise provided in Sections 4.1.2 and
-------
9.4, distributions of any Distributable Cash Flow of the Partnership for any
fiscal year (which such distributions may or may not, in the discretion of the
Board, include Distributable Cash Flow that was not distributed in any prior
period or periods) shall be made to each Partner in proportion to such Partner's
Percentage Interest at such times and in such amounts as the Board shall
determine; provided, however, that with respect to any period for which Partners
(or in the case of any Partner that is a Subchapter S corporation, its
shareholders, a partnership, its partners or a limited liability company, its
members) are required to make Tax payments, whether estimated or otherwise, if
any Partner would be allocated taxable income of the Partnership for federal,
state and/or local income tax purposes if such period were a separate taxable
year, then at least five (5) Business Days prior to the date on which the Tax
payments are required to be made with respect to such period, the Partnership
shall distribute to the Partners, in proportion to each Partner's Percentage
Interest, an aggregate cash amount of Distributable Cash Flow sufficient to
provide each Partner with at least an amount equal to such Partner's estimated
Tax liability with respect to such allocated taxable income of the Partnership.
4.1.2 Distribution of Net Proceeds from a Capital Event. The net
-------------------------------------------------
proceeds from Capital Events, after establishing such reserves as the Board
determines, may, in the discretion of the Board, be paid to RMH Teleservices,
Inc. in settlement of any then outstanding invoices in connection with trade
credits which have been advanced as set forth in Schedule 3.1, and the remainder
------------
may, in the discretion of the Board, be distributed to the Partners in the
following amounts and priorities:
(i) first, to the Initial Partners pro rata in proportion to
their Capital Contributions until the cumulative amount distributed under this
Section 4.1.2(i) to each Partner is equal to such Partner's Capital
Contributions;
(ii) thereafter, in accordance with Sections 5.2.17 and 5.2.24,
to each Partner in proportion to such Partner's Percentage Interest.
4.2 In-Kind Distributions. Except as otherwise provided in this
---------------------
Agreement, assets of the Partnership (other than cash) may be distributed in
kind to the extent determined by the Board in accordance with Sections 5.2.17
and 5.2.24. If any assets of the Partnership are distributed to the Partners in
kind, such assets shall be valued on the basis of the fair market value thereof
on the date of distribution, and the Capital Accounts of the Partners shall be
adjusted to reflect the manner in which the unrealized income, gain, loss, and
deduction inherent in such property (that has not previously been reflected in
the Capital Accounts of the Partners) would be allocated among the Partners if
there were a taxable disposition of such property for its fair market value
(taking into account Section 7701(g) of the Code) on the date of distribution.
4.3 Allocation of Net Income and Net Loss
-------------------------------------
4.3.1 Net Income. After giving effect to the special allocations set
----------
forth in Section 4.4, Net Income for any fiscal year or other applicable period
shall be allocated as follows and in the following order of priority:
(i) First, to the Partners, until the cumulative Net Income
allocated pursuant to this Section 4.3.1(i) for the current and all prior
periods equals the cumulative Net Loss allocated pursuant to Sections 4.3.2(i)
and (ii) for all prior periods among the Partners in the reverse order that such
Net Loss was allocated pursuant to Sections 4.3.2(i), (ii) and (iii); and
(ii) Second, to the Partners in proportion to their Percentage
Interests.
4.3.2 Net Loss. After giving effect to the special allocations set
--------
forth in Section 4.4, Net Loss for any fiscal year or other applicable period
shall be allocated as follows and in the following order of priority:
(i) First, to the Partners, to the extent of and in
proportion to, the positive balances in each Partner's Capital Account (computed
after taking into account any distributions to be made to the Partners with
respect to such period) until the Capital Account balances of the Partners have
been reduced to zero; and
(ii) Second, to the Partners in proportion to their
Percentage Interests.
(iii) Notwithstanding the foregoing provisions of this Section
4.3.2, to the extent that any Net Loss allocated to a Partner under such
provisions would cause such Partner to have an Adjusted Capital Account Deficit
as of the end of the fiscal year to which such Net Loss relates, such Net Loss
shall not be allocated to such Partner and instead shall be allocated to the
other Partners (herein, the "Permitted Partners"), if any, having positive
------------------
Capital Account balances, in proportion to each Permitted Partner's Capital
Account balance, and thereafter in accordance with the Permitted Partner's
economic risk of loss with respect to any indebtedness to which the remaining
Net Loss (or any item thereof) is attributable.
4.4 Special Allocations. The following special allocations shall be
-------------------
made in the following order:
4.4.1 Minimum Gain Chargeback. If there is a net decrease in
-----------------------
Partnership Minimum Gain for any Partnership fiscal year (except as a result of
conversion or refinancing of Partnership indebtedness, certain capital
contributions or revaluation of the Partnership property as further outlined in
Sections 1.704-2(d)(4), (f)(2) or (f)(3) of the Regulations), each Partner shall
be specially allocated items of Partnership income and gain for such year (and,
if necessary, subsequent years) in an amount equal to that Partner's share of
the net decrease in Partnership Minimum Gain but only if and to the extent
required by the Code and applicable Treasury Regulations. The items to be so
allocated shall be determined in accordance with Section 1.704-
2(f) of the Regulations. This Section 4.4.1 is intended to comply with the
minimum gain chargeback requirement in said Section of the Regulations and shall
be interpreted consistently therewith. Allocations pursuant to this Section
4.4.1 shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant hereto.
4.4.2 Minimum Gain Attributable to Partner Nonrecourse Liabilities.
------------------------------------------------------------
If there is a net decrease in Minimum Gain Attributable to Partner Nonrecourse
Liabilities during any fiscal year (other than due to the conversion,
refinancing or other change in the debt instrument causing it to become
partially or wholly nonrecourse, certain capital contributions, or certain
revaluations of Partnership property as further outlined in Section 1.704-
2(i)(4)of the Regulations), each Partner shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to the Partner's share of the net decrease in the Minimum
Gain Attributable to Partner Nonrecourse Liabilities but only if and to the
extent required by the Code and applicable Treasury Regulations. The items to
be so allocated shall be determined in accordance with Section 1.704-2(i)(4) and
(j)(2)of the Regulations. This Section 4.4.2 is intended to comply with the
minimum gain chargeback requirement with respect to Partner Nonrecourse
Liabilities contained in said Section of the Regulations and shall be
interpreted consistently therewith. Allocations pursuant to this Section 4.4.2
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant hereto.
4.4.3 Qualified Income Offset. In the event a Partner unexpectedly
-----------------------
receives any adjustments, allocations or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations, and such Partner has an
-
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 the Adjusted Capital Account Deficit as quickly as possible. This
Section 4.4.3 is intended to constitute a "qualified income offset" under
Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
-
consistently therewith.
4.4.4 Nonrecourse Deductions. Nonrecourse Deductions for any fiscal
----------------------
year or other applicable period shall be allocated to the Partners in accordance
with their respective Percentage Interests.
4.4.5 Partner Nonrecourse Deductions. Partner Nonrecourse Deductions
------------------------------
for any fiscal year or other applicable period shall be specially allocated to
the Partner that bears the economic risk of loss for the debt in respect of
which such Partner Nonrecourse Deductions are attributable (as determined under
Section 1.704-2(b)(4) and (i)(1) of the Regulations).
4.4.6 Curative Allocations. The Regulatory Allocations shall be
--------------------
taken into account in allocating other items of income, gain, loss, and
deduction among the Partners so that, to the extent possible, the cumulative net
amount of allocations of Partnership items under Sections 4.3 and 4.4 shall be
equal to the net amount that would have been allocated to each Partner if the
Regulatory Allocations had not occurred. This Section 4.4.6 is intended to
minimize to the extent possible and to the extent necessary any economic
distortions which may result from application of the Regulatory Allocations and
shall be interpreted in a manner
consistent therewith. For purposes hereof, "Regulatory Allocations" shall mean
----------------------
the allocations provided under Section 4.3.2(iii) and this Section 4.4 (other
than this Section 4.4.6).
4.4.7 Gross Income. In the event of a sale, exchange or other
------------
disposition of all or substantially all of the assets of the Partnership, or
upon the liquidation of the Partnership within the meaning of Section 1.704-
1(b)(2)(ii)(g) of the Regulations, beginning in the year in which the agreement
for such sale, exchange, disposition or liquidation is entered into or, if such
agreement is entered into on or prior to the date on which the Partnership's
federal income tax return with respect to the prior year is required to be filed
(including any extensions), beginning in such prior year, items of gross income,
gain, loss and deduction shall be allocated among the Partners so as to cause
their respective Capital Account balances, as nearly as possible, to equal the
amounts that would be distributable to each of them in accordance with the
distribution priorities set forth in Section 4.1.2.
4.5 Tax Allocations.
---------------
4.5.1 Generally. Subject to Section 4.5.2 and 4.5.3 hereof, items of
---------
income, gain, loss, deduction and credit to be allocated for income tax purposes
(collectively, "Tax Items") shall be allocated among the Partners on the same
---------
basis as their respective book items (as determined under Section 704 of the
Regulations).
4.5.2 Sections 1245/1250 Recapture. If any portion of gain from the
----------------------------
sale of property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("Affected Gain"), then (A) such
-------------
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated and (B) other Tax Items of gain of the same character that would
have been recognized, but for the application of Sections 1245 and/or 1250 of
the Code, shall be allocated away from those Partners who are allocated Affected
Gain pursuant to Clause (A) so that, to the extent possible, the other Partners
are allocated the same amount, and type, of capital gain that would have been
allocated to them had Sections 1245 and/or 1250 of the Code not applied. For
purposes of the prior sentence, each Partner shall be treated as having been
allocated depreciation and amortization in the same proportion as such Partner
(before, on or after the date of this Agreement), has been allocated any
deductions, directly or indirectly, giving rise to the Affected Gain.
4.5.3 Allocations Respecting Section 704(c) and Revaluations.
------------------------------------------------------
Notwithstanding Section 4.5.1 hereof, Tax Items with respect to all Partnership
property that is subject to Section 704(c) of the Code and/or Sections 1.704-
1(b)(2)(iv)(d) and/or (f) of the Regulations (collectively "Section 704(c) Tax
------------------
Items") shall be allocated in accordance with the "traditional method" under
-----
Regulation Section 1.704-3(b).
4.6 General.
-------
4.6.1 If an Interest in the Partnership is transferred and/or
modified in accordance with the provisions of this Agreement, there shall be
allocated to each Partner who held the transferred and/or modified Interest in
the Partnership during the fiscal year of the transfer and/or modification the
product of (a) the Partnership's Net Income or Net Loss allocable to such
transferred and/or modified Interest for such fiscal year, and (b) a fraction,
the numerator of which is the number of days such Partner held the transferred
and/or modified Interest during such fiscal year, and the denominator of which
is the total number of days in such fiscal year; provided, however, that if the
Board so determines, such Net Income or Net Loss shall be allocated by closing
the books of the Partnership immediately after the transfer and/or modification
of an Interest in the Partnership. Such allocation shall be made without regard
to the date, amount or recipient of any distributions which may have been made
with respect to such transferred Interest.
1. SECTION 5 - MANAGEMENT: RIGHTS, POWERS, AND DUTIES
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5.1 Board.
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5.1.1 The Partnership shall be managed by the General Partner. In
connection therewith, the General Partner shall have full, complete and
exclusive discretion to take, without the consent of the Limited Partners, any
and all action of whatever type that the Partnership is authorized to take and
to make all decisions with respect thereto, except as otherwise specifically
provided in this Agreement. No Limited Partner, in its status as such, shall
take part in the management or control of the business of the Partnership nor
transact any business in the name of the Partnership. No Limited Partner in its
status as such shall have the power to bind the Partnership or take any action
on its behalf or sign any documents on behalf of the Partnership.
To provide for such management of the Partnership, the General Partner
hereby agrees to establish a Board of Directors (the "Board") of the General
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Partner consisting of individuals initially appointed as provided in Section
5.1.2 and elected annually thereafter as provided in Section 5.4.5. The Board
shall have all power and authority to manage the Partnership for and on behalf
of the Partners and shall do all lawful acts and things as are not directed or
required to be exercised or done by the Partners under the Act or this
Agreement. Approval by or action taken by the Board, in accordance with this
Agreement shall constitute approval or action by the General Partner and the
Partnership and be binding upon the Partners.
5.1.2 The Board shall at all times consist of that number of Board
Members as shall be determined by the Board, by unanimous consent of the members
of the Board, from time to time (the "Board Members"). Each of the Board
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Members shall be a natural person acting in his or her individual capacity.
Initially, the Board shall consist of six members. Each Person who has the
right to vote for directors of the General Partner agrees to vote all General
Partner Securities beneficially owned by it and entitled to vote thereon at any
annual or special meeting of
holders of General Partner Securities at which Board Members are to be elected,
or shall duly consent in writing so as to elect the following individuals to the
Board:
(i) three individuals designated by Advanta Partners LP, so long as
the Advanta Limited Partner or any Permitted Transferees acquiring
Interests from the Advanta Limited Partner in accordance with clause (a),
(b) or (c) of the definition of "Permitted Transfer" is an Eligible
Partner; and
(ii) three individuals designated by RMH Teleservices, Inc., one of
whom shall be Xxxx Xxxxxxx for so long as Xxxx Xxxxxxx serves as Chief
Executive Officer of RMH Teleservices, Inc., so long as the RMH Limited
Partner or any Permitted Transferees acquiring Interests from the RMH
Limited Partner in accordance with clause (a), (b) or (c) of the definition
of "Permitted Transfer" is an Eligible Partner.
Notwithstanding the foregoing, if Advanta Partners LP or RMH Teleservices, Inc.,
as the case may be, elects not to designate individuals to serve on the Board as
provided in clauses (i) and (ii) above, there shall be no obligation to do so
and nominees for the positions as to which Advanta Partners LP or RMH
Teleservices, Inc., as the case may be, elected not to make such designations
shall be made by a majority vote of the Board.
Board Members shall be elected by a plurality of votes cast by holders of
General Partner Securities entitled to vote at each Annual Meeting. Any
vacancies on the Board, including vacancies resulting from an increase in the
number of Board Members, may be filled (i) by a majority vote of the remaining
members of the Board (though less than a quorum) or by a sole remaining Board
Member, or (ii) in the event there are no Board Members left on the Board, by
the General Partner, and each person so selected shall be a Board Member to
serve for the balance of the unexpired term. A Board Member may be removed from
office without assigning any cause by vote of the holders of General Partner
Securities entitled to vote; provided, however, that no Board Member designated
pursuant to clause (i) above may be removed from office without the approval of
Advanta Partners LP and no Board Member designated pursuant to clause (ii) above
may be removed from office without the approval of RMH Teleservices, Inc. Each
holder of General Partner Securities agrees to vote (whether at a meeting or in
an action by consent) all General Partner Securities beneficially owned by it
and entitled to vote thereon in favor of the removal of a Board Member if so
requested by the Eligible Partner that designated such Board Member. In the
case of the removal, resignation, death, or expiration of the term of a Board
Member designated by an Eligible Partner, all holders of General Partner
Securities agree to cast their votes, or execute a written consent, for the
election of a replacement Board Member designated by the Eligible Partner that
designated such Board Member.
The Partnership shall provide the Eligible Partners with not less than
30 days' prior written notice of any intended mailing of a notice to holders of
General Partner Securities for a meeting at which Board Members are to be
elected. Each Eligible Partner shall give written notice to the General
Partner, no later than 20 days prior to such mailing, of the individual or
individuals such Eligible Partner designates as nominees for election as Board
Members. The
General Partner agrees to nominate and recommend for election as Board Members
the individuals designated, or to be designated, pursuant to this Section 5.1.2.
If any Eligible Partner fails to give notice to the General Partner as provided
above, it shall be deemed that the designee(s) of such Eligible Partner then
serving on the Board shall be its designee(s) for reelection.
The General Partner shall cause the Board of Directors or other
governing body of each of the Partnership's subsidiaries to be structured, and
the members thereof appointed, so as to reflect as closely as practicable the
representation of the various Partners on the Board.
5.1.3 A Board Member's duty of care in the discharge of the Board
Member's duties to the General Partner and the Partnership is limited to acting
in good faith and with the degree of care that an ordinarily prudent person in a
like position would use under similar circumstances. In performing his or her
duties, a Board Member shall be entitled to rely on information, opinions,
reports or statements, including financial statements and other financial data,
in each case prepared or presented by (i) one or more agents or employees of the
General Partner or the Partnership; or (ii) counsel, public accountants or other
Persons as to matters that the Board Member believes to be within such Person's
professional or expert competence. A Board Member who so performs his or her
duties in accordance with this Section 5.1.3 shall have no liability by reason
of being or having been a Board Member.
5.1.4 No Board Member shall have any personal liability to the
General Partner, the Partnership or any other Partner of the Partnership for
damages for any breach of duty in his or her capacity as a Board Member,
provided that this Section 5.1.4 shall not eliminate or limit the liability of
any Board Member if the laws of the jurisdiction of organization of the General
Partner do not permit, or a judgment or other final adjudication adverse to him
or her establishes that his or her acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled. It is the intention of this Section 5.1.4 to
limit the liability of Board Members as such to the fullest extent permitted by
law and this Section 5.1.4 shall be deemed amended to the extent that any such
amendment could further limit the liability of Board Members.
5.2 Authority of the Board. The Board, by its own action or by action
----------------------
of a subcommittee of the Board, shall, in addition to any other power granted to
it in this Agreement, have the right, power and authority to take all actions
with respect to the operations of the Partnership. Except for actions approved
in the Annual Budget, no action set forth in Sections 5.2.1 through 5.2.32 below
shall be taken by the Partnership without the affirmative vote of a majority of
the Board Members designated pursuant to clause (i) of Section 5.1.2 and either
a majority of the Board Members designated pursuant to clause (ii) of Section
5.1.2 or the Board of Directors of RMH Teleservices, Inc. (exclusive of any
members of the Board of Directors of RMH Teleservices, Inc. affiliated with the
Advanta Limited Partner), so long as the RMH Limited Partner is an Eligible
Partner:
5.2.1 merging or consolidating the Partnership or any of its
subsidiaries with and into any other Person or selling, exchanging, leasing,
mortgaging, pledging or otherwise disposing of all or substantially all of the
assets of the Partnership or any of its subsidiaries, other than inventory
disposed of in the ordinary course of business;
5.2.2 a recapitalization or reorganization of the Partnership or any
of its subsidiaries;
5.2.3 other than the borrowing of money pursuant to then-existing
lines of credit or financing arrangements, borrowing money in the name of the
Partnership or any subsidiary or guaranteeing or otherwise assuming obligations
of any Person or utilizing assets of the Partnership or any subsidiary as
security for any loans or other obligations, whether such loans or obligations
are those of the Partnership, or a subsidiary, or of any other Person;
5.2.4 other than expenditures or capital investments which exceed by
no more than ten percent (10%) of the amount set forth in the Annual Budget for
a particular item, the making of any expenditure or capital investment on behalf
of the Partnership or any of its subsidiaries in excess of Fifty Thousand
Dollars ($50,000) in any single transaction or any group of transactions
amounting in purpose or effect to a single transaction;
5.2.5 assigning, Transferring, pledging, compromising or releasing
any of the claims or debts due the Partnership or any of its subsidiaries (other
than amounts released or compromised of less than Fifty Thousand Dollars
($50,000) that are so released or compromised in the ordinary course of
business) except upon payment in full to the Partnership; for purposes of this
Section 5.2.5 all transactions with the same Person or group of related Persons
during a calendar year shall be treated as a single transaction;
5.2.6 on behalf of the Partnership or any of its subsidiaries,
making, executing or delivering any assignment for the benefit of creditors or
any confession of judgment, chattel mortgage, deed, guarantee, indemnity or
surety bond in a principal amount of more than Fifty Thousand Dollars ($50,000),
other than guarantees, indemnities or surety bonds required by suppliers or
regulatory authorities; for purposes of this Section 5.2.6 all transactions with
the same Person or group of related Persons during a calendar year shall be
treated as a single transaction;
5.2.7 the acquisition or divestiture on behalf of the Partnership or
any subsidiary of any business, operation or entity (whether by asset purchase,
stock purchase, merger or otherwise);
5.2.8 leasing or mortgaging by the Partnership or any of its
subsidiaries of any real estate or any interest therein or entering into any
contract for any such purpose, other than leases, mortgages or other contracts
which can be canceled upon thirty (30) days notice by the Partnership without
penalty and do not require annual expenditures in excess of One Hundred Thousand
Dollars ($100,000);
5.2.9 sale or other Transfer of any fixed asset with a fair market
value of Fifty Thousand Dollars ($50,000) or more, other than in the ordinary
course of business of the Partnership and its subsidiaries;
5.2.10 making payment from the funds of the Partnership or any of its
subsidiaries to any Partner, any Affiliate of any Partner or any sibling of an
Affiliate of a Partner of any compensation for any reason other than reasonable
compensation for services by full time employees of the Partnership or engaging
in any transaction described in Section 2.9;
5.2.11 except for the trade credits described in Schedule 3.1,
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loaning or advancing to, or permitting to be owing to the Partnership or any of
its subsidiaries from, any Partner or any Affiliate of any Partner or any
sibling of an Affiliate of a Partner an aggregate amount in excess of Fifty
Thousand Dollars ($50,000.00) in the aggregate outstanding at any one time;
5.2.12 except to the extent arising in the ordinary course of
business, loaning or advancing to, or permitting to be owing to the Partnership
or any of its subsidiaries from any third Person any amount other than accounts
receivable of the Partnership and its subsidiaries, and credits and obligations
of suppliers of the Partnership and its subsidiaries;
5.2.13 assuming on behalf of the Partnership or any of its
subsidiaries any binding obligations with respect to a collective bargaining
agreement;
5.2.14 adoption, approval or termination of any employee benefit plan
(as defined in the Employee Retirement Income Security Act of 1974, as amended,
and the rules and regulations promulgated thereunder) or material welfare plans
for any employees of the Partnership or any of its subsidiaries, including,
without limitation, retirement plans (including any plans relating to post
retirement medical benefits other than as required by law), severance plans,
deferred compensation plans and health plans;
5.2.15 approval of the Annual Budget or Strategic Plan of the
Partnership and any modifications thereto;
5.2.16 with respect to the Partnership and each of its subsidiaries,
appointment of the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer or President and approval or amendment of any employment
agreement with the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President or any other individual who reports directly to the
Chief Executive Officer or Chief Operating Officer and receives annual base
compensation, exclusive of benefits and performance and discretionary bonuses,
in excess of One Hundred Thousand Dollars ($100,000);
5.2.17 declaration or payment of any distribution to any Partner,
except as otherwise required by the terms of this Agreement;
5.2.18 commencement of any litigation or filing of any counterclaim
in respect of then existing litigation, other than for the collection of
accounts receivable, if the amount of the claim or counterclaim exceeds Fifty
Thousand Dollars ($50,000);
5.2.19 approval of the creation of any subsidiaries and the adoption
of governance agreements or arrangements in respect thereof, or any other
investment in, or the acquisition of stocks or bonds of, other Persons or any
equity interest in any other Person; provided, that there shall be no limitation
on the Board's authority to delegate the making of investments (i) as part of
cash management in the ordinary course of business of the Partnership and its
subsidiaries or (ii) by managers of trusts established in connection with
employee benefit plans of the Partnership or its subsidiaries;
5.2.20 except for the Commitments and except as otherwise provided in
Section 3.2 hereof, approval for the raising by the Partnership or any
subsidiary of any new capital, whether in the form of equity or debt, including,
without limitation, any Additional Capital Contribution (other than the
Commitments);
5.2.21 approval of the engagement of the Partnership or any of its
subsidiaries in any activity other than providing Internet solutions for small
business and the marketing thereof, including, without limitation, the direct
marketing to small businesses of web site design and hosting services, internet
access, virtual domain names and e-mail accounts;
5.2.22 approval of the engagement of the Partnership or any of its
subsidiaries in any activity which competes with any business conducted by RMH
Teleservices, Inc. or Advanta Corporation, or any of their respective
subsidiaries, or the employment or solicitation for employment by the
Partnership or any of its subsidiaries of any individual who is or was during
the prior twelve months an employee of RMH Teleservices, Inc. or Advanta
Corporation, or any of their respective subsidiaries;
5.2.23 approval of change of the Partnership's fiscal year or any tax
elections of the Partnership, including, without limitation, any election that
would result in the Partnership being taxed as other than a "partnership" for
federal income tax purposes, including, without limitation, electing to be taxed
as other than a "partnership" by filing Form 8832, "Entity Classification
Election" or making any election inconsistent with Section 4.5.3 hereof;
5.2.24 determination of the amount and/or kind of cash or property
available for discretionary distributions pursuant to Section 4.1.1 or 4.1.2 or
otherwise;
5.2.25 approve or cause the dissolution or liquidation of the
Partnership or any of its subsidiaries;
5.2.26 admission of any Person as a new Partner of the Partnership
or, except as otherwise provided in this Agreement, the issuance to any Person
of an Interest in the Partnership;
5.2.27 approval or adoption of any financial accounting policies,
provided that any such policies shall be in accordance with GAAP applied on a
consistent basis, or any tax accounting policies, provided that such policies
shall be in accordance with applicable law and shall take into account the
respective needs of each Partner to the extent practicable and consistent with
the needs of the Partnership and its subsidiaries; provided further that if the
Board Members are unable to agree on the adoption of such a policy, any Partner
may refer the matter to determination by arbitration in accordance with Section
11.1;
5.2.28 approval and engagement of the Partnership's independent
auditors;
5.2.29 change in the size of the Board;
5.2.30 the registration of any securities of the Partnership or any
of its subsidiaries under the Securities Act and the approval and engagement of
any firm to underwrite securities of the Partnership, whether in an initial
public offering or otherwise;
5.2.31 approval or adoption of any amendment, restatement or
revocation of the Articles of Organization of the Partnership, this Agreement or
any other organizational documents of the Partnership; and
5.2.32 any other transaction which is material to the Partnership and
its subsidiaries taken as a whole.
5.3 Subcommittees. The Board may designate one or more subcommittees.
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Each subcommittee shall be composed of such number of Partners, Board Members
and/or Officers as the Board may determine. Any subcommittee, to the extent
provided by the Board, shall have and may exercise all of the power and
authority of the Board. Approval by or action taken by a subcommittee which
would require the affirmative vote of a majority of the Board Members designated
pursuant to clause (i) of Section 5.1.2 and either a majority of the Board
Members designated pursuant to clause (ii) of Section 5.1.2 or the Board of
Directors of RMH Teleservices, Inc. (exclusive of any members of the Board of
Directors of RMH Teleservices, Inc. affiliated with the Advanta Limited
Partner), if taken by the Board shall require the same affirmative vote.
5.4 Meetings and Voting.
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5.4.1 Regular meetings of the Board shall be held at such times as
the Board may determine but at least once during each calendar quarter. Special
meetings of the Board may be called at any time by any Board Member. Meetings
of the Board shall be held at a location mutually agreed upon by the members
thereof and, failing such agreement, at the Partnership's principal place of
business. Not less than two (2) nor more than ninety (90) days before each
meeting, the Person calling the meeting shall give written notice of the meeting
to each Board Member entitled to vote at the meeting. The notice shall state
the time, place and purpose of the meeting. Notwithstanding the foregoing
provisions, each Board Member who is entitled to notice waives notice if before
or after the meeting the Board Member signs a waiver of the notice which is
filed with the records of the General Partner, or is present at the meeting in
person or by proxy. The Partnership shall reimburse Board Members for their
reasonable out-of-pocket expenses incurred in connection with attendance at any
meetings of the Board.
5.4.2 The presence in person or by proxy of at least (i) a majority
of the total number of Board Members, (ii) a majority of the Board Members
designated pursuant to clause (i) of Section 5.1.2 and (iii) a majority of the
Board Members designated pursuant to clause (ii) of Section 5.1.2 shall
constitute a quorum for the transaction of business at a Board meeting. The
affirmative vote of a majority of the Board Members present at a duly
constituted meeting shall govern all of the Board's actions and constitute
approval by the Board, unless the affirmative vote of a greater number of Board
Members or of designated Board Members is required by another Section hereof
with respect to a matter or matters being considered. Each Board Member may
vote by delivering his or her proxy to another Board Member.
5.4.3 Any action required or permitted to be taken by the Board or
the Partners, either at a meeting or otherwise, may be taken without a meeting
if the Board Members or the Partners, as the case may be, having the requisite
numbers of votes to take such action consent thereto in writing. To the extent
reasonably practicable under the circumstances, written notice of the action to
be taken by written consent of the Board Members will be given by the President
or Secretary of the Partnership to all Board Members prior to the effectiveness
of any such action. Written notice of any such action taken by written consent
of the Board Members will be given by the President or Secretary of the
Partnership to all Partners promptly after such action has been taken.
5.4.4 Board Members may participate in any meeting of the Board by
means of a conference telephone or similar communications equipment through
which all persons participating in the meeting can hear or otherwise communicate
with each other, and such participation in a meeting shall constitute presence
in person at such meeting.
5.4.5 A joint annual meeting of Partners and the holders of General
Partner Securities (the "Annual Meeting") shall be held within or outside of the
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State of Delaware on such date, at such time and at such place as shall be
specified by the Board. The purpose of the Annual Meeting shall be for the
holders of General Partner Securities to elect Board Members to
serve until the next Annual Meeting and until their successors are duly elected
and qualified and to discuss the contemplated Net Income and Net Loss of the
Partnership, and such other business as may properly come before such meeting.
Written notice stating the place, day and hour of the Annual Meeting and the
purposes for which the Annual Meeting is called, shall be delivered not less
than five (5) Business Days before the date of the meeting, in the manner
specified in Section 11.10, to each Partner and each holder of General Partner
Securities entitled to vote at such Annual Meeting. If the election of the Board
Members shall not be held during any calendar year beginning January 1, 2000 at
the Annual Meeting, or any adjournment thereof, as specified, the holders of
General Partner Securities may cause the election to be held at a Special
Meeting as soon after the end of the applicable calendar year as it may
conveniently be held. The presence in person or by proxy of a holder or holders
of General Partner Securities representing at least 66% of the then outstanding
General Partner Securities entitled to vote shall constitute a quorum for the
transaction of business at any meeting of holders of General Partner Securities.
The affirmative vote of a holder or holders of General Partner Securities
representing at least 66% of the outstanding General Partner Securities
entitled to be voted at any duly constituted meeting at which a quorum is
present shall be necessary for passage of any matter voted upon, except for in
connection with the election of the Board Members which is governed by Section
5.1.2 hereof. The presence in person or by proxy of a Partner or Partners
representing at least 66% of the then outstanding Interests shall constitute a
quorum for the transaction of business at any Partner meeting; provided that
business may be conducted at a joint meeting of Partners and holders of General
Partner Securities even in the absence of a quorum for the transaction of
business at the Partner meeting. The affirmative vote of a Partner or Partners
representing at least 66% of the outstanding Interests entitled to be voted at
any duly constituted Member meeting at which a quorum is present shall be
necessary for passage of any matter voted upon.
5.4.6 Special meetings of the Partners or holders of General Partner
Securities (each a "Special Meeting"), for any purpose or purposes, unless
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otherwise prescribed by statute, may be called by one or more Partner(s) or
holders of General Partner Securities representing at least 25% of the then
outstanding Interests or General Partner Securities, as the case may be.
Written notice stating the place, day and hour of the Special Meeting and the
purposes for which the Special Meeting is called, shall be delivered not less
than five (5) Business Days before the date of the meeting, in the manner
specified in Section 11.10, to each Partner or holder of General Partner
Securities, as the case may be, entitled to vote at such Special Meeting.
5.4.7 At all meetings of Partners or holders of General Partner
Securities, a Partner or holder of General Partner Securities, as the case may
be, may vote by proxy executed in writing by the Partner or holder of the
General Partner Securities, as the case may be, or by his, her or its duly
authorized attorney-in-fact. Such proxy shall be filed with the Partnership or
the General Partner, as the case may be, before or at the time of the meeting.
The Partners or holders of General Partner Securities, as the case may be, may
adopt their own rules of procedure which shall not be inconsistent with this
Agreement or the Act or the governing law of the jurisdiction of organization of
the General Partner. A record shall be maintained of the meetings of the
Partners or holders of General Partner Securities. Partners and holders of
General Partner Securities, as the case may be, may participate in a meeting by
means of a telephone conference call or similar
communications equipment which enables all participants in the meeting to hear
each other, and participation in a meeting pursuant to this Section 5.4.7 shall
constitute presence in person at such meeting. A Partner or holder of General
Partner Securities entitled to notice of any meeting of Partners or holders of
General Partner Securities, as the case may be, waives notice if before or after
the meeting the Partner or holder of General Partner Securities, signs a waiver
of notice which is filed with the records of the Partnership or the General
Partner, as the case may be, or is present at the meeting in person or by proxy.
Each Partner shall have a number of votes on all matters with respect to which
Partners have a right to vote equal to such Partner's Percentage Interest on the
record date fixed by the Board for the applicable vote (i.e., a Partner with a
Percentage Interest of 25.3% shall have the right to cast 25.3 votes on all
matters as to which Partners have a right to vote). The record date for any
Annual or Special Meeting shall be the date on which notice thereof is given.
5.5 Officers.
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5.5.1 Subject to Section 5.2.16, the Board shall appoint employees or
other natural persons to hold the positions of chairman of the board
("Chairman"), chief executive officer (the "Chief Executive Officer"), president
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(the "President"), treasurer, secretary, and one or more vice presidents (each
---------
an "Executive Officer"), with such duties as may be established by the Board,
-----------------
and may appoint such other Officers as the Board shall determine. Each Executive
Officer shall serve in such capacity for both the General Partner and the
Partnership. Any natural person may hold two or more offices. The Board may
require any Officer to give security for the faithful performance of his or her
duties. The Board shall appoint Officers at the meeting of the Board following
the Annual Meeting and may appoint additional Officers and fill vacancies at any
time. Unless the Board shall otherwise specify, each Officer shall hold office
until the meeting of the Board following the next Annual Meeting, and until his
or her successor has been elected and qualified, except as hereinafter provided.
Subject to any applicable employment agreement between the Partnership or the
General Partner and an Officer, the Board may remove any Officer or terminate or
limit his or her duties and powers, at any time, with or without cause. Any
Officer may resign at any time by giving written notice thereof to the Chief
Executive Officer and the Board and any such action shall take effect as a
resignation without necessity of further action. Any such resignation shall be
applicable to both the Partnership and the General Partner Subject to any
applicable employment agreement between the Partnership or the General Partner
and an Officer, the Chief Executive Officer may suspend any Officer until the
next meeting of the Board.
5.5.2 Each Officer may delegate to any other Officer and to any
official, employee or agent of the Partnership or the General Partner such
portions of his or her powers as he or she shall deem appropriate, subject to
such limitations and expirations as he or she shall specify, and may revoke such
delegation at any time; provided, however, that no Officer shall delegate any
responsibilities specifically delegated to such officer by resolution of the
Board.
5.5.3 The Chairman shall preside at all meetings of the Board and
shall preside at all meetings of Partners at which the Chairman is present. If
the Chairman is not the Chief
Executive Officer, he or she shall, when appropriate, represent the Board in the
Board's dealings with the Chief Executive Officer and President, and recommend
Board committee membership and chairmen. The Chairman shall have such other
powers and perform such further duties as may be assigned to him by the Board.
In the event the Chairman of the Board is not the Chief Executive Officer and if
the Chief Executive Officer suffers a physical or mental incapacity which
prevents such person from fulfilling his duties, the Chairman shall serve as an
interim Chief Executive Officer until the Board has determined what actions to
take as a result of such incapacity. The Initial Partners agree that the initial
Chairman shall be Xxxx Xxxxxxx.
5.5.4 The Chief Executive Officer appointed by the Board shall have
general and active control of the affairs and business of the Partnership and
general supervision of its Officers, officials, employees and agents. The Chief
Executive Officer shall see that all orders and resolutions of the Board are
carried into effect, and in addition the Chief Executive Officer shall have all
the powers and perform all the duties generally appertaining to the office of
the chief executive officer of a corporation.
5.5.5 The President shall have the usual duties of the president of a
corporation with general supervision over the direction and affairs of the
Partnership. In the exercise of these duties and subject to the limitations of
the laws of the State of Delaware, this Agreement and the actions of the Board,
the President may appoint, suspend and discharge employees and agents. The
President shall also do and perform such other duties as from time to time may
be assigned to him or her by the Chief Executive Officer or by the Board.
5.5.6 The Secretary shall attend all meetings and keep the minutes of
all proceedings of the Partners, the Board and any subcommittees of the Board
unless such Board shall have chosen another secretary. He or she shall give
notice of all such meetings and all other notices required by law or by this
Agreement. The Secretary shall have custody of the seal of the Partnership and
shall have power to affix it to any instrument and to attest thereto. He or she
shall have care of the record of Partners of the Partnership, which may be kept
by any transfer agent or agents under the Secretary's direction. The Secretary
shall maintain the records of the Partnership. The Secretary shall have charge
of all documents and other records, except those for which some other Officer or
agent is properly accountable, and shall generally perform all duties
appertaining to the office of secretary of a corporation.
5.5.7 The Treasurer shall have the care and custody of all of the
funds, securities and other valuables of the Partnership, except to the extent
they shall be entrusted to other Officers, employees or agents by direction of
the Chief Executive Officer, the President or the Board. The Treasurer may hold
the funds, securities and other valuables in his or her care in such vaults or
safe deposit facilities, or may deposit them in and entrust them to such banks,
trust companies and other depositories, all as he or she shall determine with
the written concurrence of the President or his or her designee. The Treasurer
shall account regularly to the President or his or her designee for all of his
or her receipts, disbursements and deliveries of funds, securities and other
valuables.
The Treasurer, jointly with the President or his or her
designee, may designate in writing and certify to any bank, trust Partnership,
safe deposit Partnership or other depository the persons (including themselves)
who are authorized, singly or jointly as they shall specify in each case, to
open accounts in the name of the Partnership with banks, trust companies and
other depositories, to deposit funds, instruments and securities belonging to
the Partnership, to draw checks or drafts on such accounts in amounts not
exceeding the credit balances therein, to order the delivery of securities
therefrom, to rent safe deposit boxes or vaults in the name of the Partnership,
to have access to such facility and to deposit therein and remove therefrom
securities and other valuables. Any such designation and certification shall
contain the regulations, terms and conditions applicable to such authority and
may be amended or terminated an any time.
The Treasurer shall also be the chief financial and
accounting officer of the Partnership and shall have control of all its books of
account. The Treasurer shall see that correct and complete books and records of
account are kept as required by law and this Agreement, showing fully, in such
form as the Treasurer shall prescribe, all transactions of the Partnership, and
the Treasurer shall require, keep and preserve all vouchers relating thereto for
such period as may be necessary or desirable.
The Treasurer shall render periodically such financial
statements and such other reports relating to the Partnership's business as may
be required by the President, the Board or this Agreement. He or she shall
generally perform all duties appertaining to the office of comptroller of a
corporation.
Such powers may also be granted to any other Officer,
employee or agent of the Partnership by resolution of the Board or by power of
attorney authorized by the Board.
5.5.8 Subject to Section 5.2 hereof, the Chief Executive Officer
or his or her designee may appoint such officials and agents of the Partnership
as the conduct of its business may require and assign to them such titles,
powers, duties and compensation as he or she shall see fit and may remove or
suspend or modify such titles, powers, duties or compensation at any time with
or without cause.
5.6 Personal Services. No Board Member shall be required to perform
-----------------
services for the Partnership or the General Partner solely by virtue of being a
Board Member. Unless approved by the Board, no Board Member shall be entitled to
compensation for services performed for the Partnership or the General Partner.
However, upon substantiation of the amount and purpose thereof, the Board
Members shall be entitled to reimbursement for expenses reasonably incurred in
connection with the activities of the Partnership or the General Partner.
5.7 Annual Budget; Strategic Plan. The General Partner shall cause the
-----------------------------
appropriate Executive Officers to prepare, and submit to the Board, if practical
prior to the commencement of each subsequent fiscal year, and in any event prior
to February 1 of such year, an annual budget (including a cash flow budget) (the
"Annual Budget") which includes a long range strategic plan (including the
-------------
business plan for the Partnership for such fiscal year) (the "Strategic
---------
Plan"). Each
----
Annual Budget and Strategic Plan approved by the Board shall remain operative
until amended by the Board or a successor Annual Budget and Strategic Plan has
been approved by the Board, and the Partnership shall operate in subsequent
years under the most recently approved Annual Budget and Strategic Plan except
to the extent that a subsequent Annual Budget and Strategic Plan (or portion
thereof) is approved by the Board.
5.8 Duties of Parties.
-----------------
5.8.1 Each Partner by executing this Agreement hereby assumes an
obligation of good faith and fair dealing with respect to (a) the implementation
of this Agreement and (b) such Partner's dealings with the other Partners in
connection with all matters relating to this Agreement.
5.8.2 The General Partner shall devote such time to the business and
affairs of the Partnership as is necessary to carry out the General Partner's
duties set forth in this Agreement.
5.8.3 Subject to Section 11.4, any Partner, Board Member or Officer,
and any Affiliate of any of the foregoing, may engage and hold interests in
other business ventures of every kind and description for their own account,
including, without limitation, business ventures which compete with the business
of the Partnership.
Notwithstanding any provisions of this Agreement or the Act
except for Section 11.4:
(a) each Limited Partner and Board Member, and their respective
officers, directors, members, partners and shareholders and the Affiliates and
siblings of each of the foregoing, may take any actions or fail to take any
actions as officers, directors, shareholders, partners or members of their other
permitted business interests without regard to the effect of such actions or
failures to act on the Partnership or the other Partners;
(b) each Limited Partner and Board Member, and each the
business interests of such Person, may take advantage of business opportunities
which may be of interest both to the Partnership and such Person's other
business interests without bringing such opportunity to the Partnership or
advising any other Partner or Board Member;
(c) in voting as a Board Member, a holder of General Partner
Securities or Partner on (i) whether the Partnership should enter into a new
line of business or (ii) whether a Person should be admitted as a Partner, a
Board Member may take into account any adverse effect of the Partnership's
taking any such action on the other business interests of such Board Member and
his or her Affiliates.
Each of the Partners acknowledges and agrees that (i) the duty
of the Partners and Board Members to disclose information to the Partnership,
any Partner or Board
Member shall be governed by Section 5.8.4 and (ii) the standard of knowledge to
be applied in determining whether a Person has satisfied his, her or its duty as
set forth in this Section 5.8.3 shall be the actual knowledge, after due and
reasonable inquiry, of the Partner or Board Member as to the facts and their
consequences.
Each of the Partners further acknowledges and agrees that the
fact of participation by a Person or his, her or its Affiliates (including,
without limitation, the officers, directors, members, partners and shareholders
of such Person and their Affiliates and siblings) in other activities shall not
change or be relevant to deciding the burden of proof in any proceeding to
determine a Person's compliance with this Section 5.8. Any Partner or Board
Member claiming a breach by another Person of his, her or its obligations under
this Section 5.8 shall give notice to the other Partner of such alleged breach
reasonably promptly upon learning thereof and failure to give such notice shall
be deemed to be a waiver of any such breach.
5.8.4 No Partner or Board Member shall be required to provide,
disclose, or otherwise make available to the Partnership or to any other Partner
or Board Member any information which is not generally available to the public,
unless the non-disclosure of such information is reasonably likely to have an
adverse effect on the Partnership or upon a Partner's ability to perform its
obligations under this Agreement; provided, however, that notwithstanding the
foregoing, a Partner or Board Member shall not be obligated to disclose
information which is subject to an obligation of confidentiality owed to a third
Person under law, or made in good faith in connection with a bona fide
transaction, negotiations or then-existing relationship involving such third
Person for purposes which include protecting the legitimate interests of such
third Person or an Affiliate of such third Person. Upon reasonable notice to the
Partnership, each of the Partners (and, subject to appropriate confidentiality
agreements, their respective advisors) shall have full access to all of the
books and records of the Partnership, including, without limitation, Partnership
information which is not generally available to the public. No Partner or Board
Member will reveal or make accessible to any third Person, or use in any way
other than as such Partner or Board Member believes, in good faith, to be for
the benefit of the Partnership, any Partnership information which is not
generally available to the public if the disclosure of such information would be
reasonably likely to be adverse to the interests of the Partnership, except when
he, she or it does so in the good faith belief that such discussion or use is
for the benefit of the Partnership. The parties hereto acknowledge and agree
that the covenants and restrictions set forth in this Section 5.8.4 are
specifically intended to delineate, define and limit the rights of the Partners
under Section 17-305 of the Act.
1. SECTION 6 - LIABILITY AND INDEMNIFICATION
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6.1 Liability of Covered Persons. Except as otherwise provided by the
----------------------------
Act or this Agreement, Covered Persons shall not be liable, responsible or
otherwise accountable for damages to the Partnership or to any Partner for any
action taken or failure to act on behalf of the Partnership, unless such acts or
omissions constituted willful misconduct or gross negligence. Notwithstanding
the foregoing, the liability of each Limited Partner for the debts and
obligations of the Partnership shall be limited in the manner specified in the
Act.
6.2 Indemnification of Covered Persons. To the extent permitted by
----------------------------------
law, the Partnership shall indemnify, defend and hold harmless each Covered
Person from and against any and all debts, losses, claims, damages, costs,
demands, fines, judgments, contracts (implied and expressed, written and
unwritten), penalties, obligations, payments, liabilities of every type and
nature (whether known or unknown, fixed or contingent), including, without
limitation, those arising out of any lawsuit, action or proceeding (whether
brought by a party to this Agreement or by any third party), together with any
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees, out-of-pocket expenses and other reasonable costs and expenses
incurred in investigating, preparing or defending any pending or threatened
lawsuit, action or proceeding) incurred in connection with the foregoing
(collectively "Damages") suffered or sustained by such Covered Person by reason
-------
of any act, omission or alleged act or omission by such Covered Person arising
out of such Covered Person's activities taken primarily on behalf of the
Partnership, or at the request or with the approval of the Partnership, or
primarily in furtherance of the interests of the Partnership; provided, however,
that the acts, omissions or alleged acts or omissions upon which such actual or
threatened actions, proceedings or claims are based did not constitute willful
misconduct or gross negligence.
6.3 Indemnification Procedure.
-------------------------
6.3.1 A party seeking indemnification from the Partnership pursuant
to Section 6 (an "Indemnified Party") shall give prompt notice to the
-----------------
Partnership of the assertion of any claim, including any claim brought by a
third party, in respect of which indemnity may be sought hereunder (a "Claim")
-----
and shall give the Partnership such information with respect thereto as the
Partnership may reasonably request but no failure to give such notice shall
relieve the Partnership of any liability hereunder except to the extent the
Partnership has suffered actual prejudice thereby. The Partnership shall have
the right, exercisable by written notice (the "Notice") to the Indemnified Party
------
(which Notice shall state that the Partnership expressly agrees that as between
the Partnership and the Indemnified Party, the Partnership shall be solely
obligated to satisfy and discharge the Claim) within thirty (30) days of receipt
of notice from the Indemnified Party of the commencement of or assertion of any
Claim, to assume the defense of such Claim, using counsel selected by the
Partnership and reasonably acceptable to the Indemnified Party; provided that
the Partnership shall not have the right to assume the defense of a Claim (A)
seeking an injunction, restraining order, declaratory relief or other
nonmonetary relief against the Indemnified Party (whether or not the Partnership
is also named as a party) or (B) if the named parties to any such action
(including any impleaded parties) includes both the Indemnified Party and the
Partnership and the Indemnified Party shall have been advised by counsel that
there are one or more legal or equitable defenses available to the Indemnified
Party which are different from those available to the Partnership; in which case
such Indemnified Party shall have the right to participate in the defense of a
Claim of the type set forth in clause (A) and/or (B) above and all Damages in
connection therewith shall be reimbursed by the Partnership. In addition, if the
Partnership fails to give the Indemnified Party the Notice complying with the
provisions stated above within the stated time period, the Indemnified Party
shall have the right to assume control of the defense of the Claim and all
Damages in connection therewith shall be reimbursed by the Partnership upon
demand of the Indemnified Party. In any event, no party assuming the defense of
any Claim shall have the right to compromise or settle any claim for non-
monetary relief against the other party or any claim for monetary relief against
another party without such party's consent (which consent shall not be
unreasonably withheld or denied) unless such monetary relief is paid in full by
the settling party.
6.3.2 If at any time after the Partnership assumes the defense of a
Claim any of the conditions set forth above are no longer satisfied, the
Indemnified Party shall have the same rights as if clause (A) or (B) above had
been satisfied and the Partnership never assumed the defense of such Claim.
6.3.3 The Partnership or the Indemnified Party, as the case may be,
shall in any event have the right to participate, at its own expense, in the
defense of any Claim which the other is defending.
6.3.4 The Partnership, if it has assumed the defense of any Claim in
accordance with the terms hereof, shall have the right, upon five (5) Business
Days prior written notice to the Indemnified Party, to consent to the entry of
judgment with respect to, or otherwise settle such
Claim unless (i) the Claim involves equitable or other non-monetary damages or
(ii) in the reasonable judgment of the Indemnified Party such settlement would
have a continuing material adverse effect on the Indemnified Party's business
(including any material impairment of its relationships with customers and
suppliers). In the case of (i) and (ii) above, such settlement only may be made
with the written consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed. If the Indemnified Party otherwise assumes the
defense of a Claim, it shall have the right to settle such Claim with the
consent of the Partnership which consent shall not be unreasonably withheld or
delayed. In addition, if consent to the settlement is denied solely because of
the provisions of (ii) above, then the Indemnifying Party shall not be liable
for Damages in excess of the Damages which would have been paid if consent had
been granted to such settlement.
6.3.5 Whether or not the Indemnifying Party chooses to defend or
prosecute any Claim involving a third party, all the parties hereto shall
cooperate in the defense or prosecution thereof and shall furnish such records,
information and testimony, and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested in connection
therewith.
6.3.6 The Partnership may obtain insurance coverage to the extent
available on terms approved by the Board.
1. SECTION 7 - TRANSFER OF INTERESTS
---------------------------------
7.1 Transfers of Interests.
----------------------
7.1.1 No Partner shall, voluntarily or involuntarily, directly or
indirectly, Transfer any Interests other than in a Permitted Transfer, pursuant
to this Section 7 or to the Partnership; provided, however, that any Transfer to
the Partnership shall require the consent of a majority of the Board as well as
a majority of the Board Members designated pursuant to clause (i) of Section
5.1.2 and a majority of the Board Members designated pursuant to clause (ii) of
Section 5.1.2. The provisions of this Section 7.1.1 shall apply to each proposed
Permitted Transfer (including any subsequent Transfer by a Permitted
Transferee), and no Partner shall consummate any Permitted Transfer in violation
of the provisions of this Agreement.
7.1.2 Prior to any proposed Transfer of any Interests by any party
hereto, such party shall give written notice to the Partnership and each other
party of such party's intention to effect such Transfer. Each such notice shall
describe the manner and circumstances of the proposed Transfer in sufficient
detail, and include any other information required by the provisions of this
Section 7 applicable to such proposed Transfer.
7.1.3 Notwithstanding the provisions of this Section 7, in the event
that a Partner Transfers all or any portion of its Interests to an Affiliate
thereof pursuant to clause (a) of the definition of "Permitted Transfer," if
such Permitted Transferee thereafter ceases to be an Affiliate of the Partner,
such transferring Partner shall cause such Permitted Transferee to
Transfer to it or to another Permitted Transferee of such transferring Partner,
all Interests owned by such Permitted Transferee immediately prior to the time
such Permitted Transferee ceases to be an Affiliate of the Partner. For purposes
of this Agreement, the Advanta Limited Partner shall be deemed to have received
its Interests as a result of a Transfer from Advanta Partners LP pursuant to
clause (a) of the definition of "Permitted Transfer" and the RMH Limited Partner
shall be deemed to have received its Interests as a result of a Transfer from
RMH Teleservices, Inc. pursuant to clause (a) of the definition of "Permitted
Transfer".
7.2 Right of First Refusal. Each Partner shall have the right to
----------------------
Transfer for cash all or a portion of its Interests to an unaffiliated third
party free of the restrictions imposed by this Agreement; provided, however,
that such Partner shall first have offered to sell all of the Subject Securities
(as defined below) to the ROFR Offerees (as defined below) in accordance with
the following procedures:
7.2.1 If a Partner shall receive a bona fide offer in writing from an
unaffiliated third party (the "Offeror") to purchase for cash Interests in a
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transaction which is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Securities Act"), which the Partner desires in
--------------
good faith to accept (a "Qualifying Offer"), such Partner (the "Selling
---------------- -------
Partner") shall provide written notice thereof (the "Offer Notice"), within five
------- ------------
(5) Business Days of the Selling Partner's receipt of the Qualifying Offer, to
the Partnership or its designee (not a Partner) (each a "Partnership Offeree")
-------------------
and each Partner owning a Percentage Interest of twenty percent (20%) or more,
or its designee, (a "Partner Offeree", and together with the Partnership
---------------
Offeree, the "ROFR Offerees"), setting forth the name and address of the
-------------
proposed purchaser, the number and type of Interests proposed to be sold (the
"Subject Securities"), the cash purchase price for the Interests, and all other
-------------------
terms and conditions of the proposed transaction. The receipt of such notice by
the ROFR Offerees shall constitute an offer by the Selling Partner to sell to
the ROFR Offerees all or part of the Subject Securities at the price per share
set forth in the Qualifying Offer (the "ROFR Offer"). Such offer shall be
----------
irrevocable and may be accepted for a period of twenty (20) Business Days (the
"Offer Period") following receipt of such notice by the ROFR Offerees.
------------
7.2.2 If any ROFR Offeree (the "Accepting ROFR Offeree") elects to
----------------------
accept the ROFR Offer for any or all of the Subject Securities, such ROFR
Offeree shall deliver written notice of its agreement to acquire Subject
Securities and the number of Interests it agrees to acquire, and deliver a copy
of such notice to each of the Selling Partner and the other ROFR Offeree(s);
provided, however, that the Partner Offerees shall have the right to purchase
any or all of the Interests offered pursuant to the ROFR Offer prior to the
right of the Partnership Offeree. Accordingly, if any of the Partner Offerees is
an Accepting ROFR Offeree and elects to accept the ROFR Offer for less than all
of the Subject Securities offered pursuant to the ROFR Offer, the Partnership
Offeree shall be entitled to purchase any or all of the Subject Securities
offered pursuant to the ROFR Offer and not accepted for purchase by the Partner
Offerees (which right as among the Partner Offerees shall be allocated on a pro
rata basis in accordance with the Percentage Interests of each such Partner
Offeree). Unless otherwise agreed by the Selling Partner and the ROFR Offerees,
the price for the Subject Securities shall be payable in cash.
7.2.3 The closing of the purchase of all Subject Securities to be
purchased by the ROFR Offerees shall take place at the offices of the
Partnership on a date to be determined under Section 7.5.3. If the ROFR Offerees
do not exercise their options to purchase all of the Subject Securities within
the periods described in Section 7.2, then all options of the ROFR Offerees to
purchase the Subject Securities, whether exercised or not, shall terminate and
the ROFR Offer shall be deemed to have been rejected in full.
7.2.4 If (i) the ROFR Offer is rejected either by notice or by
failure to accept the ROFR Offer during the Offer Period or such offer is
partially rejected by the ROFR Offerees' acceptance, in the aggregate, of the
ROFR Offer with respect to only a portion of the Subject Securities, or (ii) the
purchase of the Subject Securities is not consummated within the period set
forth in Section 7.5.3 for any reason other than a breach by the Selling Partner
of any of its covenants, representations or warranties that are a condition to
consummation of such purchase, then the Selling Partner shall have the right,
subject to Section 7.3 below, at any time during the sixty-day period beginning
on the day following the last day of the Offer Period, to enter into a binding
agreement to sell all of the Subject Securities pursuant to this Section 7.2 to
an unaffiliated third party on terms and conditions no less favorable in the
aggregate to the Selling Partner than those set forth in the Offer Notice, and
thereafter (within the period specified below in this Section 7.2.4) to sell all
of such Subject Securities to such third party pursuant to such agreement. If
the Selling Partner does not enter into such an agreement during such sixty-day
period, or does not close the sale thereunder within 120 days from the day
following the last day of the Offer Period (subject to extension for a maximum
of 60 additional days to the extent required to obtain all required
governmental, regulatory and other unaffiliated third party consents and
approvals, provided the Selling Partner and the third party purchaser are each
using commercially reasonable efforts to obtain such consents and approvals),
the procedure set forth above with respect to the Offer Notice shall be repeated
with respect to any subsequent proposed Transfer of Partnership Securities by
the Selling Partner.
7.3 Co-Sale.
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7.3.1 If (i) a Partner or a group of Partners receives a bona fide
offer in writing from an unaffiliated third party (the "Co-Sale Offeror") to
---------------
purchase from such Partner or group of Partners for cash Interests constituting
more than 5% of the Interests outstanding which he, she or it desires in good
faith to accept (a "Co-Sale Offer"), and (ii) the ROFR Offer with respect to
-------------
such Interests is rejected or deemed to be rejected in full or in part in
accordance with Section 7.2.4, then the Partnership shall provide written notice
(the "Co-Sale Notice") to all other Partners of the number and type of
--------------
securities proposed to be sold (the "Co-Sale Subject Securities"), the cash
--------------------------
purchase price of the Interests, the name and address of the Co-Sale Offeror and
all other terms and conditions of the proposed transaction. A Co-Sale Notice
may be delivered concurrently with the corresponding Offer Notice, in which case
the making of the Co-Sale Offer shall be conditioned upon the rejection or
deemed rejection of the applicable ROFR Offer.
7.3.2 Each other Partner may within twenty (20) Business Days of
delivery of the Co-Sale Notice (the "Co-Sale Offer Period"), notify the
--------------------
Partnership of its desire to participate in the sale of the Co-Sale Subject
Securities on the terms set forth in the Co-Sale Notice, and the number of
Partnership Securities it proposes to sell (such Partner a "Participating
-------------
Partner").
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7.3.3 The Partnership shall promptly, upon expiration of the Co-Sale
Offer Period, notify the selling Partner or group of selling Partners of the
aggregate number of Co-Sale Subject Securities the Participating Partners wish
to sell. The selling Partner or group of selling Partners shall then use his,
her or its reasonable efforts to interest the Co-Sale Offeror in purchasing, in
addition to the Co-Sale Subject Securities, the Interests the Participating
Partners wish to sell. If the Co-Sale Offeror does not wish to purchase all of
the Interests made available by the selling Partner or group of selling Partners
and the Participating Partners, then the selling Partners and the Participating
Partners shall be entitled to sell, at the price and on the terms and conditions
set forth in the Co-Sale Notice, a portion of the Interests being sold to
theCSale Offeror, in the same proportion as the respective number of Interests
owned by the selling Partners or group of selling Partners and each
Participating Partner bears to the aggregate number of Interests owned by the
selling Partner or group of Selling Partners and the Participating Partners.
7.3.4 If the Participating Partners do not elect to sell the full
number of Interests which they are entitled to sell pursuant to Section 7.3.1,
the selling Partners or group of selling Partners shall be entitled to sell to
the Co-Sale Offeror, according to the terms set forth in the Co-Sale Notice,
that number of his or its own Interests which equals the difference between the
number of Interests desired to be purchased by the Offeror and the number of
Interests the Participating Partners wish to sell. If the selling Partner or
group of selling Partners wishes to Transfer any such Interests at a price which
differs from that set forth in the Co-Sale Notice, upon terms different from
those previously offered to the Partnership and the Partners, or more than sixty
days after the expiration of the Co-Sale Offer Period, as a condition precedent
to such transaction, such Interests must first be offered to the Partnership and
the Partners on the same terms and conditions as given the Co-Sale Offeror, and
in accordance with the procedures and time periods set forth above.
7.4 Drag-Along Right. If one or more Partners ("Drag-Along Sellers")
---------------- ------------------
propose to Transfer (and as a result of such Transfer, a change in beneficial
ownership of Interests would result) in a sale consummated in a single Transfer
or a series of related Transfers to a single purchaser or a group of purchasers
(which may include a Partner) ("Drag-Along Buyer") all but not less than all of
----------------
the Interests held by such Sellers, and such Interests, together with all other
Interests owned by the Drag-Along Buyer and the Drag-Along Buyer's Affiliates
(on a fully diluted basis) represent 65% or more of the then outstanding
Interests, then such Drag-Along Sellers shall have the right ("Drag-Along
----------
Right"), but not the obligation, to cause each of the other Partners ("Other
----- -----
Partners") to tender to Drag-Along Buyer for purchase, at the same price and on
--------
the same terms and conditions as apply to such Drag-Along Sellers (including,
without limitation, indemnification obligations and escrow requirements, if
any), all of the Interests held by such Other Partners; provided, however, that
the Drag-Along Sellers shall have the Drag-
Along Right if and only if Advanta Partners LP has consented thereto if Advanta
Partners LP is an Eligible Partner and RMH Teleservices, Inc. has consented
thereto if RMH Teleservices, Inc. is an Eligible Partner. A determination by the
Drag-Along Sellers to exercise the Drag-Along Rights shall be made based upon a
written notice to do so ("Drag-Along Notice") executed by the Drag-Along Sellers
-----------------
and delivered to the Board and all Partners. Each Drag-Along Notice shall set
forth (i) the name of the Drag-Along Buyer to which the Drag-Along Sellers
propose to Transfer Interests, (ii) the address of the Drag-Along Buyer, (iii)
the proposed amount and form of consideration and terms and conditions of
payment offered by the Drag-Along Buyer, and any other material terms pertaining
to the Transfer ("Drag-Along Buyer Terms") and (iv) that the Drag-Along Buyer
----------------------
has been informed of the rights provided in this Section 7.4 and has agreed to
purchase Interests in accordance with the terms hereof. The Drag-Along Notice
shall be given at least thirty (30) days before settlement of the proposed
Transfer. Upon the giving of a Drag-Along Notice, each Other Partner shall be
entitled and obligated to sell all of their Interests to Drag-Along Buyer on the
Buyer Terms; neither the Sellers nor any Other Partner shall be obligated to
consumate the sale of any Interests if the Buyer does not purchase all Interests
which the Partners are entitled to sell pursuant thereto.
7.5 Purchases and Sales of Interests pursuant to Section 7.
------------------------------------------------------
7.5.1 In connection with any purchase and sale of Interests
hereunder, each seller of Interests shall deliver to each purchaser thereof a
certificate, executed by or on behalf of such seller, in which such seller shall
represent and warrant to such purchaser as of the closing date of such
transaction as follows:
7.5.1.1 (A) If an entity, such seller is such an entity validly
existing and in good standing under the laws of the state of its organization
and (B) such seller has good title to, and the full power and authority to sell,
transfer and assign to the purchaser all of its right, title and interest in and
to, such Interests;
7.5.1.2 there are no consents, approvals, or authorizations
required under any law, rule, regulation, agreement, or instrument applicable to
the seller (other than such as have previously been obtained and are in full
force and effect as of such closing date) required in order to consummate its
sale of such Interests to the purchaser (other than any consents, approvals, or
authorizations required to be obtained by the purchaser in connection with such
purchase); and
7.5.1.3 immediately after the sale, Transfer, and assignment
thereof, such purchaser will have good title to such Interests free and clear of
all liens, claims or encumbrances (other than any arising pursuant to this
Agreement or under state or federal securities laws or created by the purchaser
or arising by reason of its purchase or ownership of such Interests).
7.5.2 In connection with any purchase and sale of Interests hereunder
between any Partner and any ROFR Offeree or Drag-Along Buyer, each purchaser of
Interests shall deliver to each seller thereof a certificate, executed by or on
behalf of such purchaser, in which such
purchaser shall represent and warrant to such seller as of the closing date of
such transaction as follows:
7.5.2.1 (A) If an entity, such purchaser is such an entity
validly existing and in good standing under the laws of the state of its
organization and (B) such purchaser has the full power and authority to
purchase, acquire and accept from the seller all of its right, title, and
interest in and to such Interests; and
7.5.2.2 there are no consents, approvals, or authorizations
required under any law, rule, regulation, agreement or instrument applicable to
such purchaser (other than such as have previously been obtained and are in full
force and effect as of such closing date) required in order to consummate its
purchase of such Interests from such seller (other than any consents, approvals,
or authorizations required to be obtained by such seller in connection with such
sale).
7.5.3 Unless otherwise provided herein, the closing of the purchase
and sale of such Interests shall be held on the fifth Business Day following
satisfaction of all conditions (including any financing condition) to such
closing, but in no event later than 120 days following the date that the total
number of shares of Interests such Person is obligated to purchase is finally
determined; provided, however, that such 120-day period shall be extended for up
to an additional 60 days in order to obtain any consent, approval, or
authorization or any expiration of a waiting period, which consent, approval,
authorization or expiration is a condition to the closing of such purchase and
sale. The obligation of each party to effect such purchase and sale shall be
conditioned (satisfaction of which may not be waived by any party thereto
without the consent of the other parties thereto) upon the receipt of any and
all consents, approvals, or authorizations of any governmental or regulatory
entities or other third parties, and the expiration or termination of any
waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, applicable to the consummation of such purchase and sale
contemplated. Each party to such transaction shall use its commercially
reasonable efforts to cause the satisfaction of such condition.
7.5.4 At the applicable closing, each purchaser of Interests shall
deliver to each seller thereof in cash, or by certified check or wire transfer
of immediately available funds to the account specified by such seller, or such
other form of consideration as may be applicable, an amount equal to the
purchase price of the Interests to be purchased by such purchaser from such
seller. Concurrently therewith, if Interests are evidenced by certificates,
each seller shall deliver to each purchaser a certificate or certificates
representing the Interests to be sold by such seller to such purchaser, duly
endorsed for transfer or accompanied by duly executed powers, with all requisite
transfer tax stamps affixed, and such Interests shall be free and clear of all
liens, claims, and encumbrances (except as otherwise provided herein and except
for restrictions on resales under applicable securities laws) and all title to,
and all rights and privileges of ownership in, all such Interests shall
immediately vest in such purchaser. At the applicable closing, each seller
shall also deliver to each purchaser, and each purchaser shall deliver to each
seller, the certificates required pursuant to Sections 7.5.1 and 7.5.2, and each
seller shall deliver to each purchaser such other certificates and documents as
such purchaser may reasonably request.
7.6 Compliance with Securities Laws. The Partners acknowledge and
-------------------------------
confirm that the Interests held by them may constitute securities and that the
Interests have not been registered under any federal or state securities laws by
virtue of exemptions from the registration provisions thereof or otherwise, and
consequently cannot be sold except pursuant to appropriate registration or
exemption from registration as applicable. No transfer or assignment of all or
any part of the Interests of a Partner (except a transfer upon the death,
incapacity or Bankruptcy of a Partner to his personal representative and
beneficiaries), including, without limitation, any transfer of a right to
distributions, profits and/or losses to a Person, whether or not such Person
becomes a Partner, may be made unless the Partnership is provided with an
opinion of counsel acceptable to the Board (both as to the identity of the
counsel and the substance of the opinion) to the effect that such transfer or
assignment (a) may be effected without registration of the Interests under the
Securities Act, and (b) does not violate any applicable federal or state
securities laws (including any investment suitability standards) applicable to
the Partnership or the transferee. In no event may any Partner who is a
Pennsylvania resident sell all or any portion of such Partner's Interests within
12 months after the date of purchase thereof if such sale would be violative of
the provisions of Section 203(d)(i) of the Pennsylvania Securities Act of 1972,
as amended.
7.7 Transfers are Void. Any Transfer attempted in violation of the
------------------
provisions contained in this Section 7 shall be deemed null and void and of no
effect, the Partnership being hereby authorized not to acknowledge and, to the
extent applicable, not register the Transfer in the relevant books of the
Partnership.
1. SECTION 8 - BUY-SELL PROCEDURES
-------------------------------
8.1 Buy-Sell Notice. At any time after the fourth anniversary of the
---------------
Effective Date, a notice ("Buy-Sell Notice") may be given by either Advanta
---------------
Partners LP (provided that the Advanta Limited Partner is an Eligible Partner at
the time of notice) or RMH Teleservices, Inc. (provided that the RMH Limited
Partner is an Eligible Partner at the time of notice) (the "Initiating Partner")
------------------
to the other (the "Receiving Partner") and to the Partnership pursuant to the
-----------------
notice provisions of Section 11.10 which states that the Partner giving the
notice intends to sell all of such Partner's Interests pursuant to this Section
8.
8.2 Rights Following Buy-Sell Notice. Promptly following receipt by
--------------------------------
the Partnership of the Buy-Sell Notice, each of Advanta Partners LP and RMH
Teleservices, Inc. shall engage on its behalf an independent investment banking
firm of national standing and reputation to determine the fair market value of
the equity of the Partnership as a going concern, taken as a whole, reflecting
the sale of 100% of the outstanding equity of the Partnership, on a fully
diluted basis, in a single transaction to a single purchaser. The Partnership,
Advanta Partners LP and RMH Teleservices, Inc. will cooperate with each of the
independent firms, including, without limitation, prompt compliance with all
reasonable requests by the independent firms for information, papers, books,
records and the like. Each of Advanta Partners LP and RMH Teleservices, Inc.
will instruct the independent firm which it engaged to deliver, within thirty
(30) days following receipt by the Partnership of the Buy-Sell Notice, its
report which shall specify the
fair market value of the equity of the Partnership and the basis for such
determination. If the fair market values so determined by the two independent
firms do not differ by more than ten percent (10%), then the fair market value
of the equity of the Partnership shall be deemed to equal the arithmetic average
of the values so determined by the two independent firms. If such fair market
values differ by more than ten percent (10%), then the independent firms shall
promptly designate a third independent investment banking firm of national
standing and reputation (the "Independent Firm") to determine the fair market
----------------
value of the equity of the Partnership as a going concern, taken as a whole,
reflecting the sale of 100% of the outstanding equity of the Partnership, on a
fully diluted basis, in a single transaction to a single purchaser. The
Independent Firm shall be instructed to select either the fair market value
determined by the independent firm engaged by RMH Teleservices, Inc. or the fair
market value determined by the independent firm engaged by Advanta Partners LP
as the value which most closely approximates the correct fair market value. The
Partnership, Advanta Partners LP and RMH Teleservices, Inc. shall use their best
efforts to cause the Independent Firm to render its decision as soon as is
reasonably practicable, including, without limitation, prompt compliance with
all reasonable requests by the Independent Firm for information, papers, books,
records and the like. The Independent Firm shall deliver its report which shall
specify the fair market value of the equity of the Partnership and the basis for
such determination to the Board, Advanta Partners LP and RMH Teleservices, Inc.
Each of Advanta Partners LP and RMH Teleservices, Inc. shall bear all fees,
costs, disbursements and other expenses of the independent firm engaged by it
and the Partnership shall bear all fees, costs, disbursements and other expenses
of the Independent Firm.
Within ten (10) Business Days after the fair market value of the
Partnership's equity has been determined as set forth above, the Receiving
Partner shall give notice to the Initiating Partner stating that (i) the
Receiving Partner elects to purchase the Initiating Partner's Interests for a
cash purchase price equal to the product of the Initiating Partner's Percentage
Interest times the valuation established by the Independent Firm or (ii) the
Receiving Partner offers to sell its Interests in the Partnership to the
Initiating Partner for a cash purchase price equal to the product of the
Receiving Partner's Percentage Interest times the valuation established by the
Independent Firm. A failure of the Receiving Partner to give such notice in a
timely manner shall be deemed to be an election by the Receiving Partner to sell
its Interests in the Partnership to the Initiating Partner for a cash purchase
price equal to the product of the Receiving Partner's Percentage Interest times
the valuation established by the Independent Firm. If the Receiving Partner
elects, or is deemed to have elected, to offer to sell its Interests in the
Partnership to the Initiating Partner for a cash purchase price equal to the
product of the Receiving Partner's Percentage Interest times the valuation
established by the Independent Firm, the Initiating Partner shall have ten (10)
Business Days to accept or refuse such offer. If the Initiating Partner elects
not to purchase the Interests of the Receiving Partner or fails to give notice
to the Receiving Partner in a timely manner, the Initiating Partner and the
Receiving Partner shall be deemed to have elected to seek to sell the
Partnership to a third party for the highest price reasonably available.
In the event that the Receiving Partner's Interests are to be
purchased by the Initiating Partner or the Initiating Partner's Interests are to
be purchased by the Receiving Partner,
pursuant to the foregoing paragraph, then the closing of the purchase and sale
shall be held no later than 60 days after the notice accepting the offer to sell
has been received by the buyer; provided, however, that such 60-day period shall
be extended for up to an additional 60 days in order to obtain any consent,
approval, or authorization or any expiration of a waiting period, which consent,
approval, authorization or expiration is a condition to the closing of such
purchase and sale. The obligation of each party to effect such purchase and sale
shall be conditioned (satisfaction of which may not be waived by any party
thereto without the consent of the other parties thereto) upon the receipt of
any and all consents, approvals, or authorizations of any governmental or
regulatory entities or other third parties, and the expiration or termination of
any waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, applicable to the consummation of such purchase and sale
contemplated. Each party to such transaction shall use its best efforts to cause
the satisfaction of such condition. The closing shall be conducted in accordance
with the provisions of Section 7.5.4.
In the event that the Receiving Partner or the Initiating Partner has
elected, or has been deemed to have elected, to sell the Partnership to a third
party for the highest price reasonably available, the Board shall promptly take
all reasonable steps necessary to cause the Partnership to be sold to a third
party for the highest price reasonably available. Advanta Partners LP and RMH
Teleservices, Inc. shall use their commercially reasonable efforts to effect
such sale.
1. SECTION 9 - DISSOLUTION, LIQUIDATION, TERMINATION AND CONVERSION OF THE
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PARTNERSHIP
-----------
9.1 Events of Dissolution. The business of the Partnership shall be
---------------------
continued by the Partners pursuant to this Agreement and no Partner shall be
released or relieved of any duty or obligation hereunder by reason thereof;
provided, however, that the business of the Partnership shall be terminated, its
affairs wound up and its property and assets distributed if any of the following
occur:
9.1.1 upon the written agreement of seventy five percent (75%) of the
outstanding Interests and the General Partner;
9.1.2 upon the occurrence of an Involuntary Withdrawal of the General
Partner, unless the remaining Partners, within ninety (90) days after the event
or occurrence of the Involuntary Withdrawal, unanimously elect to continue the
business of the Partnership pursuant to the terms of this Agreement and elect
and new General Partner;
9.1.3 upon the entry of a decree of judicial dissolution under
Section 17-802 of the Act; or
9.1.4 upon the sale or other disposition of all or substantially all
of the assets of the Partnership.
9.2 Winding up of Affairs. As expeditiously as possible following the
---------------------
occurrence of an event giving rise to a termination of the business of the
Partnership pursuant to Section 9.1, the Board shall wind up the affairs of the
Partnership, liquidate the assets of the Partnership and distribute to the
Partners all the proceeds of such liquidation in accordance with Section 9.4.
9.3 Filing of Certificate of Cancellation. If the Partnership is
-------------------------------------
dissolved, the Board shall promptly file Certificate of Cancellation pursuant to
Section 17-203 of the Act with the Office of the Secretary.
9.4 Distributions in Liquidation. Distributions in connection with the
----------------------------
liquidation of the Partnership shall be made, after establishing a reserve for
any contingent liabilities of the Partnership and after payment of the
reasonable expenses incurred in dissolution and termination and payment to
creditors of the Partnership (including, without limitation, RMH Teleservices,
Inc. in respect of trade credit as provided in Schedule 3.1 and excluding
------------
secured creditors whose obligations will be assumed or otherwise transferred on
the liquidation of the Partnership's property or assets), pursuant to Section
4.1.2.
9.5 Claims of the Partners. The Partners shall look solely to the
----------------------
Partnership's assets for the return of their Capital Contributions, and if the
assets of the Partnership remaining after payment of or due provision for all
debts, liabilities and obligations of the Partnership are insufficient to return
such Capital Contributions, the Partners shall have no recourse against the
Partnership or any Board Member, other Partner or any Affiliate of any of the
foregoing Persons. No Partner with a negative balance in such Partner's Capital
Account shall have any obligation to the Partnership, any Board Member or to the
other Partners or to any creditor or other Person to restore such negative
balance upon dissolution or termination of the Partnership or otherwise.
9.6 Conversion of the Partnership. The Initial Partners acknowledge
-----------------------------
and agree that it is anticipated that the Partnership will be converted into a
corporate form so that an initial public offering of securities of the
corporation registered under the Securities Act of 1933 may be consummated.
Accordingly, at such time as shall be determined by the Board, the Partnership
shall be converted into a corporate entity by a merger, consolidation,
disposition of all or substantially all of its assets, or otherwise. Such
successor corporation shall have the name 000xxx.xxx, Inc. or such other name as
the Board shall determine. Upon the conversion of the Partnership to a
corporate form, the Interests shall be converted into shares of common stock of
the successor corporation on a pro rata basis, and the successor corporation and
Partners shall inter into a Stockholders' Agreement which incorporates the
management provisions and the restrictions on transfer of the shares of common
stock which are substantially similar to the provisions of this Agreement.
1. SECTION 10 - BOOKS, RECORDS, ACCOUNTING AND CERTAIN OTHER TAX MATTERS
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10.1 Bank Accounts. All funds of the Partnership shall be deposited in a
-------------
bank account or accounts opened in the Partnership's name. The President or his
or her designee, together with the Treasurer, shall determine the institution or
institutions at which the accounts will be opened and maintained, the types of
accounts, and the Persons who will have authority with respect to the accounts
and the funds therein.
10.2 Books and Records. During the term of existence of the
-----------------
Partnership, the Board shall cause the Treasurer to keep complete and accurate
books and records of account of the Partnership and supporting documentation of
the transactions with respect to the conduct of the Partnership's business. The
books and records of account shall be maintained in accordance with generally
accepted accounting principles and shall be available at the Partnership's
principal office for examination by any Partner or the Partner's duly authorized
representative for any purpose reasonably related to such Partner's Interest in
the Partnership at any and all reasonable times during normal business hours.
The Partnership will maintain the following records, among others, in addition
to the books and records of account, which shall also be available for
examination as described above, at its principal office:
10.2.1 A current list of the full name and last known business
address of each Partner;
10.2.2 A copy of the Certificate of Limited Partnership and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which such Certificate of Formation have been executed;
10.2.3 Copies of the Partnership's federal, foreign, state and local
income tax returns and reports, if any, for the three most recent years;
10.2.4 Copies of this Agreement including all amendments thereto;
10.2.5 Any financial statements of the Partnership for the three most
recent fiscal years of the Partnership;
10.2.6 To the extent available, interim financial statement of the
Partnership for all periods since the most recent fiscal year end;
10.2.7 A record of the Capital Account of each Partner;
10.2.8 A writing or other data compilation from which information can
be obtained through retrieval devices into reasonable usable form setting forth
the following:
(i) the amount of cash and a description and statement of
the agreed value of the other property or services contributed by
each Partner and which each Partner has agreed to contribute;
(ii) the times at which or events on the happening of
which any additional Capital Contributions agreed to be made by
any Partner are to be made;
(iii) any right of a Partner to receive, or of the
Partnership to make, distributions to a Partner whether or not
such distributions include a return of all or any part of the
Partner's Capital Contribution; and
(iv) any events upon the happening of which the
Partnership is to be dissolved and its affairs wound up.
10.3 Fiscal Year. The fiscal year of the Partnership shall be the
-----------
twelve months ending December 31. A fiscal quarter shall be a period of three
months ending on the last day of the fiscal year and on the last day of March,
June and September, respectively. The Board by unanimous vote may change the
fiscal year of the Partnership.
10.4 Reports. The Treasurer shall be responsible for the preparation of
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financial reports of the Partnership and the coordination of financial matters
of the Partnership with the Partnership's accountants. The Treasurer shall make
available to the Board Members within fifteen (15) Business Days of the end of
each month (other than the last month of the Partnership's fiscal year) the
following financial statements:
(i) a balance sheet of the Partnership as of the last day of the
month;
(ii) a statement of income or loss of the Partnership for such month
and for the entire fiscal year through the end of the month and the comparable
figures as set forth in the then effective Annual Budget;
(iii) a statement of the Partnership's cash flow for such month and
for the entire fiscal year through the end of the month and the comparable
figures as set forth in the then effective Annual Budget; and
(iv) a schedule of distributions to the Partners and allocations of
Net Income or Net Loss during such month and during the entire fiscal year
through the end of such month.
The monthly financial statements provided for above need not be reviewed or
audited by the Partnership's independent certified public accountants, but shall
be prepared in accordance with generally accepted accounting principles, applied
on a consistent basis.
As soon as practicable after the close of each fiscal year of the
Partnership, the Treasurer shall cause to be prepared a financial report of the
Partnership for such fiscal year, including a balance sheet as of the last day
of such fiscal year, a statement of income and loss of the Partnership for the
fiscal year and a statement of the Partnership's cash flow for the fiscal year
(including in each case the comparable figures as set forth in the Annual Budget
for such fiscal year), and a schedule of distributions to the Partners and
allocations of Net Income or Net Loss during the fiscal year. Such balance
sheet, statement of income and loss, and statement of cash flow shall be
prepared in accordance with generally accepted accounting principles applied on
a consistent basis and shall be audited in accordance with generally accepted
auditing standards by the Partnership's firm of independent public accountants.
The cost thereof shall be borne by the Partnership. Such annual financial
reports of the Partnership shall be promptly (but in no event later than one
hundred and twenty (120) days after the end of the fiscal year) transmitted to
each Partner. In addition, the Treasurer shall prepare and distribute, or cause
to be prepared and distributed, a Schedule K-1 to each Partner as promptly as
practicable after each calendar year end.
10.5 Tax Matters.
-----------
10.5.1 The General Partner shall serve as the tax matters partner
(the "Tax Matters Partner") within the meaning of Section 6231 of the Code.
Other than as provided in Section 10.5.4, the Tax Matters Partner shall
represent the Partnership on behalf of the Partners in connection with all
administrative and judicial proceedings with respect to Partnership affairs
involving or resulting from examinations by any and all federal, state or other
tax authorities (including, but not limited to, examinations by the Internal
Revenue Service), and may expend Partnership funds for reasonable professional
services and costs in connection therewith as he deems advisable and necessary;
provided, however, that, except as otherwise provided in this Agreement or by
law, the Tax Matters Partner does not assume any obligations or responsibilities
with respect to the foregoing. Any Partner other than the Tax Matters Partner
who wishes to participate in the administrative proceedings at the Partnership
level may do so, but any legal, accounting or other expenses incurred by such
Partner in connection therewith shall be borne by such Partner. The Tax Matters
Partner shall promptly take such action as may be necessary to cause each
Partner to become a "notice partner" within the meaning of Section 6231(a)(8) of
the Code. The Tax Matters Partner shall furnish to each Partner a copy of all
notices or other written communications received by the Tax Matters Partner from
the Internal Revenue Service (except such notices or communications as are sent
directly to the Partner by the Internal Revenue Service). The Tax Matters
Partner shall give to Partners prompt written notice upon receipt of advice that
the Internal Revenue Service or any other taxing authority intends to examine
any Partnership tax return or the books and records of the Partnership. In
acting in its capacity as Tax Matters Partner, the General Partner shall at all
times act reasonably and in good faith, taking into account the interests of all
Partners. The Partnership and the Partners hereby severally agree to indemnify
and hold harmless the Tax Matters Partner from and against any claim, loss,
expense, liability, action or damage resulting from his acting or failing to
take any action in his capacity as the Tax Matters Partner, provided that any
such action or failure to act was not willful misconduct.
10.5.2 Each of the Partners, on the one hand, and the Partnership, on
the other hand, agree to furnish or cause to be furnished to each other, as
promptly as practicable, such information and assistance as is reasonably
necessary for the preparation and filing of any return, claim for refund or
other required or optional filings relating to Tax matters, for the preparation
for and proof of facts during any Tax audit, for the preparation for any Tax
protest, for the prosecution or defense of any suit or other proceeding relating
to Tax matters and for the answer to any governmental or regulatory inquiry
relating to Tax matters.
10.5.3 Each tax return and any other statement to be filed by the
Partnership with the Internal Revenue Service or any other taxing authority
shall be prepared by the accountants (including outside accountants) for the
Partnership, whose expenses shall be borne by the Partnership. Draft copies of
each such return and statement shall be distributed to the Partners not later
than fifteen (15) days before the date on which the same is required to be
filed.
10.5.4 The General Partner shall represent the Partnership on behalf
of the Partners in connection with all administrative and judicial proceedings
against the Partnership involving or resulting from examinations by any and all
federal, state or other tax authorities.
1. SECTION 11 - MISCELLANEOUS TERMS AND CONDITIONS
-----------------------------------------------
11.1 Dispute Resolution. If a dispute arises between the parties in
------------------
connection with this Agreement or any document or instrument delivered in
connection herewith, or a disagreement regarding the interpretation of any
provision hereof or thereof (a "Dispute"), the parties shall use the procedure
set forth herein in good faith prior to any party pursuing other available
judicial or nonjudicial remedies. A meeting shall be held between the parties
within ten (10) Business Days after any party gives written notice of a Dispute
to the other party. The meeting shall be attended by a representative of each
party having decision making authority regarding the Dispute (subject to Board
of Directors, or equivalent approval, if required), to attempt in good faith to
negotiate a resolution of the Dispute. If no such resolution is negotiated, the
matter shall be resolved by arbitration in the City of Philadelphia before a
single arbitrator under JAMS/Endispute's Comprehensive Arbitration Rules and
Procedures in effect at the time of filing of the demand for arbitration;
provided, however, that any disputes relating to Sections 3.2.2, 3.6, 7.2, 7.3,
7.4 and 8.2 shall be subject to the provisions of JAMS/Endispute's
Streamlined Arbitration Rules and Procedures in effect at the time of filing of
the demand for arbitration. Notwithstanding the foregoing, the arbitrator
shall, to the extent necessary, modify the applicable arbitration rules and
procedures to provide for fair and adequate discovery to be permitted to the
parties to the Dispute under the circumstances, including, without limitation,
the number of depositions to be permitted and access to reports, documents and
other information of experts and others. Without limiting the foregoing, the
parties to the arbitration shall, in a timely manner, provide each other with
copies of all documents in their possession and control which are to be
presented in the proceedings and identify all witnesses and experts they intend
to have testify or upon which they will rely. The arbitrator's award shall be
in writing and shall set forth the findings of fact and conclusions of law upon
which the finding is based. If at any time JAMS/Endispute or the
applicable arbitration rules and procedures shall cease to exist, the parties
shall negotiate in good faith to provide for appropriate substitutes and make
any necessary modifications to this Section 11.1.
11.2 Power of Attorney. Each Limited Partner hereby irrevocably
-----------------
constitutes and appoints the General Partner its true and lawful attorney-in-
fact, with full power of substitution, and with such General Partner having full
power and authority in its name, place and stead to execute, acknowledge,
deliver, swear to, file and record at the appropriate public offices, such
certificates, instruments and documents as may be necessary or appropriate to
carry out the provisions of this Agreement or effectuate any action taken by or
on behalf of the Partnership, including, but not limited to:
(a) all certificates and other instruments (including, without
limitation, counterparts of this Agreement and the Partnership's Certificate of
Limited Partnership and fictitious name certificates), and any amendment
thereof, which the General Partner deems appropriate to qualify or continue the
Partnership as a limited partnership in the jurisdictions in which the
Partnership may conduct business or to comply with any applicable law or
regulation;
(b) all instruments which the General Partner deems appropriate to
reflect a change or modification of the Partnership in accordance with the terms
of this Agreement; and
(c) all conveyances and other instruments which the General Partner
deems appropriate to reflect the dissolution and termination of the Partnership.
11.3 Survival of Power of Attorney. The appointment by all Limited
-----------------------------
Partners of the General Partner as attorney-in-fact shall be deemed to be powers
coupled with an interest, in recognition of the fact that each of the Partners
under this Agreement will be relying upon the power of the General Partner to
act as contemplated by this Agreement in any filing and other action by them on
behalf of the Partnership and shall, to the fullest extent permitted by
applicable law, survive the Bankruptcy, death or incompetence of any Partner
hereby giving such power and the Transfer of all or any part of the Interest of
such Partner; provided, however, that in the event of the Transfer by a Limited
Partner of all or any part of its Interest, the foregoing power of attorney of
the Transferor Limited Partner shall survive such Transfer only until such time,
if any, as the Transferee shall have been admitted to the Partnership as a
substitute Limited Partner and all required documents and instruments shall have
been duly executed, filed and recorded to effect such substitution.
11.4 General Partner. The General Partner hereby covenants and agrees
---------------
as follows: (a) the General Partner will not engage in any business or other
activity other than activities in connection with the management of the
Partnership; (b) no General Partner Securities will be issued to, and the
records of the General Partner will not reflect the ownership of General Partner
Securities by, any Person unless such Person agrees to be bound by the
provisions of this Agreement applicable to holders of General Partner Securities
and executes a counterpart of this Agreement reflecting such agreement; and (c)
the Certificate of Incorporation and By-laws, limited liability company
operating agreement or other organizational documents of the General
Partner shall at all times contain provisions consistent with, and require that
the General Partner complies with, the provisions of this Agreement.
11.5 Appraisal. Except as otherwise set forth herein, in the event that
---------
a determination of the fair market value of the Partnership's assets is required
for purposes of this Agreement, such value, if not otherwise agreed upon by the
Partners, shall be determined by a firm of recognized national standing in
appraising chosen by the Partnership's independent auditors. Any valuation made
pursuant to this Section 10.2 shall be at the sole expense of the Partnership
and shall be submitted to the Partners as promptly as reasonably practicable.
11.6 Confidentiality. Each Partner agrees that he will not at any time
---------------
make any independent use of, or disclose to any other person (except as
authorized by the Partnership) any Confidential Information. Confidential
Information will not include (a) information that becomes known to the public
generally through no fault of the Partner, (b) information required to be
disclosed by law or legal process or the order of any governmental authority
under color of law, provided, that, to the extent practicable, prior to
disclosing any information pursuant to this clause (b), the Partner will give
prior written notice thereof to the Partnership and provide the Partnership with
the opportunity to contest that requirement, or (c) information the Partner
reasonably believes is required to be disclosed in connection with the defense
of a lawsuit against the Partner or in connection with any proceeding between
the Partner and the Partnership. In the event of a breach or threatened breach
by any Partner of the provisions of this Section 11.6 with respect to any
Confidential Information, the Partnership will be entitled to a temporary
restraining order and a preliminary and permanent injunction (without the
necessity of posting any bond in connection therewith) restraining the Partner
from disclosing, in whole or in part, that Confidential Information. Nothing
herein will be construed as prohibiting the Partnership from pursuing any other
available remedy for that breach or threatened breach, including the recovery of
damages.
11.7 Public Announcements. The Partners will consult with each other
--------------------
before issuing any press release or otherwise making any public statements with
respect to this Agreement or the transactions contemplated hereby and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by law.
11.8 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Delaware, without regard to principles of conflicts of laws applicable
therein.
11.9 Entire Agreement. This Agreement, together with any Exhibits and
----------------
Schedules hereto, constitutes the entire Agreement between the parties with
respect to the subject matter hereof, and it supersedes all prior agreements and
understandings between them with respect to such matters.
11.10 Notices. Any notice, demand, election or communication required,
-------
permitted or desired to be given hereunder shall be sent by prepaid registered
or certified mail, return receipt requested, or by commercial courier service,
or by electronic facsimile (but in the latter instance,
also by United States mail or by commercial courier service). Notices, demands,
elections or communications shall be deemed received on the first to occur of
the following: (i) when personally delivered; (ii) when actually delivered by a
nationally recognized courier service such as FedEx; or (iii) three (3) Business
Days following the deposit thereof with the United States mail. Notices,
demands, elections or communications sent to any Partner shall be sent to the
address given for that Partner on Schedule 2.6 (or to any other address which
------------
that Partner may designate to the other Partners and the Partnership by written
notice to the Partnership). Notices, demands, elections or communications sent
to the Partnership shall be sent to the Partnership's principal office,
Attention: Chief Executive Officer.
11.11 Successors and Assigns. All the terms, covenants and conditions
----------------------
of this Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
11.12 Expenses. Except as otherwise agreed to in writing by the
--------
Partners, each of the Partners will bear its own costs and expenses, including
brokers' or finders' fees, if any, incurred in connection with the preparation
and execution of this Agreement.
11.13 Further Assurances. The Partners will execute and deliver such
------------------
further instruments and do such further acts and things as may be required to
carry out the intent and purpose of this Agreement.
11.14 No Third Party Beneficiaries. This Agreement shall not confer
----------------------------
any rights or remedies upon any Person other than the parties and their
respective successors and permitted assigns, except as set forth in Section 6.2
herein.
11.15 Amendments. Amendments to this Agreement and the Certificate of
----------
Limited Partnership may be proposed by any Partner by notice to the Board and by
the Board. Following such notice, if the Board approves such amendment in
accordance with Section 5.2.31, then following such approval the Partnership
shall submit to the Partners a verbatim statement of any proposed amendment,
providing that counsel for the Partnership shall have approved the same in
writing as to form, and the Partnership may include in any such submission a
recommendation as to the proposed amendment by the Board. The Partnership shall
seek the written vote of the Partners on the proposed amendment or shall call a
meeting to vote thereon and to transact any other business that it may deem
appropriate. A proposed amendment shall be adopted and be effective as an
amendment hereto if approved by written consent or at a meeting by a majority of
the outstanding Interests; provided, however, that Schedule 2.6 to this
------------
Agreement shall be deemed amended from time to time to reflect the admission of
a new Partner, the Involuntary Withdrawal of a Partner and the adjustment of the
Interests resulting from any Transfer of a Partner's Interest, in each case that
is made in accordance with the provisions of this Agreement.
11.16 Certificates. At the election of the Board, Interests may be
------------
evidenced by a certificate. If the Board so determines, Certificates
representing Interests in the Partnership shall be in such forms as shall be
determined by the Board. All certificates shall be consecutively
numbered or otherwise identified. The name and address of the Partner to whom
the certificates are issued shall be entered in the certificate register of the
Partnership. In case of a lost, destroyed or mutilated certificate, a new one
may be issued upon such terms and indemnity to the Partnership as the Board may
prescribe. In the event of a Transfer of a Partnership Interest hereunder, such
Transfer shall be evidenced by an assignment and transfer of such Partner's
certificate(s) representing the Partnership Interest being Transferred to the
extent applicable. Each certificate, if any, evidencing Interests held by a
party to this Agreement or Transferred to a Permitted Transferee as provided in
this Agreement shall bear a conspicuously noted legend in substantially the
following form:
"THE INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN
LIMITED LIABILITY PARTNERSHIP AGREEMENT OF THE PARTNERSHIP CONTAINING,
AMONG OTHER THINGS, RESTRICTIONS ON THE SALE, TRANSFER OR OTHER DISPOSITION
OF SUCH INTERESTS. A COPY OF SUCH AGREEMENT IS ON FILE WITH THE
PARTNERSHIP AT ITS PRINCIPAL PLACE OF BUSINESS, AND THE PARTNERSHIP SHALL
FURNISH A COPY OF SUCH AGREEMENT TO THE RECORD HOLDER HEREOF WITHOUT CHARGE
UPON WRITTEN REQUEST."
11.17 Variation of Pronouns. All pronouns and any variations thereof
---------------------
shall be deemed to refer to masculine, feminine or neuter, singular or plural,
as the identity of the Person or Persons may require.
11.18 Construction. Every covenant, term and provision of this
------------
Agreement shall be construed according to its fair meaning and not strictly for
or against any Partner.
11.19 Headings. All headings and captions herein are inserted for
--------
convenience and identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof.
11.20 No Waiver. No waiver of a breach or default hereunder shall be
---------
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature. No failure or delay by any party in exercising
any right, power or privilege hereunder (other than a failure or delay beyond a
period of time specified herein) shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
11.21 Counterparts. This Agreement may be executed and delivered
------------
(including by facsimile transmission) in any number of counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, and such counterparts taken
together shall constitute one and the same Agreement.
11.22 Severability. Should any part or provision of this Agreement be
------------
held unenforceable or in conflict with the applicable laws or regulations of any
jurisdiction, the invalid or unenforceable part or provision shall be replaced
with a revision which accomplishes, to the extent possible, the original
business purpose of such part or provision in a valid and enforceable manner,
and the balance of this Agreement shall remain in full force and effect and be
binding upon the parties hereto.
11.23 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
--------------------
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ARISING OUT
OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the Partnership and the Initial Partners of the
Partnership have executed this Agreement as of the day, month and year first
above written.
000XXX.XXX.XX, LLC
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Chairman
RMH INTERACTIVE TECHNOLOGIES, LLC
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: President
ADVANTA PARTNERS LP
By: Advanta GP Corp.
General Partner
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Vice President
000XXX.XXX LP
By: 000xxx.xxx.xx, LLC
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Chairman
[Signature Page to Limited Partnership Agreement]
IN WITNESS WHEREOF, the members of the General Partner have executed this
Agreement as of the day, month and year first above written and agreed to be
bound by Section 11.4, and, with respect to RMH Teleservices, Inc., Sections
3.1.1 and 3.1.2, of this Agreement.
RMH TELESERVICES, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
ADVANTA PARTNERS LP
By: Advanta GP Corp.
General Partner
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
[Signature Page to Limited Partnership Agreement]
SCHEDULE 2.6
------------
(1) (2) (3) (4)
Additional Cash
Partner Name Initial Cash Capital Capital Contribution Initial Percentage
and Address Contribution Commitment Interest
------------ -------------------- -------------------- ------------------
Advanta Partners LP $1,000,000 $1,000,000 50.5%
Welsh and XxXxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
RMH Interactive Technologies, LLC $ 460,785 $ 460,785 48.5%
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
365 xxx.xxx.xx, LLC $ 1 $ 0 1%
c/o RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
---------------------------------------------------------------------------------------
TOTALS $1,460,786 $1,460,785 100%
SCHEDULE 3.1
------------
1. Concurrently with the execution of the Agreement, RMH Teleservices, Inc.
("RMH") agrees to advance to the Partnership $500,000 in credit for
liabilities of the Partnership to RMH, including, without limitation,
liabilities with respect to services performed by RMH for the Partnership.
The Partnership shall have the right to request that RMH provide the
Company with teleservices or certain other services at any time and all
such services will be invoiced on normal market terms. The Partnership may
use such credit, pay the invoices in respect thereof and reuse such credit
hereunder at any time, up to a maximum aggregate amount of outstanding
invoices at any one time equal to $500,000. RMH and the Partnership hereby
agree that outbound telemarketing services shall be invoiced to the Company
at the rate of $27.00 per hour for services rendered through March 31,
2000.
2. In addition to the credit advanced to the Partnership by RMH pursuant to
paragraph 1 above, concurrently with the contribution of the additional
cash Capital Contributions constituting the Commitments as set forth in
Section 3.1.2 of the Agreement, RMH agrees to advance to the Partnership an
additional $500,000 in credit, upon the same terms and conditions as
specified in paragraph 1 above. The Partnership may use such credit, pay
the invoices in respect thereof and reuse such credit hereunder at any
time, up to a maximum aggregate amount of outstanding invoices (pursuant to
paragraph 1 above and this paragraph 2) at any one time equal to
$1,000,000.
