SR&Z DRAFT
February 4, 1997
Exhibit (a)(2)
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LEVCO ZERO COUPON/PUT FUND I, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
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LIMITED PARTNERSHIP AGREEMENT
DATED AS OF January 30, 1997
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One Rockefeller Plaza (25th Floor)
New York, New York 10020
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................... 1
ARTICLE II ORGANIZATION; ADMISSION OF PARTNERS................................. 9
2.1 Formation of Limited Partnership........................................ 9
2.2 Name.................................................................... 9
2.3 Principal and Registered Office......................................... 10
2.4 Duration................................................................ 10
2.5 Objective and Business of the Partnership............................... 10
2.6 General Partners........................................................ 10
2.7 Limited Partners........................................................ 11
2.8 Organizational Limited Partner.......................................... 12
2.9 Both General and Limited Partner........................................ 12
2.10 Limited Liability...................................................... 12
ARTICLE III MANAGEMENT......................................................... 12
3.1 Management and Control.................................................. 12
3.2 Actions by Individual General Partners.................................. 13
3.3 Meetings of Partners.................................................... 13
3.4 Management Arrangements................................................. 14
3.5 Custodian and Distributor............................................... 15
3.6 Brokerage............................................................... 16
3.7 Other Activities of Partners............................................ 16
3.8 Duty of Care............................................................ 16
3.9 Indemnification......................................................... 18
3.10 Xxxx, Expenses and Reimbursement....................................... 20
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PAGE
ARTICLE IV TERMINATION OF STATUS AS GENERAL PARTNER, TRANSFERS AND REPURCHASES... 21
4.1 Termination of Status of the Corporate General Partne..................... 21
4.2 Termination of Status of an Individual General Partner.................... 21
4.3 Removal of General Partners............................................... 22
4.4 Transfer of Interests of General Partners................................. 22
4.5 Transfer of Interests of Limited Partners................................. 22
4.6 Redemption and Repurchase of Interests.................................... 23
ARTICLE V CAPITAL................................................................ 25
5.1 Contributions to Capital.................................................. 25
5.2 Rights of Partners to Capital............................................. 25
5.3 Capital Accounts.......................................................... 26
5.4 Allocation of Net Profit and Net Loss..................................... 26
5.5 Allocation of Certain Withholding Taxes and Other Expenditures............ 26
5.6 Reserves.................................................................. 28
5.7 Incentive Allocation...................................................... 29
5.8 Allocation to Avoid Capital Account Deficits.............................. 29
5.09 Tax Allocations.......................................................... 29
5.10 Distributions............................................................ 30
ARTICLE VI DISSOLUTION AND LIQUIDATION........................................... 31
6.1 Dissolution............................................................... 31
6.2 Liquidation of Assets..................................................... 32
ARTICLE VII ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS......................... 33
7.1 Accounting and Reports.................................................... 33
7.2 Determinations By Corporate General Partner............................... 33
7.3 Valuation of Assets....................................................... 34
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PAGE
ARTICLE VIII MISCELLANEOUS PROVISIONS.......................................... 34
8.1 Amendment of Partnership Agreement...................................... 34
8.2 Special Power of Attorney............................................... 36
8.3 Notices................................................................. 37
8.4 Agreement Binding Upon Successors and Assigns............................ 37
8.5 Applicability of 1940 Act and Form N-2................................... 37
8.6 Choice of Law............................................................ 38
8.7 Not for Benefit of Creditors............................................. 38
8.8 Consents................................................................. 38
8.9 Xxxxxx and Consolidation................................................. 38
8.10 Pronouns................................................................ 38
8.11 Confidentiality......................................................... 39
8.12 Certification of Non-Foreign Status..................................... 39
8.13 Severability............................................................ 39
8.14 Use of the Name "Levco"................................................. 41
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LEVCO ZERO COUPON/PUT FUND I, L.P.
LIMITED PARTNERSHIP AGREEMENT
THIS LIMITED PARTNERSHIP AGREEMENT of Levco Zero Coupon/Put Fund I, L.P.
(the "Partnership") is dated _________________, 1997 by and among Levco GP,
Inc., a Delaware corporation, as the Corporate General Partner, _______________,
and _______________ as the Individual General Partners, _______________, as the
Organizational Limited Partner, and those persons hereinafter admitted and
listed on Schedule I hereto as General Partners and as Limited Partners.
W I T N E S S E T H :
WHEREAS, the Partnership has heretofore been formed as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act pursuant
to an initial Certificate of Limited Partnership (the "Certificate") dated and
filed with the Secretary of State of Delaware on _______, 1997;
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants hereinafter set forth, it is hereby agreed as follows:
______________________
ARTICLE I
DEFINITIONS
______________________
For purposes of this Agreement:
Adviser The person appointed to provide investment management
services to the Partnership pursuant to Section 3.4 hereof.
Adviser Act The Investment Advisers Act of 1940 and the rules,
regulations and orders thereunder, as amended from time to
time, or successor law.
Affiliate An "affiliated person" as such term is defined in the 1940
Act.
Agreement This Limited Partnership Agreement, as amended from time to
time.
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ALLOCATION CHANGE With respect to each Limited Partner for each
Allocation Period, the difference between:
(1) the sum of (a) the balance of such
Limited Partner's Capital Account
as of the close of the Allocation
Period (after giving effect to all
allocations to be made to such
Limited Partner's Capital Account
as of such date other than any
Incentive Allocation to be debited
against such Limited Partner's
Capital Account), plus (b) any
debits to such Limited Partner's
Capital Account during the
Allocation Period to reflect any
actual or deemed distributions or
repurchases with respect to such
Limited Partner's Interest, plus
(c) any debits to such Limited
Partner's Capital Account during
the Allocation Period to reflect
any items allocable to such Limited
Partner's Capital Account pursuant
to Section 5.5 hereof; and
(2) the sum of (a) the balance of such
Limited Partner's Capital Account
as of the commencement of the
Allocation Period, plus (b) any
credits to such Limited Partner's
Capital Account during the
Allocation Period to reflect any
Capital Contributions by such
Limited Partner.
If the amount specified in clause (1) exceeds
the amount specified in clause (2), such
difference shall be a POSITIVE ALLOCATION
CHANGE, and if the amount specified in clause
(2) exceeds the amount specified in clause
(1), such difference shall be a NEGATIVE
ALLOCATION CHANGE.
If an Allocation Period is less than one year
(an "Incomplete Allocation Period"), then
solely for purposes of determining the
Incentive Allocation, the Positive Allocation
Change shall be measured from the beginning of
the last preceding Allocation Period, if any,
that commenced at least one year prior to the
end of the Incomplete Allocation Period
(disregarding all Incentive Allocations made
from the Limited Partner since such last
preceding Allocation Period) through the end
of the Incomplete Allocation Period, less the
Positive Allocation Change for such prior
Allocation Period.
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ALLOCATION PERIOD With respect to each Limited Partner: (1) the
period commencing as of the date of admission
of such Limited Partner to the Partnership and
ending on the earliest of (a) the date of the
Partnership's dissolution, (b) the Redemption
Date, (c) the date as of which a repurchase of
all Interests of such Limited Partner is
effected pursuant to Section 4.6(f) hereof,
(d) the date as of which the status of the
Corporate General Partner is terminated
pursuant to Section 4.1 hereof unless an
Affiliate of the Corporate General Partner has
been admitted as a substitute Corporate
General Partner, or (e) the date as of which
any Investment Management Agreement with an
Affiliate of the Corporate General Partner is
terminated (regardless of the cause of such
termination) if neither the Corporate General
Partner nor any Affiliate of the Corporate
General Partner becomes the Adviser effective
as of the date of such termination; and (2) if
applicable, each period commencing as of the
day following each date described in sub-
clause (d) or (e) of clause (1) of this
paragraph and ending on the earliest to occur
thereafter of the dates set forth in sub-
clauses (a) through (e) of clause (1);
provided that the first Allocation Period for
each Limited Partner shall be a period of not
less than one year from the date of the
admission of such Limited Partner to the
Partnership.
CAPITAL ACCOUNT With respect to each Partner, the capital
account established and maintained on behalf
of each Partner pursuant to Section 5.3
hereof.
CAPITAL CONTRIBUTION The initial contribution and any additional
contribution of cash to the Partnership by any
Partner, in accordance with Section 5.1
hereof.
CERTIFICATE The Certificate of Limited Partnership of the
Partnership and any amendments thereto as
filed with the office of the Secretary of
State of Delaware.
CLOSING DATE The date on or as of which a Limited Partner
other than the Organizational Limited Partner
is admitted to the Partnership.
CODE The United States Internal Revenue Code of
1986, as amended and as hereafter amended from
time to time, or any successor law.
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Corporate General Partner Levco GP, Inc., a Delaware corporation, or any
other person admitted to the Partnership as
the Corporate General Partner.
Delaware Act The Delaware Revised Uniform Limited
Partnership Act as in effect on the date
hereof and as amended from time to time, or
any successor law.
Fiscal Period The period commencing on the Closing Date, and
thereafter each period commencing on the day
immediately following the last day of the
preceding Fiscal Period and ending at the
close of business on the first to occur of the
following dates:
(1) the last day of a Fiscal Year;
(2) the day preceding any day as of
which a Capital Contribution is made
pursuant to Section 5.1 hereof;
(3) the day as of which Interests are
redeemed by the Partnership pursuant
to Section 4.6(b) hereof; or
(4) any day (other than one specified in
clause (2) above) as of which this
Agreement provides for any amount to
be credited to or debited against
the Capital Account of any Partner,
other than an amount to be credited
to or debited against the Capital
Accounts of all Partners in
accordance with their respective
Partnership Percentages.
Fiscal Year The period commencing on the Closing Date and
ending on [December 31, 1997], and thereafter
each period commencing on January 1 of each
year and ending on December 31 of each year
(or on the date of a final distribution
pursuant to Section 6.2 hereof), unless the
Individual General Partners shall elect
another fiscal year for the Partnership that
is a permissible taxable year under the Code.
Form N-2 The Partnership's Registration Statement on
Form N-2 filed with the Securities and
Exchange Commission, as amended from time to
time.
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General Partners The Corporate General Partner and the
Individual General Partners in such persons'
capacity as general partners of the
Partnership, collectively, and GENERAL PARTNER
means any of the General Partners.
Incentive Allocation With respect to any Limited Partner, 20% of
the amount, determined as of the close of each
Allocation Period with respect to such Limited
Partner, by which such Limited Partner's
Positive Allocation Change for such Allocation
Period, if any, exceeds any positive balance
in such Limited Partner's Loss Recovery
Account as of the most recent prior date as of
which any adjustment has been made thereto.
Independent General Partners Those Individual General Partners who are not
"interested persons" of the Partnership as
such term is defined in the 1940 Act.
Individual General Partners Those natural persons admitted to the
Partnership as General Partners; such term
shall not include the Corporate General
Partner.
Interest The entire ownership interest in the
Partnership at any particular time of a
Limited Partner or other person to whom a
Limited Partner's Interest or portion thereof
has been transferred pursuant to Sections 4.4
or 4.5 hereof, including the rights and
obligations of such Partner or other person
under this Agreement and the Delaware Act.
Investment Management Agreement The agreement identified in Section 3.4
hereof.
Limited Partner Any person who shall have been admitted to the
Partnership as a limited partner (including
any General Partner in such person's capacity
as a limited partner of the Partnership, but
excluding any General Partner in such person's
capacity as a general partner of the
Partnership) until the Partnership repurchases
the entire Interest of such person as a
limited partner pursuant to Section 4.6 hereof
or a substituted Limited Partner or Partners
are admitted with respect to any such person's
entire Interest as a limited partner pursuant
to Section 4.5 hereof.
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Loss Recovery Account A memorandum account to be recorded in the
books and records of the Partnership with
respect to each Limited Partner, which shall
have an initial balance of zero and which
shall be adjusted as follows:
(1) As of the first day after the close
of each Allocation Period for such
Limited Partner, the balance of the
Loss Recovery Account shall be
increased by the amount, if any, of
such Limited Partner's Negative
Allocation Change for such
Allocation Period and shall be
reduced (but not below zero) by the
amount, if any, of such Limited
Partner's Positive Allocation Change
for such Allocation Period.
(2) The balance of the Loss Recovery
Account shall be reduced (but not
below zero) as of the first date as
of which the Capital Account balance
of any Limited Partner is reduced as
a result of repurchase or transfer
with respect to such Limited
Partner's Interest by an amount
determined by multiplying (a) such
positive balance by (b) a fraction,
(i) the numerator of which is equal
to the amount of the repurchase or
transfer, and (ii) the denominator
of which is equal to the balance of
such Limited Partner's Capital
Account immediately before giving
effect to such repurchase or
transfer.
Negative Allocation Change The meaning given such term in the definition
of Allocation Change.
Net Assets The total value of all assets of the
Partnership, less an amount equal to all
accrued debts, liabilities and obligations of
the Partnership, calculated before giving
effect to any repurchases of Interests.
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Net Profit Or Net Loss The amount by which the Net Assets as of the
close of business on the last day of a Fiscal
Period exceed (in the case of Net Profit) or
are less than (in the case of Net Loss) the
Net Assets as of the commencement of the same
Fiscal Period (or, with respect to the initial
Fiscal Period of the Partnership, at the close
of business on the Closing Date), such amount
to be adjusted to exclude any items to be
allocated among the Capital Accounts of the
Partners on a basis which is not in accordance
with the respective Partnership Percentages of
all Partners as of the commencement of such
Fiscal Period pursuant to Sections 5.5 and 5.6
hereof.
1940 Act The Investment Company Act of 1940 and the
rules, regulations and orders thereunder, as
amended from time to time, or any successor
law.
1934 Act The Securities Exchange Act of 1934 and the
rules, regulations and orders thereunder, as
amended from time to time, or any successor
law.
Option Income With respect to a Fiscal Year, the realized
net income and realized gains arising from the
Partnership's Options Transactions, as
determined for federal income tax purposes.
Option Losses With respect to a Fiscal Year, the realized
net losses and deductions arising from the
Partnership's Options Transactions, as
determined for federal income tax purposes.
Options Transactions Purchases and sales by the Partnership, and
the writing by the Partnership, of exchange
listed and over-the-counter options on
Securities indices, individual Securities or
groups of Securities, and purchases or sales
of Securities in connection with the exercise
of options or the termination of options
positions.
Organizational Limited Partner Xx. Xxxxxx Xxxxxx.
Partners The General Partners and the Limited Partners,
collectively.
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Partnership The limited partnership governed hereby, as
such limited partnership may from time to time
be constituted.
Partnership Percentage A percentage established for each Partner on
the Partnership's books as of the first day of
each Fiscal Period. The Partnership Percentage
of a Partner for a Fiscal Period shall be
determined by dividing the balance of the
Partner's Capital Account as of the
commencement of such Fiscal Period by the sum
of the Capital Accounts of all of the Partners
as of the commencement of such Fiscal Period.
The sum of the Partnership Percentages of all
Partners for each Fiscal Period shall equal
100%.
Positive Allocation Change The meaning given such term in the definition
of Allocation Change.
Positive Option Income Carryover With respect to a Fiscal Year, the amount by
which (a) the Partnership's Option Income for
such Fiscal Year exceeds (b) the amount by
which (i) the Partnership's Option Losses for
all prior Fiscal Years exceeds (ii) the
Partnership's Option Income for all prior
Fiscal Years; provided, however, that if (ii)
is greater that (i), then (b) shall be zero.
Prospectus The statutory prospectus (including any
statement of additional information) pursuant
to which Interests are offered to prospective
investors, as contained in the Form N-2, as
such prospectus may be amended and
supplemented from time to time.
Redemption Date September 30, 1998 or such later date as of
which the Partnership redeems Interests held
by Limited Partners pursuant to Section 4.6(c)
hereof.
Related Person With respect to any person, (i) a relative,
spouse or relative of a spouse who has the
same principal residence as such person, (ii)
any Partnership or estate in which such person
and any persons who are related to such person
collectively have more than 50% of the
beneficial interests (excluding contingent
interests) and (iii) any corporation or other
organization of which such person and any
persons who are related to such person
collectively are beneficial owners of more
than 50% of the equity securities (excluding
directors' qualifying shares) or equity
interests.
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Securities All "securities" as that term is defined in
Section 2(a)(36) of the 1940 Act, including
options on securities and options on
securities indices, and commodity futures
contracts and related options, contracts for
forward or future delivery of any security,
currency or commodity, and all manner of
derivative instruments and any contracts based
on any index or group of securities,
currencies or commodities, and any options
thereon.
Transfer The assignment, transfer, sale, encumbrance,
pledge or other disposition of all or any
portion of an Interest, including any right to
receive any allocations and distributions
attributable to an Interest.
_________________________
ARTICLE II
ORGANIZATION; ADMISSION OF PARTNERS
_________________________
2.1 Formation Of Limited Partnership
The General Partners shall execute and file in accordance with the
Delaware Act any amendment to the Certificate and shall execute and file with
applicable governmental authorities any other instruments, documents and
certificates which, in the opinion of the Partnership's legal counsel, may from
time to time be required by the laws of the United States of America, the State
of Delaware or any other jurisdiction in which the Partnership shall determine
to do business, or any political subdivision or agency thereof, or which such
legal counsel may deem necessary or appropriate to effectuate, implement and
continue the valid existence and business of the Partnership.
2.2 Name
The name of the Partnership shall be LEVCO Zero Coupon/Put Fund I,
L.P. or such other name as the Corporate General Partner may hereafter adopt
with the approval of the Individual General Partners upon (i) causing an
appropriate amendment to the Certificate to be filed in accordance with the
Delaware Act and (ii) sending notice thereof to each Partner.
2.3 Principal And Registered Office.
The Partnership shall have its principal office at the principal
office of the Corporate General Partner, or at such other place designated from
time to time by the Individual General Partners.
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The Partnership shall have its registered office in Delaware at 0000
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-1297, and shall have Corporation Service
Company as its registered agent for service of process in Delaware, unless a
different registered office or agent is designated from time to time by the
Individual General Partners.
2.4 Duration.
The term of the Partnership commenced on the filing of the Certificate
with the Secretary of State of Delaware and shall continue until the Partnership
is dissolved pursuant to Section 6.1 hereof (unless its term is extended).
2.5 Objective and Business of the Partnership.
(a) The objective and business of the Partnership is to purchase, sell
(including short sales), invest and trade in Securities (which shall include
purchasing, selling and writing options on Securities and indices of
Securities), and to engage in any financial or derivative transactions relating
thereto or otherwise. The Partnership may execute, deliver and perform all
contracts, agreements and other undertakings and engage in all activities and
transactions as may in the opinion of the General Partners be necessary or
advisable to carry out its objective or business.
(b) The Partnership shall operate as a closed-end, non-diversified,
management investment company in accordance with the 1940 Act in accordance with
the investment objective of the Partnership and such investment policies and
investment restrictions as are established by the Individual General Partners.
2.6 General Partners.
(a) Prior to the Closing Date, Individual General Partners shall be
elected by the Organizational Limited Partner, as the sole holder of Interests.
After the Closing Date, the Individual General Partners may, subject to the
provisions of paragraphs (a) and (b) of this Section 2.6 with respect to the
number of and vacancies in the position of Individual General Partners and the
provisions of Section 3.3 hereof with respect to the election of Individual
General Partners by Partners, admit any person who shall agree to be bound by
all of the terms of this Agreement as an Individual General Partner. The
Individual General Partners may admit to the Partnership any person as a new
Corporate General Partner if the status of the Corporate General Partner is
terminated pursuant to Section 4.1 hereof. The names and mailing addresses of
the General Partners, and the Capital Contribution of the Corporate General
Partner, shall be set forth on Schedule I hereto. The General Partners shall be
listed separately as the "Individual General Partners" and the "Corporate
General Partner." The number of Individual General Partners shall be fixed from
time to time by the Individual General Partners but, at the Closing Date, shall
not be less than three. At and after the Closing Date, not less than a majority
of the Individual General Partners shall be Independent General Partners.
(b) The Corporate General Partner shall serve for the duration of the
term of the Partnership, unless its status as the Corporate General Partner
shall be sooner terminated pursuant to Section 4.1 hereof. Each Individual
General Partner admitted to the Partnership shall serve for
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the duration of the term of the Partnership, unless his status as an Individual
General Partner shall be sooner terminated pursuant to Section 4.2 hereof. In
the event of any vacancy in the position of an Individual General Partner, the
remaining Individual General Partners may appoint an individual to serve in such
capacity, so long as immediately after such appointment at least two-thirds
(2/3) of the Individual General Partners then serving would have been elected by
the Partners. The Individual General Partners may call a meeting of Partners to
fill any vacancy in the position of an Individual General Partner, and shall do
so within 60 days after any date on which Individual General Partners who were
elected by the Partners cease to constitute a majority of the Individual General
Partners then serving.
(c) In the event that no Individual General Partner remains to
continue the business of the Partnership, the Corporate General Partner shall
promptly call a meeting of the Partners, to be held within 60 days after the
date on which the last Individual General Partner ceased to act in that
capacity, for the purpose of determining whether to continue the business of the
Partnership and, if the business shall be continued, of electing the required
number of Individual General Partners. If the Partners shall determine at such
meeting not to continue the business of the Partnership or if the required
number of Individual General Partners is not elected within 60 days after the
date on which the last Individual General Partner ceased to act in that
capacity, then the Partnership shall be dissolved pursuant to Section 6.1 hereof
and the assets of the Partnership shall be liquidated and distributed pursuant
to Section 6.2 hereof.
2.7 LIMITED PARTNERS.
The Corporate General Partner (subject to any policies established by
the Individual General Partners) may at any time and without advance notice to
or consent from any other Partner admit any person who shall agree to be bound
by all of the terms of this Agreement as a Limited Partner. The Corporate
General Partner may in its absolute discretion reject subscriptions for limited
partnership Interests in the Partnership. The admission of any person as a
Limited Partner shall be effective upon (i) the receipt and acceptance by the
Corporate General Partner of any subscription documents required by the
Partnership and (ii) the receipt by the Partnership of the minimum Capital
Contribution required to be made by Section 5.1. Schedule I to this Agreement
shall be revised as may be necessary to reflect the name and the Capital
Contribution of each Limited Partner.
2.8 ORGANIZATIONAL LIMITED PARTNER.
Upon the admission of other Limited Partners on the Closing Date, the
Organizational Limited Partner shall withdraw from the Partnership as the
Organizational Limited Partner and shall be entitled to the return of his
Capital Contribution, if any, without interest or deduction.
2.9 BOTH GENERAL AND LIMITED PARTNER.
A Partner may at the same time be a General Partner and a Limited
Partner, in which event such Partner's rights and obligations in each capacity
shall be determined separately in accordance with the terms and provisions
hereof or as provided in the Delaware Act.
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2.10 LIMITED LIABILITY.
Except as provided under applicable law, a Limited Partner shall not
be liable for the Partnership's obligations in any amount in excess of the
Capital Account balance of such Partner, plus such Partner's share of
undistributed profits and assets.
__________________________
ARTICLE III
MANAGEMENT
__________________________
3.1 MANAGEMENT AND CONTROL.
(a) The ultimate authority over the management and control of the
business of the Partnership shall be vested in the Individual General Partners,
who shall have the right, power and authority, on behalf of the Partnership and
in its name, to exercise all rights, powers and authority of general partners
under the Delaware Act and to do all things necessary and proper to carry out
the objective and business of the Partnership and their duties hereunder. The
parties hereto intend that, except to the extent otherwise expressly provided
herein, (i) each Individual General Partner shall be vested with the same
powers, authority and responsibilities on behalf of the Partnership as are
customarily vested in each director of a Delaware corporation and (ii) each
Independent General Partner shall be vested with the same powers, authority and
responsibilities on behalf of the Partnership as are customarily vested in each
director of a closed-end management investment company registered under the 1940
Act that is organized as a Delaware corporation who is not an "interested
person" of such company as such term is defined by the 1940 Act. During any
period in which the Partnership shall have no Individual General Partner, the
Corporate General Partner shall continue the management and control of the
Partnership.
(b) The Corporate General Partner shall be the designated tax matters
partner for purposes of Section 6231(a)(7) of the Code. Each Partner agrees not
to treat, on his personal return or in any claim for a refund, any item of
income, gain, loss, deduction or credit in a manner inconsistent with the
treatment of such item by the Partnership. The Corporate General Partner shall
have the exclusive authority and discretion to make any elections required or
permitted to be made by the Partnership under any provisions of the Code or any
other revenue laws.
(c) Limited Partners shall have no right to participate in and shall
take no part in the management or control of the Partnership's business and
shall have no right, power or authority to act for or bind the Partnership.
Limited Partners shall have the right to vote on any matters only as provided in
this Agreement, as required by the 1940 Act or as required in the Delaware Act.
3.2 ACTIONS BY INDIVIDUAL GENERAL PARTNERS.
(a) Unless provided otherwise in this Agreement, the Individual
General Partners shall act only: (i) by the affirmative vote of a majority of
the Individual General Partners
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(which majority shall include any requisite number of Independent General
Partners in the event approval by a majority of the Independent General Partners
is required by the 1940 Act) present at a meeting duly called at which a quorum
of the Individual General Partners shall be present (in person or, if in person
attendance is not required by the 1940 Act, by telephone) or (ii) by unanimous
written consent of all of the Individual General Partners without a meeting, if
permissible under the 1940 Act.
(b) The Individual General Partners may designate from time to time a
Principal Individual General Partner, who shall preside at all meetings.
Meetings of the Individual General Partners may be called by the Principal
Individual General Partner or by any two Individual General Partners, and shall
be held on such date and at such time and place as the Partner or Partners
calling the meeting shall determine. Each Individual General Partner shall be
entitled to receive written notice of the date, time and place of such meeting
[within] a reasonable time in advance of the meeting. Notice need not be given
to any Individual General Partner who shall attend a meeting without objecting
to the lack of notice or who shall execute a written waiver of notice with
respect to the meeting. Individual General Partners may attend and participate
in any meeting by telephone except where in person attendance at a meeting is
required by the 1940 Act. A majority of the Individual General Partners shall
constitute a quorum at any meeting.
(c) The Individual General Partners may elect a President, a
Vice-President, Assistant Vice-Presidents, Assistant Secretaries and Assistant
Treasurers, and such other officers and agents as the Individual General
Partners shall at any time and from time to time deem to be advisable. The
principal financial officer of the Partnership shall be the person acting as the
principal financial officer of the Corporate General Partner or such other
person as the Individual General Partners may appoint from time to time. Each
such officer shall hold office until his successor is elected or appointed or
until his earlier displacement from office by resignation, removal or otherwise;
provided, that if the term of office of any officer elected or appointed
pursuant to this Section shall have been fixed by the Individual General
Partners or by the President acting under authority delegated by the Individual
General Partners, such officer shall cease to hold such office no later than
the date of expiration of such term, regardless of whether any other person
shall have been elected or appointed to succeed him. Any officer of the
Partnership may resign at any time by written notice to the Partnership. Any
officer or agent of the Partnership may be removed at any time by the Individual
General Partners or by the President acting under authority delegated by the
Individual General Partners if in their or his judgment the best interest of the
Partnership would be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights
between the Partnership and such officer or agent. The compensation, if any,
of all officers of the Partnership shall be fixed by the Individual General
Partners. All officers as between themselves and the Partnership shall have such
powers, perform such duties and be subject to such restrictions, if any, in the
management of the Partnership prescribed by the Individual General Partners.
3.3 MEETINGS OF PARTNERS.
(a) Actions requiring the vote of the Partners may be taken at any
duly constituted meeting of the Partners at which a quorum is present. Meetings
of the Partners may be called by the Corporate General Partner, by the
Individual General Partners or by Partners holding 25% or more of the total
number of votes eligible to be cast by all Partners, and shall be held on such
date and at such time and place as the Individual General Partners, or if the
Partnership shall have no Individual General Partner, the Corporate General
Partner, shall determine. The Corporate General Partner shall arrange to
provide written notice of the meeting, stating the date, time and place of the
meeting and the record date therefor, to each Partner entitled to vote at the
meeting within a reasonable time prior thereto. Failure to receive notice of a
meeting on the part of any Partner shall not affect the validity of any act or
proceeding of the meeting, so long as a quorum shall be present at the meeting.
Only matters set forth in the notice of a meeting may be voted on by the
Partners at a meeting. The presence in person or by proxy of Partners holding a
majority of the total number of votes eligible to be cast by all Partners as of
the record date shall constitute a quorum at any meeting. In the absence of a
quorum, any meeting may be adjourned to such time or times as determined by the
vote of Partners present in person or by proxy, without additional notice to the
Partners. Except as otherwise required by any provision of this Agreement or of
the 1940 Act, (i) those candidates receiving a plurality of the votes cast at
any meeting of Partners shall be elected as Individual General Partners and (ii)
all other actions of the Partners taken at a meeting shall require the
affirmative vote of Partners holding a majority of the total number of votes
eligible to be cast by those Partners who are present in person or by proxy at
such meeting.
(b) Each Partner shall be entitled to cast at any meeting of Partners
a number of votes equivalent to such Partner's Partnership Percentage as of the
record date for such meeting. The Individual General Partners, or if the
Partnership shall have no Individual General Partners, the
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Corporate General Partner, shall establish a record date for each meeting of
Partners, which date shall be not less than 10 nor more than 60 days prior to
the date of the meeting to determine eligibility to vote at such meeting and the
number of votes which each Partner will be entitled to cast thereat. For each
such record date, a list shall be maintained setting forth the name of each
Partner entitled to vote and the number of votes that each Partner will be
entitled to cast at the meeting.
(c) A Partner may vote at any meeting of Partners by a proxy properly
executed in writing by the Partner and filed with the Partnership before or at
the time of the meeting. A proxy may be suspended or revoked, as the case may
be, by the Partner executing the proxy by a later writing delivered to the
Partnership at any time prior to exercise of the proxy or if the Partner
executing the proxy shall be present at the meeting and decide to vote in
person. Any action of the Partners that is permitted to be taken at a meeting
of the Partners may be taken without a meeting if consents in writing, setting
forth the action taken, are signed by Partners holding a majority of the total
number of votes eligible to be cast or such greater percentage as may be
required in order to approve such action.
3.4 MANAGEMENT ARRANGEMENTS.
(a) The Corporate General Partner shall be responsible for making
available one or more Affiliates of the Corporate General Partner to serve as
the investment adviser of the Partnership and to provide such management and
administrative services and facilities as may be required in connection with the
operations of the Partnership. The Corporate General Partner shall also be
responsible for and shall have the authority to take action with respect to such
matters as are specified in this Agreement and such other matters as may be
delegated to the Corporate General Partner by the Individual General Partners.
The authority of the Corporate General Partner shall include the
power:
(1) to issue to any Partner an instrument certifying that such
Partner is the owner of an Interest;
(2) to engage such attorneys, accountants and other professional
advisers and consultants as the Corporate General Partner
may deem necessary or advisable in connection with the
affairs of the Partnership or as may be directed by the
Individual General Partners;
(3) to assist in the preparation and filing of any required tax
or information returns to be made by the Partnership;
(4) as directed by the Individual General Partners, to commence,
defend and conclude any action, suit, investigation or other
proceeding that pertains to the Partnership or any assets of
the Partnership; and
(5) to execute, deliver and perform on behalf of the Partnership
such contracts, agreements and other undertakings, and to
engage in such
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activities and transactions as are necessary and appropriate
for the conduct of the business of the Partnership.
(b) The Individual General Partners shall, subject to the approval
thereof of a majority of the Independent General Partners and the vote of a
majority (as defined by the 1940 Act) of the outstanding voting securities of
the Partnership, appoint a person (which may include an Affiliate of the
Corporate General Partner) or persons to serve as Adviser in such capacity and
to provide investment management services to the Partnership, and shall cause
the terms and conditions of such appointment to be stated in an investment
management agreement executed on behalf of the Partnership and such person or
persons. The Corporate General Partner shall not be responsible for, or have
any discretion or authority with respect to, any services provided by the
Adviser under the Investment Management Agreement.
(c) If the Investment Management Agreement is terminated as provided
therein, the Individual General Partners may appoint, subject to the approval
thereof by a majority of the Independent General Partners and by vote of a
majority (as defined by the 1940 Act) of the outstanding voting securities of
the Partnership, a substitute Adviser to provide investment management services
to the Partnership, and shall cause the terms and conditions of such appointment
to be stated in a substitute Investment Management Agreement executed on behalf
of the Partnership and such substitute Adviser.
3.5 CUSTODIAN AND DISTRIBUTOR.
(a) The Corporate General Partner shall not have any authority to hold
or have possession or custody of any funds, Securities or other properties of
the Partnership. The physical possession of all funds, Securities or other
properties of the Partnership shall at all times, be held, controlled and
administered by one or more custodians retained by the Partnership. The
Corporate General Partner shall have no responsibility with respect to the
collection of income, physical acquisition or the safekeeping of the funds,
Securities or other assets of the Partnership, and all such duties of
collection, physical acquisition or safekeeping shall be the sole obligation of
such custodians.
(b) The Individual General Partners may appoint a person (which may
include an Affiliate of the Corporate General Partner) or persons to serve as
the principal underwriter of the Partnership or to act as the distributor of
Interests. The terms and conditions of such appointment shall be stated in an
agreement executed on behalf of the Partnership and such person or persons and
such agreement shall be subject to approval by a majority of the Independent
General Partners.
3.6 BROKERAGE.
The Adviser shall select brokers, dealers and other financial
intermediaries for the execution, clearance and settlement of transactions for
the Partnership in accordance with the Investment Management Agreement and such
procedures as may be adopted by the Individual General Partners.
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3.7 OTHER ACTIVITIES OF PARTNERS.
(a) The General Partners shall not be required to devote full time to
the affairs of the Partnership, but shall devote such time as may reasonably be
required to perform their obligations under this Agreement.
(b) Any Partner, and any Affiliate of any Partner, may engage in or
possess an interest in other business ventures or commercial dealings of every
kind and description, independently or with others, including, but not limited
to, acquisitions and dispositions of Securities, provision of investment
advisory or brokerage services, serving as directors, officers, employees,
advisors or agents of other companies, partners of any partnership, as members
of any limited liability company, or trustees of any trust, or entering into any
other commercial arrangements. No Partner shall have any rights in or to such
activities of any other Partner, or any profits derived therefrom.
(c) Subject to the requirements of applicable law, including Section
17(j) of the 1940 Act and Rule 17j-1 thereunder, the Corporate General Partner
and the Adviser, and their directors, officers, employees and beneficial owners,
may from time to time acquire, possess, manage, hypothecate and dispose of
Securities or other investment assets, and engage in any other investment
transaction, for any account over which it or they exercise discretionary
authority, including their own accounts, the accounts of their families, the
account of any entity in which they have a beneficial interest or the accounts
of others for whom they may provide investment advisory or other services,
notwithstanding the fact that the Partnership may have or may take a position of
any kind or otherwise.
3.8 DUTY OF CARE.
(a) A General Partner shall not be liable to the Partnership or to
any of its Partners for any loss or damage occasioned by any act or omission in
the performance of his or its services under this Agreement, unless it shall be
determined by final judicial decision on the merits from which there is no
further right to appeal that such loss is due to an act or omission of such
General Partner constituting willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such General
Partner's office.
(b) Limited Partners not in breach of any obligation hereunder or
under any agreement pursuant to which the Limited Partner subscribed for an
Interest shall be liable to the Partnership, any Partner or third parties only
as provided under the Delaware Act.
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3.9 INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Partnership shall,
subject to Section 3.9(b) hereof, indemnify each General Partner (including for
this purpose each director, officer, member, partner, employee or agent of, or
any person who controls, a General Partner, and their executors, heirs, assigns,
successors or other legal representatives) against all losses, claims, damages,
liabilities, costs and expenses, including, but not limited to, amounts paid in
satisfaction of judgments, in compromise, or as fines or penalties, and
reasonable counsel fees, incurred in connection with the defense or disposition
of any action, suit, investigation or other proceeding, whether civil or
criminal, before any judicial, arbitral, administrative or legislative body, in
which such indemnitee may be or may have been involved as a party or otherwise,
or with which such indemnitee may be or may have been threatened, while in
office or thereafter, by reason of being or having been a general partner of the
Partnership or the past or present performance of services to the Partnership by
such indemnitee, except to the extent such loss, claim, damage, liability, cost
or expense shall have been finally determined in a decision on the merits in any
such action, suit, investigation or other proceeding to have been incurred or
suffered by such indemnitee by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of such
indemnitee's office. The rights of indemnification provided under this Section
3.9 shall not be construed so as to provide for indemnification of a General
Partner against any liability (including liability under federal securities laws
which, under certain circumstances, impose liability even on persons that act in
good faith) to the extent (but only to the extent) that such indemnification
would be in violation of applicable law, but shall be construed so as to
effectuate the applicable provisions of this Section 3.9 to the fullest extent
permitted by law.
(b) Expenses, including reasonable counsel fees, so incurred by any
such indemnitee (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties), may be paid from time to time by the
Partnership in advance of the final disposition of any such action, suit,
investigation or proceeding upon receipt of an undertaking by or on behalf of
such indemnitee to repay to the Partnership amounts so paid if it shall
ultimately be determined that indemnification of such expenses is not authorized
under Section 3.9(a) hereof; provided, however, that (i) such indemnitee shall
provide security for such undertaking, (ii) the Partnership shall be insured by
or on behalf of such indemnitee against losses arising by reason of such
indemnitee's failure to fulfill his or its undertaking, and (iii) a majority of
the Independent General Partners (excluding any General Partner who is either
seeking advancement of expenses hereunder or is or has been a party to any other
action, suit, investigation or proceeding involving claims similar to those
involved in the action, suit, investigation or proceeding giving rise to a claim
for advancement of expenses hereunder) or independent legal counsel in a written
opinion shall determine based on a review of readily available facts (as opposed
to a full trial-type inquiry) that there is reason to believe such indemnitee
ultimately will be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation or
proceeding (whether by a compromise payment, pursuant to a consent decree or
otherwise) without an adjudication or a decision on the merits by a court, or by
any other body before which the proceeding shall have been brought, that an
indemnitee is liable to the Partnership or its Partners by
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reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office,
indemnification shall be provided pursuant to Section 3.9(a) hereof if (i)
approved as in the best interests of the Partnership by a majority of the
Independent General Partners (excluding any General Partner who is either
seeking indemnification hereunder or is or has been a party to any other action,
suit, investigation or proceeding involving claims similar to those involved in
the action, suit, investigation or proceeding giving rise to a claim for
indemnification hereunder) upon a determination based upon a review of readily
available facts (as opposed to a full trial-type inquiry) that such indemnitee
acted in good faith and in the reasonable belief that such actions were in the
best interests of the Partnership and that such indemnitee is not liable to the
Partnership or its Partners by reason of willful misfeasance, bad faith, gross
negligence, or reckless disregard of the duties involved in the conduct of such
indemnitee's office, or (ii) the Individual General Partners secure a written
opinion of independent legal counsel based upon a review of readily available
facts (as opposed to a full trial-type inquiry) to the effect that such
indemnification would not protect such indemnitee against any liability to the
Partnership or its Partners to which such indemnitee would otherwise be subject
by reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of such indemnitee's office.
(d) Any indemnification or advancement of expenses made pursuant to
this Section 3.9 shall not prevent the recovery from any indemnitee of any such
amount if such indemnitee subsequently shall be determined in a decision on the
merits in any action, suit, investigation or proceeding involving the liability
or expense that gave rise to such indemnification or advancement of expenses to
be liable to the Partnership or its Partners by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved in the
conduct of such indemnitee's office. In (i) any suit brought by a General
Partner (or other person entitled to indemnification hereunder) to enforce a
right to indemnification under this Section 3.9 it shall be a defense that, and
(ii) in any suit in the name of the Partnership to recover any indemnification
or advancement of expenses made pursuant to this Section 3.9 the Partnership
shall be entitled to recover such expenses upon a final adjudication that, the
General Partner or other person claiming a right to indemnification under this
Section 3.9 has not met the applicable standard of conduct set forth in this
Section 3.9. In any such suit brought to enforce a right to indemnification or
to recover any indemnification or advancement of expenses made pursuant to this
Section 3.9, the burden of proving that the General Partner or other person
claiming a right to indemnification is not entitled to be indemnified, or to any
indemnification or advancement of expenses, under this Section 3.9 shall be on
the Partnership (or any Partner acting derivatively or otherwise on behalf of
the Partnership or its Partners).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 3.9 or to which he or it may
otherwise be entitled except out of the assets of the Partnership, and no
Partner shall be personally liable with respect to any such claim for
indemnification or advancement of expenses.
(f) The rights of indemnification provided hereunder shall not be
exclusive of or affect any other rights to which any person may be entitled by
contract or otherwise under law.
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Nothing contained in this Section 3.9 shall affect the power of the Partnership
to purchase and maintain liability insurance on behalf of any General Partner or
other person.
3.10 FEES, EXPENSES AND REIMBURSEMENT.
(a) The Individual General Partners may cause the Partnership to
compensate each Individual General Partner for his services as such. In
addition, the Individual General Partners shall be reimbursed by the Partnership
for reasonable out-of-pocket expenses incurred by them in performing their
duties under this Agreement.
(b) The Partnership shall bear all expenses incurred in the business
of the Partnership other than those specifically required to be borne by the
Corporate General Partner pursuant hereto or by the Adviser pursuant to the
Investment Management Agreement. The Adviser shall pay all expenses of providing
its services to the Partnership (except to the extent provided through soft
dollars generated by the Partnership), including overhead, office and salary
expenses. Expenses to be borne by the Partnership include, but are not limited
to, the following:
(1) all costs and expenses related to portfolio transactions and
positions for the Partnership's account, including, but not
limited to, brokerage commissions, research fees, interest
and commitment fees on loans and debit balances, borrowing
charges on Securities sold short, dividends on Securities
sold short but not yet purchased, custodial fees, margin
fees, transfer taxes and premiums, taxes withheld on foreign
dividends and indirect expenses from investments in
investment funds;
(2) all costs and expenses associated with the organization and
registration of the Partnership and the offering of
Interests, including registration fees and other costs of
compliance with applicable federal or state laws;
(3) the costs and expenses of holding any meetings of any
Partners that are regularly scheduled, permitted or are
required to be held by this Agreement, the 1940 Act or other
applicable law;
(4) the fees and disbursements of any attorneys, accountants,
auditors and other consultants and professionals engaged on
behalf of the Partnership;
(5) the costs of a fidelity bond and any liability insurance
obtained on behalf of the Partnership or the Individual
General Partners; and
(6) the fees and charges of the Adviser, custodians and persons
providing administrative or distribution services to the
Partnership.
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The Corporate General Partner shall be entitled to reimbursement from the
Partnership for any of the above expenses that it pays on behalf of the
Partnership.
_________________________________
ARTICLE IV
TERMINATION OF STATUS AS GENERAL
PARTNER, TRANSFERS AND REPURCHASES
_________________________________
4.1 TERMINATION OF STATUS OF THE CORPORATE GENERAL PARTNER.
(a) The status of the Corporate General Partner shall terminate if the
Corporate General Partner (i) shall be dissolved or otherwise shall terminate
its existence; (ii) shall voluntarily withdraw as Corporate General Partner;
(iii) shall be removed; (iv) shall transfer its Interest to another person, as
Corporate General Partner as permitted under Section 4.4 hereof and such person
to which such Interest is transferred is admitted as a substitute Corporate
General Partner pursuant to Section 2.6(a) hereof; or (v) shall otherwise cease
to be a general partner of the Partnership under Section 17-402(4) or (5) of the
Delaware Act. The Individual General Partners shall cause the Partnership to
distribute the Capital Account balance of the Corporate General Partner to such
Partner in the event that the Corporate General Partner's status as such is
terminated and the business of the Partnership is continued pursuant to Section
6.1(a)(3) hereof. Such distribution shall be paid in cash not more than 30 days
after the determination to continue the business pursuant to Section 6.1(a)(3)
is made.
(b) The Corporate General Partner may not voluntarily withdraw as
Corporate General Partner until the earliest of (i) one year from the date on
which the Corporate General Partner shall have given the Individual General
Partners written notice of its intention to effect such withdrawal (or upon
lesser notice if in the opinion of counsel to the Partnership, such withdrawal
is not likely to cause the Partnership to lose its partnership tax
classification or as otherwise permitted by Rule 2a19-2 of the 1940 Act); (ii)
if an Investment Management Agreement with an Affiliate of the Corporate General
Partner is terminated by the Partnership or is not renewed by the Partnership
and the Partnership enters into an Investment Management Agreement with a person
who is not an affiliate of the Corporate General Partner, the date on which such
person commences to serve as the Adviser, unless within 30 days after such
termination or non-renewal, the Individual General Partners request the
Corporate General Partner not to withdraw, in which case 180 days after the date
of such termination or non-renewal; and (iii) the date on which one or more
persons shall have agreed to assume the obligations of the Corporate General
Partner hereunder with the approval of the Individual General Partners and such
other approvals as may be required by the 1940 Act.
4.2 TERMINATION OF STATUS OF AN INDIVIDUAL GENERAL PARTNER.
The status of an Individual General Partner shall terminate if the
Individual General Partner (i) shall die; (ii) shall be adjudicated incompetent;
(iii) shall voluntarily withdraw as an Individual General Partner (upon not less
than 90 days' prior written notice to the other Individual
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General Partners); (iv) shall be removed; (v) shall be certified by a physician
to be mentally or physically unable to perform his duties hereunder; (vi) shall
be declared bankrupt by a court with appropriate jurisdiction, file a petition
commencing a voluntary case under any bankruptcy law or make an assignment for
the benefit of creditors; (vii) shall have a receiver appointed to administer
the property or affairs of such Partner; or (viii) shall otherwise cease to be a
general partner of the Partnership under the Delaware Act.
4.3 REMOVAL OF GENERAL PARTNERS.
Any General Partner may be removed either by (a) the vote or written
consent of at least two-thirds (2/3) of the Individual General Partners not
subject to the removal vote or (b) the vote or written consent of Partners
holding not less than two-thirds (2/3) of the total number of votes eligible to
be cast by all Partners.
4.4 TRANSFER OF INTERESTS OF GENERAL PARTNERS.
The Corporate General Partner may not Transfer its interest as a
General Partner, except that the Corporate General Partner may effect such a
Transfer in a transaction which does not constitute an "assignment" as defined
by the 1940 Act to a person who has agreed to be bound by all of the provisions
of this Agreement, subject to the prior approval of the Individual General
Partners. By executing this Agreement, each Partner other than the General
Partners shall be deemed to have consented to any Transfer permitted by the
preceding sentence. Individual General Partners may not Transfer their
interests as Individual General Partners.
4.5 TRANSFER OF INTERESTS OF LIMITED PARTNERS.
(a) An Interest or portion thereof of a Limited Partner may be
Transferred only (i) by operation of law pursuant to the death, bankruptcy,
insolvency or dissolution of such Limited Partner or (ii) with the written
consent of the Corporate General Partner (which consent may be withheld in its
sole and absolute discretion) in connection with a Transfer to an entity that
does not result in a change of beneficial ownership. In addition, the Corporate
General Partner may not consent to a Transfer of an Interest or a portion
thereof of a Limited Partner unless the person to whom such Interest is
transferred (or each of such person's beneficial owners if such a person is a
"private investment company" as defined in Rule 205-3(g)(2) under the Advisers
Act) is a person whom the Corporate General Partner believes meets the
requirements of paragraph (b)(1) of Rule 205-3 under the Advisers Act or if such
person is a person whom the Corporate General Partner otherwise believes may be
charged a performance fee in accordance with Section 205 of the Advisers Act.
Any transferee which acquires an Interest by operation of law as the result of
the death, bankruptcy, insolvency or dissolution of a Limited Partner or
otherwise, shall be entitled to the allocations and distributions allocable to
the Interest so acquired and to Transfer such Interest in accordance with the
terms of this Agreement, but shall not be entitled to the other rights of a
Limited Partner unless and until such transferee becomes a substituted Limited
Partner. If a Limited Partner transfers an Interest or portion thereof with the
approval of the Corporate General Partner, the Corporate General Partner, unless
otherwise directed by the Individual General Partners, shall promptly take all
necessary actions so that each transferee or successor to whom such Interest or
portion thereof is transferred is admitted to the Partnership as a Limited
Partner.
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Each Limited Partner and transferee agrees to pay all expenses, including
attorneys' and accountants' fees, incurred by the Partnership in connection with
such Transfer. The Corporate General Partner may in its sole discretion waive
the payment of such fees.
(b) Each Limited Partner shall indemnify and hold harmless the
Partnership, the Individual General Partners, the Corporate General Partner,
each other Limited Partner and any Affiliate of the foregoing against all
losses, claims, damages, liabilities, costs and expenses (including legal or
other expenses incurred in investigating or defending against any such losses,
claims, damages, liabilities, costs and expenses or any judgments, fines and
amounts paid in settlement), joint or several, to which such persons may become
subject by reason of or arising from (i) any Transfer made by such Limited
Partner in violation of this Section 4.5 and (ii) any misrepresentation by such
Limited Partner in connection with any such Transfer.
4.6 REDEMPTION AND REPURCHASE OF INTERESTS.
(a) Except as otherwise provided in this Agreement, no Partner or
other person holding an Interest or portion thereof shall have the right to
withdraw or tender to the Partnership for repurchase an Interest or portion
thereof.
(b) The Partnership shall redeem, as of the Redemption Date, all
Interests then held by Limited Partners or by transferees of Limited Partners
who acquired Interests in transactions permitted by Section 4.5. The amounts
owing to Limited Partners with respect to such redemptions shall be paid as
provided by Section 4.6(h) below.
(c) The Redemption Date may be postponed and the payment of the
proceeds of redemption be delayed, if on the Redemption Date:
(1) the New York Stock Exchange (the "NYSE") or any national
securities exchange on which Securities held by the
Partnership is closed;
(2) trading on the NYSE or any such other exchange is suspended
or restricted; or
(3) an emergency exists as a result of which disposal by the
Partnership of any Securities or other assets is not
practicable or it is not reasonably practicable for the
Partnership fairly to determine the value of its Net Assets.
(d) In the event that the Individual General Partners postpone the
Redemption Date as provided in Section 4.6(c) above, the redemption of Interests
in accordance with Section 4.6(b) shall be effected as of the first trading day
that the conditions giving rise to the postponement are determined, in the sole
discretion of the Individual General Partners, no longer to exist.
(e) If the Corporate General Partner's status as Corporate General
Partner is terminated pursuant to Section 4.1 hereof and the business of the
Partnership is continued pursuant
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to Section 6.1(a)(3) hereof, the Individual General Partners shall cause the
Partnership to distribute to the former Corporate General Partner (or its
trustee or other legal representative), within 60 days of the action resulting
in the continuation of the Partnership pursuant to Section 6.1(a)(3) hereof,
cash in such amount as is equal to the balance of such Corporate General
Partner's Capital Account, subject to any adjustment pursuant to Section 5.6
hereof.
(f) The Individual General Partners may cause the Partnership to
repurchase an Interest or portion thereof of a Limited Partner or of any person
acquiring an Interest or portion thereof from or through a Limited Partner in
the event that the Individual General Partners determine or have reason to
believe that:
(1) the Interest or portion thereof has been transferred in
violation of Section 4.5 hereof, or the Interest or portion
thereof has vested in any person by operation of law as the
result of the death, dissolution, bankruptcy or incompetency
of a Partner;
(2) ownership of the Interest by a Partner or other person will
cause the Partnership to be in violation of, or subject the
Partnership to additional registration or regulation under,
the securities or commodities laws of the United States or
of any State or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or
injurious to the business or reputation of the Partnership,
the Individual General Partners or the Corporate General
Partner, or may subject the Partnership or any of the
Partners to an undue risk of adverse tax or other fiscal
consequences;
(4) any of the representations and warranties made by a Partner
in connection with the acquisition of the Interest or
portion thereof was not true when made or has ceased to be
true; or
(5) it would be in the best interests of the Partnership, as
determined by the Individual General Partners in their
absolute discretion, for the Partnership to repurchase the
Interest or portion thereof.
(g) The amount due to any Partner or holder of an Interest whose
Interest or portion thereof is redeemed repurchased pursuant to this Section 4.6
shall be equal to the value of such Partner's Capital Account or portion thereof
as determined as of the date of redemption or repurchase, after giving effect to
all allocations to be made to such Partner's Capital Account as of such date.
(h) The amount owing to a Partner in connection with a redemption or
a repurchase of an Interest or portion thereof by the Partnership pursuant to
this Section 4.6 shall be payable in cash, without interest. The Corporate
General Partner shall cause the Partnership to pay not less than 95 percent of
such amount (computed on the basis of unaudited data) to the Partner or
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other holder thereof within ten days after the date as of which the redemption
or repurchase is effected. The balance of such amount shall be paid (subject to
audit adjustments) within 15 days after the completion of the audit of the
Partnership's books for the Fiscal Year during which such redemption or
repurchase occurs or, in the case of redemptions pursuant to Section 4.6(b),
after the completion of a final audit of the Partnership's books.
____________________________________
ARTICLE V
CAPITAL
____________________________________
5.1 CONTRIBUTIONS TO CAPITAL.
(a) The minimum initial Capital Contribution of each Limited Partner
shall be such amount as the Individual General Partners, in their discretion,
may determine from time to time, but in no event shall be less than $250,000 or
such other amount as the Individual General Partners may determine from time to
time. The Corporate General Partner, upon becoming Corporate General Partner,
shall make a Capital Contribution of $100,000 in its capacity as Corporate
General Partner. The amount of the initial Capital Contribution of each Partner
shall be recorded on the books of the Partnership upon acceptance as a
contribution to the capital of the Partnership. Individual General Partners
shall not be entitled to make voluntary Capital Contributions as general
partners of the Partnership, but may make voluntary Capital Contributions as
limited partners if permitted by the Corporate General Partner.
(b) The Limited Partners shall have no right to make any Capital
Contributions after the Closing Date.
(c) Initial Capital Contributions and any additional Capital
Contributions shall be made in cash.
5.2 RIGHTS OF PARTNERS TO CAPITAL.
No Partner shall be entitled to interest on his Capital Contributions,
nor shall any Partner be entitled to the return of any capital of the
Partnership except (i) upon the redemption or repurchase by the Partnership of a
part or all of such Partner's Interest pursuant to Section 4.1 or Section 4.6
hereof, (ii) upon a distribution to such Partner pursuant to Section 4.6(e) or
5.10 hereof, (iii) pursuant to the provisions of Section 5.6(c) hereof or (iv)
upon the liquidation of the Partnership's assets pursuant to Section 6.2 hereof.
No Partner shall be liable for the return of any such amounts. No Partner shall
have the right to require partition of the Partnership's property or to compel
any sale or appraisal of the Partnership's assets.
5.3 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain a separate Capital Account for
each Partner.
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(b) Each Partner's Capital Account shall have an initial balance
equal to the amount of cash constituting such Partner's initial Capital
Contribution.
(c) Each Partner's Capital Account shall be increased by the sum of
(i) the amount of cash constituting additional Capital Contributions by such
Partner made pursuant to Section 5.1 hereof, plus (ii) any amount credited to
such Partner's Capital Account pursuant to Sections 5.4 through 5.6 hereof.
(d) Each Partner's Capital Account shall be reduced by the sum of (i)
the amount of any redemption or repurchase of the Interest, or portion thereof,
of such Partner pursuant to Section 4.6 hereof and the amount of any
distributions to such Partner pursuant to Section 4.6(e), 5.10 or 6.2 hereof,
plus (ii) any amounts debited against such Partner's Capital Account pursuant to
Sections 5.4 through 5.7 hereof.
5.4 ALLOCATION OF NET PROFIT AND NET LOSS.
Subject to Section 5.8 hereof, as of the last day of each Fiscal
Period, any Net Profit or Net Loss for the Fiscal Period shall be allocated
among and credited to or debited against the Capital Accounts of the Partners in
accordance with their respective Partnership Percentages for such Fiscal Period.
5.5 ALLOCATION OF CERTAIN WITHHOLDING TAXES AND OTHER EXPENDITURES.
(a) If the Partnership incurs a withholding tax or other tax
obligation with respect to the share of Partnership income allocable to any
Partner, then the Corporate General Partner, without limitation of any other
rights of the Partnership or the General Partners, shall cause the amount of
such obligation to be debited against the Capital Account of such Partner when
the Partnership pays such obligation, and any amounts then or thereafter
distributable to such Partner shall be reduced by the amount of such taxes. If
the amount of such taxes is greater than any such distributable amounts, then
such Partner and any successor to such Partner's Interest shall pay to the
Partnership as a Capital Contribution, upon demand of the Corporate General
Partner, the amount of such excess. The Corporate General Partner shall not be
obligated to apply for or obtain a reduction of or exemption from withholding
tax on behalf of any Partner that may be eligible for such reduction or
exemption; provided, that in the event that the Corporate General Partner
determines that a Partner is eligible for a refund of any withholding tax, the
Corporate General Partner may, at the request and expense of such Partner,
assist such Partner in applying for such refund.
(b) Except as otherwise provided for in this Agreement and unless
prohibited by the 1940 Act, any expenditures payable by the Partnership, to the
extent determined by the Corporate General Partner to have been paid or withheld
on behalf of, or by reason of particular circumstances applicable to, one or
more but fewer than all of the Partners, shall be charged to only those Partners
on whose behalf such payments are made or whose particular circumstances gave
rise to such payments. Such charges shall be debited from the Capital Accounts
of such Partners as of the close of the Fiscal Period during which any such
items were paid or accrued by the Partnership.
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5.6 RESERVES.
(a) Appropriate reserves may be created, accrued and charged against
Net Assets and proportionately against the Capital Accounts of the Partners for
contingent liabilities, if any, as of the date any such contingent liability
becomes known to the Corporate General Partner, such reserves to be in the
amounts which the Corporate General Partner in its sole discretion deems
necessary or appropriate. The Corporate General Partner may increase or reduce
any such reserves from time to time by such amounts as the Corporate General
Partner in its sole discretion deems necessary or appropriate. The amount of any
such reserve, or any increase or decrease therein, shall be proportionately
charged or credited, as appropriate, to the Capital Accounts of those parties
who are Partners at the time when such reserve is created, increased or
decreased, as the case may be; provided, however, that if any such individual
reserve item, adjusted by any increase therein, exceeds the lesser of $500,000
or 1% of the aggregate value of the Capital Accounts of all such Partners, the
amount of such reserve, increase, or decrease shall instead be charged or
credited to those parties who were Partners at the time, as determined by the
Corporate General Partner in its sole discretion, of the act or omission giving
rise to the contingent liability for which the reserve was established,
increased or decreased in proportion to their Capital Accounts at that time.
(b) If at any time an amount is paid or received by the Partnership
(other than Capital Contributions, distributions or redemptions or repurchases
of Interests or portions thereof) and such amount exceeds the lesser of $500,000
and/or 1% of the aggregate value of the Capital Accounts of all Partners at the
time of payment or receipt and such amount was not accrued or reserved for but
would nevertheless, in accordance with the Partnership's accounting practices,
be treated as applicable to one or more prior Fiscal Periods, then such amount
shall be proportionately charged or credited, as appropriate, to those parties
who were Partners during such prior Fiscal Period or Periods.
(c) If any amount is required by paragraph (a) or (b) of this Section
5.6 to be charged or credited to a party who is no longer a Partner, such amount
shall be paid by or to such party, as the case may be, in cash, with interest
from the date on which the Corporate General Partner determines that such charge
or credit is required. In the case of a charge, the former Partner shall be
obligated to pay the amount of the charge, plus interest as provided above, to
the Partnership on demand; provided, however, that (i) in no event shall a
former Partner be obligated to make a payment exceeding the amount of such
Partner's Capital Account at the time to which the charge relates; and (ii) no
such demand shall be made after the expiration of three years since the date on
which such party ceased to be a Partner. To the extent that a former Partner
fails to pay to the Partnership, in full, any amount required to be charged to
such former Partner pursuant to paragraph (a) or (b), whether due to the
expiration of the applicable limitation period or for any other reason
whatsoever, the deficiency shall be charged proportionately to the Capital
Accounts of the Partners at the time of the act or omission giving rise to the
charge to the extent feasible, and otherwise proportionately to the Capital
Accounts of the current Partners.
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5.7 INCENTIVE ALLOCATION.
(a) The Incentive Allocation shall be debited against the Capital
Account of each Limited Partner as of the last day of each Allocation Period
with respect to such Limited Partner and the amount so debited shall
simultaneously be credited to the Capital Account of the Corporate General
Partner, or, subject to compliance with the 1940 Act and the Advisers Act, to
the Capital Accounts of such Partners as have been designated in any written
notice delivered by the Corporate General Partner to the Individual General
Partners within 90 days after the close of such Allocation Period.
(b) Within 30 days after the end of each Allocation Period with
respect to each Limited Partner, the Corporate General Partner shall withdraw up
to 98% of the Incentive Allocation (computed on the basis of unaudited data)
that was credited to the Corporate General Partner's Capital Account and debited
from such Limited Partner's Capital Account with respect to such Allocation
Period. Subject to the criteria set forth in items (1) and (2) of this clause
(b), the Partnership shall pay the Corporate General Partner the undrawn balance
of such Incentive Allocation (subject to audit adjustments) within 30 days after
the completion of the audit of the Partnership's books.
5.8 ALLOCATION TO AVOID CAPITAL ACCOUNT DEFICITS.
To the extent that any debits pursuant to Sections 5.4 through 5.6
hereof would reduce the balance of the Capital Account of any Limited Partner
below zero, that portion of any such debits shall instead be allocated to the
Capital Account of the Corporate General Partner. Any credits in any subsequent
Fiscal Period which would otherwise be allocable pursuant to Sections 5.4
through 5.6 hereof to the Capital Account of any Limited Partner previously
affected by the application of this Section 5.8 shall instead be allocated to
the Capital Account of the Corporate General Partner in such amounts as are
necessary to offset all previous debits attributable to such Limited Partner
pursuant to this Section 5.8 not previously recovered.
5.9 TAX ALLOCATIONS.
(a) For each Fiscal Year, items of income, deduction, gain, or loss
shall be allocated for income tax purposes as follows:
(b) All items of income and gain or loss and deduction realized by
the Partnership, other than items of income and gain or loss and deduction from
Options Transactions, shall be allocated among the Partners in such manner as to
reflect equitably amounts credited or debited to each Partner's Capital Account
for the current and prior Fiscal Years (or relevant portions thereof).
Allocations under this Section 5.09 shall be made pursuant to the principles of
Sections 704(b) and 704(c) of the Code.
(c) All items of income and gain or loss and deduction realized by
the Partnership in connection with its Options Transactions shall be allocated
among the Partners as follows:
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(1) If there is Option Income for a Fiscal Year, to the extent
that there is Positive Option Income Carryover, then 20% of
such Positive Option Income Carryover shall be allocated to
the Capital Account of the Corporate General Partner and the
balance of such Option Income shall be allocated to the
Capital Accounts of the Partners in accordance with their
respective Partnership Percentages for such Fiscal Year; and
(2) If there are Option Losses for a Fiscal Year, then 20% of
such Option Losses shall be allocated to the Capital Account
of the Corporate General Partner in an amount equal to any
Option Income previously allocated to the Corporate General
Partner in excess of Option Losses previously allocated to
the Corporate General Partner, and the balance of such
Option Losses shall be allocated to the Capital Accounts of
the Partners in accordance with their respective Partnership
Percentages for such Fiscal Year.
5.10 DISTRIBUTIONS.
(a) The Individual General Partners may, in their sole discretion,
authorize the Partnership to make distributions in cash at any time to all of
the Partners on a pro rata basis in accordance with the Partners' Partnership
Percentages. In the event that the Partnership has cumulative net realized gains
exceeding 20% of the initial net assets of the Partnership, the Individual
General Partners may elect to make one or more distributions to the Partners on
a pro rata basis in accordance with the Partners' Partnership Percentages. The
amount and times of any such distributions will be determined in the sole
discretion of the Individual General Partners, and there is no requirement that
the full amount of gains exceeding the amount set forth above be distributed.
(b) The Corporate General Partner may withhold taxes from any
distribution to any Partner to the extent required by the Code or any other
applicable law. For purposes of this Agreement, any taxes so withheld by the
Partnership with respect to any amount distributed by the Partnership to any
Partner shall be deemed to be a distribution or payment to such Partner,
reducing the amount otherwise distributable to such Partner pursuant to this
Agreement and reducing the Capital Account of such Partner.
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__________________________
ARTICLE VI
DISSOLUTION AND LIQUIDATION
___________________________
6.1 DISSOLUTION.
(a) The Partnership shall be dissolved:
(1) on [February 28, 1999], unless both (i) the Individual
General Partners, and (ii) a majority (as defined in the
1940 Act) of the outstanding voting securities of the
Partnership, shall elect within 60 days of such date to
continue the business of the Partnership;
(2) upon the affirmative vote to dissolve the Partnership by
both (i) the Individual General Partners and (ii) Partners
holding at least two-thirds (2/3) of the total number of
votes eligible to be cast by all Partners;
(3) upon either of (i) an election by the Corporate General
Partner to dissolve the Partnership or (ii) the termination
of the Corporate General Partner's status as such pursuant
to Section 4.1 hereof (other than in conjunction with a
Transfer of the Interest of the Corporate General Partner
permitted by Section 4.4 hereof to a person who is admitted
as a substitute Corporate General Partner pursuant to
Section 2.6(a) hereof), unless as to either event both (i)
the Individual General Partners, and (ii) Partners holding
not less than two-thirds (2/3) of the total number of votes
eligible to be cast by all Partners, shall elect within 60
days after such event to continue the business of the
Partnership and a person has been admitted to the
Partnership as the Corporate General Partner;
(4) upon the failure of Partners to elect successor Individual
General Partners at a meeting called by the Corporate
General Partner in accordance with Section 2.6(c) hereof
when no Individual General Partner remains to continue the
business of the Partnership; or
(5) as required by operation of law.
Dissolution of the Partnership shall be effective on the later of the day on
which the event giving rise to the dissolution shall occur or the conclusion of
any applicable 60 day period during which the Individual General Partners and
Partners may elect to continue the business of the Partnership
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as provided above, but the Partnership shall not terminate until the assets of
the Partnership have been liquidated in accordance with Section 6.2 hereof and
the Certificate has been canceled.
(b) Upon the occurrence of an event of withdrawal under Section 17-402
of the Delaware Act with respect to any General Partner (including any event
specified in Section 4.1, 4.2, 4.3 or 4.4 hereof that causes such General
Partner to cease to be a Partner in the Partnership), all remaining General
Partners are authorized to carry on the business of the Partnership as permitted
by Section 17-801(3) of the Delaware Act and to the extent permitted by this
Agreement. Except as provided in Section 6.1(a) hereof or in the Delaware Act,
the death, mental illness, dissolution, termination, liquidation, bankruptcy,
reorganization, merger, sale of substantially all of the stock or assets of or
other change in the ownership or nature of a Partner, the admission to the
Partnership of a new Partner, the withdrawal of a Partner from the Partnership,
or the transfer by a Partner of his Interest to a third party shall not cause
the Partnership to dissolve.
6.2 LIQUIDATION OF ASSETS.
(a) Upon the dissolution of the Partnership as provided in Section 6.1
hereof, the Individual General Partners, or the Corporate General Partner if
there are no Individual General Partners, shall promptly liquidate the business
and administrative affairs of the Partnership, except that if both the
Individual General Partners and the Corporate General Partner are unable to
perform this function, a liquidator elected by Partners holding a majority of
the total number of votes eligible to be cast by all Partners shall promptly
liquidate the business and administrative affairs of the Partnership. Net
Profit and Net Loss during the period of liquidation shall be allocated pursuant
to Section 5.4 hereof. The proceeds from liquidation (after establishment of
appropriate reserves for contingencies in such amount as the Individual General
Partners, Corporate General Partner or liquidator, as applicable, shall deem
appropriate in their or its sole discretion) shall be distributed in the
following manner:
(1) the debts of the Partnership, other than debts, liabilities
or obligations to Partners, and the expenses of liquidation
(including legal and accounting expenses incurred in
connection therewith), up to and including the date that
distribution of the Partnership's assets to the Partners has
been completed, shall first be paid on a pro rata basis;
(2) such debts, liabilities or obligations as are owing to the
Partners shall next be paid in their order of seniority and
on a pro rata basis; and
(3) the Partners shall next be paid on a pro rata basis the
positive balances of their respective Capital Accounts after
giving effect to all allocations to be made to such
Partners' Capital Accounts for the Fiscal Period ending on
the date of the distributions under this Section 6.2(a)(3).
(b) Anything in this Section 6.2 to the contrary notwithstanding, upon
dissolution of the Partnership, the Individual General Partners, Corporate
General Partner or other
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liquidator, as applicable, may distribute ratably in kind any assets of the
Partnership; provided, however, that if any in-kind distribution is to be made
(i) the assets distributed in kind shall be valued pursuant to Section 7.3
hereof as of the actual date of their distribution and charged as so valued and
distributed against amounts to be paid under Section 6.2(a) above, and (ii) any
profit or loss attributable to property distributed in-kind shall be included in
the Net Profit or Net Loss for the Fiscal Period ending on the date of such
distribution.
_____________________________
ARTICLE VII
ACCOUNTING, VALUATIONS AND BOOKS AND RECORDS
_____________________________
7.1 ACCOUNTING AND REPORTS.
(a) The Partnership shall adopt for tax accounting purposes any
accounting method which the Corporate General Partner shall decide in its sole
discretion is in the best interests of the Partnership. The Partnership's
accounts shall be maintained in U.S. currency.
(b) After the end of each taxable year, the Partnership shall furnish
to each Partner such information regarding the operation of the Partnership and
such Partner's Interest as is necessary for Partners to complete federal and
state income tax returns and any other tax information required by federal or
state law.
(c) Except as otherwise required by the 1940 Act, or as may otherwise
be permitted by rule, regulation or order, within 60 days after the close of the
period for which a report required under this Section 7.1(c) is being made, the
Partnership shall furnish to each Limited Partner a semi-annual report and an
annual report containing the information required by such Act. The Partnership
shall cause financial statements contained in each annual report furnished
hereunder to be accompanied by a certificate of independent public accountants
based upon an audit performed in accordance with generally accepted accounting
principles. The Partnership may furnish to each Partner such other periodic
reports in as it deems necessary or appropriate in its discretion.
7.2 DETERMINATIONS BY CORPORATE GENERAL PARTNER.
(a) All matters concerning the determination and allocation among the
Partners of the amounts to be determined and allocated pursuant to Article V
hereof, including any taxes thereon and accounting procedures applicable
thereto, shall be determined by the Corporate General Partner unless
specifically and expressly otherwise provided for by the provisions of this
Agreement or required by law, and such determinations and allocations shall be
final and binding on all the Partners.
(b) The Corporate General Partner may make such adjustments to the
computation of Net Profit or Net Loss, the Allocation Change with respect to any
Limited Partner,
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or any components comprising any of the foregoing as it considers appropriate to
reflect fairly and accurately the financial results of the Partnership and the
intended allocation thereof among the Partners.
7.3 VALUATION OF ASSETS.
(a) Except as may otherwise be required by the 1940 Act, the
Securities and other assets and liabilities of the Partnership shall be valued
as of the close of business on the last day of each Fiscal Period in accordance
with such valuation procedures as shall be established from time to time by the
Individual General Partners and which conform to the requirements of the 1940
Act. In determining the value of the assets of the Partnership, no value shall
be placed on the goodwill or name of the Partnership, or the office records,
files, statistical data or any similar intangible assets of the Partnership not
normally reflected in the Partnership's accounting records, but there shall be
taken into consideration any items of income earned but not received, expenses
incurred but not yet paid, liabilities fixed or contingent, the unamortized
portion of any organizational expenses and any other prepaid expenses to the
extent not otherwise reflected in the books of account, and the value of options
or commitments to purchase or sell Securities or commodities pursuant to
agreements entered into prior to such valuation date.
(b) The value of Securities and other assets of the Partnership and
the net worth of the Partnership as a whole determined pursuant to this Section
7.3 shall be conclusive and binding on all of the Partners and all parties
claiming through or under them.
___________________________
ARTICLE VIII
MISCELLANEOUS PROVISIONS
_____________________________
8.1 AMENDMENT OF PARTNERSHIP AGREEMENT.
(a) Except as otherwise provided in this Section 8.1, this Agreement
may be amended, in whole or in part, with the approval of (i) the Individual
General Partners (including the vote of a majority of the Independent General
Partners, if required by the 1940 Act), (ii) the Corporate General Partner and
(iii) a majority (as defined in the 1940 Act) of the outstanding voting
securities of the Partnership.
(b) Any amendment that would:
(1) increase the obligation of a Partner to make any
contribution to the capital of the Partnership;
(2) reduce the Capital Account of a Partner other than in
accordance with Article V; or
(3) modify the events causing the dissolution of the Partnership;
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may be made only if (i) the written consent of each Partner adversely affected
thereby is obtained prior to the effectiveness thereof or (ii) such amendment
does not become effective until (A) each Limited Partner has received written
notice of such amendment and (B) any Limited Partner objecting to such amendment
has been afforded a reasonable opportunity (pursuant to such procedures as may
be prescribed by the Individual General Partners) to tender his entire Interest
for repurchase by the Partnership.
(c) The Corporate General Partner may at any time without the consent
of the other Partners:
(1) amend Schedule I hereto to reflect any change required to be
made therein pursuant to the terms of this Agreement;
(2) restate this Agreement together with any amendments hereto
which have been duly adopted in accordance herewith to
incorporate such amendments in a single, integrated
document;
(3) amend this Agreement (other than with respect to the matters
set forth in Section 8.1(b) hereof) to effect compliance
with any applicable law or regulation or to cure any
ambiguity or to correct or supplement any provision hereof
which may be inconsistent with any other provision hereof,
provided that such action does not adversely affect the
rights of any Partner in any material respect; and
(4) amend this Agreement to make such changes as may be
necessary or desirable, based on advice of legal counsel to
the Partnership, to assure the Partnership's continuing
eligibility to be classified for U.S. federal income tax
purposes as a partnership which is not treated as an
association taxable as a corporation or a "publicly traded
partnership" under Section 7704(a) of the Code,
subject, however, to the limitation that any amendment to this Agreement
pursuant to Sections 8.1(c)(3) or (4) hereof shall be valid only if approved by
the Individual General Partners (including the vote of a majority of the
Independent General Partners, if required by the 1940 Act).
(d) Prior written notice of any proposed amendment to this Agreement
(other than any amendment of the type contemplated by clause (1) or (2) of
Section 8.1(c) hereof) shall be given to each Partner, which notice shall set
forth (i) the text of the proposed amendment or (ii) a summary thereof and a
statement that the text thereof will be furnished to any Partner upon request.
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8.2 SPECIAL POWER OF ATTORNEY.
(a) Each Partner hereby irrevocably makes, constitutes and appoints
the Corporate General Partner, each of the Individual General Partners, acting
severally, and any liquidator of the Partnership's assets appointed pursuant to
Section 6.2 hereof with full power of substitution, the true and lawful
representatives and attorneys-in-fact of, and in the name, place and stead of,
such Partner, with the power from time to time to make, execute, sign,
acknowledge, swear to, verify, deliver, record, file and/or publish:
(1) any amendment to this Agreement which complies with the
provisions of this Agreement (including the provisions of
Section 8.1 hereof);
(2) any amendment to the Certificate required because this
Agreement is amended, including, without limitation, an
amendment to effectuate any change in the membership of the
Partnership; and
(3) all such other instruments, documents and certificates
which, in the opinion of legal counsel to the Partnership,
may from time to time be required by the laws of the United
States of America, the State of Delaware or any other
jurisdiction in which the Partnership shall determine to do
business, or any political subdivision or agency thereof, or
which such legal counsel may deem necessary or appropriate
to effectuate, implement and continue the valid existence
and business of the Partnership as a limited partnership
under the Delaware Act.
(b) Each Partner is aware that the terms of this Agreement permit
certain amendments to this Agreement to be effected and certain other actions to
be taken or omitted by or with respect to the Partnership without such Partner's
consent. If an amendment to the Certificate or this Agreement or any action by
or with respect to the Partnership is taken in the manner contemplated by this
Agreement, each Partner agrees that, notwithstanding any objection which such
Partner may assert with respect to such action, the attorneys-in-fact appointed
hereby are authorized and empowered, with full power of substitution, to
exercise the authority granted above in any manner which may be necessary or
appropriate to permit such amendment to be made or action lawfully taken or
omitted. Each Partner is fully aware that each Partner will rely on the
effectiveness of this special power-of-attorney with a view to the orderly
administration of the affairs of the Partnership.
(c) This power-of-attorney is a special power-of-attorney and is
coupled with an interest in favor of the Corporate General Partner and each of
the Individual General Partners and as such:
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(1) shall be irrevocable and continue in full force and effect
notwithstanding the subsequent death or incapacity of any
party granting this power-of-attorney, regardless of whether
the Partnership or the Corporate General Partner or
Individual General Partners shall have had notice thereof;
and
(2) shall survive the delivery of a Transfer by a Partner of the
whole or any portion of such Partner's Interest, except that
where the transferee thereof has been approved by the
Individual General Partners for admission to the Partnership
as a substituted Partner, this power-of-attorney given by
the transferor shall survive the delivery of such assignment
for the sole purpose of enabling the Corporate General
Partner or Individual General Partners to execute,
acknowledge and file any instrument necessary to effect such
substitution.
8.3 NOTICES.
Notices which may or are required to be provided under this Agreement
by any party to another party shall be made by hand delivery, registered or
certified mail return receipt requested, commercial courier service, telex or
telecopier, and shall be addressed to the respective parties hereto at their
addresses as set forth on Schedule I hereto (or to such other addresses as may
be designated by any party hereto by notice addressed to the Corporate General
Partner in the case of notice given to any Partner, and to each of the Partners
in the case of notice given to the Corporate General Partner). Notices shall be
deemed to have been provided when delivered by hand, on the date indicated as
the date of receipt on a return receipt or when received if sent by commercial
courier service, telex or telecopier. A document that is not a notice and that
is required to be provided under this Agreement by any party to another party
may be delivered by any reasonable means.
8.4 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors, assigns, executors,
trustees or other legal representatives, but the rights and obligations of the
parties hereunder may not be Transferred or delegated except as provided in this
Agreement and any attempted Transfer or delegation thereof which is not made
pursuant to the terms of this Agreement shall be void.
8.5 APPLICABILITY OF 1940 ACT AND FORM N-2.
The parties hereto acknowledge that this Agreement is not intended to,
and does not, set forth the substantive provisions contained in the 1940 Act and
the Form N-2 which affect numerous aspects of the conduct of the Partnership's
business and of the rights, privileges and obligations of the Partners. Each
provision of this Agreement shall be subject to and interpreted in a manner
consistent with the applicable provisions of the 1940 Act and the Form N-2.
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8.6 CHOICE OF LAW
Notwithstanding the place where this Agreement may executed by any of
the parties hereto, the parties expressly agree that all the terms and
provisions hereof shall be construed under the laws of the State of Delaware,
including the Delaware Act without regard to the conflict of law principles of
such State.
8.7 NOT FOR BENEFIT OF CREDITORS.
The provisions of this Agreement are intended only for the regulation
of relations among past, present and future Partners and the Partnership. This
Agreement is not intended for the benefit of non-Partner creditors and no rights
are granted to non-Partner creditors under this Agreement.
8.8 CONSENTS.
Any and all consents, agreements or approvals provided for or
permitted by this Agreement shall be in writing and a signed copy thereof shall
be filed and kept with the books of the Partnership.
8.9 MERGER AND CONSOLIDATION.
(a) The Partnership may merge or consolidate with or into one or more
limited partnerships formed under the Delaware Act or other business entities
pursuant to an agreement of merger or consolidation which has been approved in
the manner contemplated by Section 17-211(b) of the Delaware Act.
(b) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, an agreement of merger or consolidation approved in accordance
with Section 17-211(b) of the Delaware Act may, to the extent permitted by
Section 17-211(g) of the Delaware Act, (i) effect any amendment to this
Agreement, (ii) effect the adoption of a new partnership agreement for the
Partnership if it is the surviving or resulting limited partnership in the
merger or consolidation, or (iii) provide that the partnership agreement of any
other constituent partnership to the merger or consolidation (including a
limited partnership formed for the purpose of consummating the merger or
consolidation) shall be the partnership agreement of the surviving or resulting
limited partnership.
8.10 PRONOUNS.
All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the person or persons, firm or
corporation may require in the context thereof.
8.11 CONFIDENTIALITY.
(a) A Limited Partner may obtain from the Partnership such information
regarding the affairs of the Partnership as is just and reasonable under the
Delaware Act, subject to
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reasonable standards (including standards governing what information and
documents are to be furnished, at what time and location and at whose expense)
established by the General Partners.
(b) Each Partner covenants that, except as required by applicable law
or any regulatory body, it will not divulge, furnish or make accessible to any
other person the name and/or address (whether business, residence or mailing) of
any Limited Partner (collectively, "Confidential Information") without the prior
written consent of the Corporate General Partner, which consent may be withheld
in the Corporate General Partner's sole discretion.
(c) Each Partner recognizes that in the event that this Section 8.11
is breached by any Partner or any of its principals, partners, members,
directors, officers, employees or agents or any of its affiliates, including any
of such affiliates' principals, partners, members, directors, officers,
employees or agents, irreparable injury may result to the non-breaching Partners
and the Partnership. Accordingly, in addition to any and all other remedies at
law or in equity to which the non-breaching Partners and the Partnership may be
entitled, such Partners shall also have the right to obtain equitable relief,
including, without limitation, injunctive relief, to prevent any disclosure of
Confidential Information, plus reasonable attorneys' fees and other litigation
expenses incurred in connection therewith. In the event that any non-breaching
Partner or the Partnership determines that any of the other Partners or any of
its principals, partners, members, directors, officers, employees or agents or
any of its affiliates, including any of such affiliates' principals, partners,
members, directors, officers, employees or agents should be enjoined from or
required to take any action to prevent the disclosure of Confidential
Information, each of the other non-breaching Partners agrees to pursue in a
court of appropriate jurisdiction such injunctive relief.
8.12 CERTIFICATION OF NON-FOREIGN STATUS.
Each Limited Partner or transferee of an Interest from a Limited
Partner shall certify, upon admission to the Partnership and at such other time
thereafter as the Corporate General Partner may request, whether he is a "United
States Person" within the meaning of Section 7701(a)(30) of the Code on forms to
be provided by the Partnership, and shall notify the Partnership within 30 days
of any change in such Partner's status. Any Limited Partner who shall fail to
provide such certification when requested to do so by the Corporate General
Partner may be treated as a non-United States Person for purposes of U.S.
federal tax withholding.
8.13 SEVERABILITY
If any provision of this Agreement is determined by a court of
competent jurisdiction not to be enforceable in the manner set forth in this
Agreement, each Partner agrees that it is the intention of the Partners that
such provision should be enforceable to the maximum extent possible under
applicable law. If any provisions of this Agreement are held to be invalid or
unenforceable, such invalidation or unenforceability shall not affect the
validity or enforceability of any other provision of this Agreement (or portion
thereof).
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8.14 USE OF THE NAME "LEVCO".
The name "Levco" and all rights to use such name belongs to Xxxx X.
Xxxxx & Co., Inc. and its affiliates ("Xxxxx & Co."). Xxxxx & Co. has consented
to the use by the Partnership of the word "Levco" and has granted to the
Partnership a non-exclusive license to use such word as part of the name of the
Partnership. In the event an affiliate of Xxxxx & Co. is not appointed as the
Adviser or ceases to be the Adviser of the Partnership, or an affiliate of Xxxxx
& Co. ceases to be the Corporate General Partner of the Partnership, the non-
exclusive license granted herein may be revoked in whole or in part by Xxxxx &
Co., and the Partnership shall cease use of the name Levco as part of its name,
as soon as reasonably practicable, unless otherwise consented to by Xxxxx & Co.
or any successor to its interest in such name.
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THE UNDERSIGNED ACKNOWLEDGES HAVING READ THIS AGREEMENT IN ITS ENTIRETY
BEFORE SIGNING, INCLUDING THE CONFIDENTIALITY CLAUSE SET FORTH IN SECTION 8.11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CORPORATE GENERAL PARTNER:
LEVCO GP, INC.
Xxxx X. Xxxxx
By:____________________________________
President
Its:___________________________________
INDIVIDUAL GENERAL PARTNERS:
Xxxx X. Xxxxx
_______________________________________
_______________________________________
_______________________________________
_______________________________________
LIMITED PARTNERS:
Each person who shall sign a Limited
Partner Signature Page and who shall be
accepted by the Corporate General Partner
to the Partnership as a Limited Partner.
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SCHEDULE I
----------
__________________________
CORPORATE GENERAL PARTNER
-------------------------
Name and Address Capital Contribution
---------------- --------------------
Levco GP, Inc.
________________
________________
INDIVIDUAL GENERAL PARTNERS
---------------------------
Name and Address
----------------
________________
________________
________________
________________
________________
________________
________________
________________
________________
________________
LIMITED PARTNERS
----------------
Name and Address
----------------
Xxxxxx Xxxxxx $100,000
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