Exhibit 99.5
Exhibit E
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
OCTOBER 15, 2005
XXXXXXX INVESTMENT PARTNERSHIP II, L.L.P.
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
1. Definitions...........................................................1
Act...................................................................1
Affiliate.............................................................1
Agreement.............................................................1
Allocation Date.......................................................1
Association...........................................................2
Capital Account.......................................................2
Capital Contribution..................................................2
Certificate...........................................................2
Code..................................................................2
Fiscal Period.........................................................2
Fiscal Quarter........................................................2
Fiscal Year...........................................................2
Incentive Allocation..................................................2
Indemnitee............................................................2
NASDAQ................................................................2
Net Profit............................................................2
Net Loss..............................................................2
New Issues Account....................................................3
Partners..............................................................3
Partnership Party.....................................................3
Partnership Percentage................................................3
Recoupment Allocation.................................................3
Securities............................................................3
Unrestricted Partners.................................................3
2. Organization..........................................................3
3. Name of Partnership...................................................3
4. Principal Office, Resident Agent, Registered Office...................3
5. Term of the Partnership...............................................3
6. Purposes..............................................................5
7. Contributions of the Partners; New Partners...........................5
8. Capital Accounts......................................................5
9. Adjustments to Capital Accounts.......................................6
10. New Issues............................................................7
11. Valuation.............................................................7
12. Determination by General Partner of Certain Matters...................8
13. Liability of Partners.................................................8
14. Rights and Duties of the General Partner..............................9
15. Expenses.............................................................10
16. Administrative Fee...................................................10
17. Limitation on Powers of Limited Partners.............................10
18. Other Business Ventures..............................................10
19. Limitation on Assignability of Interest of Limited Partners..........11
20. Withdrawals by a Limited Partner.....................................11
21. Withdrawals by the General Partner and Affiliates....................12
22. Dissolution and Winding Up of the Partnership........................12
23. Accounting and Reports...............................................13
24. Books and Records....................................................14
25. Indemnification......................................................14
26. Amendment of Partnership Agreement...................................15
27. Notices..............................................................15
28. Agreement Binding Upon Successors and Assigns........................15
29. Governing Law........................................................15
30. Consents.............................................................15
31. Miscellaneous........................................................15
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of
Xxxxxxx Investment Partnership II, L.P. (the "Partnership"), dated as of October
15, 2005, by and between Veteri Place Corporation ("Veteri"), as the General
Partner (the "General Partner") and the persons and entities, identified on a
schedule on file at the offices of the Partnership, who have executed this
Agreement, either directly or indirectly by an attorney-in-fact, as limited
partners (the "Limited Partners").
PREMISES:
D. The Partnership was organized in accordance with the New
Jersey revised Uniform Limited Partnership act by the filing by the General
Partner of a Certificate of Limited Partnership with the office of the Secretary
of State of the State of New Jersey on January 17, 1995.
E. The Partnership's Agreement of Limited Partnership was amended
and restated as of August 13, 1998.
F. The Partnership's Agreement of Limited Partnership was further
amended as of July 1, 2005.
G. The General Partner, pursuant to the authority granted to him
under section 26 of the Agreement, desires to further amend the Partnership's
Agreement of Limited Partnership and to restate the same.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, effective as of October 15, 2005, it is hereby
agreed as follows:
32. DEFINITIONS
In addition to the terms defined above, the following terms shall have
the following meaning when used in this Agreement:
(a) "Act" shall mean the New Jersey Revised Uniform
Limited Partnership Law, as amended from time to time.
(b) "Affiliate" shall mean any person performing services
on behalf of the Partnership who (i) directly or indirectly controls, is
controlled by, or is under common control with the General Partner; (ii) is any
company of which the General Partner or its controlling shareholder is an
officer, director, partner or trustee; (iii) a member of the family of the
controlling shareholder of the General Partner; or (iv) an Individual Retirement
Account or similar trust for the benefit of the General Partner or one or more
of its affiliates.
(c) "Agreement" shall mean this Second Amended and
Restated Agreement of Limited Partnership, as hereafter amended, modified,
supplemented or restated from time to time.
(d) "Allocation Date" shall have the meaning set forth
in Section 9.
(e) "Association" shall have the meaning set forth
in Section 10.
(f) "Capital Account" shall mean an account described in
Section 8 of this Agreement.
(g) "Capital Contribution" shall have the meaning set
forth in Section 7(a)
(h) "Certificate" shall mean the Partnership's
Certificate of Limited Partnership as defined in Section 2 of this Agreement.
(i) "Code" shall mean the Internal Revenue code of 1986,
as amended, or successor provision of law, and the regulations issued
thereunder.
(j) "Fiscal Period" shall mean the period beginning on
the day immediately succeeding the last day of the immediately preceding Fiscal
Period and ending on the earliest occurring of the following:
(i) The last day of the Fiscal Year;
(ii) The day immediately preceding the day on
which a new Partner is admitted to the Partnership;
(iii) The day immediately preceding the date on
which a Partner makes an additional capital contribution to the
Partner's Capital Account;
(iv) The day on which a Partner withdraws, in
whole or in part, the amount of his or its Capital Account; or
(v) The date of dissolution of the Partnership
in accordance with Section 5 of this Agreement.
(k) "Fiscal Quarter" shall mean a fiscal quarter of the
Partnership.
(l) "Fiscal Year" shall mean the fiscal year of the
Partnership, which shall be the calendar year.
(m) "Incentive Allocation" shall have the meaning set
forth in Section 9(a)(ii).
(n) "Indemnitee" shall have the meaning set forth in
Section 25(a).
(o) "NASDAQ" shall have the meaning set forth in
Section 11(b).
(p) "Net Profit" of the Partnership shall mean, with
respect to any Fiscal Period, the excess of the aggregate revenue, income and
gains (realized and unrealized) earned on a cash basis (or other appropriate
basis as determined by the General Partner) during the Fiscal Period by the
Partnership from all sources over the expenses and losses (realized and
unrealized) incurred on a cash basis (or other appropriate basis as determined
by the General Partner) during the Fiscal Period by the Partnership.
(q) "Net Loss" of the Partnership shall mean, with
respect to any Fiscal Period, the excess of all expenses and losses (realized
and unrealized) incurred on a cash basis (or other appropriate basis as
determined by the General Partner) during the Fiscal Period by the Partnership
over the aggregate revenue, income and gains (realized and unrealized) earned on
the cash basis (or other appropriate basis as determined by the General Partner)
during the Fiscal Period by the Partnership from all sources.
(r) "New Issues Account" shall have the meaning set forth
in Section 10(a).
(s) "Partners" shall mean, collectively, (i) the Limited
Partners and (ii) the General Partner; and "Partner" shall mean any such Limited
Partner or the General Partners individually.
(t) "Partnership Party" shall have the meaning set forth
in Section 31(f).
(u) "Partnership Percentage" shall mean a percentage
established for each Partner on the Partnership' 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 amount of the Partner's Capital Account as
of the beginning of the Fiscal Period by the sum of the Capital Accounts of all
of the Partners as of the beginning of the Fiscal Period. The sum of the
Partnership Percentages for all Partners for each Fiscal Period shall equal one
hundred percent (100%).
(v) "Recoupment Allocation" shall have the meaning set
forth in Section 9(c).
(w) "Securities" shall mean "securities" as defined in
Section 2(a)(1) of the Securities Act of 1933, as amended.
(x) "Unrestricted Partners" shall have the meaning set
forth in Section 10(b).
33. ORGANIZATION.
The General Partner has executed a Certificate of Limited Partnership
pursuant to the provisions of the Act (the "Certificate") and has cause the
Certificate to be filed as required by the Act. The General Partner shall also
execute and record all amendments to the Certificate or additional certificates
as may be required by this Agreement or by law.
34. NAME OF PARTNERSHIP.
The name of the Partnership shall be Xxxxxxx Investment Partnership II,
L.P. or such other name as the General Partner may from time to time designate.
35. PRINCIPAL OFFICE, RESIDENT AGENT, REGISTERED OFFICE.
The principal office of the Partnership is 000 Xxxxx Xxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000 or any other place determined by the General Partner. The
Partnership's phone number is (000) 000-0000, Ext. 108. The name and address of
the registered agent for service of process in the State of New Jersey is
Xxxxxxxx X. Xxxxxxx, 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. The address
of the registered office of the Partnership in the State of New Jersey is c/o
Xxxxxxxx X. Xxxxxxx, 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
36. TERM OF THE PARTNERSHIP.
(a) The term of the Partnership, having commenced on the
date the Certificate was filed, shall continue until the first of the following
events occurs:
(i) December 31, 2014;
(ii) a written consent to dissolution of the
Partnership by all Partners;
(iii) upon the General Partner ceasing to be
general partner as a result of doing or being subject to one or more of
the following:
(A) withdrawing from the Partnership in
accordance with Section 21 of this Agreement;
(B) assigning all of its interest in
the Partnership except to an affiliate of the General
Partner;
(C) making an assignment for the
benefit of its creditors;
(D) filing a voluntary petition in
bankruptcy;
(E) being adjudged bankrupt or
insolvent or having entered against it an order of
relief in any bankruptcy or insolvency proceeding;
(F) filing a petition or answer seeking
for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law, or
regulation;
(G) filling an answer or other pleading
admitting or failing to contest the material
allegations of a petition filed against it in any
proceeding seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law or
regulation;
(H) seeking, consenting to, or
acquiescing in the appointment of, a trustee,
receiver, or liquidator of all or any substantial
part of its properties;
(I) being the subject of any proceeding
seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar
relief under any statute, law or regulation, which
proceeding shall have continued for one hundred and
twenty (120) days after the commencement thereof; or
the appointment of a trustee, receiver, or liquidator
for the General Partner or all or any substantial
part of its properties without its consent or
acquiescence, which appointment is not vacated or
stayed for ninety (90) days after the expiration of
the stay during which period the appointment is not
vacated;
(J) the death of the General Partner or
of any person controlling the General Partner; or
(K) the entry by a court of competent
jurisdiction adjudicating the General Partner, or any
person controlling the General Partner, incompetent
to manage his person or his property; or
(iv) upon issuance of a non-appealable decree of
dissolution of the Partnership by a New Jersey Court of competent
jurisdiction.
(b) If any one or more of the termination events listed
in this Section 5 occurs, the Partnership shall be dissolved and its affairs
wound up as provided in Section 22 of this Agreement.
37. PURPOSES
The Partnership is organized for the following purposes:
(a) to invest and trade, on margin or otherwise, in
Securities and other assets as set forth in the Partnership's private placement
memorandum;
(b) to sell Securities short and cover short sales;
(c) to lend funds or properties of the Partnership,
either with or without security; and
(d) to execute, deliver and perform all contracts and
other undertakings, and engage in all activities and transactions, that the
General Partner believes is necessary or advisable in carrying out the purposes
specified in subsections (a), (b), and (c) of this Section 6, including without
limitation:
(i) to purchase, transfer or acquire in any
manner and exercise all rights, powers, privileges and other incidents
of ownership or possession with respect to the investments described in
subsection (a) of this Section 6; and
(ii) to register or qualify the Partnership under
any applicable Federal or state laws, or to obtain exemptions under
those laws, if registration, qualification or exemption is deemed
necessary by the General Partner.
38. CONTRIBUTIONS OF THE PARTNERS; NEW PARTNERS.
(a) Each Partner shall make a contribution to the
Partnership's capital ("Capital Contribution") in the amount set out in a
subscription agreement executed by or on behalf of such Partner and identified
on a schedule on file at the offices of the Partnership.
(b) Any Partner may elect, with the consent of the
General Partner to make an additional Capital Contribution, as of the first day
of any Fiscal Quarter. The General Partner may, in its sole discretion, permit
additional Capital Contributions to be made more frequently than quarterly.
(c) No Partner shall be required to make any additional
Capital Contributions.
(d) Capital Contributions made by Limited Partners must
be in cash.
(e) The General Partner shall have the right, but not the
obligation, to admit new Partners to the Partnership as of the first day of any
Fiscal Quarter. The General Partner may, however, in its sole discretion, admit
new Partners more frequently than quarterly.
39. CAPITAL ACCOUNTS.
A Capital Account shall be established for each Partner. For the Fiscal
Period during which a Partner is admitted to the Partnership, such Partner's
Capital Account shall equal the amount of
such Partner's initial Capital Contribution. For each subsequent Fiscal Period,
such Partner's Capital Account will equal the sum of the amount of such
Partner's Capital Account as finally adjusted for the immediately preceding
Fiscal Period and the amount of any additional Capital Contribution made by such
Partner as of the first day of the current Fiscal Period.
40. ADJUSTMENTS TO CAPITAL ACCOUNTS.
At the end of each Fiscal Quarter and at the end of each Fiscal Period
(each an "Allocation Date"), the Capital Accounts of the Partners shall be
adjusted in the following manner:
(a) Subject to the provisions of subsection (c) of this
Section 9, Net Profits of the Partnership for the current Fiscal Year shall be
credited as follows:
(i) Net Profits for the Fiscal Year from the
prior Allocation Date shall be allocated to all Partners in proportion
to their respective Capital Accounts; and
(ii) Twenty percent (20%) of the amount of Net
Profits allocated to the Capital Accounts of the Limited Partners
pursuant to clause (i) above (the "Incentive Allocation") shall be
re-allocated to the General Partner or to any other Partner to whom the
General Partner has assigned the right to receive a portion of such
Incentive Allocation, and the Capital Accounts of each of the Limited
Partners shall be adjusted proportionately; and
(iii) If the Incentive Allocation pursuant to
clause (ii) above from the beginning of the Fiscal Year exceeds twenty
(20%) percent of the Net Profits of the Fiscal Year, such excess amount
shall be re-allocated to the Limited Partners in proportion to their
respective Capital Accounts..
(b) Net Loss of the Partnership for any Fiscal Year shall
be debited against the Capital Account of each Partner in proportion to and in
accordance with the balance in the Capital Account of such Partner until the
value of any Partner's Capital Account becomes zero. Thereafter, any remaining
Net Loss for such Fiscal Year shall be debited to Partners having positive
balances in their Capital Accounts in proportion to those balances, until the
value of each Partner's Capital Account becomes zero. Thereafter, any remaining
Net Loss for such Fiscal Year shall be debited to the Capital Account of the
General Partner.
(c) Anything in this Section 9 to the contrary
notwithstanding, if any Net Losses are allocated to the Capital Account of any
Limited Partner, such Limited Partner shall be entitled to a "Recoupment
Allocation" of subsequent Net Profits of the Partnership, in an amount in
proportion to such Partner's Partnership Percentage, until such Net Loss shall
have been eliminated. The amount of Net Profits allocated as a Recoupment
Allocation shall not exceed, but shall reduce, the amount of Net Profits
otherwise allocable to the General Partner as the Incentive Allocation pursuant
to Section 9(a) (ii) hereof. If a Limited Partner who is entitled to a
Recoupment Allocation shall withdraw any portion of such Partner's Capital
Account, the amount of Recoupment Allocation to which such Partner is entitled
shall be reduced in proportion to the amount of capital withdrawn.
(d) The amount of any withdrawal made by a Partner
pursuant to Section 20 or Section 21 of this Agreement shall be debited against
the Capital Account of such Partner.
41. NEW ISSUES.
In the event the General Partner decides to invest in securities which
are the subject of a public distribution and which constitute a "new issue" as
such term is defined in Rule 2790(i)(9) of the National Association of
Securities Dealers, Inc. (the "Association"), such investment shall be made in
accordance with the following provisions:
(a) any such investment made in a particular Fiscal
Period shall be made in a special account (the "New Issues Account");
(b) only those Partners who are not "restricted persons"
as defined in Rule 2790(i)(10) of the Association or who are not otherwise
prohibited by Rule 2790 from acquiring a beneficial interest in a new issue
("Unrestricted Partners") shall have any beneficial interest in the New Issues
Account;
(c) each Unrestricted Partner shall have a beneficial
interest in the New Issues Account for any Fiscal Period in the proportion which
(i) a such Unrestricted Partner's Capital Account as of the beginning of the
Fiscal Period bore to (ii) the sum of the Capital Accounts of all Unrestricted
Partners as of the beginning of such Fiscal Period.
(d) Funds required to make a particular investment shall
be transferred to the New Issues Account from the regular account of the
Partnership; securities involved in the public distribution shall be purchased
in the New Issues Account, held in the New Issues Account and eventually sold
from the New Issues Account or transferred to the regular account at fair market
value as of the day of transfer as determined by the General Partner with such
transfer being treated as a sale; if such securities are sold from the New
Issues Account, the proceeds of the sale shall be transferred from the New
Issues Account to the regular account of the Partnership.
(e) as of the last day of each Fiscal Period in which a
particular investment or investments are held in the New Issues Account: (A)
interest shall be debited to the Capital Accounts of the Unrestricted Partners
in accordance with their beneficial interest in the New Issues Account at the
interest rate being paid by the Partnership from time to time for borrowed funds
during the period in that Fiscal Period that funds from the regular account have
been held in or made available to the particular New Issues Account or, if no
such funds are being borrowed during such period, the interest rate that the
General Partner determines would have been paid if funds had been borrowed by
the Partnership during such period; and such interest shall be credited to the
Capital Accounts of all the Partners, both General and Limited, in the
proportions which (i) each Partner's Capital Account as of the beginning of such
Fiscal Period bore to (iii) the sum of the Capital Accounts of all Partners as
of the beginning of such Fiscal Period and (B) any Net Profits or Net Losses
during such Fiscal Period with respect to the New Issues Account shall be
allocated to the Capital Accounts of the Unrestricted Partners in accordance
with their beneficial interest in the New Issues Account during such Fiscal
Period; provided, however, that the amount of such interest shall not exceed the
amount of profit accrued in the New Issues Account; and
(f) the determination of the General Partner as to
whether a particular Partner qualifies as an Unrestricted Partner shall be
final.
42. VALUATION.
The Partnership's assets shall be valued by the General Partner, acting
in its sole discretion, in accordance with the following principles:
(a) Any Security that is listed on a national securities
exchange will be valued at its last sale price on the date of determination as
recorded by the composite tape system, or if no sales occurred on that day, at
the mean between the closing "bid" and "asked" prices on that day as recorded by
the system or the exchange, as the case may be;
(b) Any Security that is a National Market Security will
be valued at its last sale price on the date of determination as reported by the
National Association of Securities dealers automated quotations system
("NASDAQ") or if no sale occurred on that day, at the mean between the closing
"bid" and "asked" prices on that day as reported by NASDAQ:
(c) Any Security not listed on a national securities
exchange and not a National Market Security will be valued at the mean between
the closing "bid" and "asked" prices on the date of determination as reported by
NASDAQ or, if not so reported, as reported in the over-the-counter market in the
United States;
(d) An option shall be valued at the last sales price or,
in the absence of a last sales price, the last offer price; and
(e) All other Securities shall be assigned the value that
the General Partner in good faith determines.
43. DETERMINATION BY GENERAL PARTNER OF CERTAIN MATTERS.
(a) All matters concerning the valuation of Securities,
the allocation of profits, gains and losses among the Partners, including the
taxes on them and accounting procedures, not specifically and expressly provided
for by the terms of this Agreement, shall be determined in good faith by the
General Partner, whose determination shall be final, binding and conclusive upon
all of the Partners.
(b) Gains, losses, and expenses of the Partnership for
each Fiscal Period shall be allocated among the Partners for income tax purposes
in a manner so as to reflect, as nearly as possible, the amounts credited or
charged to each Partner's Capital Account pursuant to Section 9 of this
Agreement.
(c) The General Partner shall have the power to make all
tax elections and determinations for the Partnership, and to take any and all
action necessary under the Code or other applicable law to effect those
elections and determinations. All such elections and determinations by the
General Partner shall be final, binding and conclusive upon all Partners.
44. LIABILITY OF PARTNERS.
(a) The General Partner shall not be obligated to
contribute cash or other assets to the Partnership to make up deficits in its
Capital Account or in the Capital Accounts of the Limited Partners either during
the term of the Partnership or upon liquidation. The General Partner shall be
liable for all debts and obligations of the Partnership to the extent that the
Partnership is unable to pay such debts and obligations up to the extent of
Veteri's capital.
(b) The doing of any act or the failure to do any act by
the General Partner, the effect of which may cause or result in loss, liability,
damage or expense to the Partnership or any Partner shall not subject the
General Partner to any liability to the Partnership or to any Partner,
except that the General Partner may be so liable if it has acted in bad faith,
or has committed gross misconduct or was grossly negligent.
(c) A Limited Partner will not be liable for any debts or
bound by any obligations of the Partnership except to the extent set forth in
subsections (d), (e) and (f) of this Section 13.
(d) A Limited Partner who has received the return of any
part of such Partner's Capital Contribution without violation of this Agreement
or the Act shall not be liable to the Partnership or its creditors.
(e) A Limited Partner who has received the return of any
part of such Partner's Capital Contribution in violation of this Agreement or
the Act shall be liable to the Partnership for a period of six (6) years
thereafter for the amount of the Capital Contribution wrongfully returned.
(f) A Limited Partner may be liable to the Partnership or
creditors of the Partnership for any amounts distributed if, and to the extent
that, at the time of the distribution, he actually knew that, after giving
effect to the distribution, all liabilities of the Partnership, other than
liabilities to Partners on account of their interest in the Partnership,
exceeded the fair value of the Partnership's assets.
45. RIGHTS AND DUTIES OF THE GENERAL PARTNER
(a) The General Partner shall have the exclusive right to
manage and control the affairs of the Partnership, and shall have the power and
authority to do all things necessary or proper to carry out the purposes of the
Partnership. The General Partner shall devote an amount of time and attention
that the General Partner in its sole discretion deems necessary or appropriate.
(b) Without limiting the generality of the foregoing, the
General Partner shall have full power and authority:
(i) to engage independent agents, investment
advisors, attorneys, accountants and custodians as the General Partner
deems necessary or advisable for the affairs of the Partnership;
(ii) to receive, buy sell, exchange, trade, and
otherwise deal in and with Securities and other property of the
Partnership;
(iii) to open, conduct and close accounts with
brokers on behalf of the Partnership and to pay the customary fees and
charges applicable to transactions in those accounts;
(iv) to open, maintain and close accounts,
including margin accounts, with brokers and banks, and to draw checks
and other orders for the payment of money by the Partnership;
(v) to file, on behalf of the Partnership, all
required local, state and Federal tax and other returns relating to the
Partnership;
(vi) to cause the Partnership to purchase or bear
the cost of any insurance covering the potential liabilities of the
General Partner and any associate, employee or agent
of the General Partner arising out of the General Partner's actions as
General Partner under this Agreement;
(vii) to cause the Partnership to purchase or bear
the cost of any insurance covering the potential liabilities of any
person serving as a director, officer or employee of an entity in which
the Partnership has an investment or of which the Partnership is a
creditor;
(viii) to commence or defend litigation or submit
to arbitration any claim or cause of action that pertains to the
Partnership or any Partnership assets;
(ix) to enter into, make and perform contracts,
agreements and other undertakings, and to do any other acts, as the
General Partner deems necessary or advisable for, or as may be
incidental to, the conduct of the business of the Partnership,
including, without limiting the generality of the foregoing, contracts,
agreements, undertakings and transactions with any Partner or with any
other person, firm or corporation having any business, financial or
other relationship with any Partner or Partners:
(x) to make or revoke elections pursuant to
Section 754 of the Code to adjust the basis of the Partnership's
property as permitted by Sections 734(b) and 743(b) of the Code; and
(xi) to designate a Tax Matters Partner for all
purposes under the Code.
46. EXPENSES.
The Partnership shall bear all expenses relating to its organization.
The Partnership will bear the expenses of its administration, including, without
limitations, the fees and expenses of the Partnership's accountant and legal
counsel, and the expenses of the Partnership's investments.
47. ADMINISTRATIVE FEE.
The Partnership shall pay the General Partner as of the end of each
Fiscal Quarter of the Partnership an administrative fee at an annual rate equal
to 1% of the value of the Partnership's assets.
48. LIMITATION ON POWERS OF LIMITED PARTNERS.
No Limited Partner shall participate in the control of the
Partnership's business, transact any business in the Partnership's name or have
the power to sign documents for the Partnership or to bind the Partnership in
any other way.
49. OTHER BUSINESS VENTURES.
Each Partner agrees that each General Partner and its Affiliates and
associates may engage in other business activities or possess interests in other
business activities of every kind and description, independently or with others.
These activities may include, without limitation, establishing a broker-dealer
and investing in real estate and real estate related partnerships, and investing
in, financing, acquiring and disposing of interests in Securities in which the
Partnership may from time to time also invest, or in which the Partnership is
able to invest or otherwise may
have any interest. The Limited Partners agree that the General Partner and its
affiliates may act as general partner of other partnerships, including
investment partnerships.
50. LIMITATION ON ASSIGNABILITY OF INTEREST OF LIMITED PARTNERS.
(a) No Limited Partner may assign or otherwise transfer
or encumber his or its interest in the Partnership, in whole or in part, without
the consent of the General Partner and without a written opinion of counsel to
or approved by the General Partner that the proposed transfer (i) is consistent
with all applicable provisions of the Securities Act of 1933, as amended, and
the rules and regulations thereunder, as from time to time in effect, as well as
any applicable provisions of any state "blue sky" law; and (ii) would not result
in the Partnership's having to register as an investment company under the
Investment Company Act of 1940, as amended.
(b) Notwithstanding any other provision of this
Agreement, any successor to any Limited Partner shall be bound by the provisions
of this Agreement. Prior to recognizing any assignment of an interest in the
Partnership that has been transferred in accordance with this Section 19, the
General Partner may require the transferring Limited Partner to execute and
acknowledge an instrument of assignment in form and substance satisfactory to
the General Partner, and may require the assignee to agree in writing to be
bound by all the terms and provisions of this Agreement, to assume all of the
obligations of the assigning Limited Partner and to execute whatever other
instruments or documents the General Partner deems necessary or desirable in
connection with the assignment.
(c) No Limited Partner shall have the right to have such
Partner's assignee admitted as a substitute Limited Partner, except upon the
written consent of the General Partner, which consent may be withheld in the
sole discretion of the General Partner.
(d) Each Limited Partner hereby approves of the admission
to the Partnership as a Limited Partner of any assignee who succeeds to the
interest in the Partnership of a Limited Partner in accordance with the
provisions of this Section 19.
51. WITHDRAWALS BY A LIMITED PARTNER.
(a) (i) A Limited Partner who shall have been a
Limited Partner for at least eight full Fiscal Quarters plus one month
shall have the right, as of the end of any Fiscal Quarter, or at other
times at the discretion of the General Partner, to withdraw all or a
portion of the amount of such Partner's Capital Account, so long as the
General Partner receives written notice of the intended withdrawal not
less than ninety (90) days prior to the withdrawal, stating the amount
to be withdrawn. In no event, however, shall a Limited Partner be
permitted to withdraw any amounts from such Partner's Capital Account
in excess of the positive balance of such Partner's Capital Account. If
the amount of a Limited Partner's withdrawal represents less than
seventy-five (75%) of such Limited Partner's Capital Account, such
Limited Partner will receive the proceeds of the withdrawal within
thirty (30) days after the date of withdrawal. If the amount of a
Limited Partner's withdrawal represents seventy-five (75%) or more of
such Limited Partner's Capital Account, the Limited Partner will
receive seventy-five percent (75%) of such Partner's Capital Account
within thirty (30) days after the date of withdrawal and the remainder
of the amount withdrawn within ten (10) days after receipt by the
Partnership of financial statements from its independent certified
public accountants pursuant to Section 23(c) of this Agreement. If a
Limited Partner requests withdrawal of capital which would reduce such
Partner's Capital
Account below the amount of such Partner's initial Capital
Contribution, the General Partner may treat such request as a request
for withdrawal of all of such Partner's Capital Account. The
distribution of any amount withdrawn by a Limited Partner may take the
form of cash and/or marketable securities as determined by the General
Partner in his sole discretion.
(ii) In the event of a proposed withdrawal of
capital by the General Partner or its Affiliates pursuant to Section
21(a)(ii) of this Agreement, as a result of which the aggregate of the
Capital Accounts of the General Partner and its Affiliates will be less
than $50,000 (fifty thousand dollars), a Limited Partner shall have the
right to withdraw all or a portion of the amount of such Partner's
Capital Account, so long as the General Partner receives written notice
of the intended withdrawal not more than fifteen (15) days after the
date of the notice of withdrawal by the General Partner or its
Affiliate pursuant to said Section 21(a)(ii), stating the amount to be
withdrawn. In such event the withdrawal by such Limited Partner shall
be effective as of the effective date of the withdrawal by the General
Partner or its Affiliates pursuant to said Section 21(a)(ii). The
amount available for withdrawal shall be calculated after the
adjustments to such Partner's Capital Account provided for in Section 9
hereof, made as if the withdrawal date were the end of a Fiscal Year.
(b) Any Limited Partner's interest in the Partnership may
be terminated by the Partnership at any time upon 5 days prior written notice,
so long as the General Partner determines the termination to be in the best
interest of the Partnership. In the event that a Limited Partner's interest in
the Partnership is terminated pursuant to this Section 20, the Limited Partner
shall receive ninety percent (90%) of the value of such Partner's Capital
Account within one hundred eighty (180) days after written notice of termination
is given by the Partnership and the remaining ten percent (10%) within ten (10)
business days after receipt by the Partnership of financial statements from its
independent certified public accountants pursuant to Section 23(c) of this
Agreement with respect to the Fiscal Year in which such Partner's interest in
the Partnership is terminated.
52. WITHDRAWALS BY THE GENERAL PARTNER AND AFFILIATES.
(a) (i) The General Partner and each Limited Partner
that is an Affiliate of the General Partner shall have the right to
withdraw any amount of cash from its Capital Account as of the end of
any Fiscal Year, without prior notification to the Limited Partners,
provided that, after giving effect to such withdrawal, the aggregate
Capital Accounts of the General Partner and its Affiliates are not less
than $50,000 (fifty thousand dollars).
(ii) Upon forty-five (45) days' prior notice to
the Limited Partners, the General Partner or an Affiliate may withdraw
any amount from its Capital Account as a result of which withdrawal the
aggregate Capital Accounts of the General Partner and its Affiliates
would be reduced below $50,000 (fifty thousand dollars).
(b) The General Partner may voluntarily resign or
withdraw from the Partnership as of the end of any Fiscal Year upon sixty (60)
days' written notice sent to all Partners.
53. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP.
On dissolution of the Partnership caused by an event described in
Section 5(a)(iii)(J) or (K) including the death of Xxxxxxxx Xxxxxxx, as
controlling shareholder of the General Partner, or a determination by a court of
competent jurisdiction that Xx. Xxxxxxx is incompetent to manage his
person or property, the General Partner designates Xx. Xxxxxxx Xxxxxxx of 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 to act as liquidator of the Partnership to wind
up the Partnership's affairs, including the liquidation, in a commercially
reasonable manner, of all securities and other assets held by the Partnership,
and, in consultation with Xx. Xxxx Xxxxxxx of 0 Xxxxxxxx Xxxxx, Xxxxxx, XX
00000, to distribute the Partnership's assets in the following manner and order:
(a) in satisfaction of the claims of all creditors of the
Partnership, other than the General Partner;
(b) in satisfaction of the claims of the General Partner
as a creditor of the Partnership; and
(c) any balance to the Partners in the relative
proportions that their respective Capital Accounts bear to each other, those
Capital Accounts to be determined as if the Fiscal Year ended on the date of the
dissolution.
The foregoing appointment may be revoked, or a successor or additional
liquidator appointed, at any time by an instrument in writing signed by the
General Partner. In the event that Xx. Xxxxxxx shall be unable or unwilling to
serve as liquidator of the Partnership, or in the event of the dissolution of
the Partnership caused by any other event, Limited Partners holding a majority
in interest of the Capital Accounts of the Limited Partners shall appoint one or
more persons to act as liquidators of the Partnership to perform the services
described above.
Any liquidator appointed hereunder may receive such compensation as
shall be fixed, from time to time, by the General Partner.
54. ACCOUNTING AND REPORTS.
(a) The records and books of account of the Partnership
shall be reviewed as of the end of each Fiscal Year by the Partnership's
accountants selected by the General Partner in its sole discretion.
(b) As soon as practicable after the end of each Fiscal
Year, the General Partner shall cause to be delivered to each person who was a
Partner at any time during that Fiscal Year all information deemed necessary by
the General Partner in its sole discretion for the preparation of such Partner's
income tax returns, including a Form 1065/Schedule K-1 statement showing such
Partner's share of Net Profit or Net Loss, deductions and credits for such year
for Federal income tax purposes, and the amount of any distributions made to or
for the account of such Partner pursuant to this Agreement.
(c) The Partnership's accountants shall prepare and mail
to each Partner, within ninety (90) days after the end of each Fiscal Year, an
income statement for such Fiscal Year and a balance sheet as of the end of such
Fiscal Year.
(d) The Partnership shall cause to be prepared and mailed
to each Partner a report setting out as of the end of each Fiscal Quarter
information determined by the General Partner to be appropriate.
(e) The General Partner shall cause tax returns for the
Partnership to be prepared and timely filed with the appropriate authorities.
55. BOOKS AND RECORDS.
The General Partner shall keep at the Partnership's principal office:
(a) books and records pertaining to the Partnership's
business showing all of its assets and liabilities, receipts and disbursements,
realized profits and losses, Partners' Capital Accounts and all transactions
entered into by the Partnership;
(b) a current list of the full name and last known home,
business or mailing address of each Partner set out in alphabetical order;
(c) a copy of the Certificate and all amendments to it,
together with executed copies of any powers of attorney pursuant to which the
Certificate and any amendments to it have been executed;
(d) copies of the Partnership's Federal, state and local
income tax returns and reports, if any, for the three (3) most recent years; and
(e) copies of this Agreement as amended from time to
time.
All books and records of the Partnership required to be kept under this
Section 24 shall be available for inspection by a Partner of the Partnership at
the offices of the Partnership during ordinary business hours for any purpose
reasonably related to the Partner's interest as a Partner in the Partnership.
56. INDEMNIFICATION.
(a) The Partnership shall indemnify the General Partner
and any of its Affiliates (each an "Indemnitee") to the fullest extent permitted
by law and will hold Indemnitee harmless from and with respect to (i) all fees,
costs and expenses incurred in connection with, or resulting from, any claim,
action or demand against any Indemnitee that arises out of or in any way relates
to the Partnership, its properties, business or affairs, and (ii) any losses or
damages resulting from any such claim, action or demand, including amounts paid
in settlement or compromise of the claim, action or demand.
(b) No Indemnitee shall be indemnified by the Partnership
with respect to any action or failure to act that constitutes bad faith, or that
constitutes gross misconduct or gross negligence.
(c) The Partnership may pay the expenses incurred by an
Indemnitee in defending a civil or criminal action, suit or proceeding brought
by a party against the Indemnitee that arises out of or is in any way related to
the Partnership, its properties, business or affairs, upon receipt of an
undertaking by the Indemnitee to repay the amount advanced by the Partnership if
an adjudication or determination is subsequently made by a court of competent
jurisdiction that the Indemnitee is not entitled to indemnification as provided
in this Agreement.
(d) The right of indemnification provided in this Section
25 shall be in addition to any rights to which an Indemnitee may otherwise be
entitled and shall inure to the benefit of the executors, administrators,
personal representatives, successors or assigns of each Indemnitee.
(e) The rights to indemnification and reimbursement
provided for in this Section 25 may be satisfied only out of the assets of the
Partnership. No Partner shall be personally liable for any claim for
indemnification or reimbursement under this Section 25.
57. AMENDMENT OF PARTNERSHIP AGREEMENT.
This Agreement may be amended, in whole or in part, by the written
consent of (a) the General Partner, and (b) Partners the value of whose Capital
Account constitute not less than fifty percent (50%) of the total value of all
Capital Accounts of the Partnership, provided that no such amendment shall
affect the allocation of Net Profit or Net Loss to any Partner who has not
consented to such amendment. In addition, any provision of this Agreement, other
than Section 9, may be amended by the General Partner in any manner that does
not, in the sole discretion of the General Partner, adversely affect any Limited
Partner.
58. NOTICES.
Notices that may or are required to be given under this Agreement by
any party to another shall be in writing and deposited in the United States
mail, certified or registered, postage prepaid, addressed to the respective
parties at their addresses on file at the offices of the Partnership or to any
other address designated by any Partner by notice addressed to the Partnership.
Notices shall be deemed to have been given when deposited in the United States
mail within the continental United States.
59. AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and shall be binding upon
the heirs, executors, administrators or other representatives, successors and
assigns of the Partners.
60. GOVERNING LAW.
This Agreement, and the rights of the Partners under it, shall be
governed by and construed in accordance with the law of the State of New Jersey.
61. CONSENTS.
Any and all consents, agreements or approvals provided for or permitted
by this Agreement shall be in writing and signed copies of them shall be filed
and kept with the books of the Partnership.
62. MISCELLANEOUS.
(a) This Agreement constitutes the entire understanding
and Agreement of the Partners as to the operation of the Partnership.
(b) This agreement may be executed in counterparts, each
of which shall be deemed to be an original.
(c) Each provision of this Agreement is intended to be
severable. A determination that a particular provision of this Agreement is
illegal or invalid shall not affect the validity of the remainder of the
Agreement.
(d) Nothing contained in this Agreement shall be
construed to constitute any Partner the agent of another Partner, except as
specifically provided in this Agreement, or in any manner to limit the Partners
in the carrying on of their own respective business or activities.
(e) If there is a conflict between the terms and
conditions of this Agreement and any offering memorandum of the Partnership,
this Agreement shall be controlling.
(f) Notwithstanding any other provision or statement in
any document relating to the Partnership (including this Agreement, any
subscription agreement, and any offering document for the Partnership), the
Partnership and the General Partner, and their respective advisers (each a
"Partnership Party"), authorize each Limited Partner and each of its employees,
representatives or other agents, from and after the commencement of any
discussions with any such party, to disclose to any and all persons without
limitation of any kind the U.S. federal income tax treatment and U.S. federal
income tax structure of the Partnership and any transaction entered into by the
Partnership and all materials of any kind (including tax opinions or other tax
analyses) relating to such tax treatment or tax structure that are provided to
such Limited Partner, insofar as such treatment and/or structure relates to a
U.S. federal income tax strategy provided to such Limited Partner by any
Partnership Party, except for any information identifying the General Partner,
any other Limited Partners or (except to the extent relevant to such tax
structure or tax treatment) any nonpublic commercial or financial information.
IN WITNESS WHEREOF, the Partners have executed this Agreement as of the
date first above written.
GENERAL PARTNER
VETERI PLACE CORPORATION
/ss/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
By: Xxxxxxxx X. Xxxxxxx, President
LIMITED PARTNERS:
All Limited Partners now and
hereafter admitted as Limited
Partners of the Partnership,
pursuant to Powers of Attorney
now and hereafter executed in
favor of, and delivered to the
General Partner.
XXXXXXXX X. XXXXXXX
Attorney-in-Fact
/ss/ Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxx
