Exhibit 2
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AMENDMENT NO. 1 TO
LIMITED PARTNERSHIP AGREEMENT
OF
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P.
AMENDMENT NO. 1 dated as of the 26th day of July, 1996, by and among
Xxxxxx, Xxxxxxx Strategic Partners, L.P., a Delaware limited partnership, as
general partner (the "General Partner") of Xxxxxx, Xxxxxxx Strategic Partners
Fund, L.P., a Delaware limited partnership (the "Partnership"), and the Limited
Partners of the Partnership listed on Schedule A to the Limited Partnership
Agreement of the Partnership, dated as of April 11, 1996 (the "Partnership
Agreement"), at least 66 2/3% in interest of whom have executed a counterpart
signature page to this Amendment No. 1:
WHEREAS, immediately prior to the admission on the date hereof of
additional Limited Partners to the Partnership pursuant to Section 8(c) of the
Partnership Agreement, the parties hereto desire to amend the Partnership
Agreement and approve Amendment No. 1 to the Management Agreement, the form of
which Management Agreement is attached to the Partnership Agreement as Schedule
B.
NOW, THEREFORE, the parties hereto, in consideration of the premises
and the agreements herein contained and intending to be legally bound hereby,
agree as follows:
1. Section 4(k)(2) of the Partnership Agreement is amended by
deleting the second sentence thereof in its entirety and
substituting the following:
"Notwithstanding Section 4(e)(1) to the contrary, the
Principals may organize, after the date of this
Agreement, other investment funds and client
investment vehicles for the benefit of employees,
associates and advisors of the General Partner and
the Principals and for investors who may be
strategically important to the Partnership,
specifically for the purpose of co-investing with the
Partnership; provided that the aggregate amount of
capital committed to such other investment funds and
client investment vehicles does not exceed $7
million; and provided, further, that any such
investment funds or client investment vehicles which
are managed by the General Partner or the Principals
shall sell or otherwise dispose of each such
co-investment at substantially the same time and on
substantially the same terms as the Partnership in
amounts proportionate to the relative size of the
investments made by such investment funds and client
investment vehicles and the Partnership."
2. Section 7(a) of the Partnership Agreement is amended by
deleting the first sentence thereof in its entirety and
substituting the following:
"The Partnership shall have a Valuation Committee
which shall consist of at least three (3) but not
more than five (5) members, none of whom shall be an
officer, director, member or employee of the General
Partner, the Management Company or any affiliate
thereof, and none of whom shall be related to any
Principal."
3. Section 8(a) of the Partnership Agreement is amended by adding
the following text at the end thereof:
"Each notice for an Additional Capital Contribution
from the General Partner shall include a general
description of the purposes and uses for which the
Additional Capital Contribution is being called
including, for example, the payment of Partnership
expenses (including the Management Fee) and the
purchase of Portfolio Company Securities; provided
that the General Partner shall not be required to
identify the purposes and uses of 100% of any
Additional Capital Contribution or be required to
identify the name of any particular Portfolio Company
or proposed Portfolio Company. After the fourth
anniversary of the last admittance of any additional
Limited Partners pursuant to Section 8(c) hereof, the
General Partner shall not make any further calls for
Additional Capital Contributions for the purpose of
investing in the Securities of any entity that was
not a Portfolio Company (including as a Portfolio
Company for such purpose, any predecessor of such
entity) on such anniversary date, except with the
approval of the Valuation Committee. After the fifth
anniversary of the last admittance of any additional
Limited Partners pursuant to Section 8(c) hereof, the
General Partner shall not make any further calls for
Additional Capital Contributions for the purpose of
investing in the Securities of any entity that was a
Portfolio Company (including as a Portfolio Company
for such purpose, any predecessor of such entity) on
such anniversary date, except with the approval of
the Valuation Committee."
4. Section 11(b) of the Partnership Agreement is amended by
adding the following subsection (8) at the end thereof:
"(8) An amount equal to 50% of all distributions made
to the General Partner, other than (A) Tax
Distributions plus (B) distributions the General
Partner would have received if it had made its
Capital Contributions as a Limited Partner and did
not hold an interest as a General Partner (excluding
any Tax Distributions on account thereof which are
included in (A)), shall be used by the General
Partner immediately upon distribution thereof to
prepay any promissory notes contributed by the
General Partner to the Partnership."
5. Section 16 of the Partnership Agreement is amended by adding
the following text at the end thereof:
"No Principal will voluntarily assign, pledge,
mortgage, hypothecate, sell or otherwise dispose of
or encumber (a "Disposition") all or any part of his
interest in the allocations made to the General
Partner of "20% of such additional Net Realized Gain"
pursuant to Section 10(b)(1)(A)(iv) (the "20% carried
interest"), except for (a) Dispositions to members of
his immediate family or trusts for the benefit of
such general partner or members of his immediate
family (and, in the case of any Dispositions to such
family members or such trusts, the transferee shall
thereafter be subject, as to further transfers, to
the same restrictions on transfer as were applicable
to the transferor), (b) Dispositions to other persons
who are associated with or employed by the General
Partner, the
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Principals or the Management Company, and (c)
Dispositions to another Principal; provided, that,
the Dispositions of all Principals pursuant to
clauses (a) and (b) shall not exceed in the aggregate
45% of their aggregate interests in the 20% carried
interest."
6. Section 19(c) of the Partnership Agreement is amended by
adding the following text at the end thereof:
"The General Partner shall transmit to each Partner
within sixty (60) days after the close of each fiscal
year, a report describing any fees and other
remuneration which, pursuant to Section 4(b) of the
Management Agreement, reduced the Management Fee
payable in such fiscal year. Such description will be
organized by the type of such fees and other
remuneration (e.g., director's fees and consulting
fees) and the dollar amount attributable to each such
category."
7. Pursuant to Section 7 of the Management Agreement, the Limited
Partners hereby consent to Amendment No. 1 to the Management
Agreement dated the date hereof, which amends Section 4(b) of
the Management Agreement by adding the following text at the
end thereof:
"If in any year such reductions exceed the Management
Fee otherwise payable, the excess amount of such
reductions shall be carried forward on a year-by-year
basis."
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
as of the day and year first above written.
GENERAL PARTNER
XXXXXX, XXXXXXX STRATEGIC PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, General Partner
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, General Partner
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AMENDMENT NO. 1 TO
LIMITED PARTNERSHIP AGREEMENT
OF
XXXXXX, XXXXXXX STRATEGIC PARTNERS FUND, L.P.
LIMITED PARTNER SIGNATURE PAGE
The undersigned Limited Partner hereby executes Amendment No. 1 to
Limited Partnership Agreement of Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
and hereby authorizes this signature page to be attached to a counterpart of
such document executed by the General Partner of Xxxxxx, Xxxxxxx Strategic
Partners Fund, L.P.
Please type or print exact
name of Limited Partner *
_______________________________
Please sign here By_____________________________
Please type or print exact
name of signer _______________________________
Please type or print
title of signer Title__________________________
* Signature pages of the limited partners will be provided upon request.
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