APPENDIX - SECTION 1. DEFINED TERMS
The terms set forth below shall have the indicated meanings.
"Additional Limited Partner" shall have the meaning specified in Section 7.2(c).
"Advisory Committee" shall have the meaning assigned to it in Section 19.1.
"Affiliate" means, with respect to any Person, any Person directly or indirectly controlling, controlled by, or under common control with, such Person. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
"Agreement" or "limited Partnership Agreement" means this Amended and Restated Limited Partnership Agreement, including its Appendices, as amended, modified, supplemented or restated from time to time.
"Allocation Period" means each semi-annual period ending on December 31 and June 30 (or such shorter periods ending on such dates in the case of the first and last Allocation Periods of the Partnership).
"Amended and Restated Agreement" is defined in the Preamble of this Agreement.
"Assets" means any cash, securities, investments or any other property or assets the Partnership may have.
"Assignee" shall have the meaning specified in Section 12.3(a).
"BHC Act" means the Bank Holding Company Act of 1956, as amended.
"BHC Partner" means a Limited Partner that (l) is a bank holding company, as defined in Section 2(a) of the BHC Act, or a non-bank subsidiary of such bank holding company or (u) a Person that, pursuant to Section 8(a) of the IB Act, is subject to the provisions of the BHC Act or any non-bank subsidiary of such an entity.
"Business Day" means any day excluding Saturday, Sunday and any day which shall be in the State of_______________ a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close. All references to Business Day herein shall be based on the time in the State of_________________ .
"Capital Account" shall have the meaning specified in Section 7.5(a).
"Capital Contribution" in respect of any Partner means the cash contributions made by such Partner to the Partnership.
"Carried Interest" means the General Partner's right to receive Carried Interest Distnbutions under this Agreement.
"Carried Interest Distribution" shall mean, with respect to any Permitted Investment, distnbutions to the General Partner pursuant to Section 8.2(a)(ii)(B)and(m).
"Carrying Value" shall mean, with respect to any Partnership asset, the asset's adjusted basis for federal income tax purposes, except that the Carrying Values of all Partnership assets shall be adjusted to equal their respective fair market values, in accordance with the rules set forth in Regulations Section 1.704-l(b)(2)(iv)(f), except as otherwise provided herein, as of: (1) the last day of each Allocation Period, (11) the date of the acquisition of any additional Interest by any new or existing Partner in exchange for more than a de minimis Capital Contribution, other than pursuant to the Initial Closing of the sale of Interests; (in) the date of the distribution of more than a de minimis amount of Partnership property to a Partner; or (iv) the date an Interest is relinquished to the Partnership; provided, that adjustments pursuant to clauses (n), (m) and (iv) above shall be made only if the General Partner reasonably determines that such adjustments are necessary or appropnate to reflect the relative economic interests of the Partners. The Carrying Value of any Partnership asset distributed to any Partner shall be adjusted immediately prior to such distribution to equal its fair market value and depreciation (if any) shall be calculated by reference to Carrying Value, instead of tax basis, once Carrying Value differs from tax basis. The Carrying Value of any asset contributed (or deemed contributed under Regulation Section 1.704-l(b)(l)(iv)) by a Partner to the Partnership will be the fair market value of the asset at the date of its contribution thereto.
"Certificate" means the Certificate of Limited Partnership, dated _________________ , executed by the General Partner, and any and all amendments thereto and restatements thereof filed on behalf of the Partnership with the Secretary of State.
"Clawback Amount" means an amount, determined separately for each Limited Partner, equal to the lesser of: (1) the Excess 20% Amount, and (u) the amount of Carried Interest Distributions received by the General Partner pursuant to Section 8.2(a)(n)(B) attributable to such Limited Partner, reduced by the taxes imposed on allocations to the General Partner (or any Person whose taxable income is measured by reference to the General Partner) of taxable income (in excess of losses) with respect to such Carried Interest Distributions, as reasonably determined by the General Partner, based on the maximum combined United States federal, State of California and local tax rate applicable to individuals on ordinary income, net short-term capital gains and/or net long term capital gains, as applicable (giving effect to the deductibility of state and local income taxes for United States federal income tax purposes) and taking into account only those items of income, gain, loss and deduction of the General Partner attributable to such Carried Interest Distributions.
"Code" means the Internal Revenue Code of 1986, as amended (or any corresponding provision of succeeding laws).
"Commitment" in respect of each Partner means the aggregate amount committed by such Partner for investment in the Partnership as set forth on Exhibit A attached hereto as the same may be modified from time to time pursuant to this Agreement.
"Defaulting Partner" shall have the meaning specified in Section 7.2(f).
"Delaware Act" means the Delaware Revised Uniform Limited Partnership Act (6 Del.C. § 17-101, et seq.). as amended from time to time and any successor thereto.
"ECF' shall have the meaning specified in Section 9.11.
"ERISA" means the (l) Employee Retirement Income Security Act of 1974, as amended, and (u) any legislation, law, or rule which may currently exist or may hereafter be enacted similar in scope to the Employee Retirement Income Secunty Act of 1974, as amended, which governs an employee benefit plan for the benefit of state or local government employees.
"ERISA Partner" means any Limited Partner that is an "employee benefit plan" or that is a partnership comprised of one or more partners that are "employee benefit plans" within the meaning, and subject to the provisions of, ERISA, including any "governmental plan" as defined in Section 414(d) of the Code and any "church plan" as defined in Section 414(e) of the Code, whether or not exempt from ERISA or any other entity that notifies the General Partner in writing of its election to be treated as an ERISA Partner.
"Escrow Account" shall have the meaning set forth in Section 18.6(b).
"Escrowed Carried Interest Distributions" shall have the meaning set forth in Section 18.6(b).
"Event of Bankruptcy" means any of the following events:
A. The General Partner |) makes an assignment for the benefit of
creditors; (11) files a voluntary petition in bankruptcy; (m) is
adjudged a bankrupt or insolvent, or has entered against it an order
of relief in any bankruptcy or insolvency proceeding; [iv) files a
petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any statute, law, or regulation; (v) files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of such
nature; or (vi) seeks, consents to, or acquiesces in the appointment
of a trustee, receiver, or liquidator of the General Partner or of all
or any substantial part of its properties; or
B. If within 120 days after the commencement of any proceeding
against the General Partner seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any statute, law or regulation, the proceeding has not been
dismissed, or if within 90 days after the appointment without its
consent or acquiescence of a trustee, receiver, or liquidator of the General Partner or of all or any substantial part of its properties, the appointment is not vacated or stayed or if within 90 days after the expiration of any such stay, the appointment is not vacated.
"Excess Offset Fees" shall have the meaning assigned to such term in Section 9.9(b).
"Excess 20% Amount" shall have the meaning set forth in Section 18.6(a).
"Excluded Limited Partner" means any Limited Partner who is an Affiliate of the General Partner.
"FCC" means the Federal Communications Commission.
"FCC Rules" means the rules, regulations and policies of the FCC, as they may be amended from time to time.
"Final Closing Date" means_______________________________ .
"Fiscal Quarter" means a quarter of the Fiscal Year.
"Fiscal Year" means the Partnership's fiscal year as determined pursuant to Section 5 of this Agreement.
"Foreign Investment" shall have the meaning specified in Section 9.13.
"Foreign Jurisdiction" shall have the meaning specified in Section 9.13.
"Foreign Person" shall have the meaning specified in Section 9.11.
"Foundation Partner" shall have the meaning specified in Section 7.2(i).
"GAAP" means United States generally accepted accounting principles as applied by the Partnership from time to time.
"General Partner" means_______________________________ , LLC or any other Person that becomes a successor general partner of the Partnership as provided for herein, each in its capacity as a general partner of the Partnership.
"IB Act" means the International Banking Act of 1978, as amended.
"Incapacity" or "Incapacitated" means, as to any Person, the bankruptcy, insolvency, death, disability, adjudication of incompetence or insanity, dissolution or termination, as the case may be, of such Person.
"Indemnitee" shall have the meaning specified in Section 9.7(a).
"Initial Closing" means the admission of Limited Partners to the Partnership as of the Initial Closing Date.
"Initial Closing Date" is the date the first Limited Partners (other than the Initial Limited Partner) were admitted to the Partnership, which occurred upon acceptance by the General Partner, on behalf of the Partnership, of each such Person's subscription and the execution and delivery by each such Person of a counterpart of the Amended and Restated Agreement.
"Initial Contribution Date" shall have the meaning specified in Section 7.2(b).
"Initial Limited Partner" shall have the meaning set forth in the Preamble.
"Interest" means with respect to any Partner as of any date, the entire interest expressed as a percentage, of such Partner of the aggregate interests of the Partners in the Partnership, as set forth in the books and records of the Partnership, as amended from time to time.
"Invested Capital" means, as of any date, the sum of (1) the cost basis of the Partnership in all Portfolio Securities that have not been sold or disposed of as of such date plus (11) all amounts that the General Partner has reserved for additional investments in Portfolio Companies as of such date pursuant to binding commitments or otherwise with the approval of the Advisory Committee, less (in) the amount by which any Portfolio Security has been wntten down in accordance with GAAP, plus (iv) the amount by which any Portfolio Security that has previously been written down is subsequently written up in accordance with GAAP with the approval of the Advisory Committee.
"Investment Company Act" means the Investment Company Act of 1940, as amended.
"Investment Period" means the penod commencing on the date of the Initial Closing and ending on the fourth anniversary of the Final Closing Date unless earlier terminated pursuant to this Agreement. The Investment Penod shall terminate upon the written election of (a) two-thirds in Interest of the Limited Partners after an event of Malfeasance or (b) Limited Partners holding 80% or more of the Lmited Partners' Voting Interest The Investment Period will automatically terminate upon the occurrence of any of the events listed in Section 18.3.
"Limited Partner" means any Person that is a limited partner of the Partnership at the time of reference thereto, in each such Person's capacity as a limited partner of the Partnership.
"Majority in Interest of the Limited Partners" means Limited Partners holding more than 50% of the Limited Partners' Voting Interests.
"Malfeasance" means conduct of the General Partner or Managing Directors in performing their duties under this Agreement constituting (a) gross negligence, fraud, willful misconduct, or misappropriation, a breach of fiduciary duty or a matenal violation of the Agreement (in each case as determined by a court of competent junsdiction or an arbitration panel convened pursuant to Section 20.13), (b) a felony involving (l) fraud, misappropriation or similar offenses, or (n) a term of impnsonment of five years or more, or (c) a willful violation of the substantive provisions of any federal or state secunties law that has a matenal adverse affect on the Partnership or the ability of the General Partner to perform its matenal obligations to the Partnership.
"Managing Directors" means (l) initially,_______________________________ , and (u) each other Person who is approved as a substitute or additional Managing Director by Two-thirds in Interest of the Limited Partners.
"Marketable Securities" means securities that are traded on a national securities exchange, reported through the National Association of Securities Dealers, Inc. Automated Quotation System or comparable established foreign trading system, or otherwise publicly traded and as to which quotations of market prices are readily available.
"Media Enterprise" means any Person that directly or indirectly owns, controls or operates: (a) a U.S. broadcast radio or television station or a U.S. cable television system; (b) a U.S. daily newspaper (as such term is defined in Section 73.3555 of the FCC Rules); or (c) any U.S. communications facility operated pursuant to a license granted by the FCC and subject to multiple ownership, cross-ownership or other ownership restrictions set forth in the FCC Rules, but only to the extent that the FCC Rules providing that a limited partnership interest shall not be attributed to a limited partner that is not materially involved, directly or indirectly, in the management or operation of such communications facility (i.e., Note 2(g) at 47 C.F.R. § 73.3555 and 76.501 (1998) and the cntena set forth in the FCC opinions and orders cited therein, or any successor FCC Rules) are applicable to determining whether the Limited Partners would be deemed to hold an attributable or cognizable ownership interest in such communications facility for purposes of the relevant FCC ownership restrictions.
"Net Asset Value" as of a specified date means the amount by which the value of the assets of the Partnership exceeds the amount of the liabilities of the Partnership, as of that date, determined in accordance with the provisions of Section 15.
"Net Asset Value Test" shall mean, for purposes of Carried Interest Distributions and disbursements of any Escrowed Carried Interest Distributions, that on any date of calculation prior to the end of the Investment Penod the Net Asset Value of the Partnership is equal to or greater than 120% of the Required Capital of the Limited Partners on such distribution date less aggregate amounts distributed to the Limited Partners pursuant to Section 8.2(a)(u) after giving effect to such distribution. From and after the date on which the Investment Period ends, the Net Asset Value Test shall be deemed satisfied.
"Net Profits and Net Losses" shall mean for each Allocation Period or other penod, the taxable income or loss of the Partnership, or particular items thereof, determined in accordance with the accounting method used by the Partnership for United States federal income tax purposes with the following adjustments: (1) any income of the Partnership that is exempt from federal income taxation and not otherwise taken into account in computing Net Profits and Net Losses shall be added to such taxable income or loss; (n) if the Carrying Value of any asset differs from its adjusted tax basis for federal income tax purposes, any depreciation, amortization, gain or loss resulting from a disposition of such asset shall be calculated with reference to such Carrying Value; (in) upon an adjustment to the Carrying Value of any asset, pursuant to the definition of Carrying Value, the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss; and (iv) any expenditures of the Partnership not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing Net Profits and Net Losses pursuant to this definition shall be treated as deductible items.
"Non-Voting Interest" means the portion of any interest of a Limited Partner that is not entitled to be included in accordance with Section 11.8(b) in determining whether the requisite percentage of the Limited Partners or Partners have voted for, consented to, approved, or adopted any action required or permitted to be submitted to the Limited Partners or the Partners for vote, consent, approval or adoption; provided, however, that the holder of a "Non-Voting Interest" shall be entitled to vote the Non-Voting Interest with respect to any proposal required to be submitted to such BHC Partner pursuant to Section 20.1(c) if the folder is a BHC Partner. A Non-Voting Interest (other than an Interest acquired by the General Partner upon the default of a Limited Partner pursuant to Section 7.2(f)(ix)) shall remain a Non-Voting Interest notwithstanding any transfer other than a transfer pursuant to Section 12.2(i).
"Offered Units" shall have the meaning specified in Section 12.3(a).
"Offering Limited Partner" shall have the meaning specified in Section 12.3(a).
"Opt Out Election" shall have the meaning assigned to such term in Section 9.9(b).
"Organization and Offering Expenses" means the fees, costs and expenses of and incidental to organizing and funding the Partnership, including the offer and sale of the Units. The Organization and Offenng Expenses shall not include any placement agent fees or expenses and shall not exceed $300,000.
"Organization Date" means____________________________ .
"Partner" means the General Partner or any Limited Partner.
"Partnership" means _________________________ , LP, a Delaware limited partnership, as it may from time to time be constituted.
"Partnership Return" means the Partnership's U.S. federal income tax return.
"Permitted Investments" means the investments specified in Section 3.1.
"Permitted Reinvestment Amounts" shall mean, with respect to any Partner, the sum of: (1) the amount of Capital Contnbutions contributed by such Partner pursuant to Sections 7.2 but made the subject of a distribution pursuant to Section 8.2(a)(n)(A) during the Investment Period and which such distribution was identified at the time of distnbution as subject to recall; (u) the amount of any Capital Contnbution by a Partner pursuant to Section 7.2 which is returned to such Partner within 120 days of such Capital Contnbution in lieu of its application to make an investment in a Portfolio Company or to pay Partnership Expenses and which such distribution was identified at the time of distnbution as subject to recall; and (in) the amount distributed to a Partner pursuant to Section 7.2(c)(m) (excluding any interest component) with respect to a pnor Capital Contnbution by such Partner and which such distnbution was identified at the time of distnbution as subject to recall.
"Permitted Transfer" means a transfer or assignment for which (X) the General Partner has determined in good faith that such assignment or transfer is being made to an Affiliate of a Limited Partner, or (Y) such assignment or transfer is to a successor trustee of a Limited Partner that is a trust or a trustee of a trust.
"Person" means any individual, partnership, limited liability company, corporation, trust or other entity.
"Portfolio Company" means an issuer of secunties (other than short term investments) owned by the Partnership.
"Portfolio Security" means the secunties of a Portfolio Company owned by the Partnership.
"Prime Rate" means the prime rate reported from time to time in the "Money Rates" (or successor) section of the Wall Street Journal.
"Record Date" shall have the meaning specified in Section 8.2(d).
"Release Date" shall have the meaning specified in Section 18.6(b).
"Required Capital" in respect of (1) any Partner means an amount equal to its Commitment, and (n) all Partners means the sum of the Commitments of all Partners.
"Rule" shall have the meaning specified in Section 8.2(b) (u).
"Secretary of State" means the Secretary of State of the State of Delaware.
"Securities Act" means the Secunties Act of 1933, as amended from time to time.
"Step Down Date" shall have the meaning specified in Section 9.9(a).
"Subscription Agreement" means each subscnption agreement executed by the Partnership and each Limited Partner, relating to such Limited Partner's investment in the Partnership.
"Substituted Limited Partner" means any Person admitted to the Partnership as a Limited Partner pursuant to Section 12.2(b) of this Agreement.
"Suspension Period" shall have the meaning specified in Section 7.6.
"Total Commitments" means as of the Final Closing Date of the Partnership, the aggregate Commitments.
"Treasury Regulations" means the final, temporary or proposed Treasury Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
"Two-thirds in Interest of the Limited Partners" means Limited Partners holding two-thirds or more of the Limited Partners' Voting Interests.
"UBTI" means "unrelated business taxable income" as that term is defined in Section 512 of the Code.
"Unfunded Commitment" means, with respect to any Partner as of any date, (a) the excess, if any, of (1) the amount of such Partner's Commitment, over (11) such Partner's aggregate Capital Contnbutions previously made plus (b) all Permitted Reinvestment Amounts with respect to such Partner as of such date; so long as, notwithstanding any of the foregoing, the total Capital Contnbutions by any Partner shall not exceed 110% of such Partner's Commitment.
"Unit" means a limited partner interest in the Partnership representing a contribution (or a combination of actual contribution and commitment to contribute) in cash in the amount of $100,000 to the capital of the Partnership by a Limited Partner, as such. The Partnership may issue fractional Units.
"Venture Capital Operating Company" means a "venture capital operating company" within the meaning of the regulations of the Department of Labor (29 CFR Section 2510.3401(d)).
"Voting Interest" shall mean all interests of a Limited Partner other than a "Non-Voting Interest."
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APPENDIX - SECTION 1. DEFINED TERMS